Top trends in criminal justice, inmate litigation, court access, and liability - 2021 recap

Jail and prison staff need a clear understanding of evolving law—including inmate civil rights, inmate health, and case law. In a 2021 webinar hosted by the American Jail Association and sponsored by LexisNexis®, Professor Margo Schlanger, JD, shared important legal updates and insights for corrections officers and administrators.   

Click here to download the complete complementary resource from LexisNexis. 

Grievance Systems for Inmates 

The Prison Litigation Reform Act makes it mandatory for any prisoner who wants to file a federal court civil rights action to exhaust available administrative remedies first—that means proper use of an available grievance system. Facilities need to avoid the risk of offering an “unavailable” grievance system, which under Ross v. Blake (2015) could come into play:  

1. If officers are unable or consistently unwilling to provide any relief to aggrieved inmates 
2. If it is so opaque that, despite mechanisms to provide relief, no ordinary prisoner can discern or navigate the system 
3. If administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation

Inmate Access to the Courts 

Jails and prisons also need to comply with requirements for inmate access to the courts.  

• Case law: Jails must provide some form of assistance—libraries or persons trained in the law—to give inmates the capability to file non-frivolous lawsuits challenging their sentence or the conditions of their confinement. 
• ACA Standard 4-ALDF-6A-03 (Accreditation Standards): Inmates need access to a law library if there is not adequate free legal assistance to help them with criminal, civil and administrative legal matters. 
• ACA Standard 1-Core-6A-03 (Core Jail Standards): Inmates need access to legal materials. 

Case law indicates jails can choose the media, but that they need to provide equal access to people with disabilities. For example, by providing the following measures:  

• Programmatic access if the space is not wheelchair accessible 
• Screen readers or other auxiliary aids for people with low vision 
• Assistance for people whose disability has led to low literacy 

“I know that jails and prisons really like to treat everybody even-handedly, but the law doesn’t actually do that,” said Schlanger. “Regarding requests for accommodations, the law asks, ‘Why do you want it?’ So my suggestion is that you think about approaching it that way.” 

Conditions of Confinement Liability Standard 

Margo Schlanger outlined the two provisions of the Constitution that apply to conditions of confinement cases. 

• For post-conviction inmates, the 8th Amendment’s cruel and unusual punishment clause applies. 
• For excessive force, the 8th Amendment imposes liability for intentional harm only (Whitley v. Albers, 1986). 
• For conditions of confinement, the 8th Amendment liability standard is deliberate indifference, defined in Farmer v. Brennan in 1994 as failure to respond reasonably to a known risk of serious harm. 
• For pretrial prisoners, the relevant part of the Constitution is the 14th Amendment’s due process clause. 

In years past, courts assumed the law was the same for pretrial and post-conviction inmates. But in 2015, in Kingsley v. Hendrickson, the Supreme Court clarified that this is not necessarily the case. For pretrial inmates in excessive force cases who sue under the 14th Amendment, those suits can win when the degree of force is objectively unreasonable, whether or not the resulting harm was intentional. “This change makes it somewhat easier for pretrial prisoners to win cases,” said Schlanger.  

What this means for conditions of confinement cases is not yet clear, but the circuits disagree. A pending case, Strain v. Regalado, is requesting Supreme Court review. 

Click here to download the complete resource from LexisNexis. 

About Margo Schlanger, JD  

Margo Schlanger is the Wade H. and Dores M. McCree Collegiate Professor of Law at the University of Michigan, and is a leading authority on civil rights issues and civil and criminal detention. She teaches constitutional law, torts and classes related to civil rights, jails and prisons. She also founded and runs the Civil Rights Litigation Clearinghouse. Schlanger earned her JD from Yale University. She is the author of dozens of law review and other scholarly articles, and is the lead author of the casebook Incarceration and the Law.