IX. The PLRA Violates Human Rights

Under the US Constitution, treaties signed and ratified by the United States “shall be the supreme law of the land.”[146] The United States has signed and ratified a number of human rights treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), the International Covenant on Civil and Political Rights (ICCPR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The United States has also signed, but not yet ratified, the Convention on the Rights of the Child (CRC).[147]

A bedrock principle of international human rights law is the equality of all persons before the law. Thus the ICCPR provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[148]

The ICCPR specifically provides that “[a]ll persons shall be equal before the courts and tribunals.”[149] The PLRA’s restrictions on court access, which apply only to prisoners, are fundamentally at odds with these requirements.

A second foundational principle of human rights law relevant here is that persons whose rights have been violated are entitled to an effective remedy for that violation. The ICCPR requires that ratifying countries “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”[150] The Convention against Torture similarly requires each ratifying country to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”[151] ICERD requires that victims of racial discrimination have “the right to seek ... just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”[152]

As this report makes clear, the PLRA in many cases operates to deprive prisoners of an effective remedy—or indeed, any remedy at all—for violations of their rights. Prisoners who fail to comply with all the requirements of their institution’s grievance system may forfeit their right to compensation even for extremely serious injuries. And the PLRA’s physical injury requirement means that even prisoners who are the victims of intentional staff abuse will often be denied a remedy.

The Committee Against Torture, the body of independent experts that monitors state parties’ compliance with the Convention against Torture, most recently reviewed US compliance with the Convention in 2006. In its conclusions and recommendations, the committee recognized that the PLRA’s physical injury requirement contravenes article 14 of the treaty (requiring redress for victims of torture), and called for its repeal:

The Committee is concerned by section 1997e(e) of the 1995 Prison Litigation Reform Act which provides “that no federal civil action may be brought by a prisoner for mental or emotional injury suffered while in custody without a prior showing of physical injury.” (article 14).  The State party should not limit the right of victims to bring civil actions and amend the Prison Litigation Reform Act accordingly.[153]

Finally, human rights treaties recognize the special status and needs of children. The ICCPR provides:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.[154]

The treaty also requires that “juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status,”[155] and that when juveniles are accused of crime, “the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.”[156]

In its General Comment 17, the Human Rights Committee reiterated:

[I]f lawfully deprived of their liberty, accused juvenile persons shall be separated from adults and are entitled to be brought as speedily as possible for adjudication; in turn, convicted juvenile offenders shall be subject to a penitentiary system that involves segregation from adults and is appropriate to their age and legal status, the aim being to foster reformation and social rehabilitation.[157]

The Convention on the Rights of the Child similarly requires that:

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age....[158]

Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance[.][159]

The PLRA’s application of the same restrictions to detained children as to adult prisoners cannot be reconciled with this well-established recognition of the special needs and status of children, and the obligation to provide detained children with treatment “appropriate to their age and legal status.”