The challenge of prison oversight.

• Author: Fathi, David C.

Prisons are closed environments, largely hidden from public view. For obvious reasons, the public and press cannot be allowed the same degree of access to prisons as they are allowed to other government facilities, and security concerns require some monitoring and control of contacts between prisoners and the outside world.

Prisons also house a uniquely powerless population. Prisoners are overwhelmingly poor and lacking in formal education; many are functionally illiterate. In all but two states, they are deprived of even that most basic instrument of political self-defense--the vote. (1) Their unpopularity makes it unlikely that others will come to their aid. Prisoners are the ultimate "discrete and insular minorit[y]" (2); no other group in American society is so completely disabled from defending its rights and interests.

The combination of these factors the closed nature of the prison environment and the fact that prisons house politically powerless, unpopular people--creates a significant risk of mistreatment and abuse. This risk is, of course, not unique to the United States, and other democratic states have devised various means of countering it. Many have an independent national agency that monitors prison conditions and enforces minimal standards of health, safety, and humane treatment. For example, in Great Britain, Her Majesty's Inspectorate of Prisons has the power to conduct unannounced inspections of all prisons and jails. (3) In the member states of the Council of Europe, the Committee for the Prevention of Torture monitors conditions in prisons and other places of detention. (4) In countries that have ratified the Optional Protocol to the Convention Against Torture (OPCAT), monitoring by a national oversight body is supplemented by periodic visits by the United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. (5)

By contrast, the United States has no independent national agency that monitors prison conditions, and it has not ratified OPCAT or any other treaty that would provide for outside monitoring. The bipartisan Commission on Safety and Abuse in America's Prisons recently concluded that "[f]ew [U.S.] states have monitoring systems that operate outside state and local departments of corrections, and the few systems that do exist are generally underresourced and lacking in real power." (6)

Perhaps for these reasons, the main vehicle for official oversight of conditions in U.S. prisons and jails historically has been the federal courts. Spurred by Supreme Court decisions ruling that prison conditions were subject to constitutional limits, prisoners and their attorneys filed lawsuits challenging inadequate medical and mental health care, dangerous and unhealthy physical facilities, abuse by prison staff, and other unlawful conditions. In many cases, federal courts issued prison-wide or even statewide orders to remedy these deficiencies. While these victories were far from complete and serious problems remain, the oversight role of the federal courts transformed U.S. corrections in just a few short decades. (7)

Part I of this Article provides an overview of the significant decline in federal-court oversight of U.S. prisons and jails in the last two decades. Part II examines the dearth of non-judicial oversight mechanisms. Part HI discusses the unique oversight problems posed by private prisons. In each of these areas, the American Bar Association's Standards on the Treatment of Prisoners provide guidelines on best practices, which are reviewed in turn. (8)

1. THE ATTACK ON JUDICIAL OVERSIGHT

   The federal courts' oversight role was sharply cut back by the Prison Litigation Reform Act (PLRA), passed by Congress and signed by President Clinton in 1996. (9) The PLRA subjects lawsuits brought by prisoners in the federal courts to a host of burdens and restrictions that apply to no other litigants. With its passage, the United States became the only country in the world in which national legislation singles out prisoners for a unique set of barriers to vindicating their legal rights in court. (10)

   The PLRA's provisions include:

   The exhaustion of remedies requirement. Before a prisoner may file a lawsuit in court, he must first take his complaints through all levels of the prison's or jail's grievance system, complying with all deadlines and other procedural rules of that system. (11) If the prisoner fails to comply with all technical requirements, or misses a filing deadline that may be as short as a few days, his right to sue may be lost forever. (12)

   The physical injury requirement. A prisoner may not recover compensation for "mental or emotional injury" unless she makes a "prior showing of physical injury." (13) Under this provision, prisoners who have been subjected to sexual assault, false disciplinary charges, and other intentional abuse by prison staff have been denied a remedy. (14) Indeed, because of this provision, many of the abuses that took place in Iraq's Abu Ghraib prison would not have been compensable if they had occurred in a U.S. prison or jail.

   General provisions applicable to children. The provisions of the PLRA apply not only to adult prisoners, but also to children confined in prisons, jails, and juvenile detention facilities. (15) The exhaustion requirement has proven to be an especially formidable barrier to justice for incarcerated children, particularly in light of court rulings holding that efforts of parents or other adults to exhaust on their behalf do not satisfy the PLRA. (16)

   Restrictions on court oversight of prison conditions. The PLRA significantly restricts the power of federal courts to make and enforce orders limiting overcrowding or otherwise remedying unlawful conditions in prisons and jails. (17)

   Limitations on attorney fees. If a prisoner files a lawsuit and wins, establishing that her rights have been violated, the PLRA limits the amount her attorneys can be paid. (18)

   The PLRA's sponsors argued that the law was necessary to deal with "frivolous" lawsuits brought by prisoners. (19) However, most of the law's provisions either apply without regard to the merits of the prisoner's claim (the exhaustion requirement) or apply only to cases in which prisoners have prevailed on the merits (limits on remedial orders and attorney fees).

   The effect of the PLRA on prisoners' access to the courts was swift and devastating. Between 1995 and 1997, federal civil rights filings by prisoners fell thirty-three percent, despite the fact that the number of incarcerated persons had grown by ten percent in the same period. (20) By 2001 prisoner filings were down forty-three percent from their 1995 level, despite a twenty-three percent increase in the incarcerated population. (21) By 2006, the number of prisoner lawsuits filed per thousand prisoners had fallen sixty percent since 1995. (22)

   The PLRA also apparently has resulted in a significant decline in judicial oversight of conditions in correctional facilities. Between 1995 and 2000, the number of states with less than ten percent of their prison populations under court supervision more than doubled, from twelve to twenty-eight. (23) After tracing the...