Legal Commentary

On Monday, I began a series of posts about law reform efforts to combat custodial sexual abuse and prison sexual violence.  In that installment, I wrote about the model standards proposed by the National Prison Rape Elimination Commission, which currently are under consideration by the Attorney General.  This morning, I submitted my comment to the DOJ.  (For those who are interested in submitting, the comment period is open until May 10th, and comments can be submitted at http://bit.ly/cogahf.  Just Detention International also has set up a petition that you can sign urging the Attorney General to adopt strong, effective standards http://bit.ly/c6ixmE.)

In today's post I'm focusing on legislative efforts to amend the Prison Litigation Reform Act (PLRA) to remedy barriers to court access for survivors of sexual assault. The Prison Abuse Remedies Act of 2009 (H.R. 4335), which would amend the PLRA, has been introduced in the House.  Among other things, it would modify the exhaustion provision of the PLRA, exempt juveniles from PLRA requirements, and eliminate the PLRA "physical injury" requirement.  The exhaustion provision is the most important part of the bill.

Don't stop reading!  To the uninitiated (or even to most sentient beings), administrative exhaustion may seem technical, even (gasp!) boring.  But as I wrote in my initial post in this series on Monday, the exhaustion provision is one of the most significant barriers to court access for prisoners who have been subjected to serious abuses, including sexual assault.  In the comment that I submitted this morning, I described grievance processes with multiple 5-day deadlines, and dismissals for failure to grieve in the immediate aftermath of a sexual assault.

This type of facially neutral, technical requirement applied only to prisoners is a particularly insidious tool of mass incarceration.  And because, as Sharon Dolovich noted in the Harvard Law & Policy Review last summer, the "category of 'inmate' . . .  [is] a racialized one," it also does the work of maintaining racial subordination.  Kim Buchanan has made this point in her article Impunity: Sexual Abuse in Women's Prisons, which I mentioned in the initial post.  Specifically, Kim makes the connection between the PLRA and procedural, evidentiary, and doctrinal barriers to legal relief that were applied to women of color under slavery and Jim Crow segregation.

PARA would streamline the PLRA's exhaustion provision while continuing to ensure that prison officials could consider inmates' claims before they are litigated in court.  It would provide that claims must be "presented for consideration to officials of the facility in which the claim arose" within "the generally applicable limitations period for filing suit," before a challenge could be litigated in court.  PARA also provides that a district court can stay a suit with an unexhausted claim for 90 days to permit prison officials to "consider the relevant claim or claims through such administrative process as they deem appropriate."

Precluding access to court for even meritorious claims of abuse erodes accountability and violates prisoners' human rights.  And there is a link between this series of posts and the intermezzo post on criminal regulation of outgroups, including felon disenfranchisement: these are means by which our nation maintains systems of subordination, using the more easily digested language of criminal conviction.  It is an example of Reva Siegel's theory of "preservation through transformation," or "status regime modernization," and a dynamic that has been described by commentators including Kim B., Loic Wacquant, Angela Davis, Glenn Loury, and, now, Michelle Alexander.  A few weeks ago, the American Constitution Society released an issue brief summarizing the roots of felon disenfranchisement provisions in the post-Civil War period and urging passage of the Democracy Restoration Act of 2009, http://www.acslaw.org/node/15657. 

Incarcerating unprecedented numbers of people without meaningful access to court or voting rights is not good for democracy (or, to paraphrase the bumper sticker, other living things).

Next week: Custodial Sex Abuse Case at the SCOTUS, Ortiz v. Jordan.