The administrative remedy process is a roadblock to challenging inhumane prison conditions. With the help of advocates, people in prison are fighting back.
As a way to challenge the inhumane conditions of their imprisonment, people behind bars have made remarkable use of the very legal system that criminalizes and incarcerates them. During the late twentieth century, that activism saw success in the court system in various ways, but these landmark cases and resulting litigation soon met with backlash from prison administrations and policymakers. Their response led to stringent restrictions that limited the ability of people in prison to access legal resources, work with lawyers, and file lawsuits.
One federal law passed in the mid-­1990s institutionalized the mother of all bureaucratic stopgaps: the administrative remedy process. Today, in just about all carceral settings, an incarcerated person must navigate the complex process of administrative remedy to address harassment, poor conditions, and other deprivations. This process involves submitting formal complaints and exhausting appeals before it is permissible to seek judicial intervention.
Since 2020 a new organization, The Remedy Project, has been working to transform the possibilities of the administrative remedy process by wielding it as a tool to challenge the power of the carceral state. As the only organization focused primarily on helping incarcerated people to file administrative remedies, the project has built a coalition of college students and formerly incarcerated activists who use the grievance process to disrupt and expose dangerous conditions inside prisons today. I got involved with the organization last summer by volunteering my expertise on the history of U.S. policing and jailing. Since then, I have spent several months researching the history of administrative remedies, their role in the repression of the prisoners’ rights movement, and their potential as a tool to undo some of the harms they and similar restrictions have caused.
To understand the importance of this work, it is necessary to address two key questions: Where did the administrative remedy process come from in the first place, and what did the landscape of incarcerated litigation look like before it?
From the Rise of the Jailhouse Lawyer to PLRA
Modern prison conditions litigation emerged from the 1964 case Cooper v. Pate. In that case, the Supreme Court determined that the Bill of Rights applied inside of prisons as much as it did outside. From that point on, prison litigation boomed and was matched by a growing prisoners’ rights movement that occurred alongside the rapidly escalating war on crime. As historian Robert T. Chase writes, the prisoners’ rights movement erupted in the courtroom and the prison courtyard “through peaceful work strikes, civil rights protests, and efforts to turn prison hostage situations into calls for media visibility to highlight the abusive conditions of mass incarceration.” Incarcerated people asked the courts to reconsider how the state doled out punishment and attempted to remind the public of their humanity and constitutional rights. Chase explains that in this pivotal period, right before the apex of our current prison crisis, incarcerated people “anticipated the overcrowding of mass incarceration and tried to curb its growth while also furthering the cause of civil rights by overturning the legal tradition of prisoners as slaves of the state.”
History shows how those early “jailhouse lawyers” and their allies were widely successful. The number of lawsuits filed by incarcerated people began to skyrocket, hitting a peak of nearly 30 filings per 1,000 incarcerated people in 1981. As the number of people incarcerated rose—and overcrowding in particular emerged as a major problem—the number of filings increased to a record high of 39,053 in 1995. During this boom in prison litigation, incarcerated litigants not only obtained relief, but they were also increasingly awarded significant settlements, costing prison administrators dearly.
That bubbling budgetary crisis made its way to the legislators who controlled the purse strings of the incipient modern carceral state. In the dawn of mass incarceration, as punitive crime control bills passed through Congress regularly and with ease, many lawmakers grew agitated at the burgeoning prisoners’ rights movement. The wave of successful litigation contradicted policymakers’ drive to control and punish because they relied on the social and legal incapacitation of criminalized individuals as a policy goal. Here were those supposedly repressed and contained individuals using the law and organizing together to undermine carceral prerogatives.
In response, lawmakers around the country—in the halls of Congress and the legislatures of states such as Michigan and California—cracked down on incarcerated peoples’ rights and their ability to access legal resources. In particular, lawmakers sought to prevent incarcerated people from using the court system as a means of addressing civil rights violations and key constitutional questions pertaining to prison conditions. As one lawmaker put it on the floor of the Senate in 1995, Congress needed to step in to make sure that “prisons [remain] . . . prisons, not law firms.”
That backlash to the prisoners’ rights movement produced one of the most limiting and repressive laws in U.S. prison history. Senate majority leader Bob Dole, a Republican from Kansas, introduced the Prison Litigation Reform Act (PLRA) as an amendment to an appropriations bill in September of 1995. Senator Dole had heard about a precursor to the statute, a punitive and chilling law enacted in Arizona, from Grant Woods, the attorney general of Arizona and the chairman of Dole’s presidential campaign in the state. Woods would go on to describe the PLRA as the “most significant piece of federal legislation offered in a decade to correct the massive abuse of our legal system by prisoners.” Woods claimed that incarcerated people file lawsuits in federal courts because “it’s free and they have nothing better to do.” The bill, he claimed, would force potential plaintiffs to “decide if it’s worth their money and time” to file a suit.
Senator Dole crafted this law as a continuation of a spree of punitive policies created in the 1980s and ’90s—legislation that only intensified trends such as overcrowding and staffing shortages in prisons. In 1984, for example, the Reagan administration abolished federal parole during the middle of the newly expanded war on drugs. Millions more people—and for much longer than ever before—began to spend long sentences in cramped and under-­maintained facilities. While Dole and other carceral types saw the rise of prison litigation as the result of scheming incarcerated people who, in his words on the Senate floor, filed suit for issues such as “being served creamy peanut butter instead of the chunky variety they had ordered,” the real reason was that minimum sentencing guidelines and the newly expanded drug war drove millions into cramped and under-­maintained cells, creating overcrowding, staffing shortages, and conditions of general misery inside institutions.
Signed into law in 1996 by President Bill Clinton, the PLRA erected a number of limitations on the ability of incarcerated individuals to use the law to address their complaints and obtain relief. It prevented compensation for mental or emotional damages unless a physical injury was visibly present. It placed a cap on the amount of fees that an attorney was able to collect from their client, effectively making it costlier in terms of resources and labor for lawyers to assist those behind bars. One rule severely restricted the use of consent decrees between those incarcerated and prison officials. The PLRA also gave courts disciplinary abilities, such as being able to revoke good time credits if they thought that an incarcerated person had filed too many “frivolous” lawsuits.
The section that had the most chilling effect, however, was the exhaustion requirement. It requires that an incarcerated litigant exhausts all available administrative remedies before they can file a suit in federal court. Out of this requirement, the federal Bureau of Prisons—and in time, analogs in all fifty states—created a bureaucratic nightmare that has effectively served as one of the largest barriers in challenging human rights violations in federal prisons: the administrative remedy program.
Modern Remedy Systems
An administrative remedy is the formal process through which incarcerated people can convey grievances regarding prison conditions, treatment by staff, and violations of their rights. It typically involves several lengthy steps, theoretically designed to reduce the need for litigation by ameliorating a person’s poor conditions of confinement or treatment outside of a court. In practice, the administrative remedy limits the access that people behind bars have to self-­advocacy and relief.
Here’s how it works. An incarcerated person must first attempt to resolve the issue informally by discussing it with staff or submitting a written request to the appropriate authorities within the prison. Then, if the issue remains unresolved or if the person is dissatisfied with the outcome, they can then file a formal grievance using specific forms provided by the prison. Upon receiving a formal grievance, prison officials are supposed to review the complaint and investigate the matter. They could gather evidence, interview witnesses, and consider relevant policies and regulations. However, staff members often ignore that procedure entirely or work to deliberately hinder and suppress it. Once any investigation is complete, the original complainant will receive a written response detailing the findings and any actions taken to address the grievance. If they disagree with the outcome of the process, they may have the option to appeal the decision to higher levels within the BOP.
A major critique of the administrative remedy process is that, in most cases, it serves as a way for the BOP and prison and jail administrators to deny or filibuster responding to issues. The process is entirely wrapped within the bureaucracy of the prison and shielded from the public eye. As its creators intended, it is designed to strip incarcerated people of their ability to pursue a legal remedy to violations of their constitutional rights. Under this legal and bureaucratic regime, only the most egregious of violations make it to court—and even then, a plaintiff will face an uphill battle. The PLRA, and especially the administrative remedy program, has had an enormously chilling effect on prison litigation: Between 1995 and 2012, the number of suits filed annually declined sharply, despite a marked increase in the number of people behind bars. As a result, many incarcerated people have lost hope that appealing to the system that created their very conditions of confinement could ever work.
Knowing that the administrative remedy process is a tool intended to blunt incarcerated people’s success in the legal realm raises the question: Should they and their allies in the abolitionist space try to use it anyway?
Birth of The Remedy Project
David Simpson, cofounder and codirector of The Remedy Project, discovered the administrative remedy process when he began serving a more than eleven-­year sentence in federal prison for a crime he did not commit. During this period, David told me, he became an expert in filing administrative remedies, helping file grievances while overcoming bureaucratic hurdles and safeguarding himself and others from retaliation. David recognized that the extent to which prison authorities suppressed the administrative remedy process revealed their deepest fears—flaws in their system that advocates like him could leverage. These flaws included concerns about public scrutiny, job loss, federal probes, and potential lawsuits. In one success story, he managed to use administrative remedies to compel the entire staff at the federal facility where he was incarcerated to go through a retraining of sexual harassment policy.
David left prison in 2018, searching for ways to continue his advocacy work. At the Justice-­in-­Education Initiative at the Columbia Center for Justice, he met Anna Sugrue, then a junior at Barnard College and a founder of the Barnard Prison Abolition Collective. As they tell the story, the two took a class together and bonded over their shared interests. But then David missed a class. And then another. And then another. Their professor discovered that David had been abruptly reincarcerated for his advocacy work in his halfway house. Over the course of the four months David spent reincarcerated at the Metropolitan Detention Center in Brooklyn, he and Anna spoke on the phone weekly, and he began to instruct her on how to use the administrative remedy process to free him.
Together, they launched what became The Remedy Project, a coalition of college students and formerly incarcerated advocates who, as they put it, “leverage the administrative remedy process from outside prison walls to force prison authorities, justice system stakeholders, and the public to reckon with the people they are harming and the inhumane conditions they allow to persist.”
One of those being harmed was Corita Burnett, a Remedy Project client who suffered from medical neglect and inhumane living conditions. On January 11, 2021, Burnett asked for a new mattress from FCI Waseca Health Services, the entity in charge of addressing her medical needs while she was incarcerated. The eight-­year-­old mattress that she had been using had deteriorated to the point that it felt no different than sleeping directly on the metal bunk. Burnett has fibromyalgia, a chronic condition that causes pain and extreme fatigue. Sleep is difficult for her even under the best of conditions. After the prison ignored her first message, she sent another, only to receive a surprisingly quick message from the health services administrator: “We do not provide mattresses for medical reasons.” He instructed her to ask the correctional officers who supervise her daily for a new mattress and maybe they would provide it. But as the Remedy Project learned when Burnett reached out to them, one of those officers told her that he “did not have enough mattresses to give out to everybody.” Those same officers also ignored her requests to have medical staff examine her because of severe pain in her hips and legs.
In the past, Burnett may have been able to find a lawyer to file a request for an injunction. Perhaps even the threat of litigation could have compelled the staff to help her. But in the PLRA era, that option does not exist for her until she exhausts a burdensome series of administrative procedures. Her suffering is not an oversight nor an aberration. In fact, as the Remedy Project makes clear, “Corita’s suffering was the intended result.” The Remedy Project, with the aid of its student volunteers and formerly incarcerated advisors, assisted Burnett by helping file administrative remedies, as well as using public advocacy through social media and letter writing campaigns to shine a spotlight on her mistreatment, thus pressuring the prison administrators and staff to do something.
A properly and strategically filed remedy backed by outside advocacy can result in critical improvements in prison conditions. Prison administrators are loath to attract attention, hence the operation of all facilities like a black box. An administrative remedy backed by outside advocacy can be a way to shine a light into that box, drawing media attention and public scrutiny. Thus, the process holds the potential to turn the system on itself, despite its own limitations.
Today, the Remedy Project has hundreds of student organizers, volunteers, and supporters working in concert to center the voices and knowledge of the currently and formerly incarcerated to diminish carceral power, expose the fault lines of institutions, and improve their own conditions of confinement. An administrative remedy may not lead to freedom in most circumstances, and thus decarceration remains a key solution to the human rights crisis unfolding in U.S. prisons. But deployed strategically, it’s one additional tool advocates can wield to weaken state power without resorting to reforms that only put more resources into the hands of prison administrators.  

This essay originally appeared in Inquest on July 18, 2024, and it is used with permission. The original, along with photos, can be found at inquest.org.