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Monday, May 03, 2010

Guest Blogger Giovanna Shay: Law Reform & Custodial Sexual Abuse

This is Giovanna Shay signing on as a guest blogger for May.  I too would like to thank the folks at PrawfsBlawg for the invitation.  I am an Associate Professor of Law at Western New England College School of Law in the Pioneer Valley of western Mass (also home of Shay's Rebellion, but no relation).  I teach Criminal Law, Gender & Criminal Justice, and Postconviction Rights, and I write about legal regimes governing mass incarceration.

I'm going to kick off my guest stint with a series of posts about law reform efforts designed to combat custodial sexual abuse and prison sexual violence.  Currently, we see action on these issues on a number of fronts: in the areas of administrative regs, proposed legislation, and a case at the SCOUTS, Ortiz v. Jordan (09-737).  As a shameless plug, I'll mention here that there will be an all-star (plus me) panel discussing related topics and entitled "Law & Sex in Prison" at LSA, on the morning of Thursday May 27th, and including Professors Kim Buchanan, Brenda V. Smith, Angela Harris, and Sharon Dolovich, among others.

Although an inherently important civil and human rights issue, law reform efforts around prison sexual violence also hold broader intellectual interest.  As Kim Buchanan, Brenda Smith, and others have noted, this is an area in which human rights violations can seem intractable and become normalized.  Thus, this law reform effort is a case study in law's potential role in social change: what are we trying to do, and in what ways, and is it making a difference?  Brenda and Kim also have noted the linkages between custodial sexual abuse of women prisoners, who are disproportionately women of color, and other types of racialized sexual violence in our nation's history (the type of link discussed so incisively by Michelle Alexander in her recent book The New Jim Crow). This is also an intersection point of different areas of law which are often studied in silos--criminal, civil rights, and administrative.  (NYU Prof. Rachel Barkow's important work describes this type of intersection nicely). 

In this first post, I'll start with the administrative law developments.  

The Prison Rape Elimination Act of 2003 (PREA) established a National Prison Rape Elimination Commission (NPREC) that was charged with sending proposed national model standards for reducing prison sexual violence to the Attorney General.  Once the Attorney General approves and promulgates the national standards, corrections systems that cannot certify their compliance will lose a percentage of their prison-related federal funding.

Members of the Commission held hearings nation-wide and issued a comprehensive report in June 2009 (which is a fascinating read and great teaching tool).  After a notice-and comment period, which I describe in my forthcoming piece in the Berkeley Journal of Criminal Law, Ad Law Incarcerated, NPREC issued proposed model standards.  Those proposed standards are now being considered by the DOJ, which has opened a second notice-and-comment period, ending May 10th.  I know that a number of profs are planning to submit comments.

The comment that I am planning to submit to the DOJ will address the provision of the NPREC proposed model standards designed to "fix" the draconian effects of the PLRA exhaustion provision in custodial sexual abuse and prison sexual violence cases.  The PLRA exhaustion provision provides: "no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility, until such administrative remedies as are available are exhausted."  This provision was interpreted by the Supreme Court in its 2006 decision Woodford v. Ngo to require "proper exhaustion," effectively incorporating a procedural default rule.

As a result, as Margo Schlanger and I have written, prisoners may not be able to bring meritorious claims to court if they miss prison grievance deadlines, which are often only a few days long.  Advocates report numerous problems attempting to exhaust prisoners claims, including that prisoners can be transferred among facilities, frustrating their efforts to complete the grievance process.  For example, a prisoner's complaint alleging that she was raped by a guard was dismissed for failure to file an administrative grievance, in a facility in which the deadline was 5 days.  During that five-day period, the incarcerated woman was under investigation for "inappropriate sexual conduct with another person," because the guard had alleged that the sex had been consensual.  Brewer v. Corrections Corp. of America, Civ. Action No. 7:09:CV-89-KKC (January 27, 2010).

In custodial sex abuse cases, prisoners may miss deadlines because they are traumatized or fear retaliation.  One prisoner said: "At first I denied any allegations because I was afraid, ashamed, humiliated, and afraid of retribution from the officers involved."  Solliday v. Spence, 2009 WL 59526 at *4 (N.D. Fla. 2009).  In this case, involving a federal facility in Florida, efforts to arrest officers charged in an alleged "sex ring" produced a shoot-out resulting in the death of a federal agent from the Office of the Inspector General.  Ironically, the agent's tragic death occurred only days after the Supreme Court's tightening of the PLRA exhaustion requirement in Woodford.  Despite the horrific circumstances, the facility initially rejected a prisoner's attempts to file a grievance through an alternative process, claiming that her claim of sex abuse was not "sensitive."  Solliday v. Spence, 2009 WL 559526 at *10 (N.D. Fla. 2009).

The NPREC proposed model standards would attempt to alleviate harsh effects of technical grievance requirements and short deadlines, while remaining true to the PLRA's requirement that prisoners first exhaust administrative remedies before proceeding to court.  Specifically, the standards would require corrections agencies to deem as exhausted reports of sexual abuse "regardless of whether the report was made by the inmate, made by a third party, or forwarded from an outside official or office," either when the agency makes a final decision on the merits, or 90 days after the report is made, whichever is sooner.

The model standards ensure that short grievance deadlines will not bar administrators and couts from looking into allegations of custodial sex abuse.  The proposed standards also ensure that complaints of custodial sexual abuse received from sources other than the "official" grievance process will "count" for exhaustion purposes.  This is important, because best practice is to provide multiple avenues of reporting custodial sexual abuse (as the NPREC report explains).  Yet some prisoners who have relied on corrections authorities' assurance that they can report through an alternate route have seen their claims dismissed for failure to properly exhaust.  See Amador v. Superintendents of Dept. of Corr. Services, 2007 WL 4326747 (S.D.N.Y. 2007).

This is another example of the important role of corrections regulations, and their potential to mitigate the effects of what Mark Tushnet and Larry Yackle described as a "symoblic statute," the PLRA.

Of course, the NPREC model standards will affect only sexual abuse cases.  Next post: proposed legislative amendments to the PLRA, which could benefit prisoners in other serious cases as well.

Posted by GiovannaShay on May 3, 2010 at 02:16 PM in Criminal Law | Permalink

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