Compensatory damages are not for everyone: section 1997e(e) of the Prison Litigation Reform Act and the overlooked amendment.

• Author: Levine, Eleanor M.

INTRODUCTION

Before the Senate in 1995, Senator Bob Dole described the impetus for creating the Prison Litigation Reform Act (PLRA) (1) as a reaction to: "the litigation explosion now plaguing our country, [which] does not stop at the prison gate.... [The PLRA] will help put an end to the inmate litigation fun-and-games." (2) Congress enacted the PLRA in response to a perceived explosion in litigation brought by prisoners against prison officials. (3) The Act was ostensibly designed to reduce frivolous lawsuits while preserving meritorious suits. (4) What Congress failed to recognize, however, was that the increasing amount of litigation reflected a parallel rise in the prison population. (5) Ultimately, the PLRA has not substantively reduced the rate of frivolous lawsuits filed by prisoners against prison officials. (6)

The PLRA, enacted in 1996, introduced a number of provisions that seek to limit prisoners' ability to bring frivolous lawsuits under 42 U.S.C. [section] 1983, which provides a civil action for deprivation of rights. (7) These provisions consist of, among other things, a requirement that prisoners exhaust administrative remedies within the prison system before filing suit in court, (8) a requirement that indigent prisoners pay all of their filing fees, (9) a restriction on attorneys' fees, (10) and a provision that prohibits prisoners from using in forma pauperis provisions if the courts have already dismissed at least three of their complaints for failure to state a claim. (11)

While the members of the Senate spent some time debating the other provisions of the PLRA. they hardly discussed another provision: 42 U.S.C. [section] 1997e(e). (12) In 1996, this provision stated: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." (13) Since the PLRA was enacted, federal courts have split over the question whether [section] 1997e(e) allows prisoners to recover compensatory damages for claims in which their constitutional rights have been violated but they have not suffered a physical injury. (14)

In 2013, the PLRA was amended (hereinafter "2013 Amendment") as part of the Reauthorization of the Violence Against Women Act (15) to read:

No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18. (16) This amendment followed a growing congressional awareness of and focus on reducing rape in prisons, (17) as well as vocal criticism of the PLRA after some courts had interpreted [section] 1997e(e) to bar rape claims when the prisoner could not prove a physical injury. (18)

Since the 2013 Amendment was passed, courts have continued to split regarding how to interpret [section] 1997e(e), but they have failed to consider whether the 2013 Amendment alters the meaning or clarifies Congress's intentions with respect to [section] 1997e(e). (19) Part I of this Note gives the historical and legislative background of prison litigation and the enactment of the PLRA. Part II describes the circuit split surrounding the meaning of [section] 1997e(e). Part III provides the background on sexual abuse in prisons, the increased legislative concern about the issue, and the 2013 Amendment to [section] 1997e(e). In Part IV, this Note argues that the 2013 Amendment changes the plain meaning of [section] 1997e(e) such that it could lead to different outcomes in cases on both sides of the circuit split, ultimately concluding that it shows Congress intended the more restrictive interpretive approach to prevail. This Note further illustrates how the 2013 Amendment fails to adhere to the goals of either the Prison Litigation Reform Act or the Prison Rape Elimination Act (PREA), for which it was designed. Part V argues that the Supreme Court should clarify whether [section] 1997e(e) precludes prisoners from seeking compensatory damages for constitutional violations absent physical injury. Ultimately, this Note recommends that a less restrictive interpretation of [section] 1997e(e) would best achieve the goals of the PLRA and the PREA.

1. BACKGROUND

   1. History of Prison Litigation

      Before the 1960s, the federal courts used a "hands-off approach with respect to state prisoner litigation. (20) In fact, "[u]ntil the 1960s, it was unclear whether prisoners retained any constitutional rights upon incarceration." (21) However, in the decades following the 1960s, the Supreme Court began providing expanded constitutional protections for prisoners, allowing them to bring claims for infringement of their constitutional rights under 42 U.S.C. [section] 1983. (22) Additionally, the Supreme Court recognized a prohibition on excessive force, access to sufficient healthcare, religious freedom, access to prison libraries, and due process rights for prisoners. (23) Furthermore, the Court clarified that state facilities had a duty to protect people in their care, premised on the notion that if a prison restrains a person's freedom so much that "it renders him unable to care for himself, and at the same time fails to provide for his basic human needs ... it transgresses the substantive limits on state action set by [the Constitution]." (24) However, the Court has also retained significant protections for prisons by deferring to administration decisionmaking, using a standard that permits prison regulation of prisoners' constitutional rights when the regulation is '"reasonably related' to legitimate penological interests" (25) and allows challenges to prison regulation only when the policy is so unrelated to a government initiative that it is "so remote as to render the policy arbitrary or irrational." (26) Additionally, any public official is entitled to qualified immunity from monetary damages "unless a reasonable official in his position would know that his specific conduct violated clearly established rights." (27)

      Since the Supreme Court began recognizing constitutional claims from prisoners using [section] 1983 in the 1960s, prisoners and advocacy groups have used litigation to expose problems within prisons and spur reform. (28) Throughout this time, the courts, rather than Congress, largely drove prison reform. (29) In fact, litigation proved to be a valuable tool for prisoners to provide information to the outside world regarding wrongdoing within their prisons. (30) Going to court has proven to be a particularly effective method of communication because prisoners do not have access to other channels of reform, such as the political process. (31) As Margo Schlanger and Giovanna Shay have written:

      [F]or 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. (32) Likewise, litigation can result in more than just a win for an individual plaintiff; it can lead to broader positive change within prisons if a prisoner's lawsuit triggers a judge to mandate reforms within the penal system. (33) Not only can court orders lead to changes in prison policies and practices, litigation can also lead to increased public awareness and scrutiny of issues in prisons, putting pressure on officials to more effectively implement change. (34) Furthermore, litigation can lead to increases in funding that might be needed by a prison. (35) Ultimately, litigation may prove more effective for protecting prisoners' rights than political change, as the debates surrounding the implementation of the PLRA have shown, because politicians may focus more on appearing tough on crime and reducing the cost of prisons than on prisoner rights. (36)

      Nevertheless, while prisoner litigation can lead to positive reform in prisons, it can also lead to problems within the legal system. On the one hand, some argue that increasing funding for prisoners as a result of litigation contributes to the growth of mass incarceration and the prison bureaucracy in the United States. (37) On the other hand, some view court orders mandating prison reform as forms of activism by liberal judges intervening erroneously in state domains. (38) Inarguably, starting in the 1960s, the number of prisoner lawsuits increased significantly. (39) While this increase corresponded with growth in the prison population, it nevertheless created a burden on the courts. (40) In 1994, prisoners filed 39,065 lawsuits, up from 6606 in 1975. (41) In 1993, prisoner suits made up over one third of all civil appeals that were filed. (42) Furthermore, only a small proportion of those lawsuits were deemed meritorious enough to go to trial. (43) As Senator Orrin Hatch told the Senate in September 1995, "[t]he crushing burden of these frivolous suits makes it difficult for the courts to consider meritorious claims." (44) Of course, the poor rates of success by prisoner litigants could be explained by a shortage of lawyers willing to represent them, low income, high rates of disability both physically and psychologically, and bias on behalf of the courts against prisoners filing lawsuits against their prisons. (45)

   2. Understanding the PLRA

      The PLRA was enacted in response to Congress's concerns regarding the increasing rate of prisoner litigation in the 1990s. (46) Members of Congress had become particularly nervous about the rate of frivolous claims tying up the courts as well as the overall cost of litigation on the government...