AMERICAN BAR ASSOCIATION
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STATEMENT
OF
MARGO SCHLANGER
PROFESSOR OF LAW,
WASHINGTON UNIVERSITY IN ST. LOUIS
ON BEHALF OF THE
AMERICAN BAR ASSOCIATION
PRESENTED TO THE
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND
SECURITY
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES
AT THE HEARING ENTITLED
"Review of the Prison Litigation Reform Act: A Decade of Reform or an
Increase in Prison and Abuses?"
NOVEMBER 8, 2007

Chairman Scott, Congressman Forbes, and members of the Subcommittee, thank you for
the invitation to testify about the urgent problems created by the Prison Litigation Reform Act, a
statute enacted in 1996. I am Margo Schlanger, Professor of Law at Washington University in St.
Louis and Director of the Civil Rights Litigation Clearinghouse. I appear today both to share my
own expertise in this area and as the representative of the American Bar Association (ABA) at
the request of its President, William Neukom. The ABA is the world’s largest voluntary
professional organization, with a membership of over 400,000 lawyers judges and law students
worldwide. The ABA continuously works to improve the American system of justice and to
advance the rule of law in the world.
The PLRA has successfully ameliorated the burden imposed on prisons and jails by
frivolous prisoner litigation, but it has simultaneously created major obstacles to accountability
and the rule of law within our nation’s growing incarcerative system. I am here to urge this
Committee to lift those obstacles, while leaving in place the salutary provisions of the statute. I
strongly urge the members of the Subcommittee, both personally and on behalf of the ABA, to
support Chairman Scott’s bill, the Prison Abuse Remedies Act of 2007, legislation that will
restore balance to the PLRA.
I have been working with the PLRA since the year of its enactment—first, as a trial
attorney in the U.S. Department of Justice Civil Rights Division, assisting with interpretation and
implementation of the new statute, and then, as a law professor, studying and writing about its
provisions and effects. I have published several articles that examine at perhaps undue length the
PLRA’s impact on both small and large cases brought by and on behalf of prisoners, canvassing
such issues as filing and success rates, the scope of injunctive remedies, and the like.1 Over the
years, the PLRA’s flaws have grown ever more evident, and as a result, I have also been working
recently with several groups to advocate for statutory change. I am a member of the Vera
Institute’s Commission on Safety and Reform in America’s Prisons, a blue ribbon panel chaired
by retired Court of Appeals Judge John Gibbons and former Attorney General Nicholas de B.
Katzenbach, and am also a member of the American Bar Association’s Corrections Committee
and the Reporter for the American Bar Association’s ongoing work to update its Standards
governing the Legal Treatment of Prisoners. Both the Commission and the ABA have endorsed
reform of the PLRA.2 I am submitting a copy of ABA recommendations approved by its House
of Delegates in February 2007 (attached) with a request that it be made part of the hearing
record.

1

Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555 (2003); Anne Morrison Piehl & Margo
Schlanger, Determinants of Civil Rights Filings in Federal District Court by Jail and Prison Inmates, 1
J. EMPIRICAL LEGAL STUD. 79 (2004); Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail
and Prison Court Orders, 81 N.Y.U. L. REV. 550 (2006); all available at http://schlanger.wustl.edu (follow link for
“publications”).
2

See COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS, CONFRONTING CONFINEMENT 84-87
(2006), available at http://prisoncommission.org/report.asp; American Bar Association, Resolution 102B (2007),
available
at
http://www.abanet.org/leadership/2007/midyear/docs/SUMMARYOFRECOMMENDATIONS/hundredtwob.doc.

1

Quite a few proposed reforms have surfaced in recent months. In this statement, I
canvass what seem to me the five most important. 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.
Below, I discuss these issues in some depth. But first it is important to mention what I
see as the primary salutary effect of the PLRA—its lightening of the burdens imposed on jails
and prisons by frivolous litigation. Prisoner lawsuits in federal court are numerous and often
frivolous, and pose real management challenges both for courts and for correctional authorities.3
The PLRA has ameliorated this problem in two ways. First, it has drastically shrunk the number
of cases filed: prison and jail inmates filed 26 federal cases per thousand inmates in 1995; the
most current statistic, for 2005, was just 11 cases per thousand inmates, a decline of nearly 60
percent.4 So the PLRA has been extremely effective in keeping down the number of federal
lawsuits by prisoners, even as prison populations rise. Even more important than these sharply
declining filing rates for understanding the decreasing burden of litigation for prison and jail
officials is the statute’s screening provisions,5 which require courts to dispose of legally
insufficient prisoner civil rights cases without even notifying the sued officials that they have
been sued or receiving any response. No longer need prison or jail officials investigate or
answer complaints that are frivolous or fail to state a claim under federal law.
But in addition to filing frivolous or legally insufficient lawsuits, prisoners do, of course,
file serious cases: cases involving life-threatening deliberate indifference by authorities to
prisoner health and safety; sexual assaults; religious discrimination; retaliation against those who
3

See Schlanger, Inmate Litigation, supra note 1, at 1575-1627 for full discussion.

4

See U.S. DEPT. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, KEY CRIME & JUSTICE FACTS AT A GLANCE:
CORRECTIONAL POPULATIONS, available at http://www.ojp.usdoj.gov/bjs/glance/tables/corr2tab.htm (reporting 1.6
million inmates in American jails and prisons in 1995; by 2005, that number had increased by 38 percent, to 2.2
million); ADMINISTRATIVE OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS 132
(1997)
(reporting
prisoner
petitions
in
table
C-2A),
available
at
http://www.uscourts.gov/judicial_business/c2asep97.pdf.
5

28 U.S.C. § 1915A(a).

2

exercise their free speech rights; and so on. When the PLRA was passed, Senator Hatch made a
point that its supporters emphasized, over and over: “[We] do not want to prevent inmates from
raising legitimate claims. This legislation will not prevent those claims from being raised. The
legislation will, however, go far in preventing inmates from abusing the Federal judicial
system.”6
Yet “prevent[ing] inmates from raising legitimate claims” is precisely what the PLRA has
done in many instances. If the PLRA were successfully “reduc[ing] the quantity and improv[ing]
the quality of prisoner suits,”7 as its supporters intended, one would expect the dramatic decline
in filings to be accompanied by a concomitant increase in plaintiffs’ success rates in the cases
that remain. The evidence is quite the contrary. The shrunken inmate docket is less successful
than before the PLRA’s enactment; more cases are dismissed, and fewer settle.8 An important
explanation is that constitutionally meritorious cases are now faced with new and often
insurmountable obstacles. The resulting harm is not only to the claimants in the particular cases
that have been dismissed notwithstanding their constitutional merit.
As a nation, we are committed to constitutional regulation of governmental treatment of
even those who have broken society’s rules. And accordingly most of our prisons and jails are
run by committed professionals who care about prisoner welfare and constitutional compliance.
Over the past ten years, it has become apparent that a number of the PLRA’s provisions cast
shadows of constitutional immunity, contravening our core commitment to constitutional
governance. The resulting harm is not merely to the affected prisoners but to the entire system of
accountability that ensures that prison and jail officials comply with constitutional mandates.
The erection of hurdles to accountability should not be seen as “reducing the burden” for
correctional administrators—it should be recognized as weakening the rule of law behind bars.
It has, in short, become clear that the PLRA is undermining the rule of law in America’s prisons,
even as those prisons have grown in their importance—both because of the increasing
incarcerated population9 and the sharpening international focus on American treatment of
prisoners, both domestically and abroad. Amendment is urgently needed.

6

141 Cong. Rec. S14,627 (daily ed. Sept. 29, 1995) (statement of Sen. Hatch) (“The crushing burden of
these frivolous suits makes it difficult for the courts to consider meritorious claims.”); see also 141 Cong. Rec.
S19,114 (daily ed. Dec. 21, 1995) (statement of Sen. Kyl) (“If we achieve a 50-percent reduction in bogus Federal
prisoner claims, we will free up judicial resources for claims with merit by both prisoners and nonprisoners.”), 141
Cong. Rec. S18,136 (daily ed. Dec. 7, 1995) (statement of Sen. Hatch), 141 Cong. Rec. H1480 (daily ed. Feb. 9,
1995) (statement of Rep. Canady) (“These reasonable requirements will not impede meritorious claims by inmates
but will greatly discourage claims that are without merit.”).
7

Porter v. Nussle, 534 U.S. 516, 524 (2002).

8

See Schlanger, Inmate Litigation, supra note 1, at 1644-1664.

9

See U.S. DEPT. OF JUSTICE OFFICE OF JUSTICE PROGRAMS BUREAU OF JUSTICE STATISTICS, KEY CRIME &
JUSTICE
FACTS
AT
A
GLANCE:
CORRECTIONAL
POPULATIONS
http://www.ojp.usdoj.gov/bjs/glance/tables/corr2tab.htm (reporting 1.6 million inmates in American jails and
prisons in 1995; by 2005, that number had increased by 38 percent, to 2.2 million).

3

1) Physical injury.
The PLRA provides that inmate plaintiffs may not recover damages for “mental or
emotional injury suffered while in custody without a prior showing of physical injury.”10 Given
the commitment by the Act’s supporters that constitutionally meritorious suits would not be
constrained by its provisions, perhaps the purpose of this provision was the limited one of
foreclosing tort actions claiming negligent or intentional infliction of emotional distress unless
they resulted in physical injury, which might have otherwise been available to federal prisoners
under the Federal Tort Claims Act. (This kind of limitation on such tort causes of action is fairly
common under state law.11)
Notwithstanding what may have been the limited intent underlying the physical injury
requirement, its impact has been much more sweeping. First, many courts have held that the
provision covers all personal injury, including violations of non-physical constitutional rights.12
Proven violations of prisoners’ religious rights, speech rights, and due process rights have all
been held non-compensable, and thus placed largely beyond the scope of judicial oversight. For
example, in Searles v. Van Bebber,13 the Tenth Circuit concluded that the physical injury
requirement barred a suit by a Jewish inmate who alleged a First Amendment violation based on
his prison’s refusal to give him kosher food. This result is particularly difficult to understand in
light of Congress’s notable concern for prisoners’ religious freedoms. The Religious Land Use
and Institutionalized Persons Act14 passed in 2000, states that “No government shall impose a
substantial burden on the religious exercise of a person residing in or confined to an institution,”
unless the burden furthers “a compelling governmental interest,” and does so by “the least
restrictive means.”
Moreover, although the case law is far from uniform, some courts have deemed sexual
assault not to constitute a “physical injury” within the meaning of the PLRA. In Hancock v.
Payne,15 a number of male prisoners alleged that over several hours, a corrections officer
sexually assaulted them. “Plaintiffs claim that they shared contraband with [the officer] and that
he made sexual suggestions; fondled their genitalia; sexually battered them by sodomy, and
committed other related assaults.” The plaintiffs further complained that the officer “threatened
10

42 U.S.C. § 1997e(e).

11

See, e.g., Dale Joseph Gilsinger, Annotation, Recovery Under State Law for Negligent Infliction of
Emotional Distress Under Rule of Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968), or
Refinements Thereof, 96 A.L.R.5th 107 § 6 (2002) (citing cases from 9 states).
12

See, e.g., Thompson v. Carter, 284 F.3d 411, 416-17 (2d Cir. 2002) (no compensation available for
violation of due process rights); Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000) (no compensation available for
violation of religious rights); Royal v. Kautzky, 375 F.3d 720, 722-23 (8th Cir. 2004) (no compensation available for
retaliation for exercise of free speech rights); Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (no
compensation available for violation of religious rights); Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C.
Cir. 1998) (no compensation available for violation of constitutional privacy rights). But see Cannell v. Lightner,
143 F.3d 1210, 1214-15 (9th Cir. 1997) (stating that PLRA “does not preclude actions for violations of First
Amendment rights.”).
13

251 F.3d at 872, 876.

14

42 U.S.C. § 2000cc-1(a)(1)-(2).

15

2006 WL 21751 (S.D. Miss.).

4

Plaintiffs with lockdown or physical harm should the incident be reported.” The district court
granted summary judgment in part to the defendants. One of the grounds for this defense victory
was the physical injury requirement. The federal district court said, “the plaintiffs do not make
any claim of physical injury beyond the bare allegation of sexual assault.” In other words, in the
view of this district court, not even coerced sodomy (which was alleged) constituted physical
injury. Though some other courts have decided the question differently, the Hancock court is not
alone in reaching this conclusion.16 As with religious rights, this outcome exists in sharp tension
with Congress’s recent efforts to eliminate sexual violence and coercion behind bars by passing
the Prison Rape Elimination Act of 2003.17
Finally, in case after case, courts have held even serious physical symptoms insufficient
to allow the award of damages because of the PLRA’s physical injury provision.18 In one case, a
plaintiff alleged that the defendant correctional officer “punch[ed ] Plaintiff repeatedly in his
abdominal area, pushed Plaintiff's head down and repeatedly punched Plaintiff with his right
hand in the back of his head, hit Plaintiff on his left ear, placed Plaintiff's head between his legs
and grabbed Plaintiff around his waist and picked the Plaintiff up off the ground and dropped
Plaintiff on his head.” The plaintiff further alleged that he “sustained bruises on [his] left ear,
back of [his] head and swelling to the abdominal area of his body.” Nonetheless, the district
court held the claim insufficient under the PLRA’s physical injury provision.19 In another,
burns to the plaintiff’s face were deemed insufficient, because those burns had “healed well,”
leaving “no lasting effect.”20
The point is that 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 made
it far more difficult for prisoners to enforce any non-physical rights—including freedom of
religion and freedom of speech—and to seek compensation for any mental rather than physical
harm, no matter how intentionally, even torturously, inflicted. (This aspect of the law has, in

16

See Smith v. Shady, 2006 WL 314514 at *2 (M.D. Pa. 2006) (“ … Plaintiff’s allegations in the complaint
concerning Officer Shady grabbing his penis and holding it in her hand do not constitute a physical injury or mental
symptoms.”). See generally DEBORAH M. GOLDEN, THE PRISON LITIGATION REFORM ACT – A PROPOSAL FOR
CLOSING THE LOOPHOLE FOR RAPISTS (June 2006) available at www.acslaw.org/files/Golden%20%20Rape%20and%20PLRA%20white%20paper.pdf. But see Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999)
(sexual assault constitutes physical injury within the meaning of the PLRA).
17

42 U.S.C. § 15602 et seq.

18

See Jarriett v. Wilson, 414 F.3d 634 (6th Cir. 2005) (concluding that inmate confined for twelve hours in
“strip cage” in which he could not sit down did not suffer physical injury even though he testified that he had a “bad
leg” that swelled “like a grapefruit” and that caused severe pain and cramps); Myers v. Valdez, 2005 WL 3147869 at
*2 (N.D. Tex. 2005) (concluding that alleged “pain, numbness in extremities, loss of mobility, lack of sleep, extreme
tension in neck and back, extreme rash and discomfort” did not satisfy PLRA physical injury requirement); Mitchell
v. Horn, 2005 WL 1060658 at *1 (E.D. Pa. 2005) (reported symptoms including “severe stomach aches, severe
headaches, severe dehydration . . . and blurred vision,” suffered by inmate confined in cell allegedly “smeared with
human waste and infested with flies” did not constitute physical injury for PLRA purposes).
19

Borroto v. McDonald, 2006 WL 2789152 (N.D. Fla. 2006).

20

Brown v. Simmons, 2007 WL 654920 (S.D. Tex. 2007).

5

fact, convinced at least one district court to hold it unconstitutional21 and others to save the
provision from constitutional infirmity by reading it not to bar relief.22) The PLRA has left the
availability of compensatory damages for the constitutional violation of coerced sex an open
question. It has posed an obstacle to compensation even for physical violence, if the physical
component of the injury is deemed insufficiently serious. It has thereby undermined the
important norms that such infringements of prisoners’ rights are unacceptable. Just as it
contradicts constitutional commitments, the PLRA is simultaneously obstructing Congress’s
recent efforts to protect prisoners’ religious liberty, as well as freedom from rape.
2) Administrative Exhaustion
The PLRA’s exhaustion provision states: “no action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.”23 The provision appears harmless enough. Who could object, after
all, to a regime in which corrections officials are given the first opportunity to respond to and
perhaps resolve prisoners’ claims?
But in many jails and prisons, administrative remedies are, unfortunately, very difficult to
access. Deadlines may be very short, for example, or the number of administrative appeals
required very large.24 The requisite form may be repeatedly unavailable,25 or the prisoner may
fear retaliation for use of the grievance system (which often require that prisoners get grievance
forms from, or hand them to the very officer whose conduct is the subject of their complaint).26
21

See, e.g., Siggers-El v. Barlow, 433 F.Supp.2d 811 (E.D. Mich. 2006), holding the PLRA’s physical
injury provision unconstitutional “to the extent it precludes First Amendment claims such as the one presented in
this case” and noting:
The Court finds the following hypothetical, set forth in Plaintiff's brief, to be persuasive:
‘[I]magine a sadistic prison guard who tortures inmates by carrying out fake executions-holding an
unloaded gun to a prisoner's head and pulling the trigger, or staging a mock execution in a nearby cell, with
shots and screams, and a body bag being taken out (within earshot and sight of the target prisoner). The
emotional harm could be catastrophic but would be non-compensable. On the other hand, if a guard
intentionally pushed a prisoner without cause, and broke his finger, all emotional damages proximately
caused by the incident would be permitted.’
Id. at 816 (case settled prior to decision on appeal).
22

Percival v. Rowley, 2005 WL 2572034 at *2 (W.D. Mich. 2005) (“To allow section 1997e(e) to
effectively foreclose a prisoner’s First Amendment action would put that section on shaky constitutional ground.”).
23

42 U.S.C. § 1997e(a).

24

See Brief for Jerome N. Frank Legal Services Organization of the Yale Law School as Amicus Curiae
Supporting Respondent, Woodford v. Ngo, 126 S. Ct. 2378 (2006) (No. 05-416) at 6-13, 2006 WL 304573 at *6-*13
and A1-A7 for a survey of prison and jail grievance policy deadlines.
25

See, e.g., Latham v. Pate, 2007 WL 171792 (W.D. Mich. 2007) (dismissing suit due to tardy exhaustion
in case in which inmate alleged beating; inmate maintained that he had been placed in segregation and
administrative segregation immediately following assault and that “officers did not provide him with the grievance
forms”).
26

See, e.g., Umstead v. McKee, 2005 WL 1189605 (W.D. Mich. 2005) (“it is highly questionable whether
threats of retaliation could in any circumstances excuse the failure to exhaust administrative remedies”); Garcia v.
Glover, 197 Fed. Appx. 866, 867 (11th Cir. 2006) (refusing to excuse non-exhaustion in case in which inmate

6

Sometimes, the grievance system seems not to cover the complaint the prisoner seeks to make.27
Or a prisoner may be unable to fill out a grievance because he is in the hospital.28 Beginning six
years after the PLRA’s enactment, first some of the Courts of Appeals,29 and finally the Supreme
Court,30 held that the PLRA forever bars even meritorious claims from court if an inmate has
failed to comply with all of the many technical requirements of the prison or jail grievance
system.
This means that if prisoners miss deadlines that are often less than fifteen days and in
some jurisdictions as short as two to five days,31 a judge cannot consider valid claims of sexual
assault, beatings, or racial or religious discrimination. Moreover, the PLRA’s exhaustion
requirement has been held to grant constitutional immunity to prison officials based on
understandable mistakes by lay people operating under rules that are often far from clear.
Wardens and sheriffs routinely refuse to engage prisoners’ grievances because those prisoners
commit minor technical errors, such as using the incorrect form,32 sending the right
documentation to the wrong official,33 failing to name a relevant official in the complaint (even
if prison administrators have actual knowledge of that official’s role in the incident),34 or failing
to file separate forms for each issue, even if the interpretation of a single complaint as raising
two separate issues is the prison administration’s.35 Each such misstep by a prisoner bars
consideration of even an otherwise meritorious civil rights action.36
Far from encouraging correctional officials to handle the sometimes frivolous but
sometimes extremely serious complaints of inmates, the PLRA’s exhaustion rule actually
alleged that he had been beaten by five guards, despite the fact that prisoner alleged that he feared he would be
“killed or shipped out” if he filed an administrative grievance).
27

See, e.g., Marshall v. Knight, 2006 WL 3714713 (N.D. Ind. 2006) (dismissing, for failure to exhaust,
plaintiff’s claim that prison officials retaliated against him in classification and disciplinary decisions, even though
prison policy dictated that no grievance would be allowed to challenge classification and disciplinary decisions);
Benfield v. Rushton, 2007 WL 30287 (D.S.C. 2007) (dismissing suit by prisoner who alleged that he was repeatedly
raped by other inmates, due to untimely filing of grievance; prisoner had explained that he “didn’t think rape was a
grievable issue”).
28

See, e.g., Washington v. Texas Department of Criminal Justice, 2006 WL 3245741 (S.D. Tex. 2006)
(dismissing plaintiff’s claim for failure to file a grievance even though he was hospitalized and medically unable to
file during the time allowed by state policy).
29

See Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).

30

Woodford v. Ngo, 126 S. Ct. 2378 (2006).

31

Woodford, 126 S. Ct. at 2402 (Stevens, J., dissenting).

32

See, e.g., Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001).

33

See, e.g., Keys v. Craig, 160 Fed.Appx. 125 (3d Cir. 2005).

34

See, e.g., Williams v. Hollibaugh, 2006 WL 59334, at *5-*6 (M.D. Pa. 2006).

35

Harper v. Laufenberg, 2005 WL 79009, at *3 (W.D. Wis. 2005).

36

See Giovanna E. Shay & Johanna Kalb, More Stories of Jurisdiction-Stripping and Executive Power: The
Supreme Court’s Recent Prison Litigation Reform Act (PLRA) Cases, 29 CARDOZO L. REV. 291 (2007), available at
www.cardozolawreview.com/PastIssues/29.1_shay_kalb.pdf (reporting data on how many cases have been
dismissed on exhaustion grounds post-Woodford: “In a survey of reported cases citing Woodford, in the cases in
which the exhaustion issue was decided, the majority were dismissed entirely for failure to exhaust. All claims
raised in the complaint survived the exhaustion analysis in fewer than 15% of reported cases.”).

7

provides an incentive to administrators in the state and federal prison systems and the over 3000
county and city jail systems to fashion ever higher procedural hurdles in their grievance
processes. After all, the more onerous the grievance rules, the less likely a prison or jail, or staff
members, will have to pay damages or be subjected to an injunction in a subsequent lawsuit.37 In
fact, even when prison and jail administrators want to resolve a complaint on its merits, the
PLRA discourages them from doing so, and therefore actually undermines the very interest in
self-governance Congress intended to serve.38 Can anyone reasonably expect a governmental
agency to resist this kind of incentive to avoid merits consideration of grievances? The officials
in question are a varied group—elected jailers and sheriffs, appointed jail superintendents,
professional wardens, politically appointed commissioners. What they all have in common is an
understandable interest in avoiding adverse judgments against themselves or their colleagues.
Thus by cutting off judicial review based on an inmate’s failure to comply with his
prison’s own internal, administrative rules—regardless of the merits of the claim—the PLRA
exhaustion requirement undermines external accountability. Still more perversely, it actually
undermines internal accountability, as well, by encouraging prisons to come up with high
procedural hurdles, and to refuse to consider the merits of serious grievances, in order to best
preserve a defense of non-exhaustion.
Moreover, courts have been extremely rigorous in their application of the exhaustion
requirement, refusing the kinds of exceptions that are typically available under the exhaustion
doctrine in administrative law. For example, one court recently held that “The PLRA does not
excuse exhaustion for prisoners who are under imminent danger of serious physical injury, much
less for those who are afraid to confront their oppressors.”39 A rule requiring administrative
exhaustion, and punishing failure to cross every t and dot every i by conferring constitutional
immunity for civil rights violations, is simply unsuited for the circumstances of prisons and jails,
where physical harm looms so large and prisoners are so ill equipped to comply with legalistic
rules.

37

There is evidence that prisons and jails have headed in this direction. For example, in July 2002, in
Strong v. David, 297 F.3d 646 (7th Cir. 2002), the Seventh Circuit reversed the district court’s dismissal of a case
for failure to exhaust; in rejecting the defendants’ argument that the plaintiff’s grievances were insufficiently
specific, the court noted that the Illinois prison grievance rules were silent as to the requisite level of specificity.
Less than six months later, the Illinois Department of Corrections proposed new regulations that provided:
The grievance shall contain factual details regarding each aspect of the offender’s complaint including what
happened, when, where, and the name of each person who is the subject of or who is otherwise involved in
the complaint.
ILL. ADMIN. CODE tit. 20, § 504.810(b); see 26 Ill. Reg. 18065, at § 504.810(b) (Dec. 27, 2002) (proposing
amendment).
38

In fact, if an agency chooses to entertain an untimely grievance that merits examination, the agency is
barred from asserting a failure-to-exhaust defense at later time. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir.
2004), cert. denied, 125 S. Ct. 1589 (2005).
39

Broom v. Rubitschun, 2006 WL 3344997 (W.D. Mich. 2006).

8

Ideally, grievance systems actually improve agency responsiveness and performance, by
helping corrections officials to identify and track complaints and to resolve problems.40 But the
PLRA’s grievance provision instead encourages prison and jail officials to use their grievance
systems in another way—not to solve problems, but to immunize themselves from future
liability. Judicial oversight of prisoners’ civil rights is essential to minimize violations of those
rights, but the PLRA’s exhaustion provision arbitrarily places constitutional violations beyond
the purview of the courts.
It would be relatively simple to achieve the legitimate goal of allowing prison and jail
authorities the first chance to solve their own problems, without creating the kinds of problems
the PLRA has introduced. The exhaustion provision should not be eliminated, but rather
amended to require that prisoners’ claims be presented in some reasonable form to corrections
officials prior to adjudication, even if that presentment occurs after the prisons’ grievance
deadline. Filed cases could be stayed for a limited period of time to allow for administrative
resolution.
3) Coverage of juveniles
The PLRA applies by its plain terms to juveniles and juvenile facilities.41 But prisoners
under eighteen were not the sources of the problems the PLRA was intended to solve. Even
before the PLRA, juveniles accounted for very little prisoner litigation.42 This dearth of
litigation is not surprising. As the recent investigation into alleged sexual abuse in the Texas
juvenile system reminds us, although incarcerated youth are highly vulnerable to exploitation,43
they generally are not in a position to assert their legal rights.44 Juvenile detainees are young,
often undereducated, and have very high rates of psychiatric disorders.45 Moreover, youth
40

See LYNN S. BRANHAM, ET AL., LIMITING THE BURDENS OF PRO SE INMATE LITIGATION: A TECHNICALASSISTANCE MANUAL FOR COURTS, CORRECTIONAL OFFICIALS, AND ATTORNEYS GENERAL (American Bar
Association Criminal Justice Section 1997).
41

18 U.S.C. § 3626(g)(5) (“[T]he term ‘prison’ means any Federal, State, or local facility that incarcerates
or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of
criminal law.”).
42

Michael J. Dale, Lawsuits and Public Policy: The Role of Litigation in Correcting Conditions in Juvenile
Detention Centers, 32 U.S.F. L. REV. 675, 681 (1998) (As of 1998, “[t]here [were] less than a dozen reported
opinions directly involving challenges to conditions in juvenile detention centers.”).
43

Ralph Blumenthal, One Account of Abuse and Fear in Texas Youth Detention, N.Y. TIMES, March 8,
2007, at A19; Ralph Blumenthal, Investigations Multiplying in Juvenile Abuse Scandal, N.Y. TIMES, March 4, 2007
at 1.24. See also HUMAN RIGHTS WATCH & AMERICAN CIVIL LIBERTIES UNION, CUSTODY AND CONTROL:
CONDITIONS OF CONFINEMENT IN NEW YORK’S JUVENILE PRISONS FOR GIRLS (September 2006), available at
http://hrw.org/reports/2006/us0906/us0906webwcover.pdf.
44

Staci Semrad, Texas Ranger Tells of Prosecutor’s “Lack of Interest,” N.Y. TIMES, March 9, 2007, at
A20. (A sergeant in the Texas Rangers investigating abuses at the West Texas State School in Pyote told a
legislative committee that he “saw kids with fear in their eyes – kids who knew they were trapped in an institution
that would never respond to their cries for help.” The sergeant said he was unable to convince a local prosecutor to
take action.)
45

LOURDES M. ROSADO & RIYA S. SHAH, PROTECTING YOUTH FROM SELF-INCRIMINATION WHEN
UNDERGOING SCREENING, ASSESSMENT AND TREATMENT WITHIN THE JUVENILE JUSTICE SYSTEM 5 (2007) (“[S]ome
large scale studies suggest that as many as 65%-75% of the youth involved in the juvenile justice system have one or
more diagnosable psychiatric disorders.”), available at www.jlc.org/File/publications/protectingyouth.pdf.

9

incarcerated in juvenile facilities generally do not have access to law libraries or other sources of
information about the law that might enable them to sue more often. One court has even
observed, “[a]s a practical matter, juveniles between the ages of twelve and nineteen, who, on
average, are three years behind their expected grade level, would not benefit in any significant
respect from a law library, and the provision of such would be a foolish expenditure of funds.”46
As with unincarcerated children, when juveniles do bring lawsuits, or otherwise seek to
remedy any problems they face behind bars, it is very often their parents or other caretaking
adults who take the lead. It is, after all, parents’ ordinary role to try to protect their children. But
the PLRA’s exhaustion provision stymies such parental efforts, instead holding incarcerated
youth to an impossibly high standard of self-reliance. The case of Minix v. Pazera47 is a leading
example of the result. In Minix, a young man, S.Z., and his mother, Cathy Minix, filed a civil
rights suit for abuse that S.Z. endured while incarcerated as a minor in 2002 and 2003 in Indiana
juvenile facilities. While in custody, S.Z. was repeatedly beaten, once with “padlock-laden
socks.” After one beating, he suffered a seizure, but no one helped him, and he was beaten again
the next day. S.Z. was raped and witnessed another child being sexually assaulted. S.Z. was
afraid to report the assaults to staff—and his fear was natural enough in light of the fact that
some of the staff were involved in arranging fights between juveniles, or would even “handcuff
one juvenile so other juvenile detainees could beat him.”
Although S.Z. feared retaliation, Mrs. Minix made what the district court termed “heroic
efforts to protect her son.” She spoke with staff, and wrote to the juvenile judges. She
attempted to meet with the superintendent of one of the facilities, though she was prevented from
doing so by staff. She contacted the Department of Corrections Director and the Governor.
Ultimately, because of her efforts, S.Z. was “unexpectedly released on order from the
Governor’s office.”
Nonetheless, the district court dismissed the Minix family’s federal claims under the
PLRA’s exhaustion rule because S.Z. had not himself filed a grievance in the juvenile facility.
At the time, the Indiana juvenile grievance policy allowed incarcerated youths only two business
days to file a grievance.
Only two months after S.Z.’s suit was dismissed, the Civil Rights Division of the United
States Department of Justice concluded an investigation and confirmed that one of the Indiana
facilities where S.Z. had been assaulted, the South Bend Juvenile Facility, “fails to adequately
protect the juveniles in its care from harm,” and violated the constitutional rights of juveniles in
its custody. The federal government further concluded that the grievance system that S.Z. was
faulted for not using was “dysfunctional” and “contributes to the State’s failure to ensure a
reasonably safe environment.” 48

46

Alexander S. v. Boyd, 876 F. Supp. 773, 790 (D.S.C. 1995). See also Anna Rapa, Comment: One Brick
Too Many: The Prison Litigation Reform Act as a Barrier to Legitimate Juvenile Lawsuits, 23 T.M. COOLEY L. REV.
263, 279 (2006).

State

47

2005 WL 1799538 (N.D. Ind. 2005).

48

Letter from Bradley J. Schlozman, Acting Assistant Attorney General, to Mitch Daniels, Governor of the
of
Indiana
(Sept.
9,
2005),
available
at

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Incarcerated children and youths do not clog the courts with lawsuits, frivolous or
otherwise. Though they are often incapable of compliance with the tight deadlines and complex
requirements of internal correctional grievance systems, their lack of capacity should not
immunize abusive staff from the accountability that comes with court oversight. But those under
eighteen do not file many lawsuits, and are not the source of any problem the PLRA is trying to
solve. And they are particularly ill equipped to deal with its limits. They should be exempted
from its reach.
4) Settlement without a confession of liability
Under the PLRA not only must consent decrees be narrowly tailored to address the
alleged constitutional violations, but the violation must itself be the subject of a court
“finding.”49 Thus either a trial or some sort of stipulation relating to liability is necessary to
settle a jail or prison case with a court-enforceable decree. Unsurprisingly, defendant prison
officials are not happy to agree to such stipulations, which may even subject them to damages in
suits by other claimants. There are two results, both problematic. The first is wasteful litigation
when a settlement would otherwise be readily at hand; the second is settlements that are
unenforceable and therefore less effective.

*

*

*

Once again, I thank the Committee for granting me the privilege of testifying, and urge
speedy reform in this important area.

http://www.usdoj.gov/crt/split/documents/split_indiana_southbend_juv_findlet_9-9-05.pdf (quotes appear on pages
2, 3, and 7).
49

18 U.S.C. §§ 3626(a)(1)(A); (c)(1).

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