Six Questions for Corene Kendrick on the Little-Known Clinton Era Legislation That Leads to Torture at U.S. Prisons

And why it's not going away any time soon

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Corene Kendrick is the deputy director of the ACLU’s National Prison Project. She was previously a staff attorney with the Prison Law Office, a nonprofit public interest law firm based in Berkeley, California that offers legal assistance for people who are in prisons, jails, and juvenile facilities and who are on parole. She is the office’s lead day-to-day attorney in Parsons v. Shinn, a case challenging the adequacy of health care provided to all state prisoners and challenging the conditions in isolation units at Arizona state prisons. She also works on Armstrong v. Newsom, a case brought under the Americans with Disabilities Act on behalf of people with disabilities in California state prisons.

This interview originally ran at Prison Legal News last September. I’m republishing it here for two reasons. First — as I noted earlier this week when running a previously published Q & A with David Fathi of the ACLU — it’s a pretty good interview, if I don’t say so myself, and doesn’t really need updating. Second, I’m just getting Washington Babylon up and running again after a long hiatus and am low on content while reporting new stories.

Oh yeah, I’ve been doing Six Question interviews since I was Washington Editor for Harper’s magazine back in the 2000s. Sometimes you need an extra question, as is the case here, so I actually asked Kendrick seven questions. But I don’t like to change the headline for the story, so I just labeled the last question — and read to the end because it’s perhaps the most interesting — 6A.

Enjoy, though that’s probably not the right word for it given that the topic under discussion is the U.S. prison system, which Glenn Loury, writing in the Boston Review way back in 2007, described as a “leviathan unmatched in human history,” adding, “Never before has a supposedly free country denied basic liberty to so many of its citizens.” Here we are 14 years later and the situation is just as wretched.

1/ You recently wrote on Twitter that the Prison Litigation Reform Act (PLRA) is one of the primary “horror stories” for your work. The PLRA is not that well known outside of legal circles. Can you briefly describe its origins and consequences?

Congress passed the PLRA and Bill Clinton signed it into law months before his reelection in 1996. The PLRA places onerous burdens and restrictions on incarcerated people who file lawsuits in federal court to enforce their Constitutional rights, including the right to be free of cruel and unusual punishment, freedom of speech, and protection from discrimination based on race. The law covers not only people convicted of crimes, but also pre-trial detainees awaiting trial as well as children in juvenile halls, jails, or prisons. It covers lawsuits involving federal, state, or local facilities.

In the almost quarter-century since its enactment, the PRLA has effectively slammed shut the courthouse doors to incarcerated people, as it places numerous procedural obstacles on their ability to challenge their conditions of confinement or to hold prison systems accountable for injuries they suffer while incarcerated. It flies in the face of our legal system’s ostensible principle of equal protection under the law, to single out one disfavored group of people and categorically deny them equal access to the courts. Such restrictions on the ability to sue in federal court do not apply to any other persons or groups of persons – human or corporate.

2/ One of the original justifications for the PLRA was that it was needed because prisoners frequently file frivolous lawsuits. Is there any truth to that?

The sponsors of the PLRA offered up apocryphal accounts of the federal courts drowning in lawsuits filed by incarcerated people because they got chunky instead of creamy peanut butter in their canteen order. The reality is that most cases filed by incarcerated people both before and after the PLRA raise serious issues. Some people in prison file frivolous lawsuits. Some people not in prison file frivolous lawsuits. But the courts are equipped to handle these things and screen them out.

If there really were thousands of frivolous lawsuits being filed by incarcerated people, one would think that after the passage of the PLRA you would find a higher success rate in the remaining cases brought by prisoners. But a study by Margo Schlanger at the University of Michigan Law School found that there was not any newfound success rate – the only thing that occurred in the late ’90s and through today is that the number of cases filed by incarcerated people plummeted even as the rate of mass incarceration went up.

3/ You said the PLRA has slammed the door shut on prisoner lawsuits. Can you describe one of the specific restrictions that have done that?

There’s an exhaustion of remedies requirement. Before an incarcerated person may file a lawsuit, she must first take her complaints through all levels of the prison’s or jail’s grievance system, complying with all technical requirements and deadlines. If she made any mistakes or missed the deadlines in the prison grievance process, then her case can be thrown out of court, regardless of the merits. This has a perverse incentive of encouraging prisons and jails to create Byzantine grievance processes with tight deadlines and multiple steps. The requirement is even more problematic for juveniles; people with cognitive, learning, or other disabilities; people who are not fluent in English; people in segregation or solitary confinement with limited or no access to writing materials; and people with mental illnesses. The PLRA’s applicability to children has made it extremely difficult to litigate in federal court regarding conditions in juvenile facilities, because courts have held that children’s parents or their public defenders cannot exhaust the youth’s claims for them.

4/ What’s another one of the PLRA’s more restrictive features?

The physical injury requirement. Under normal tort law, a person who suffers intentional mental or emotional injury can sue for money damages for those injuries. For example, someone who is taunted with racist slurs in the workplace can sue his employer for the resulting emotional distress, even if he suffered no physical injury. The PLRA did away with this for cases brought by incarcerated people and states that they cannot sue for money damages for mental or emotional injury “without a prior showing of physical injury.” Therefore, no matter how sadistic or catastrophic the mental or emotional torture that an incarcerated person might endure – whether it be wrongful imprisonment, threats of rape and beatings, racist/misogynist/homophobic taunts, humiliating and degrading treatment, prolonged solitary confinement, witnessing others get hurt or killed, violations of the right to practice their religion, or forced to live in squalid cells with no cleaning supplies – there is no way to be compensated with money for this experience, unless they can show they suffered a physical injury due to this behavior. Some courts have taken this even further and have held that what they deemed as a “minor” physical injury is not sufficient to satisfy this physical injury requirement. The physical injury requirement is nothing more than a green light for prison officials and staff to psychologically torture incarcerated people.

5/ Does the PLRA have restrictions that impact prisoners’ rights attorneys such as the Prison Law Office?

If an incarcerated person files a lawsuit and actually wins, the PLRA limits the amount that their attorneys can be paid. This means that incarcerated people with even the most meritorious cases struggle to find an attorney who is willing and able to assist them. In damages cases (cases seeking money), the fees for the attorneys are capped at 150 percent of the monetary award to the plaintiff. It’s very hard to recover money for many of these violations, and so there are often cases where if a case actually makes it to trial and the incarcerated person wins, they only win a nominal cash award of $1.00. That means the attorney can only get $1.50 for their time, no matter how long they worked on the case.

The Prison Law Office, and other groups like the ACLU National Prison Project in D.C., or the Uptown People’s Law Center in Chicago, normally file cases seeking injunctive relief on behalf of all people in the prison, or all people who fall within a certain category. That means that we aren’t trying to win money for prisoners, but we want the corrections department to change their policies or practices – for example, improve medical care, install air conditioning, or provide more out-of-cell time to people in segregation. Normally in injunctive relief cases brought by civil rights groups against the government – for example, on behalf of foster children against a child welfare system, or Black children in segregated schools – federal law allows what is called “fee shifting.” If they win, the civil rights groups are paid their attorneys’ fees at the rate paid to attorneys in the local community. Perhaps in no small part due to the success of prisoners’ rights groups, the PLRA caps the fees that can be paid to attorneys who win injunctive relief cases to a low hourly rate – less than what attorneys in the community charge paying clients. This makes it that much harder for attorneys to be able to support their groups and take these kinds of cases – because if we lose the case, we get no fees.

6/ Could you give an example or two of especially egregious cases where prisoners were denied the right to go to court?

A 2009 report by Human Rights Watch called “No Equal Justice” provides a detailed litany of examples, including people who had their cases thrown out for failure to exhaust properly or for “only” having mental injuries, after being raped, beaten, made to stand in cages naked for half a day, or forced to defecate in their own clothes and sleep in feces. Currently we are seeing the PLRA being cited repeatedly by judges in cases brought by incarcerated people regarding unhygienic conditions, and a failure to properly prevent COVID-19. It’s quite frustrating.

6A Bonus Question/ Is there any significant movement to repeal or significantly overhaul the Act?

Unfortunately, the chances of the PLRA being fully repealed – even with a Senate, House, and President who are Democrats – are slim to none, because even in this new era of mainstream politicians calling for an end to mass incarceration, this is likely a bridge too far to cross for moderate and conservative Democrats. One beam of light is a bipartisan bill pending in Congress called the Justice for Juveniles Act, that would exempt children from the exhaustion requirement of the PLRA. I think that as advocates we will have to take a long view and approach this much like the advocates for ending the death penalty, by carving off populations subject to this onerous law – starting with juveniles, and then hopefully moving to people with intellectual and mental health disabilities – before we try to go for the whole enchilada and dismantle the entire PLRA. This will be a long slog, but as seen by the dedication of my organization and numerous other groups across the country, we are determined to surmount the hurdles that the PLRA throws up against incarcerated people.

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