What led to the emergence and the passage of the Prison Litigation Reform Act?
It was a convergence of several elements. Clinton’s political opportunism, the efforts of the archconservative U.S. Senator Orrin Hatch (R-Utah), national actions on the part of the states’ attorneys general, and the unquenchable maw of the nation’s trash-flash media, which went berserk with a wave of stories about “crazy prisoner” lawsuits.
Every major American broadcast network (and their cable/satellite cousins) aired features about the jailbird who sued because he got creamy instead of chunky peanut butter in his commissary bag. Or the dude who filed a First Amendment challenge to the prison for not delivering his Playboy magazine on time.
Such reports were as common as popcorn in a movie theater. The problem with these reports is that they weren’t true.
This revelation came to light not due to the stalwart investigative efforts of the New York Post, but in the thin, monochromatic pages of the Prison Legal News. The Prison Legal News featured a remarkable article penned not by a prisoner (as most are), but by a federal judge, who put the kibosh on the notion of the “flood of crazy prisoner junk suits.” In the 1996 article, Chief Judge Jon O. Newman of the Second U.S. Circuit Court of Appeals (headquartered in New York) set forth his critical reply to a letter signed by the attorneys general of four states published in the New York Times.
The New York Times letter was an organized attempt by the National Association of Attorneys General to garner media and political support to change the law and restrict access to the courts by prisoners. In their joint letter describing the prisoner suits, the attorneys general used a series of lies, half-truths, and misrepresentations to buttress their arguments. Judge Newman would quote from their letter and contrast these assertions against the real cases filed. Newman’s article is a telling revelation of how politics and media mesh to create deeply flawed law:
“Typical of such suits is the case where an inmate sued, claiming cruel and unusual punishment because he received one jar of chunky and one jar of creamy peanut butter after ordering two jars of chunky from the prison canteen. Or the inmate who sued because there were no salad bars or brunches on weekends or holidays. Or the case where a prisoner is suing New York because his prison towels are white instead of his preferred beige.”
I wondered about the characterization of these suits, because, though I have seen many prisoner suits that lacked merit, it has not been my experience in 23 years as a Federal Judge that what the attorneys general described was at all “typical” of prisoner litigation.
New York Attorney General Dennis Vacco was kind enough to respond to my request for copies of the complaints in these three cases. Here is what I learned.
In the peanut butter case, the prisoner did order two jars of peanut butter from the canteen and one was the wrong kind. But he did not sue because he received the wrong product. He sued because, after the correctional officer quite willingly took back the wrong product and assured him that the item he had ordered would be sent the next day, the authorities transferred the prisoner that night to another prison, and his account remained charged $2.50 for the item that he ordered but never received. Maybe $2.50 doesn’t seem like much money, but out of a prisoner’s commissary account, it is not a trivial loss, and it was for loss of those funds that the prisoner sued.
As for the case of the beige and white towels, the suit was not brought just because of the color preference. The core of the prisoner’s claim was that the prison confiscated the towel and a jacket that the prisoner’s family had sent him, and disciplined him with loss of privileges. In the case, the prisoner stated, the confiscation “cause[d] a burden on my family who work hard and had to make sacrifices to buy me the items mention[ed] in this claim.”
Lastly, the salad-bar-claim allegation turns out to be a minor aspect of a 27-page complaint alleging major prison deficiencies including overcrowding, lack of proper ventilation, lack of sufficient food, confinement of prisoners with contagious diseases and food contamination by rodents. The inmate’s reference to the food was to point out that basic nutritional needs are not being met. The claim mentioned that the salad bar was available to corrections officers and to prisoners in other state prisons. It is hardly a suit about lack of a salad bar.22
The nation’s media, however, anxious to juice up their audiences with sensationalist reporting of “those loony prisoner suits,” or to hit their economic advertising market with high scores in the “sweeps” (or ratings) period, decided to offer their services to this ignoble crusade instead of simply reporting the truth.
They chose fiction over fact.
Many of us may recall those oddly entertaining stories about prisoners suing over something as silly as peanut butter and claiming violations of the “cruel and unusual” clause of the Eighth Amendment to the Constitution.23 Many of us may have laughed at the absurdity of it. “The nerve of that dude,” we may have snorted in derision. I’ve heard more than one prisoner, several of whom were jailhouse lawyers themselves, grumble that “guys like them make it hard for us to get our suits into court.”
But was this actually so?
What changed the law was something far more insidious than the occasionally silly suit. It was the convergence of several social forces: State power, the media, and political opportunism at the highest levels of government.
Media subservience to its political and class masters was transformed into law, enacted into statute with the signature of a former professor of constitutional law morphed into an imperial politician: William Jefferson Clinton.
And how this became law is worthy of note. Like a thief in the night the Prison Litigation Reform Act was attached as a rider (a usually minor clause attached to a bill) to an omnibus appropriations bill and signed into law, without a committee mark-up (a report from the Senate Judiciary Committee explaining its provisions), drastically changing the law and legal procedure.24 This was thus a stealth law that altered the rules impacting the lives and liberties of millions of people.
Yet Bill Clinton, a constitutional scholar, affixed his presidential signature and the Great Seal of the United States to the bill, one of his many signals of abject surrender: playing nice with his political enemies while betraying his political allies, constituencies, and even his bedrock political principles.
In economist Michael Meeropol’s view, the Clinton presidency essentially surrendered to the forces of the right wing on social and class issues like welfare, the budget, and taxes. In his bills from 1995 to 1997, Meeropol noted, Clinton “signaled surrender: the Reagan revolution was going to achieve its major goals.”25 It was a bipartisan triumph of neoliberalism and a betrayal of the progress made by the New Deal.
Clinton’s administration represented a Neo-Deal, which promoted the interests of the well-to-do folks on Wall Street and their political drones on Capitol Hill and in the White House. It was a trendy period called the “Me Decade,” but for the many poor and dispossessed souls in America’s dungeons it was a decade of exclusion. For the poor and the working class, and more so for those millions who dwelled in the nation’s prisonhouses, it was a time to be hated and scapegoated. On that, if nothing else, there was bipartisan consensus.
But as with any law, one may not accurately predict how it flies in the real world. That’s obviously because of the unwritten law of unintended consequences. For while state repression was a silent norm in U.S. penal practice, the media served to provide the state with a glowing reputation for fairness and evenhandedness, and wreathe it in the illusion of fair, humane treatment of the imprisoned.
That would soon change.
In the aftermath of 9/11, and the subsequent U.S. invasions and occupations of Afghanistan and Iraq, the events at Abu Ghraib and Guantánamo Bay have had dire consequences for America’s image and reputation abroad.
While