X. Calls for Reform

As the disturbing effects of the PLRA have come to light, calls to reform the law have come from a variety of quarters. Concerned with the PLRA’s negative effects on the health and safety of incarcerated persons, Human Rights Watch consistently has called for its reform or repeal since its enactment in 1996.[160]

In February 2007 the American Bar Association (ABA) passed a resolution urging governments at all levels in the United States to “ensure that prisoners are afforded meaningful access to the judicial process to vindicate their constitutional and other legal rights and are subject to procedures applicable to the general public when bringing lawsuits.”[161] The ABA specifically called for reform of the PLRA in several respects, including repeal of the physical injury requirement, amendment of the exhaustion requirement, and repeal of the provisions extending the law to children.[162]

The Commission on Safety and Abuse in America’s Prisons[163] similarly recommended significant reform of the PLRA, including elimination of the physical injury requirement and modification of the exhaustion requirement to require exhaustion only of grievance systems that meet minimal standards of fairness.[164] In a November 2007 letter to Congress, the commission’s co-chairs summarized its conclusions regarding the PLRA:

Our Commission concluded that there are aspects of the PLRA that, in effect if not in intention, present serious obstacles to the federal courts’ ability to deliver justice and protect prisoners who are in danger or subject to abuse....

The Commission reached the conclusion that the PLRA’s physical injury requirement should be repealed. The requirement stands as an unconscionable bar to fully remedying—and thus, hopefully, preventing—a range of violations of constitutional rights. It is a blunt tool that does not differentiate in any way between meritorious and non-meritorious claims. Rather, it discourages prisoners with very serious constitutional claims from bringing those claims to light in a federal court. Moreover, it does so in a way that discriminates for no valid purpose—and to much harmful effect—against prisoners....

The Commission also recognized the importance of amending the PLRA’s exhaustion rules. The exhaustion rule, like the physical injury requirement, poses far too high a barrier to a federal court hearing of federal law violations. Its breadth and inflexibility discriminates against prisoners among other civil rights litigants and results in the suppression of meritorious claims no less than non-meritorious claims, indeed perhaps even more so.[165]

Most recently, in January 2008 the chairman of the National Prison Rape Elimination Commission[166] wrote to Congress to express the Commission’s view “that certain PLRA provisions frustrate Congress’s goal of eliminating sexual abuse in US prisons, jails, and detention centers.”[167] The chairman explained,

Medical professionals, corrections experts, and advocates have provided us with extensive information indicating that the PLRA’s requirement that a prisoner successfully exhaust all available administrative remedies before filing suit has undermined the ability of sexual assault victims to gain access to the crucial external oversight of the judicial branch—and as a result, has obstructed their ability to obtain the relief and redress to which they may be legally entitled. Because of the emotional trauma and fear of retaliation or repeated abuse that many incarcerated rape victims experience, as well as the lack of confidentiality in many administrative grievance procedures, many victims find it extremely difficult—if not impossible—to meet the short timetables of administrative procedures.

Additionally, we have learned that the physical injury requirement of the PLRA fails to take into account the emotional and psychological damage incurred by victims of sexual assault and abuse, even in the absence of actual or obvious physical injury. Indeed, we were shocked to learn that there have even been cases in which courts have ruled that actual rape does not constitute physical injury under the PLRA. Very real non-physical harms can result from a wide array of sexual abuse situations in prisons and jails, such as explicit sexual gestures and harassing language, groping of breasts and touching of genitals, or being forced to masturbate another or in front of another. Additionally, sexual assault victims often suffer from rape trauma syndrome, a type of post traumatic stress disorder; and a range of psychological distress (fear, emotional numbness, flashbacks, nightmares, obsessive thoughts, major depressive episodes, and anger) can occur months or years after an incident. We have become distressingly confident that victims of sexual assault are losing vital protections and avenues for relief as a result of the legislative provision requiring an actual physical injury.[168]