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The Prison Litigation Reform Act (PLRA): Shielding Prisons from Accountability for Sexual Abuse

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June 13, 2015
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Jael Humphrey

Congress passed the Prison Rape Elimination Act (PREA) thirteen years ago in an intense, if short-lived, outbreak of bipartisan support for efforts to end sexual violence in our nation’s prisons, jails, community confinement centers and immigration detention centers. Thirteen years after the passage of PREA, lesbian, gay, bisexual and transgender (LGBT) people continue to endure rape at alarming rates while in the custody of the state. 

The Bureau of Justice Statistics reports that 4% of people in prisons report experiencing sexual abuse in the past year. This number more than doubles for LGBT people, who are disproportionately vulnerable to sexual abuse. 

PREA includes a framework and specific standards that facilities should implement to eliminate sexual abuse. But the penalty for noncompliance has not proved forceful enough to inspire full implementation. States that reject PREA stand to lose only 5% of certain grant funds from the Department of Justice, and some opponents are trying to eliminate this penalty. 

PREA, unfortunately, does not provide a private right of action, which would allow individuals to sue when its terms are violated. To access federal court, incarcerated survivors of sexual abuse must claim a violation of their Eighth Amendment right to be free from cruel and unusual punishment. The good news is that PREA allows advocates to argue that prison officials are deliberately indifferent to known risks of sexual abuse if they do not comply with the standards. However, it is still very difficult for incarcerated people to sue facilities and win because the Prison Litigation Reform Act (PLRA) is a significant roadblock. 

How does the PLRA do this? 

First, the PLRA requires incarcerated people to “exhaust administrative remedies” by filing detailed written complaints (known as grievances) with prison officials, often within very short time limits, usually ranging from 15 to 30 days of an incident. If a person does not fully complete the grievance process within the period, she is generally barred from later bringing a lawsuit in federal court. This applies even if she is unaware of this requirement or fears retaliation. The bulk of prisoners’ lawsuits are permanently dismissed because of this. 

Fortunately, PREA extends the timeframe to file grievances related to sexual abuse. Although a survivor of sexual assault is still required to comply with all formal exhaustion requirements, she may still do so after the original deadline expires.

Second, the PLRA limits judges’ ability to order a prison to make changes, even if the incarcerated person wins the lawsuit.  The PLRA requires court-ordered relief extend no further than necessary to address the specific complaint of the individual bringing the lawsuit and be the least intrusive means to remedy any violation. This makes it nearly impossible to seek reform on a broader level through a lawsuit. 

Third, the PLRA limits the amount incarcerated people can recover if they win. Incarcerated people can recover for emotional pain and suffering only if they suffered serious physical injury. 

Recoverable attorneys’ fees are also limited. A lawyer representing someone in prison is often paid less than attorneys filing other types of civil rights litigation, if at all. This reduces the number of attorneys who are willing to do this work. As a result most lawsuits about prison conditions are brought pro se (without an attorney) making the unrepresented incarcerated person far less likely to prevail. 

Fourth, under the PLRA, incarcerated people who cannot afford the filing fees, (unlike other indigent people) cannot have their filing fees waived, and can only have the fees advanced to them so long as they do not violate the so-called “three strikes provision.” The Supreme Court recently affirmed a decision denying an incarcerated man, Coleman-Bey, who had had three previous lawsuits dismissed, the ability to file a new lawsuit in forma pauperis (without paying filing fees) while his appeal from a  previous lawsuit was pending. In this way, the law requires low-income incarcerated people be treated differently than other people. 

At Lambda Legal, we regularly receive letters from LGBT people in prisons and jails telling us that they have been raped and asking us for help. The PLRA makes it significantly more difficult, but not impossible, to hold officials accountable for abuse in confinement facilities.

Last year, Lambda Legal filed a lawsuit on behalf of Passion Star, a black transgender woman who has sought protection from sexual abuse in Texas prisons for over a decade. Our lawsuit alleges that correctional officials in Texas are aware that the practices in place do not protect LGBT people from sexual abuse and that Passion would not have been assaulted had PREA standards been implemented.

For more information about the PLRA see Chapter 14 of the Jailhouse Lawyers Manual.

This blog post shouldn’t be considered legal advice.  For legal advice, please consult with a retained attorney.