Jailhouse Lawyers. Mumia Abu-Jamal

were written.

      Long before U.S. Army Reserve Corporal Charles Graner brought pain, humiliation, and torture to Iraqi people detained in Abu Ghraib prison outside Baghdad, he was giving the blues to prisoners in Pennsylvania, where he was known as a brutal, sadistic, racist prison guard.

      The real irony is, however, that the events of Abu Ghraib, meaning the ones released to American audiences—the naked pyramids, the hoodings, the wirings, the panties-on-the-head, etc.—if committed in an American prison, would have been insufficient for a judge or jury to award damages, for the Prison Litigation Reform Act (PLRA) signed by President Bill Clinton does not allow recovery for psychological or mental harm or injury.

      This law violates Article 1 of the Convention Against Torture (CAT), a treaty to which the U.S. is a signatory. In any event, torture, whether mental or physical, amounts to a violation of international law: “For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”²⁶

      There are also, in fact, U.S. laws against torture. But the law is an elusive thing. Even in this era of conservative courts, some judges found this more than their readings of the U.S. Constitution could accept.

      One court has announced (albeit in footnote) that the Prison Litigation Reform Act’s passage wasn’t exactly on the up and up. In the case Ngo v. Woodford (2005), the U.S. Ninth Circuit Court of Appeals observed, “The PLRA’s sparse legislative history primarily consists of PLRA proponents parroting the frivolous cases compiled by the National Association of Attorneys General. . . . [S]adly, several of the most widely cited cases of frivolous lawsuits were mischaracterized by the proponents of the PLRA.”²⁷

      The opinion cited Newman’s article and noted that the description of the facts of prisoners’ lawsuits contained in the attorneys general’s lists of frivolous suits circulated to Congress and the media were “at best highly misleading and sometimes, simply false.”²⁸

      While the Ngo panel critiqued the Prison Litigation Reform Act, it did not declare it unconstitutional despite its fraudulent carriage into law. For, as we’ve learned, fraudulent law is still law, and judges on conservative courts are usually loath to seem supportive of something like prisoners’ rights.

      At least one part of the Prison Litigation Reform Act was declared unconstitutional in the 2006 case Siggers-El v. Barlow. There, the U.S. District Court found that the law’s provision prohibiting damages for emotional or psychological injuries (at least as applied to First Amendment claims) violated the constitution.

      At trial, a jury awarded a Michigan prisoner, Darrell Siggers-El, nearly $220,000 in economic, punitive, and emotional damages. The prison officials sought a remitter, or new trial, in the absence of more than minor physical injury. The court rejected the new trial argument, holding that “to bar mental or emotional damages would effectively immunize officials from liability for severe constitutional violations, so long as no physical injury is established.”²⁹

      To support its reasoning the court set forth a daunting hypothetical instance that seemed inherently unjust. In the example, a sadistic guard holds an unloaded gun to a prisoner’s head, threatens to kill him, and pulls the trigger in a mock execution. “The emotional harm would be catastrophic,” the court noted, yet it would be “noncompensable.”³⁰ If, however, a guard pushed a prisoner without justification, and the prisoner “broke his finger,” the court would allow emotional damages caused by the injury.

      Siggers-El thus turned on congressional intent, for “Congress did not intend to allow prison officials to violate inmate First Amendment rights with impunity, resolute with the knowledge that First Amendment violations will almost never result in physical injuries.”³¹

      But as the Prison Litigation Reform Act became law through a legislative sleight of hand, who knows what Congress intended?

      We can glean some idea from the words of Senator Orrin Hatch (R-Utah), then chair of the Senate Judiciary Committee, who said the following when he introduced the PLRA bill on the senate floor:

      This landmark legislation will help bring relief to a civil justice system over-burdened by frivolous prisoner lawsuits. Jailhouse lawyers with little else to do are tying our courts in knots with an endless flood of frivolous litigation.

      Our legislation will also help restore balance to prison conditions litigation and will ensure that Federal court orders are limited to remedying actual violations of prisoners’ rights, not letting prisoners out of jail. It is past time to slam shut the revolving door on the prison gate and to put the key safely out of reach of overzealous Federal courts. . . .

      While prison conditions that actually violate the Constitution should not be allowed to persist, I believe that the courts have gone too far in micromanaging our Nation’s prisons.³²

      With this burst of bile, Hatch and his fellow senators fought mightily to nail up the doors to the courts.

      The problem, it seemed, wasn’t that there was too much violating of the Constitution in the nation’s prisons; there were too many suits complaining about it. The solution?

      Simple.

      Change the law.

      Ten years later a small part of the bill designed to lessen court access and to limit access to a huge class of unrepresented people, was declared unconstitutional. (Perhaps by 2096, the whole thing will be thrown out.) Through pretexts, subterfuge, and lies, a bill meant to deny millions of Americans access to the courts by slashing lawyers’ fees to the bone (thus discouraging them from taking such cases), disallowing routine defenses and procedures that are the norm for other citizens, was passed into law as a rider.

      Is it surprising that a nation that began its existence with Slave Codes, then continued for a century with an equally repressive set of Black Codes, would institute, by hook or by crook, Prisoner Codes?

      Such is the stuff American law is made of today.