VII. The PLRA’s Application to Children

The chief argument of the PLRA’s Congressional sponsors was that prisoners were inundating the courts with lawsuits, many of them frivolous and malicious. But incarcerated children filed very few lawsuits even before the PLRA’s passage.[111] Nevertheless, the PLRA applies with equal force to adult prisoners and to children—both children tried as adults and sent to adult prison, and those detained in the juvenile justice system.[112]

While incarcerated children do not often file lawsuits, they are sometimes the victims of serious mistreatment and abuse. For more than a decade Human Rights Watch has documented physical and sexual abuse, as well as unhealthy and inhumane conditions of confinement, suffered by incarcerated children in the United States.[113]

In February 2007 a report revealed that two high-ranking administrators at the West Texas State School, a juvenile facility operated by the Texas Youth Commission (TYC), had engaged in sexual conduct with several incarcerated children.[114] Under the PLRA, detained children wishing to file a lawsuit over such abuse must first take their complaints all the way through the facility’s grievance system. But the same report found that “[y]outh and employee grievance programs at the facility were ineffective and sabotaged.”[115]

The following month, the US Department of Justice Civil Rights Division notified the governor of Texas of its conclusion that staff at TYC’s Evins Regional Juvenile Center failed to protect residents from abuse by staff and violence by other children, in violation of the US Constitution.[116] The Justice Department characterized the grievance system at Evins as “dysfunctional,” adding that “[o]ne youth reported that he was sitting at a table writing a grievance when a staff member came by and took it away from him.”[117]

A March 2007 report by the Texas state auditor similarly concluded that “TYC’s youth grievance process does not ensure that all grievances are received and investigated appropriately and in a timely manner.”[118] The auditor noted substantial delays in processing grievances; policies that allowed staff members to investigate grievances filed against themselves; and policies allowing youth to be punished for filing grievances deemed frivolous or excessive by staff.[119]

Deborah P., age 18, has been incarcerated in juvenile facilities operated by the Texas Youth Commission since she was 14 years old. She explained,

When I first came here it was very hard for me to actually fill out a grievance because I never went to school, and my grade level was so low. When I finally did fill out a grievance, they didn’t accept it because of my handwriting.[120]

Deborah P. also said that other youth in the facility do not know how to use the grievance system.[121]

The grievance exhaustion requirement has significantly interfered with the ability of adult prisoners to protect their rights in court (seesection V, above). But it has had an even more pronounced effect on incarcerated children because of their greater vulnerability and more limited ability to follow complex and multi-step grievance processes.

Former Corrections Director Woodford told Human Rights Watch of her observations in California: “I’ve been in some of the county facilities where I’ve been very concerned about the conditions [for children] ... I think they’re particularly vulnerable, and [have] an inability to reach outside the prison to get to [lawyers] and others, that we all need to be concerned about.” Woodford described a visit to one juvenile facility (which she preferred not to name) where “[t]he staff couldn’t clearly articulate to me what the grievance system was.” She believes that children in custody have an especially difficult time with grievances: “I think the rules are very complicated, and I think the literacy among juveniles is usually pretty poor. The ability to find people to help you seems to have been more difficult in the juvenile system.”[122]

Orlando Martinez has been director of juvenile corrections for the states of Georgia and Colorado. He too told Human Rights Watch that incarcerated children have difficulty exhausting multi-step grievance systems:

I don’t know if they have the reading skills, the language skills, or conceptualization skills, maturity, to be able to follow it. I think they have a short attention span. If it’s not resolved right away, they’re not going to pursue it.... They have learning disabilities, they have mental health issues—their needs are so great.[123]

Kim Brooks Tandy is a lawyer and executive director at the Children’s Law Center in Covington, Kentucky. She explained the difficulty of getting incarcerated children to navigate, or even understand, multi-step grievance systems: “The concept of ‘exhaustion’ is almost nonexistent with my clients. They are confused by language on grievance forms and do not understand why there are multiple levels at the institution and through the Chief Inspector’s office which must be completed.”[124]

Psychiatrist Terry Kupers explained to Human Rights Watch why it is even more difficult for children to successfully navigate a prison grievance system than for adult prisoners: “On average, juveniles are more impulsive, less capable of planning a course of action and taking steps, particularly when there are timelines for taking those steps.... So they’re just less capable, on average, than an adult of doing that.”[125]

Despite these limitations, courts have enforced the exhaustion requirement against children as strictly as they have against adult prisoners. In one case in Indiana, a detained juvenile’s lawsuit alleging that he had been beaten was dismissed because he had not exhausted the facility’s five-level grievance system. Although it was undisputed that immediately after the beating he had no access to writing materials and was held in segregation until after the deadline for filing a grievance had passed, the court stated without explanation that “if he had submitted a grievance after his release from segregation ... it would have been considered [by facility officials], even though submitted after the period prescribed for the filing of a grievance.”[126]

In most other settings, society recognizes the limited abilities of children by permitting (and in many cases requiring) their parents or other adults to act on their behalf. For example, a minor cannot bring or defend a lawsuit in US federal court without assistance from a guardian or other adult.[127] However, federal courts have ruled that the efforts of parents or other adults on behalf of incarcerated children do not satisfy the PLRA’s exhaustion requirement.[128]

S.Z., a resident in an Indiana juvenile detention facility, was raped and repeatedly beaten by other detainees over a period of months. On one occasion he was beaten with “padlock-laden socks”; on another day a beating triggered a seizure-like reaction. Some staff allegedly encouraged the beatings and would arrange fights between detainees, sometimes handcuffing one resident so that others could beat him.[129]

S.Z.’s mother learned of the ongoing abuse of her son and frantically tried to protect him. She complained to staff at the facility, wrote to the facility superintendent, wrote to juvenile court judges, contacted the deputy director of the Department of Corrections, and eventually contacted the governor of Indiana.[130]

However, when S.Z. filed a lawsuit to recover compensation for his injuries, the case was dismissed on the ground that his mother’s actions did not satisfy the PLRA’s exhaustion requirement: “[H]er efforts cannot be said to have satisfied [S.Z.’s] obligation under the Prison Litigation Reform Act to exhaust available administrative remedies, and [S.Z.] did not satisfy that obligation either.”[131] The grievance system had five steps and would have required S.Z. to file his initial grievance within 48 hours of being raped or beaten.[132]

In another case, a juvenile filed a lawsuit alleging that staff had hit him, shocked him with a stun gun, and then led him down the hall by his testicles to an isolation cell. Although his lawyer had discussed the incident with the jail administrator, the Federal Bureau of Investigation, the Kentucky State Police, and the Kentucky Department of Juvenile Justice, the court ruled that this did not satisfy the PLRA and the suit was dismissed for failure to exhaust.[133]

There have also been cases of correctional officials interfering with efforts to help incarcerated youth file grievances. Kim Brooks Tandy told Human Rights Watch of a lawyer from her office who helped two youths complete grievance forms and explained exhaustion requirements to them; both youths had been assaulted by staff and wanted to take legal action. After the lawyer provided this assistance, correctional officials barred her from returning to the facility, and asserted in court papers that she was “destabiliz[ing] the ... population” by “violat[ing] an unwritten ... regulation prohibiting attorneys from actively participating in the grievance process.” A federal judge ordered that the attorney be allowed to enter the facility and meet with detained children, but specified that she “is not permitted to write the grievance application, request the processing of, or process the grievance application.”[134]

Attorney Dori Lewis told Human Rights Watch that the PLRA has made it even more difficult to vindicate the legal rights of detained youth: “The PLRA is making litigation on behalf of juveniles extremely difficult. Finding kids who are willing to come forward and file a complaint inside the institution, while [they are] still there, where everyone knows about it, is almost impossible.”[135]

Former juvenile corrections director Orlando Martinez believes that applying the PLRA to incarcerated youth fails to recognize important differences between children and adults:

It’s almost like the public policy issue is that kids are not like adults, except when it comes to crime. They can’t marry, they can’t sign contracts, they can’t drink, they can’t vote, until they’re 18. But when it comes to crime, the PLRA just assumes that they’ll be able to follow the same process as an adult. But all the scientific research and studies of the brain we have indicate that they don’t mature until they’re age 25.... It really calls into the question what the purpose of the juvenile court is.... The juvenile court is there to protect and help this kid mature and live crime free. The PLRA is not consistent with that philosophy—it’s a very criminal justice process.[136]