This is an adaptation of an article originally published on the NLG Blog, Struggles of Using Legal Recourse as a Path Toward Better Prison Conditions. Read the original and other blog pieces at nlg.org/blog.
By Lisa Drapkin, NLG Membership Director
It seems there could never be enough legal support to help the millions of prisoners seeking legal assistance. One of the reasons why there are not more lawyers to help prisoners with civil suits is because of the Prison Litigation Reform Act (PLRA), a federal law enacted in 1996 under President Clinton.
Congress enacted PRLA in response to a significant increase in prisoner litigation in the federal courts. A misconstrued case was supposedly the impetus, in which a prisoner filed suit over receiving crunchy peanut butter instead of creamy. However the facts of this case were incorrect, and instead it was about a prisoner not receiving a refund for a jar of peanut butter he returned. This is extremely legitimate because the majority of prisoners have little to no funds to their name.
According to the PLRA, before prisoners are allowed to challenge a condition of their confinement in federal court, they must first exhaust available administrative remedies by pursuing to completion whichever grievance or appeal procedures the prison administration provides. Even a lawyer cannot act until the individual goes through several bureaucratic layers.
Prisoners cannot file a lawsuit for mental or emotional injury without also showing physical injury, which can lead to abuse to occur without accountability. At least in 2013, with the Violence Against Women Act, the PLRA was amended to include sexual assault even if physical injury is not medically apparent. In addition, the PLRA limits the court’s ability to make prison officials pay for attorneys’ fees if they lose a case – which means there is no monetary incentive for lawyers to take them.
The repeal of PLRA would be an important step towards accountability. Prisoners might gain a greater sense of dignity by having a more attainable legal method of recourse, and more lawyers might be willing to represent prisoners in civil suits if they could expect to be compensated for their work.
Creating change on a larger scale requires not only legal recourse, but also organized resistance. A good example of this is the California hunger strike of 2013.
The initial coordinated CA hunger strike was in 2011, when over 12,000 prisoners and supporters across the state protested the inhumane conditions of the SHU (Segregated Housing Unit). Following the strike, their demands for reform had not been met, and so another coordinated hunger strike was held in 2013, involving 30,000 CA prisoners. The strike spread to prisons in other states and even other countries. There were many outside calls for solidarity, and mainstream media news coverage of the largest hunger strike in history raised awareness among the public at large.
Simultaneously, Ashker v. Governor of California, brought by the Center for Constitutional Rights (CCR), held that prolonged solitary violates the Eighth Amendment, and charged that prisoners were denied any meaningful review of their SHU placement, such as those imposed based merely on a prisoner’s alleged association with a prison gang. The named plaintiffs included several leaders and participants from the hunger strikes.
In 2015, the plaintiffs and the State of California agreed on a landmark settlement that ended the use of indeterminate solitary confinement across the state as well as the use of “gang affiliation” as a basis for placing people in isolation. Several other key reforms were made related to the use of solitary. The weight of the resistance movement in conjunction with the courtroom battle was necessary in order for such a meaningful result to occur.
Two years later, CCR found violations continued, including hundreds of prisoners formerly held in SHU being transferred to Level IV prisons with very similar conditions. Because a legal settlement did not provide instant relief for all, coordinated efforts to resist solitary confinement from the inside and outside are still needed. Projects like the NLG San Francisco Chapter’s Prisoner Advocacy Network (PAN), established following the hunger strikes, seek to strengthen these efforts through individualized advocacy for prison activists.
Whether at the individual or large-scale level, attempts to use legal recourse as a path toward better prison conditions will face many obstacles. Of course, there are other approaches that do not involve the law, as seen by recent prison riots and uprisings.
Legal advocates should not lose sight of dismantling the PLRA as a goal. Despite the barriers, it’s clear that prisoners – from jailhouse lawyer to strike organizer – have found ways to fight for the humanity they deserve. In turn, they will continue to need as many outside supporters in solidarity as they can get.