Human Rights Abuses behind Bars

We have all heard the stories of ridiculous lawsuits filed by inmates with too much time on their hands and a law library close at hand. Suits that complain of being served cold meals or receiving chunky rather than smooth peanut butter are irritating because they waste taxpayers’ dollars and clog our courts. These silly claims also undercut any serious prisoner claims that may need action by the court.

Obstructing Religious Freedom

However, I was stunned to find out that many prison officials not only do not encourage inmates to be involved in religion, they actively interfere and discourage it. Of course, there are many, many corrections officials who do all they can to make sure inmates have access to religious materials and programs. But I was floored to find that just as many do the opposite.

For instance, in some cases prison officials have denied Bibles to inmates, refused kosher meals to orthodox inmates, and rejected requests from Muslim inmates to have their Ramadan meals after sundown. During my own time in prison, the chaplain of the California Legislature sent me an NIV Study Bible. He complied with federal regulations in every way—the Bible was sent from the publisher, shrink-wrapped, and sent through the U.S. postal service. But it was rejected and returned with a form that said it “does not comply with BOP [federal Bureau of Prisons] regulations,” with no explanation of how it had not met the regulations. This happened not once, but three times! Why would the mail room prevent an inmate from having a Bible? In prison, the inmates say, “Why do they do it? Because they can.”

If inmates who were denied Bibles, kosher meals, or Ramadan meals after dark seek help from the courts, they would be prevented from doing so, because none of these actions by the prison officials resulted in a “physical injury,” a requirement of the PLRA. Prison Fellowship believes that inmates’ ability to practice their faith should not hinge on being able to show that they have sustained a physical injury. And my hunch is that Congress did not think of this when they put that requirement in the PLRA.

When a specific religious holy day is involved, another requirement of the PLRA prevents relief in the courts: the “exhaustion” of administrative remedies. If a prisoner is prevented from attending Christmas Mass, or is forced to work on Yom Kippur, it usually only a day or two ahead of time that they find out. Even if they file the grievance immediately, the holy day has come and gone before they even get a hearing on their grievance.

When the L.A. County Women’s Jail announced that it was canceling Christmas Mass (but allowing it for the men’s jail), Sister Susanne Jabro asked the lieutenant why women’s Mass had been canceled. He told her that most of the staff wanted the day off, and, therefore, they would be “short-staffed” and were canceling all inmate activities in the women’s jail. The jail’s actions are problematic in a couple of aspects. First, the lieutenant equated sacred Mass with other “inmate activities” such as a ping-pong tournament and Toastmasters. And to accommodate the convenience of the staff, Catholic inmates were being prevented from celebrating a holy day of obligation, a day of great joy in honor of the day God sent His Son to save us. Fortunately, when Sister Susanne appealed to Sheriff Block, he reinstated Christmas Mass immediately and reassigned the lieutenant. However, had Sheriff Block not intervened, the administrative process would have dragged on long past Christmas and into the new year.

This hindrance of religion is motivated not because the corrections officers are against religion. Instead, it results from a more basic instinct—laziness. Volunteers coming into the prison cause more work for the staff. If all you care about is having less work, then you would naturally discourage the volunteers from coming into the prison, and you would discourage inmates from participating in religious activities. However, if you care about the safety of the public after the inmates are released, you would do all you could to encourage volunteers who can mentor inmates and help them live law-abiding lives after they return home. This is the situation that religious volunteers find: There are many prison officials who are open to our work, but there are also many others who discourage it.

In another case a California inmate was told he had to work on Easter, even though the Muslims were allowed days off work for Ramadan. He found out on Monday that he would have to work the next Sunday, Easter. The administrative process had not even addressed his complaint by the time Easter arrived. So, the inmate was forced to work and was prevented from attending Easter services.

Of course, there is another important reason why inmates should be free to practice their faiths. The Constitution requires it, and Congress has reinforced prisoners’ religious freedom by passing the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

However, the PLRA has served to neuter the First Amendment, RFRA, and RLUIPA by denying access to the courts for inmates who have been prevented from practicing their faith. The physical injury and exhaustion requirements have resulted in dismissal of otherwise valid cases.

Twice Victimized

There is a second type of prisoner the PLRA has inadvertently blocked from access to the courts: victims of prison rape. I am a member of both the Prison Rape Elimination Commission and the Commission on Safety and Abuse in America’s Prisons. Both commissions heard heart-rending testimony from inmates who have been savagely raped and beaten. Most were too traumatized and terrified to report it while they were in prison.

If their assailant were a correctional officer, they were at risk of retaliation. If they were attacked by another inmate, their life would be at risk for being a “snitch.” Yet, the PLRA prevents them from going to court unless they have exhausted their administrative remedies. In most prisons, that means reporting the rape within 15 days; in some, it is as few as two days. Despite the physical and mental trauma of being raped, the inmate must file a report in a very narrow window of time.

The Prison Rape Elimination Commission recently heard testimony that children in the custody of the Texas Youth Commission (TYC) were repeatedly raped and molested by high TYC officials. How did they get away with it? One of the officials had a key to the complaint box and simply threw away complaints that incriminated him and his friends. The children had no chance to “exhaust” their administrative remedies because their rapists were in charge of the administrative remedy. Under the PLRA, these children would have no recourse in federal courts.

Through my work on the commissions, I have met many victims of prison rape. I would like to tell you a little about them so you can understand how the PLRA has victimized them a second time. Keith was a securities dealer; Marilyn owned a car-repair shop with her husband; T. J. was in high school; and Garrett and Hope were college students. Keith and T. J. were violently raped by fellow prisoners. Marilyn, Hope, and Garrett were violently raped by correctional officers. Yet, federal law prevents them from filing suit to be compensated for the trauma they endured. Why? Because they were in prison when they were raped, and their cases do not meet either or both the physical injury or the exhaustion prerequisites.

Keith testified to the Prison Rape Elimination Commission about the practical reasons that the exhaustion requirement of the PLRA effectively barred him from court. Keith had informed his counselor that he felt threatened by another inmate. Incredibly, the counselor placed that inmate in Keith’s cell, and Keith was beaten and raped by the inmate, as he had predicted. Keith told the commission why he had not filed a grievance:

“ . . . in many institutions that informal complaint is going to go to the individual you’re complaining of, whether it be—in my case it was the counselor who moved the assailant into my cubicle, knowing that I was already reporting that I felt threatened by him. But, that’s the procedure that allows you to be able to even go into court for civil action.

“The Prison Litigation Reform Act requires you to have exhausted your administrative remedies, which that informal complaint by policy becomes the first step. I’m not going to go to a person that I’ve already been threatened by to hand him an informal complaint and say, you know, I’m about to start a process against you and you’re the person who’s supposed to protect me now as I go through this process. It is not going to happen.”

Marilyn was brutally raped at the hands of a prison guard. Afterward he taunted her, “Don’t even think of telling, because it’s your word against mine, and you will lose.” The authorities simply sloughed off her claims at the time. But Marilyn had hidden her sweatpants—with DNA evidence of the officer’s attack—and took them to the FBI after her release. Even then, for three years nothing happened. Finally the case went to trial, and a jury convicted the officer of several counts of sexual assault. He is now in prison. The justice system cannot wipe away the degradation and abuse Marilyn suffered, but it at last held the contemptible guard accountable. However, the state of Texas refuses to pay for Marilyn’s medical and mental health treatment, and the PLRA prevents her from going to federal court to seek justice because she did not exhaust her remedies.

Then, we come to the requirement of physical injury. As incredible as it seems, some courts have held that forced oral sex does not meet the physical injury requirement of the PLRA, and other courts have held that sexual activity without tearing is not a physical injury. These applications of the PLRA are within the plain meaning of the statute, but they clearly deny justice to these prisoners.

Remedy for Injustice

I have given you just a few examples of where the PLRA has denied justice to victims of prison rape and inmates prohibited from practicing their religion. Congress never intended that such inmates be barred from court. There are two bills that seek to reform the PLRA, one by Sen. Richard Durbin (D-Ill.), bill number to be determined, and the other by Rep. Robert Scott (D-Va.), H.R. 4109. They both address the problems I have described while leaving intact the screening provision of PLRA, which allows the courts to dismiss frivolous cases before the case is served on defendants or entered into the docket. They will allow the court to dispense with the chunky peanut butter cases without also barring the serious cases of religious interference and prison rape.

When the opponents of these reforms offer up the old chestnuts about peanut butter and cold food, please remember the children in Texas, the Christian, Jewish, and Muslim inmates denied freedom to practice their faith, and Marilyn, Garrett, Keith, T. J., Hope, and thousands of others raped in prison and denied the ability to practice their faith. The least Congress can do is restore their access to justice.

Pat Nolan is a vice president of PFM and leads the criminal justice reform arm, Justice Fellowship.

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