Review of the Prison Litigation Reform Act: A Decade of Reform or an Increase in Prison and Abuses

This testimony by Margo Schlanger before the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security, discussed the American Bar Association’s top suggestions for Prison Litigation Reform Act (PLRA) reforms. This testimony provides context for Standard 115.52 Exhaustion of administrative remedies.

First, the PLRA’s ban on awards of compensatory damages for “mental or emotional injury suffered while in custody without a prior showing of physical injury” has obstructed judicial remediation of religious discrimination, coerced sex, and other constitutional violations typically unaccompanied by physical injury, undermining the regulatory regime that is supposed to prevent such abuses.

Second, the PLRA’s provision barring federal lawsuits by inmate plaintiffs who have failed to comply with their prisons’ internal grievance procedures—no matter how onerous, futile, or dangerous such compliance might be for them—obstructs rather than incentivizes constitutional oversight of conditions of confinement. It strongly encourages prison and jail authorities to come up with ever higher procedural hurdles in order to foreclose subsequent litigation.

Third, the application of the PLRA’s limitations to juveniles incarcerated in juvenile institutions has rendered those institutions largely immune from judicial oversight, because so many young people are not able to follow the complex requirements imposed by the statute, and compliance by their parents or guardians on their behalf has been deemed legally insufficient. Each of these three problems disrupts accountability and enforcement of constitutional compliance.

And finally, a provision of the PLRA that many have read to ban enforceable injunctive settlements unless defendants confess liability for violations of federal law undermines both the availability and effectiveness of court oversight.