Steven Zick was 16 when he was subjected to “initiation” in the South Bend, Indiana juvenile jail. For Steven, “initiation” meant being beaten so badly by the other kids that he had a seizure. When guards found Steven twitching and foaming at the mouth, they did nothing. He was assaulted again the next day, starting a pattern of repeated beatings that continued for months. Once, he was beaten with a sock filled with padlocks; another time, he was raped. By the time he left juvenile detention, Steven was on suicide watch.
Guards knew what was happening—the assaults were often captured by security cameras—and they provided Steven with medical attention. But Steven never filed an official report, because he knew that the beatings were nothing compared to the pain he would endure if he filed an official complaint. Fellow inmates might label him a “snitch,” and guards would think he was a troublemaker and target him. In fact, guards were often complicit in the violence, arranging for the children to fight each other, even sometimes handcuffing one child so others could beat him more effectively.
Steven ultimately filed suit against the correctional officials who were supposed to have kept him safe. But thanks to a statute called the Prison Litigation Reform Act, or PLRA, his suit was kicked out of court—not because he failed to prove his case, but because Steven had not “exhausted” his claims by filing an official report within the prison.
Passed in 1996 as the nation’s prison population was exploding thanks to the war on drugs, the PLRA was supposed to weed out the sort of frivolous prisoner litigation Congress perceived as bombarding the federal courts. Testimony of legislators urging the PLRA’s passage focused on sensationalized and largely mythical claims about “a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party, and, yes, being served chunky peanut butter instead of the creamy variety.” By dismissing real cries for help as frivolous, disingenuous, and opportunist, lawmakers built the PLRA on dehumanizing and inaccurate stereotypes of incarcerated men and women.
In the 25 years since, it has become clear that the PLRA is reducing prisoner litigation—but not just by targeting frivolous claims. Instead, the PLRA consistently chokes off meritorious and frivolous litigation alike, leaving incarcerated people without the means to preserve life and limb in the dangerous and overcrowded jails and prisons where we send them to live, and gutting the Supreme Court’s assurance that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.”
Why The PLRA Matters
Congress passed the PLRA because the federal courts complained that they were being inundated by civil rights lawsuits brought by incarcerated plaintiffs. From 1980 to 1995, the U.S. prison and jail population more than tripled, while the federal judiciary—the branch entrusted with oversight of our nation’s prisons and jails—grew at a snail’s pace. Even so, the rate of filing stayed relatively consistent. Incarcerated people weren’t becoming more litigious—there were simply more of them.
Judged against the goal of reducing prisoner litigation, the PLRA worked: In the year after the PLRA was enacted, the rate of civil rights lawsuits filed by incarcerated plaintiffs fell by nearly half. But if the goal was to somehow weed out “frivolous” lawsuits in favor of meritorious claims, then, presumably, there would have been at least some increase in the rate of successful civil rights lawsuits by incarcerated plaintiffs. Not so. Instead, the success rate of civil rights lawsuits for incarcerated plaintiffs steadily dropped after the enactment of the PLRA and despite a recent uptick is nearly identical to the success rate pre-PLRA.
Instead of preserving judicial resources, the PLRA has helped to preserve cruel and inhumane conditions inside America’s prisons and jails. With the courthouse doors effectively closed, incarcerated people have few means to challenge or expose the dire conditions in which they are forced to live. Lawsuits offer more than a legal remedy. They also create a public record, providing essential information about an environment that is otherwise literally walled off from public view. Without access to courts, not only are individual harms never redressed, but broader systemic reform remains out of reach. Dangerous living conditions, the psychological horrors of solitary confinement, beatings and rape, disastrous healthcare—all are concealed from view and persist unchecked.
How the PLRA Works
The PLRA blocks claims primarily through three particular provisions—the exhaustion provision, the three strikes provision, and the physical injury provision—each of which has slammed shut the courthouse doors to thousands upon thousands of litigants without regard to whether their claims are frivolous or meritorious.
What It Means To Exhaust A Claim
Start with the PLRA’s “exhaustion” provision, the reason Steven was kicked out of court. Under that provision, an incarcerated plaintiff (even a child enduring Lord-of-the-Flies-level abuse) cannot file a suit in federal court—no matter how meritorious—unless he has exhausted available administrative remedies within the prison itself. That means filing an official complaint with prison officials, strictly following whatever byzantine administrative rules and deadlines are in place, and then waiting for that complaint to fail before bringing a lawsuit.
In theory, requiring “exhaustion” ensures that the prison itself has a chance to fix whatever’s gone wrong before a court gets involved. In practice, it often sinks righteous claims. And that’s true even where, as in Steven’s case, a detention facility knows exactly what’s going on and demonstrates that it has no intention of fixing the situation.
Courts reviewing exhaustion typically give no consideration to an individual prisoner’s circumstances. In one case, a person could not timely file a grievance because he was in a coma. In another, a person’s “alleged blindness” was no excuse for failing to exhaust. And the court that kicked out Steven’s claim gave no weight to the fact that Steven was a child who risked further brutality if he “snitched.”
And many prison grievance systems would make even an adult’s head spin. One aghast federal judge described Michigan’s prison grievance process as “a classic case of Orwellian doublethink.” Many prisons, for example, require grievances to be filed almost immediately after the incident. In Steven’s case, the department of corrections allowed only two days, never mind that a child recovering from a beating or rape may not have the presence of mind to even procure a pen or paper in that time, let alone draft a grievance. And the rules about what goes into a grievance are often specific, bordering on nonsensical. One court kicked a case because the grievance did not specify “when and where” the incident occurred. But the “incident” was a failure to investigate, so asking “when and where” that lack of investigation took place gets into some strange metaphysics. Some plaintiffs have been dinged for submitting a form to the “inmate appeals branch” rather than the “appeals coordinator,” and for filing an “administrative appeal” rather than a “disciplinary appeal.” Under such strictures, “properly” exhausting a complaint often verges on the impossible.
Moreover, exhausting a claim within a prison’s internal system often requires complaining to the very guards who perpetrated the atrocity. People have reported being transferred to a less desirable prison and attacked by guards in retaliation for filing a grievance. In theory, the Supreme Court has held that a grievance process is not “available,” and therefore exhaustion is not required, if guards engage in intimidation. In practice, courts have interpreted that exception so stringently as to make it meaningless. One judge found that a grievance process was still “available” when a guard called the complaining person into his office, brandished a knife, and said, “you ain’t leaving this office until you withdraw this bullshit complaint.” The court said that the guard didn’t technically threaten to use his knife, and noted that discussions with prison guards “may not always be pleasant.” Another judge found that slamming a cell’s feeding slot on a person’s hand and threatening to transfer him to a facility where “he might not survive” didn’t render a grievance process “unavailable.”
The “Three Strikes” Rule
Life behind bars is surprisingly expensive. From local phone calls priced as if they were transatlantic (in Michigan, calls from jail cost nearly $1 per minute) to staple goods that rival pricing in upscale neighborhoods (a small bottle of shampoo that costs $1.29 in a Cambridge drug store retails in Massachusetts prisons for $1.38), an overwhelmingly poor population is made poorer by prison retail policies. And prisons and jails famously pay peanuts to those incarcerated people lucky enough to have a job. In Massachusetts, the same incarcerated people paying free-world prices for basic hygiene products earn a decidedly non-free world wage—between 89 cents and $6.35 a day.
Notwithstanding this poverty, federal courts charge an arm and a leg to those who seek their protection. Just initiating a federal civil rights lawsuit costs almost $400. Monthly payment plans are available, but, thanks to a PLRA provision known colloquially as the “three-strikes” rule, not everyone has that option. In plain English, that provision holds that incarcerated people who have had three previous cases dismissed on the basis of frivolousness, maliciousness, or for failing to state a claim—i.e., three “strikes”—cannot pay their filing fee in installments. So-called “three-strikers” who cannot cobble together the filing fee up front are out of luck.
Even if that doesn’t sound unreasonable in theory, the reality is that virtually any lawsuit might result in a “strike.” Dismissing civil suits for “failure to state a claim,” a technical term under the Federal Rules of Civil Procedure, is a routine matter in federal court, something that happens to cases brought by the best and brightest lawyers in the country. Indeed, as of this writing, nearly one third of the civil cases that the United States Supreme Court will review this term had been dismissed for failure to state a claim.
And even dismissals that district courts label as “frivolous” often are no such thing. One man who was placed in solitary confinement in 1989 filed a suit in 2014 alleging that a quarter century of isolation had turned him suicidal. His allegations were far from frivolous—in fact, a court of appeals would later hold that they had merit. But the district court nonetheless dismissed his claims as frivolous and assessed him a strike.
The one exception to the three strikes provision is for people in “imminent danger of serious physical injury,” but that exception is rarely applied because federal judges—not the actual people contending with such danger—determine whether the risk they face is sufficiently “imminent” and sufficiently “serious” to merit relief. Danger, like beauty, is in the eye of the beholder.
For example a “three-striker” housed with the Alabama Department of Corrections, one of the most deadly prison systems in the country, was seriously and repeatedly assaulted by prison guards. He was hit in the face so hard his tooth cut a hole in his lip; a nurse called him a “walking bruise.” He appealed to a federal court to transfer him into protective custody and for that, guards attacked him again and threatened to kill him. Even though he told the judge he was in “imminent danger” as demonstrated by the regular beatings, the court held that there was no immediate or serious threat to justify an exception to the three strikes rule.
Or consider the “three-striker” who was held in extreme solitary confinement for nearly a decade. As a consequence of his extreme isolation, his mental health deteriorated, and he attempted suicide on several occasions. Fearing that another attempt was around the corner, he sued for release from solitary confinement and to obtain the care necessary to restore his mental health. But the judge held that he was not in “imminent danger of serious physical injury” because his suicide attempts amounted to self-inflicted injury, which didn’t count.
The Physical Injury Requirement
Even prisoners who properly exhaust and make it through the three-strikes gauntlet still face daunting PLRA challenges. Consider the physical injury provision. That provision says that if a prisoner files a lawsuit alleging “mental or emotional injuries,” they cannot recover—that is, receive a monetary award—unless they’ve also shown a “physical” injury. The threat of paying money to a plaintiff in any case is theoretically supposed to deter bad behavior. But if prison officials don’t have to worry about that threat, then there’s no incentive for them to stop their own bad behavior or intervene in the behavior of others.
Take, for example, Jimmy Searles’s complaint that prison officials in Kansas refused to allow him to receive a kosher diet, an essential element of his practice of Judaism. For nearly four months Searles was forced to eat the non-kosher diet provided to him. The First Amendment guarantee of the freedom of religious exercise is one of our country’s most fundamental constitutional ideals, and it was undisputed that prison officials prohibited Searles from fully practicing his faith. Yet, simply because Searles was incarcerated at the time he filed his complaint, he was required to prove first that he suffered a physical injury. But he could not. Being forced to violate deeply held religious convictions will very rarely leave physical scars, meaning that many courts routinely deny meaningful relief to prisoners with even meritorious First Amendment claims.
Or take the case of David Williams, incarcerated in an Arkansas state prison. After being attacked by another incarcerated person, Williams was placed in solitary confinement, ostensibly for his own protection. The Arkansas Department of Correction then “reviewed” his placement every 60 days, but officials merely rubber-stamped his ongoing isolation. As a result, Williams was kept in near-continuous solitary confinement—in his cell for 23 hours a day and deprived entirely of meaningful human contact—for 14 years. When Williams filed suit, a federal judge found that those meaningless reviews fell short of what due process requires and violated the Fourteenth Amendment. Yet, because the court held that 14 years of solitary was not a “physical injury,” Williams was barred from obtaining any sort of meaningful compensation.
And that’s not all. Even when plaintiffs are able to point to a physical harm, some courts have decided that the “physical injury” provision requires something more than, well, a physical injury. Courts have found that a person’s cuts, abrasions, swelling of the jaw, “trauma” to a leg, and “tenderness on his skull” from four separate assaults didn’t count as physical injuries because they weren’t serious enough. A guard who struck someone “in the head with an iron bar, punch[ed] him in the back and twist[ed] his neck,” causing “a loss of vision in his left eye,” got off scot-free for the same reason.
Repeal the PLRA
Access to courts matters for incarcerated persons. The federal courts are often the first, last, and only check against abuse, neglect, and brutality in prisons and jails. That abuse, neglect, and brutality aren’t the normal cost of being incarcerated, or at least shouldn’t be. They’re not imposed by a court as part of a punishment, and they aren’t condoned by the Constitution. But instead of making the federal court system more accessible to incarcerated plaintiffs, the PLRA created obstacles that even attorneys have difficulty navigating. Rather than discouraging frivolous lawsuits, the PLRA instead serves as an across-the-board hurdle for incarcerated plaintiffs, including those with important claims.
Whatever fears about a deluge of frivolous prison litigation motivated the PLRA’s passage, 25 years have made clear that the PLRA is simply a failure. So what’s to be done?
First, we need to repeal the Prison Litigation Reform Act. Repealing the PLRA is part of Congresswoman Ayanna Pressley’s criminal justice agenda and is contained in her People’s Justice Act. Other progressive legislators should follow suit. Access to courts is the key to other rights; without access, incarcerated people have no ability to shine a light on overcrowding, lack of medical care, rape, violence, or arbitrary abuses of power by correctional officials.
Congress should, at the very least, mitigate the most difficult to justify portions of the PLRA. A bipartisan group of congressmembers, including Mary Gay Scanlon, Hakeem Jeffries, John Katko, and Kelly Armstrong, recently introduced the Justice for Juveniles Act, which would exempt children like Steven from the requirements of the PLRA. And there should also be bipartisan support for modifying or abolishing the three provisions discussed above. Doing so would breathe new life into an ideal that is too often abandoned—that the Constitution protects even those our country has abandoned to the terrors of incarceration.
In another way that legal protections have lapsed at the prison gates, incarcerated people in 48 of 50 states do not have a vote. The rest of us do. It’s past time to force a conversation about how and why we kick incarcerated people out of court.