Triaging Lomax: An Urgent Proposal for Legislative Reform to Restore Judicial Protection in American Prisons

Authors

Alexis B. Thurston

Abstract

In a 2003 study of trends in inmate litigation before and after the enactment of the Prison Litigation Reform Act ("PLRA"), Harvard Law School Professor Margo Schlanger described the PLRA's administrative exhaustion requirement as "the statute's most damaging component."¹ Almost two decades later, in June of 2020, the United States Supreme Court indirectly strengthened the administrative exhaustion requirement through its ruling in Lomax v. Ortiz-Marquez.² In Lomax, the Court found that all dismissals of inmate litigation resulting from the failure of an incarcerated plaintiff to adhere to the exhaustion requirement would count as "strikes" against the plaintiffs opportunity to access federal courts in the future.³

Since its enactment in 1996, the PLRA has been the subject of extensive scholarship regarding its effects on the ability of incarcerated litigants to bring grievances to federal court.⁴ Many scholars agree that the PLRA is in need of reconsideration. Suggestions range from enacting standards for increased oversight of prison conditions to judicially administered exceptions to some of the Act's requirements.⁵ However, despite Professor Schlanger's assertion about the considerable negative implications of the PLRA's administrative exhaustion requirement on court access for prisoners, scholarship focusing narrowly on the requirement is more limited.⁶ Furthermore, it is necessary to re-examine the administrative exhaustion requirement in the wake of the Lomax decision because it has pushed the requirement even further into the foreground of barriers to court access for prisoners. On a broader scale, the year 2020 brought a renewed public interest in issues concerning criminal justice and incarceration, creating the perfect backdrop for a reconsideration of what is arguably one of the most influential pieces of legislation regarding incarcerated citizens in modern history.⁷

This Article will expand upon Professor Schlanger's assertion that the administrative exhaustion requirement of the PLRA is the legislation's most dangerous component and will call upon Congress to remove the requirement. Part II.A explores the history of the provision and suggests that the prevailing "tough on crime" sentiment of the 1990s still plays a key role in upholding exceptionally stringent barriers to court access against incarcerated people. Part II.B discusses relevant administrative exhaustion caselaw. Part II.C discusses how the barriers imposed by the PLRA are particularly harmful to impoverished plaintiffs, who make up a majority of the prison population. Part II.D explains how the decision in Lomax underscored the cyclical nature of harms against prisoners posed by the PLRA.

Part III discusses the merits of removing the exhaustion requirement altogether. Part III.A outlines how the administrative exhaustion requirement is especially susceptible to disorganization and bias, which arbitrarily grants greater court access to some inmates over others. Part III.B discusses how the Lomax decision accentuates this bias and arbitrariness. Part III.C controverts arguments in favor of the administrative exhaustion requirement. Part III.D discusses why legislative intervention is the only remaining option for generating impactful change to the PLRA. Finally, this Article concludes with a call for legislators to set aside longstanding political hostilities toward incarcerated people in order to foster equal and just access to federal courts.

First Page

150

Recommended Citation

Alexis B. Thurston, Triaging Lomax: An Urgent Proposal for Legislative Reform to Restore Judicial Protection in American Prisons, 60 Duq. L. Rev. 150 (2022).
Available at: https://dsc.duq.edu/dlr/vol60/iss1/7