Law: Inmate can't file lawsuit until appeals exhausted

Before Anthony Solomon Ashford can file a civil lawsuit against the Virginia Department of Corrections, he must exhaust his administrative appeals as an inmate because of a 1996 federal law, which some opponents say restricts judicial oversight for prisons.

Ashford said Green Rock Correctional Center staff held him in too-small restraints while he waited in September for treatment at Danville Regional Medical Center for 10 hours. He filed complaints in Green Rock and appealed to the prison system’s regional director.

But until Green Rock’s investigation is complete, Ashford can’t file a lawsuit.

The 1996 law

The Prison Litigation Reform Act was introduced into Congress with the intent to limit ridiculous lawsuits, according to the Congressional record.

During a Senate hearing in September 1996, then-Sen. Spencer Abraham, R-Mich., said lawsuits by prisoners and over prison conditions were “out of hand.”

In fiscal year 1995, Abraham said inmates filed more than 25 percent of the civil caseload in federal courts. The National Association of Attorney Generals estimated that the lawsuits cost states about $81 million, though 95 percent of them were won early in litigation “for reasons that are obvious,” he said.

Abraham spoke about an inmate who sued because he was served melted ice cream, an inmate who sued because he wanted L.A. Gear or Reebok Pump tennis shoes instead of Converses, and an inmate who sued because his slice of cake was chopped up when he got his food.

With those lawsuits in mind, the Prison Litigation Reform Act was passed as part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996.

Restricting oversight

Opponents of the act say it limits ridiculous civil lawsuits at the expense of legitimate litigation and restricts judicial oversight of prisons and departments of correction, which already operate with little or no external oversight.

Professor Giovanna Shay has written about the Prison Litigation Reform Act and its impact on inmates’ civil rights. Shay is an assistant professor of law at Western New England College’s School of Law.

Shay argues in a co-authored 2008 article that the act’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.”

One part of the act that limits legitimate complaints is the requirement for inmates to exhaust administrative remedies, according to the article, “Preserving the Rule of Law in America’s Jails and Prisons.”

Shay said the exhaustion requirement is an important aspect of the act because it has the potential to frustrate relief for abuse.

“In many jails and prisons, administrative remedies are, unfortunately, very difficult to access,” the authors wrote. “Deadlines may be short, for example, or the number of administrative appeals required very large.”

In Virginia, an inmate incarcerated in a state prison must move through three levels of appeal before exhausting his or her rights, according to the Department of Corrections Offender Grievance Procedure.

The first appeal is to the warden or superintendant. The second level involves the regional director, health services director or chief of operations for offender management services. And the last level of appeal is the department’s director or deputy director.

The total amount of time from the first filing of a grievance to the last level of review cannot be longer than 180 calendar days.

A possible solution

Civil rights advocates hope that recent legislation introduced by Sen. Jim Webb, D-Va., will ad-dress the problems of the Prison Litigation Reform Act and oversight in Am-erica’s prisons and jails.

Webb introduced a bill in 2009 that would set up a commission to study the country’s criminal justice system. The commission will review federal, state and local criminal justice systems’ costs, practices and policies. It will then make recommendations for oversight, policies, practices and laws.

The Senate Judiciary Committee approved Webb’s bill Jan. 21. The National Criminal Justice Commission Act is awaiting a full vote on the Senate floor.

According to the legislation’s fact sheet, the United States has 5 percent of the world’s population but houses 25 percent of the world’s prisoners. More than 2.3 million Americans are in prison, with another 5 million on probation or parole.

Shay said lacking oversight in prisons and jails affects everyone because a majority of inmates are released.

“It does seem a lot of times that prisoners are out of sight or out of mind,” Shay said. “How we treat them matters. If they’ve been abused, those issues are coming home with them. They’re going to have an effect on their family; they’re going to have an effect on their neighborhoods.”