Rule-breakers, inside and out

America’s jails and prisons are bursting at the seams and new ones are being built at an amazing pace to house violent, non-violent, white collar and miscellaneous miscreants being shuttled through our courts at an ever-increasing rate. Governors in state after state are wondering just how to pay for the prisons they’re being forced to build and those who run our prisons and jails are hard-pressed to find qualified correctional officers to guard the growing army of inmates under their control.

Just last week, figures released by the government revealed that more than one in a hundred adults in this country are serving time in jail or prison. That’s the highest percentage of citizens of any nation in the world and it’s growing.

People are incarcerated for breaking society’s rules or laws both to punish them and to protect the public from them, and to let others know that those who break the law will pay for doing so. When they leave the courtroom for prison, victims and prosecutors often breathe a sigh of relief, knowing that at the very least they won’t be preying on the innocent while they’re locked up. Everyone hopes that by the end of their incarceration, miscreants “will have learned their lesson” and return to society determined not to repeat their mistakes.


The evidence suggests otherwise. While incarcerating dangerous and career criminals reduces crime just by keeping them off the street, prisons don’t do a very good job of rehabilitation. This should be of greater and greater concern these days because in the next few years literally hundreds of thousands of prisoners will be released and the fear is that a very high percentage of them will end up terrorizing someone before being rearrested and sent back.

Our prisons house more than a few men and women who cannot be saved, but many can. In failing them, our prisons are failing the society building these human warehouses.

A few weeks ago, I joined a number of others testifying before the House Judiciary Committee supporting changes in a law known as the Prison Litigation Reform Act or PLRA. The PLRA was passed in 1996 to deal with a flood of frivolous lawsuits filed by prisoners complaining about just about everything. The new law made it far more difficult to file such suits by requiring, a) that prisoners exhaust all administrative remedies available to them before going to court and b) denying prisoners access to the courts under any circumstances unless they could demonstrate actual physical injury as a result of the alleged mistreatment.

The law worked in the sense that it cut down on prisoner’s lawsuits, but it had the unintended consequence of virtually insulating prison officials from external oversight and denied prisoners access to the courts for all but the most grievous mistreatment. Even prisoners raped by rogue guards have been denied access to the courts because they couldn’t demonstrate real physical injury resulting from the rape.

 Judiciary Committee Chairman Bobby ScottRobert (Bobby) Cortez ScottDemocratic lawmaker tears into DeVos: You're 'out to destroy public education' Democrats lash out at DeVos over proposed changes to loan forgiveness plan House passes bill that would give legal status to thousands of undocumented farmworkers MORE (D-Va.) held the hearing to see how the law is working and what might be done to eliminate the unintended consequences without once again opening the courts to thousands of frivolous or even malicious lawsuits.


The witnesses testifying urged a number of reforms. The most important were eliminating the physical injury requirement, which allows guards and prison officials to ignore a prisoner’s rights and their own rules because they know they can do anything they want short of inflicting observable physical injury; softening the requirement that a prisoner “exhaust” an administrative review procedure that is often run not to remedy abuses but to keep prisoners “in their place.”

Any other governmental agency that promulgates rules governing its own behavior must follow those rules, but it is well documented that prison officials can and often do ignore their own regulations because  prisoners have no recourse and no one on the outside can do anything with the knowledge either. Prisoners who ask that the rules be followed are simply told the written or official rules don’t matter.

Most prisoners may not be rocket scientists, but they learn a lesson from all this. They realize that while they are in prison for breaking society’s rules, those with real power can and do act exactly as they please in flagrant violation of the very rules they are paid to enforce and observe.

That’s a lesson we shouldn’t be teaching.

Keene, chairman of the American Conservative Union, can be reached at