The 1996 Prison Litigation Reform Act greatly limited a prisoner’s ability to use the legal system.
It was intended to limit frivolous lawsuits, as prisoner court filings were increasing. However, this increase was not commensurate with the increase in prison population. The rate was actually lower than in the previous decade, according to data compiled by Margo Schlanger, a law professor.
She studied 40 years of prison litigation and authored a paper stating that since the 1970s, court orders had been a major source of regulation and oversight for America’s jails and prisons.
She found that those court filings plummeted after the 1996 reform act.
The act restricted lawsuits based on mental or emotional harm, limited the court’s ability to change prison policy, applied court fees to incarcerated people, and limited the amount of litigation costs the facility would have to pay the inmate’s attorney, making inmate cases far less attractive to lawyers.
Prison advocacy groups such as Prison Policy Institute argue that as the nation reconsiders mass incarceration, it’s also time to reconsider this reform act.
The act also requires that before inmates can sue their correctional facility, they must exhaust all internal administrative processes first.
This can be problematic at Oregon state prisons where the internal administrative process involves a complicated set of rules written in legalese that can be difficult for some inmates to decipher.
In this system, Oregon’s state prison inmates can file a grievance when they take issue with the way a rule is being applied or with their treatment by staff.
They are encouraged to confront the problem person-to-person, using this grievance system only in cases that cannot be resolved.
They must exhaust this system and its different levels of appeal before they can file a lawsuit.
Inspector General Craig Prins said an average of 640 out of Oregon’s 14,600 inmates filed a grievance each month during the second quarter of this year. He said all but 1.2 percent of those complaints were responded to within 24 days.
“We’re proud of that,” he said. “That’s something that we’ve worked on hard, and I think that shows it’s a program we take seriously.”
He said when inmates disagree with the response to the grievance, they have a first appeal and second appeal option where independent eyes review the evidence to see if the claim can be substantiated.
“If it is,” he said, “we take corrective action.”
But in order to exhaust the system, the grievance has to be accepted as being in compliance with the grievance rules.
In a sampling of 17 grievances filed against one Oregon State Penitentiary employee that Street Roots reviewed, 10 were denied outright, mostly for non-compliance with the “Grievance Review System” rules.
Julia Yoshimoto is an attorney who has helped inmates at Coffee Creek Correctional Institution, a women’s prison in Wilsonville, navigate Oregon’s prison grievance system as part of her work with the Oregon Justice Resource Center.
She said that often the inmates don’t comprehend why their grievances have been returned or denied or know how to fix it. They often just drop it entirely or send a similar complaint.
“The regulations, which explain the grievance process and set the grievance rules, are long, read like a maze, and are difficult to follow,” Yoshimoto said. “As an attorney, I’m used to combing through regulations and statutes, but I find the rules complicated and, given the circumstances and the type of incident someone is grieving, difficult to abide by completely in order to make it through the first level of review to even be considered by administration.”
She said a better way of bringing issues to the attention of the administration is needed, “especially when we know that a number of the women have not gone far in school and don’t have the strongest reading and writing skills.”
She said that many women are afraid to file grievances in the first place because they fear retaliation from staff.
“They either have experienced retaliation after filing a grievance, know of someone else who was retaliated against for filing grievance, or just have no trust in prison staff or the system and assume retaliation will follow. And so they will not speak out about what happened to them through a grievance,” she said.
According to the Oregon Justice Resource Center, while it's received anecdotal information from inmates claiming to have been retaliated against for filing grievances, it has not obtained any official records of such retaliation.
In three out of the 17 grievances Street Roots reviewed, the inmate explicitly stated that as part of their desired outcome, they did not want to be retaliated against for filing the grievance.
“We very much think this is a part of giving the adults in our custody a voice,” Prins said of the grievance system. “We very much think it’s a part of respecting and showing them a pro-social way to deal with conflict.”
Yoshimoto’s experience at Coffee Creek says otherwise.
“Women often share with me that they do not feel heard,” she said. “For the women who I’ve talked to about grievances, they don’t really think the process does anything for them. They may try to go through it because they feel it’s the only option to let administration know about an incident – to feel like they didn’t just take it and that they at least tried to advocate for themselves – but they don’t have any real expectations for a positive outcome. It’s as if they expect to be ignored. And when filing grievances leads to a denial, to no real change or to retaliation, it can leave a woman feeling even more beaten down and silenced. One woman told me that she just wanted some sign that administration at least ‘acknowledged’ her and her concerns.”
This story was updated on Sept. 8 to include a clarification from the Oregon Justice Resource Center stating it has not obtained official documentation of retaliation, but has received anecdotal reports from inmates.
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