Impunity for Law Enforcement Must End. That Includes Officers in Jails and Prisons.

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

After the police killing of George Floyd in Minneapolis, protesters around the country have issued a number of demands to bring greater accountability to law enforcement. Perhaps none has received more national attention than abolishing qualified immunity.

For years, advocates from across the ideological spectrum have taken issue with the controversial legal doctrine, which protects public officials from being held accountable for violating an individual’s civil rights unless that official’s conduct was in violation of “clearly established” law. Critics argue that qualified immunity effectively shields law enforcement and other public officials from legal accountability for just about all official misconduct. 

In June, U.S. Representatives Ayanna Pressley, a Democrat, and Justin Amash, a Libertarian, introduced a bill to Congress that would end qualified immunity altogether, and today a majority of Americans support eliminating its application to police officers.

Qualified immunity applies to correctional officers, too. But in our jails and prisons, it’s only one reason why officers can brutalize those in their custody without meaningful fear of consequence. 

Even before reaching the question of qualified immunity, victims of brutality by prison staff often see their attempts to hold officers accountable stymied by a web of legislation, legal doctrines, and practical realities. Most notable among these roadblocks is the Prison Litigation Reform Act. Passed during the Clinton-era surge in incarceration across the country, the law created a number of extremely complex, often insurmountable obstacles for incarcerated people to meet before their claims can make it to a federal courthouse. 

For one, the law requires that incarcerated people exhaust all institutional grievance procedures at the facility where they’re held—without missing a filing deadline and no matter how drawn out that process—before bringing their claim to a federal court. This requirement, said Daniel Greenfield, a civil rights attorney with the MacArthur Justice Center, not only invalidates a tremendous number of claims before they’re properly heard, but also incentivizes facilities to make their internal grievance procedures as complex—or, according to one federal judge, “Kafkaesque”—as possible.

Maggie Filler, also of the MacArthur Justice Center, added that the law forces incarcerated people who have been brutalized to “complain to the system that abused them about the abuse.” Filing grievances in practice, she said, often means handing a complaint to the same officer who committed the abuse, or one of their supervisors or colleagues, and assuming a dangerous risk of retaliation.

The law also presents a significant roadblock for incarcerated people who suffer from mental or emotional injuries, Filler said. It requires plaintiffs to prove physical injury if they seek financial compensation from officials who violated their rights or subjected them to abuse. As a result, Filler said, prisoners who suffer from prison abuse often cannot hold those responsible accountable and seek compensation merely because they cannot show a “physical injury.”

“You can be in horrific conditions for 20 years and not have a broken bone to show for it,” she said. “Yet, you might have post-traumatic stress disorder and have been suicidal, and so clearly you have suffered serious harm and deserve to be compensated.”

The laws insulating prison staff from accountability go beyond qualified immunity and the PLRA. In 1978, the U.S. Supreme Court further extended impunity for law enforcement by providing legal protection to the employers of abusive public officials: cities and other municipalities. In Monell v. Department of Social Services of the City of New York, the court held that a municipality cannot be held responsible for the conduct of its employees unless the victim can prove that the conduct is part of an official policy or practice.

This case, said American Civil Liberties Union attorney Somil Trivedi, makes it much more difficult for victims of officer misconduct or abuse—who are already often unable to hold the individual officer accountable because of qualified immunity—to seek accountability from that officer’s employer. It also creates difficulties if victims seek institution-wide policy changes to prevent that abuse from recurring in the future. 

But Monell’s restrictions fall especially hard on victims of abuse in jails and prisons, where there “is a lack of access to information about the policies or patterns that are going on inside [that are needed] to prove that there’s a widespread problem,” he said.“They’re even less transparent than police departments.”

The impunity that law enforcement and prison staff who commit violence enjoy cannot be rolled back piecemeal, through processes of reform, compromise, and chipping away at doctrines and legislation. It is the product of a legal system that fundamentally views the disproportionately Black, Native, and Latinx people behind bars as deserving of “only the bare necessities demanded of a civilized society,” said Greenfield.

This judgment, he added, is reflected in all prisoner rights litigation but has its roots in the Constitution. Under American civil rights jurisprudence, “excessive force” claims by people in prison are held by courts to a more stringent standard than the same claims made by their peers on the outside. Whereas a victim of excessive force by a police officer must show that an abusive officer acted “unreasonably,” a victim of brutality behind bars must meet an additional hurdle, namely to prove that an officer acted with “malice or sadistic intent.”

After declining to revisit the doctrine of qualified immunity last month, the Supreme Court will be hearing arguments in October on a case related to excessive force by police on the outside. The court has continued to refuse, however, to address the Prison Litigation Reform Act and obstacles to accountability for those brutalized by excessive force behind bars.  

Meaningfully ending impunity for law enforcement and ensuring that all officers are subject to consequences when they enact violence against those in the street or in their custody requires more than any singular legislation, repeal, or favorable Supreme Court ruling. It requires rethinking fundamental judgements that underlie our entire legal system and reevaluating who in this country deserves basic rights, justice, and accountability for harm.

For those in jails and prisons, that means having the right to seek any of those in the first place.

Joshua Manson is a writer and researcher based in Brooklyn, New York.