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Common prison reform necessarily highlights the federal government’s smothering of inmates’ constitutional rights. The age-old patterns of violations of incarcerated persons are examples of legislative bullying designed to protect the security of prison officers and staff at the expense of inmates’ basic rights. Because prison communication to the outside is designed to hide behind the security of guards and staff,[1] the residual effect is but a hazy view into the lives of those held in the clutches of mass incarceration. The general public does not know much about governmental actions that target and restrict inmates’ rights, nor does the general public contemplate the legal controls on inmates’ lives that are legislated by state and federal governments.

Incarcerated People Are Castaways

While castaway commonly refers to a person who is cast adrift or ashore, the term works well for inmates lost in a sea of confusion and red tape. In previous posts, I’ve illustrated how those in governing power can act ruthlessly toward people with criminal records and treat them dismissively as castaways. Following are four examples of such stolen or attenuated rights, with links to more detailed information. I also comment on two instances of legislators’ questionable attempts to reverse a legislated loss of rights.

  • First: The Thirteenth Amendment—Legalized Slave Labor

In The Value of Prison Labor: As Established by Exception and Disgrace, the topic turned to the exception clause that has kept, to this day, the lawfulness of using incarcerated people as slaves.

Ratified in 1865, the Thirteenth Amendment is written in clear English that concretizes the marginalization and subordination of incarcerated people to this day:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any other place subject to their jurisdiction. (emphasis added)

  • Second: Reentry EmploymentA Swing and a Miss

California attempted to even the employment playing field to resolve the problem caused by asking job applicants whether they have a felonious criminal history. In AB 1008 Becomes Law in California, a closer look reveals obstacles I’ve identified in a new law that was passed with good intentions but now faces questionable implementation and enforcement problems.

Assembly Bill (AB) 1008 is California’s extended Ban-the-Box policy that has become an antidiscrimination employment law. I discussed the bill in Ban the Box and called for its enactment as what I then saw as a forward-thinking prison reform law. The law is well intended but flawed. The reasoning behind Ban the Box is not complicated; it forces the removal of this question from job applications: “Have you ever been convicted of a felony?” Without the question, it was argued, formerly incarcerated people could be evaluated the same as other applicants, without immediately being tainted by having a felony record. While the good intent is there, I question whether the new law is enforceable.

  • Third: The Job Obstacles for People with a Criminal Record

In Jobs, Jobs, Jobs: Wants and Needs, I mentioned a related topic of interest about employment that is covered in an article entitled “How Ex-Convict Unemployment Cripples the Economy.” “Written by Caitlin Curley, this expose discusses a ‘2010 study by the Center for Economic and Policy Research [that] estimates that not hiring ex-offenders costs the U.S. economy $57 to $67 billion annually in lost economic output.’”

  • Fourth: Discriminatory Money Bail

In my post America the Confiner: End Discriminatory Money Bail, I note the following:

A scholarly analysis of this immorality is set forth in The Color of Justice: Race, Ethnicity, and Crime in America. One study cited by the authors suggests that defendants who were detained prior to trial—because they could not afford bail—received sentences that were more punitive than those of people who could afford bail.[2] The study also reveals that African Americans and Hispanics had the highest incarceration rates of those detained before trial.[3] These groups, the study shows, were ultimately penalized more harshly by the criminal justice system because of their lack of money.[4] Where’s the justice in the system?

The Prison Litigation Reform Act (PLRA)

This 1996 federal law was born of the minds of federal legislators, better known as the US Congress. The PLRA is the model for a law that, on its face, is designed to restrict inmates’ civil rights as amended and codified in 42 U.S.C. Sec. 1983 (Civil action for deprivation of rights) and other civil law remedies. The law has been criticized for closing the courthouse doors to incarcerated people seeking to protect their civil rights by using federal laws (in federal and state courts) that apply to all other people except federal and state prisoners.[5]

The legislative reasoning behind the passage of PLRA was based on a 5 percent increase in the population of state and federal prisons during 1996. Thereafter, by design and as expected, the number of court filings in support of civil rights by incarcerated people plummeted. As outlined by the Prison Policy Initiative:[6]

This drop is largely attributed to several key provisions in the Prison Litigation Reform Act:

  1. Incarcerated people must exhaust all internal administrative grievance processes [red tape usually requiring hiring an attorney] available to them within the correctional facility before taking their case to court. Working through these administrative processes can be complicated, have difficult deadlines, and often be fruitless.[7]
  2. Suits alleging only mental or emotional harm are restricted. (Suits about physical injury are still allowed.)
  3. Courts are no longer allowed to waive court fees for incarcerated people, instead requiring installment payments. Additionally, an incarcerated plaintiff who has had three previous lawsuits dismissed can be required to pay in advance.
  4. When a lawsuit succeeds, the statute sharply limits the amount of litigation costs that the court can order the facility to pay the incarcerated person’s attorney. This reduces the number of lawyers willing to take good winnable cases on behalf of incarcerated people. In 2012, just over 5% of incarcerated people’s civil rights cases were represented by attorneys. (By contrast, 65% of non-incarcerated civil rights plaintiffs and 97% of labor and employment cases plaintiffs were represented by attorneys.)
  5. Places limits on the ability of the courts to change prison or jail policy.

Analysis and Conclusion

The civil and criminal case overload in the courts is something I and most other trial attorneys encountered when I practiced law between 1978 and 2000. In response to the overloaded caseloads of the courts and prosecutors, many judicial systems—such as those in California—initiated fast track litigation processes and procedures. As a result, the wait time for a trial date went from thirty-six months (or more), to twelve months (or less). The problem of case logjams was handled administratively and by the hiring of more judges and prosecutors. The public was never told to “stop filing civil lawsuits; we’re too busy to process them.”

The story is different for incarcerated people. The PLRA in no uncertain terms signaled to inmates across the country that the court system was just too busy to entertain civil rights lawsuits filed by or on behalf of incarcerated people. Hard stop. Who knew? Only the most powerless members in the country—incarcerated people, their families, and their supporters.

This obscene denial of access to the courts is intolerable. The hurdles to overcome the restriction of rights afforded by the PRLA are unrealistic for people to comprehend and handle without incurring attorneys’ fees, which can be substantial and thus impossible. Prisoners have fewer rights and protections under the law than other citizens, but the Constitution still applies within prison walls. The PLRA definitely puts extra hurdles in place for prisoners. For free people, however, an overused and bogged down system, like the one in California, redesigned itself to enable and ensure unrestricted access to the courts, without sending a message to potential litigants that they are castaways and not entitled to due process of law.

I welcome your comments and examples of incidents relevant to the topics of this post.


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[1] In prison parlance, security in this context refers to guards and staff and then inmates.

[2] Samuel Walker, Cassia Spohn, and Miriam DeLone, The Color of Justice: Race, Ethnicity, and Crime in America (Belmont, CA: Wadsworth, 2012), 197–201.

[3] Ibid.

[4] Ibid.

[5] “Physical security, medical treatment, and physical conditions represent three of the five most common complaints raised in inmates’ § 1983 lawsuits,” according to Brown v. Plata: Prison Overcrowding in California.

[6] Inmates increasingly filed lawsuits under 42 U.S.C. § 1983,3 claiming civil rights violations. These lawsuits became so common that Congress passed the Prison Litigation Reform Act.

[7] Here’s a partial example of the red tape involved for California inmates from the FindLaw website: “In California, for example, a prisoner initiates a claim or by filing an Inmate/Parolee Appeal (CDCR Form 602). That form allows inmates to appeal any decision, action, condition, policy or regulation which has ‘a material adverse effect’ on their welfare. It’s important to include as much information in the form as known at the time it is submitted and the 602 does allow for the use of additional pages. Once submitted, an inmate then must exhaust their appeal through three consecutive levels of review. An appeal cannot proceed up to the next level of review until there has been a final determination at the lower level. A denial at the third level for inmates in California will then open the courtroom doors.”

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