Essay:Prison administrative remedy
A prison administrative remedy system is a means for resolving complaints without the need for a prisoner to go to court. According to one lawyer, the appearance that a prison will hear and resolve grievances from its prisoners "is usually an illusion. Administrative Remedies work very infrequently and, if they do, it is only because that institution was so far out of legal compliance that a change needed to occur in order to prevent serious repercussions from the judicial and regulatory government above it."[1] The prisons "do not seek to remedy the matter or investigate, but use the process to deter & discourage a prisoner from seeking remedies to their legitimate complaints & delay them from pursuing the matter in court."[2] According to Cindy Chen, "This intrusion on prisoners' rights has not received much attention from the legislature because prisoners' rights are usually last on the list of priorities for lawmakers."[3]
There are a number of logistical challenges to filing these remedies. Staff can make it difficult for prisoners to get the proper forms, or they can claim that submitted forms were not received or were received after the deadline and therefore are untimely. One author notes that "too often the defining feature of administrative remedies is not justice, speed, or effectiveness, but mere 'availability'" that suffices to satisfy legal requirements.[4]
Federal system
According to one lawyer, "The Bureau of Prisons is especially adept at stalling, delaying, ‘losing’ forms, and pushing time-frames so the inmate appears to have not properly used the remedy system and therefore cannot file a lawsuit. . . [I]t can create an endless cycle of remedies that traps an inmate in bureaucratic red-tape so legal remedies can’t be sought."[1] Another notes, "In practice, the Federal Bureau of Prisons often stonewalls the administrative remedy process using it as a stall tactic to avoid responsibility for handling or resolving complaints and grievances."[5]
It's actually rather ridiculous that in the 21st century, the BOP still relies so much on a paper-based system. It could substitute a process in which prisoners scan in their remedy requests and track them via the TRULINCS system. This would allow for instantaneous transmission of requests and responses to those requests, and would reduce the possibility of requests getting "lost" to almost zero. Paper should only be used when, e.g. due to a prisoner's being in the SHU, there is no alternative; and even then, the unit team should scan in the remedies and put them in TRULINCS for him.
The Prison Litigation Reform Act requires that before a federal prisoner can appeal his case to court, he must exhaust all of his administrative remedies. This means that after the punishment is imposed, the prisoner must appeal and be turned down (or ignored) by every level of appeal within the FBOP. The three levels of appeal are the Warden, the Regional Director, and the General Counsel, although if the DHO imposed the sentence, the case skips the first level and goes straight to the Regional Director. The decision-maker at each level is allowed to take a certain number of days to respond, which can be extended.[6]
In addition, the first step of the process is to receive the UDC or DHO report. In the case of UDC proceedings, the UDC must hear the case within five business days and provide a written copy of the disposition by close of business the next work day. In the case of DHO proceedings, there is no maximum number of work days before the DHO hearing, and a written copy of the disposition must be provided "ordinarily within 15 work days of the decision." Due to the delays inherent in the process, and the possibility of multiple remands back to the Disciplinary Hearing Officer or Unit Disciplinary Committee, it can sometimes take more than a year to exhaust administrative remedies. In the meantime, the issue may become partly or completely moot; for example, a punishment of 40 days in disciplinary segregation will usually be served before the DHO hears the case and appeal is made and responded to by the Regional Director.
An administrative remedy request can be rejected or denied. A rejection does not reach the merits of a request, but refuses to consider it, citing a technicality. Reasons for rejection of an administrative remedy can include not filing it using the appropriate form (e.g. a photocopy will be rejected; it must be filed on the appropriate carbonized form), not attaching the applicable DHO report (even though there is no rule requiring the DHO report to be attached), not attaching the required number of copies of documents (e.g. remedy requests and responses) from lower-level proceedings, not filing within the required timeframe, and so on.[7] In some cases, the BOP never responds to a request. It is not uncommon for the BOP to claim that it never received a request; thus, it becomes necessary to pay for certified mail in order to generate proof of receipt.
Program Statement 1330.13 provides, "Each request, including appeals, will be responded to within the time frames allowed." However, no penalty for failure to do so is prescribed, and as first-year law students are taught, there is "no right without a remedy". It's easiest for bureaucrats to simply not write back; not only does responding require time and effort (even though they probably have boilerplate responses on file for most situations), but it gives the recipient a reminder of the situation that could make it more likely that he will take further action.
Responding to a request also allows the requester to appeal sooner that he otherwise would have been able. Suppose (as is often the case in the FBOP) the bureaucrat has 30 days in which to respond. If he responds in 10 days, then one can appeal as soon as one gets that response; but if he never responds, then one ends up waiting the whole 30 days before filing an appeal or inquiring as to whether he got the request. A lot of people will by that time simply have forgotten or lost their original paperwork.
What often happens is that the Regional Office will extend its own deadline, then miss that deadline; the prisoner will appeal to the Central Office; the Central Office will extend its own deadline; and then at the last moment, the Central Office will inform the prisoner that the Regional Office finally responded and that the appeal to the Central Office is accordingly rejected. The prisoner must then file a new appeal to the Central Office, starting that clock over. Thus, what would have been an 160-day process becomes a 240-day process.
| Appellate level | Response time, without extension | Time extension allowed | Total maximum response time |
|---|---|---|---|
| Warden | 20 days | 20 days | 40 days |
| Regional Director | 30 days | 30 days | 60 days |
| General Counsel | 40 days | 20 days | 60 days |
| Grand Total | 90 days | 70 days | 160 days |
See also
References
- ↑ 1.0 1.1 "Bureau of Prisons – Administrative Remedies". http://pcr-consultants.com/2011/06/bureau-of-prisons-administrative-remedies/.
- ↑ "Revised Administrative Remedy Program". 10 June 2011. http://prisoninmateslife.blogspot.com/2011/06/revised-administrative-remedy-program.html.
- ↑ Chen, Cindy (Winter 2004). "Prison Litigation Reform Act of 1995: Doing Away with More than Just Crunchy Peanut Butter, The". St. John's Law Review 78 (1): 203-232.
- ↑ Alderstein, David M. (November 2001). "In Need of Correction: The Iron Triangle of the Prison Litigation Reform Act". Columbia Law Review 101 (7): 1681-1708.
- ↑ "Liberty International Blog". http://libertyinternational.wordpress.com/criminal-defendants-handbook/%C2%A720-federal-bureau-of-prison-rules-policies-and-practices/.
- ↑ "1330.16, Administrative Remedy Program". Federal Bureau of Prisons. 31 December 2007. http://www.bop.gov/DataSource/execute/dsPolicyLoc.
- ↑ Bright, Stephen B.. "Statement Regarding the Prison Abuse Remedies Act". http://www.gpo.gov/fdsys/pkg/CHRG-110hhrg41903/html/CHRG-110hhrg41903.htm. "I once helped a client complete a grievance form and dropped it off with a deputy warden on my way out of the prison to be sure it was filed within the five-day deadline. Nevertheless, it was denied because a rule required that the inmate file the grievance. . . Other trivial technical defects like using the wrong form, directing a grievance to the wrong person, or filing the wrong number of copies all could bar prisoners’ claims from court. . . Grievance procedures may be 'available' in a legal, technical sense, but they are too complicated for most prisoners to comply and they are strictly enforced to avoid justice rather than obtain it."
