Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending the Prison Litigation Reform Act

Journal of Constitutional Law, Vol. 11, No. 1, 2009

Washington U. School of Law Working Paper No. 08-12-03

16 Pages Posted: 23 Nov 2008 Last revised: 18 Dec 2008

See all articles by Margo Schlanger

Margo Schlanger

University of Michigan Law School

Giovanna Shay

affiliation not provided to SSRN

Date Written: November 20, 2008


Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society's rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons -- closed institutions holding an ever-growing disempowered population -- most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which these ordinary norms can be encouraged, lawsuits, which bring judicial scrutiny behind bars, and which promote or even compel constitutional compliance, accordingly take on an outsize importance. Unfortunately, over the past twelve years, it has become apparent that a number of provisions of the Prison Litigation Reform Act ("PLRA") cast shadows of constitutional immunity, contravening our core commitment to constitutional governance. The PLRA's obstacles to meritorious lawsuits are undermining the rule of law in our prisons and jails, granting the government near-impunity to violate the rights of prisoners without fear of consequences. Amendment is urgently needed.

In recent months numerous advocates and organizations have urged reform. Indeed, a bill offered in the last Congress, the Prison Abuse Remedies Act of 2007, would offer some moderate fixes to the most pressing problems created by the PLRA. In this Article, we discuss three of these problems. First, the PLRA's ban on awards of compensatory damages for "mental or emotional injury suffered while in custody without a prior showing of physical injury" has obstructed judicial remediation of religious discrimination, coerced sex, and other constitutional violations typically unaccompanied by physical injury, undermining the regulatory regime that is supposed to prevent such abuses. Second, the PLRA's provision barring federal lawsuits by prisoner plaintiffs who have failed to comply with their jails' or prisons' internal grievance procedures -- no matter how difficult, futile, or dangerous such compliance might be for them -- obstructs rather than promotes constitutional oversight of conditions of confinement. It strongly encourages prison and jail authorities to come up with ever-higher procedural hurdles in order to foreclose subsequent litigation. Third, the application of the PLRA's limitations to juveniles incarcerated in juvenile institutions has rendered those institutions largely immune from judicial oversight because so many young people are not able to follow the complex requirements imposed by the statute, and compliance by their parents or guardians on their behalf has been deemed legally insufficient. Each of these three problems disrupts accountability and enforcement of constitutional compliance.

Keywords: PLRA, prison, jail, civil rights, litigation

JEL Classification: K14, K41

Suggested Citation

Schlanger, Margo and Shay, Giovanna E., Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending the Prison Litigation Reform Act (November 20, 2008). Journal of Constitutional Law, Vol. 11, No. 1, 2009; Washington U. School of Law Working Paper No. 08-12-03. Available at SSRN:

Margo Schlanger (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Giovanna E. Shay

affiliation not provided to SSRN

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