Page 57 - Impact: Collected Essays on Expanding Access to Justice

even if that requires filing a grievance within 48 hours, as do women prisoners who must file timely grievances about a pattern of rape and harassment even if they correctly fear retaliation after filing such complaints .50
Injunctive relief, successfully achieved through systemic challenges to prison conditions before the PLRA, is now difficult to achieve either through litigation or settlement – and the scope of relief is limited . The statute requires prospective injunctive relief to be supported by findings, to be narrowly drawn, to extend no further than is necessary to correct a violation of federal rights and to be the least intrusive means of doing so .51 Parties can and sometimes do stipulate that the requirements have been met,52 but the statute is designed to direct parties to private agreements enforceable in state court rather than to federal court enforcement .53 Continuing jurisdiction to oversee implementation of federal consent decrees has become rare .
Constitutional standards are demanding and violation of prisoners’ constitutional rights has become increasingly difficult to prove . But egregious violations of basic human dignity continue to occur . Persistent and creative lawyers have used the limitations imposed by the PLRA to forge successful litigation strategies . Brown v. Plata54 and Nunez v. City of New York exemplify that meaningful relief remains possible .
In Plata, the statutory cap on permanent injunctive relief became a frame for relief . A three- judge panel, required by the PLRA when a prisoner release order is sought,55 determined that overcrowding had caused the Eighth Amendment violation of the prisoners’ right to constitutional medical care . It took more than two decades and eighty remedial orders to develop an adequate factual record in that case . Notwithstanding the stark finding that, due to overcrowding, an average of one prisoner dies of avoidable negligence in California prisons each week,56 the state litigated PLRA issues through the Supreme Court . Implementation of the order that California reduce its prison population to 137 percent of rated capacity has been hard fought and slow .57
Nunez was the sixth successive class action lawsuit in 25 years that challenged the use of excessive force, and unconstitutional deliberate indifference to a substantial risk of serious harm from that force, at the New York jails on Rikers Island .58 The fifth case, Ingles v. Toro, was resolved by the PLRA preferred Private Settlement Agreement mechanism that was enforceable in state court .59 Unconstitutional conduct continued to occur and five years after the Ingles private settlement
50 Id. at 121 (Stevens, J., dissenting).
51 18 u.S.C. § 3626(a) & (b)(2). A common feature of pre-AEDPA settlements was a statement that the agreement was not predicated on a finding or concession of constitutional violation. That approach enabled parties to compromise and achieve meaningful relief without costly and lengthy litigation.
52 See, e.g., Consent Judgment at 58, Nunez v. City of New York, 11-cv-5845 (LTS) (JCF) (S.D.N.Y. Oct. 21, 2015).
53 18 u.S.C. § 3626(c)(2).
54 563 u.S. 493 (2011).
55 18 u.S.C. § 3626(a)(3).
56 Plata, 563 u.S. at 507-08.
57 See, e.g., Joan PeTersilia, Voices from The field: how california sTakeholders View Public safeTy realignmenT (Stanford Criminal Justice Center Working Paper 2014), available at http://www.law.stanford.edu/organizations/programs- and-centers/stanfordcriminal-justice-center-scjc/california-Realignment; see also Prison Law Office, California’s Prison Crowding Reduction Plans and Credit Laws (updated Mar. 16, 2016), available at http://prisonlaw.com/wp- content/uploads/2016/03/pop-reduction-credit-laws-info-letter-March-2016-final.pdf.
58 Amended Complaint ¶ 2, Nunez v. City of New York, 11-cv-5845 (LTS) (JCF) (S.D.N.Y. filed May 24, 2012).
59 See Ingles v. Toro, 438 F. Supp.2d 203 (S.D.N.Y. 2006).
Specific Areas for Reform: Prisoners’ Rights
55