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WHAT “THE LAW” IS

What is “the law”?

It really depends on who you ask.

Like Scripture, the law seems to be many things to many people.

The great French Enlightenment thinker Rousseau once opined, “Law is an invention of the strong to chain and rule the weak.”¹

In Marx’s view, it is “the will of [one] class made into a law for all.”²

Is law merely morality or the institutionalization of what we commonly view as right and wrong?

In the United States, where history evolves from the spectacle and national drama of slavery, law fails on the question of its internal morality. The words of North Carolina Supreme Court “Justice” Thomas Ruffin, spoken in 1829, leave no doubt as to the morality of his pro-slavery rulings: “The power of the master must be absolute, to render the submission of the slave perfect. . . . As a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things it must be so.”³

Now, as then, the law continues to be an instrument of the powerful, morality be damned. For the weak, the powerless, the oppressed, the law is more often a hindrance than a help.

As early as the 1760s, the man now deemed the avatar of Western capitalism, Adam Smith (author of the economics classic, An Inquiry into the Nature and Causes of the Wealth of Nations, 1776), lectured openly on the role of the law, and whom it serves:

Laws and governments may be considered in this and indeed in every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor, who if not hindered by the government would soon reduce the others to an equality with themselves by open violence.⁴

No beating around the bush there! The law as that which “preserve[s] . . . inequality”? The voice of this apologist for capital seems more direct than that of his revolutionary adversary—Marx. It shows us, in this rare instance, how both sides of the class struggle may agree on what, in essence, the truth is, even in defense of opposing sides and differing interests.

For prisoners, it isn’t necessary to philosophize about the law. The law is as real as steel and hard as brick. It is not a theory, nor an idea. It is grim reality. And while we are often told about the neutrality of the law, through discourses that claim equality, daily lives lived behind prison walls reveal quite another reality.

This is especially so for those prisoners who are conversant with the language of Black history, a language for which the law holds little mystery or awe. Students of this language, a language of the dispossessed, recognize that millions of people were held in brutal bondage—legally. That there were, indeed, separate laws for Africans in a land that proclaimed its founding principle to be freedom. The law that “preserve[d] inequality” reigned then, and has since only changed its outer garb, and occasionally its public discourse. Yet where it counts, it remains essentially the same.

The vicious, draconian Slave Codes that covered the South like a shroud reemerged in the aftermath of the U.S. Civil War in the form of Black Codes, which, as scholar-activist and former political prisoner Angela Y. Davis explains,

. . . criminalized such behavior as vagrancy, breach of job contracts, absence from work, the possession of firearms, and insulting gestures or acts. . . . Replacing the Slave Codes of the previous era, the Black Codes simultaneously acknowledged and nullified black people’s new juridical status as U.S. citizens. The racialization of specific crimes meant that according to state law, there were crimes for which only black people could be “duly convicted.”⁵

Given this specific history, it is no surprise that its legacy has bled into the present age, and who can deny that the law is, in essence, a repressive instrument of the rulers to keep the ruled in line?⁶ Jailhouse lawyers, especially when they successfully utilize the law as an instrument against their keepers, are upsetting this precarious social applecart. And as we have seen, there are serious costs to such an endeavor, even if it is a legal activity, since after all there is a formal law and an informal law. There is the written law and entirely another law that is practiced.

This schizophrenia lies at the very core of U.S. law. It was recognized over a century ago when a French researcher named Alexis de Tocqueville visited America to study its institutions and cultural life. In his classic work of 1835, Democracy in America, he recounted his curious conversation with a Pennsylvanian who boasted of American freedoms:

I said one day to an inhabitant of Pennsylvania, “Be so good as to explain to me how it happens that in a state founded by Quakers, and celebrated for its toleration, free blacks are not allowed to exercise civil rights. They pay taxes: is it not fair that they should vote?”

“You insult us,” replied my informant, “if you imagine that our legislators could have committed so gross an act of injustice and intolerance.”

“What?! Then the blacks possess the right of voting in this country?”

“Without the smallest doubt.”

“How comes it, then, that at the polling-booth this morning I did not perceive a single [N]egro in the whole meeting?”

“This is not the fault of the law. The [N]egroes have an undisputed right of voting, but they voluntarily abstain from making their appearance.”

“A very pretty piece of modesty on their parts,” rejoined I.

“Why, the truth is that they are not disinclined to vote, but they are afraid of being mistreated: in this country the law is sometimes unable to maintain its authority without the support of the majority. But in this case the majority entertains very strong prejudices against the blacks, and the magistrates are unable to protect them in the exercise of their legal privileges.”

“What?! Then the majority claims the right not only of making the laws, but of breaking the laws it has made?”⁷

According to de Tocqueville’s local informant, it was indeed lawful for free Blacks to vote in early-nineteenth-century Pennsylvania, though without the law’s protection. It is further telling of the capricious nature of the law that two years after the publication of his work, Pennsylvania stripped this very right from a “man of colour” during a general statewide election.

William Fogg, described in the law books as a “free Negro or mulatto,” filed suit against county officials to seek a ruling on his right to vote, since he met all of the state’s voting qualifications. In Luzerne County’s Common Pleas Court, the presiding judge gave the jury instructions that appeared to concede the Black man’s main claims, and ordered them to issue a rare, directed verdict:

It is finally urged that a free [N]egro or mulatto is not a citizen, within the meaning of the constitution and laws of the United States and of the State of Pennsylvania, and therefore is not entitled to the right of suffrage. This the court regards as the most important point in the cause, and the question, as it is avowed on the part of the plaintiff, which this suit was brought to settle.

We know of no expression in the constitution or laws of the United States, nor in the constitution or laws of the state of Pennsylvania, which can legally be construed to prohibit free [N]egroes and mulattoes, who are otherwise qualified, from exercising the rights of an elector. The preamble to the act for the gradual abolition of slavery, passed on the 1st of March, 1790, breathes a spirit of piety and patriotism, and fully indicates an intention in the legislature to make the man of color a freeman.

As there is no dispute between the parties in relation to the facts of this case, and as the opinion of the court upon the points [of] law is decidedly with the plaintiff, the verdict of the jury must be in his favor.⁸

Attorneys for the county officials filed a writ of error in the Pennsylvania Supreme Court, which granted the writ and reversed the judgment of the lower court. The Byzantine processes by which it came to its decision and the basis upon which the court came to its finding must be seen to be believed.

Pennsylvania’s Chief Justice John Bannister Gibson wrote the opinion for the court:

About the year 1795, as I have it from James Gibson, Esq., of the Philadelphia bar, the very point before us was ruled, by the high court of errors and appeals, against the right of [N]egro suffrage. Mr. Gibson declined an invitation to be concerned in the argument, and therefore, has no memorandum of the cause to direct us to the record. I have had the office search for it; but the papers had fallen into such disorder as to preclude a hope of its discovery. Most of them were imperfect, and many were lost or misplaced. But Mr. Gibson’s remembrance of the decision is perfect, and entitled to full confidence. That the case was not reported, is probably owing to the fact that the judges gave no reasons; and the omission is the more to be regretted, as a report of it would have put the question at rest, and prevented much unpleasant excitement. Still the judgment is not the less authoritative as a precedent. Standing as the court of last resort, that tribunal bore the same relation to this court, that the Supreme Court does to the Common Pleas; and as its authority could not be questioned then, it cannot be questioned now.⁹

In this reading of the “law,” a court transforms imperfect memory into legal precedent, and missing authority into perfect reason. The court’s opinion, based on faulty memory, no records, a misreading of the state constitution, and a repealed statute, unanimously determined that “it is difficult to discover how the word freeman . . . could have been meant to comprehend a colored race.”¹⁰

The Pennsylvania Supreme Court, interpreting the state constitution’s assertion (in art. I, §3) that “in elections by the citizens, every FREEMAN of the age of twenty-one years, having resided in the state two years before the election, and having within that time paid a state county tax” shall thus be “eligible to vote,” launched into an extended discussion of the meaning of “freeman” and denied that “the word freeman . . . could have been meant to comprehend a colored race.”

The case was tried a generation before the ignoble Dred Scott decision—made by a U.S. Supreme Court composed of a majority of slaveholders—that had launched a war, and it came down to the same, narrow, uncivil ground: “[N]o colored race was a party to our social compact.”¹¹ In the 1837 case Hobbs v. Fogg, Pennsylvania law made it illegal for Blacks to vote, even if one met all of the qualifications of taxes and property under the state’s constitution.¹²

Essentially, the state’s highest court made an exception to the claim that had sparked a revolution against England, “taxation without representation,” for tax-paying Black Pennsylvanians continued to pay taxes, but by judicial edict they could not vote for their political representatives.

Nearly a century and a half after Hobbs, a Black revolutionary named John Africa would strike a similar chord when writing of late-twentieth-century Philadelphia that “the law was a weapon for the rich and a whippin’ for the poor.”¹³

If this was law, what of the outlaw?

For jailhouse lawyers, the law could sometimes be wielded as a weapon or a tool.

It took years of long, hard legal struggles to secure basic constitutional protections for religious practices, many of which were spearheaded in the 1960s and 1970s by Black Muslims, Native American activists, and Buddhists. When members of the Nation of Islam tried to practice their faith like other groups that were seen as more legitimate, prison administrators didn’t hesitate to deny them religious practice rights. This of course forced courts to address the question of whether such a faith was a religion, and if so, whether states were required to provide rights of religious expression. One of the earlier Black Muslim cases was Fulwood v. Clemmer, which the federal court in Washington, D.C., decided thus:

It is sufficient here to say that one concept of religion calls for a belief in an existence of a supreme being controlling the destiny of man. That concept of religion is met by the Muslims in that they believe in Allah as a supreme being and as the one true God. It follows, therefore, that the Muslim faith is a religion.¹⁴

A decade after Fulwood, a prison case would make its way to the U.S. Supreme Court wherein a man claimed the right to be able to freely practice his Buddhist faith. In the 1972 case Cruz v. Beto, the court decided a case that had been dismissed by lower courts.¹⁵ The Supreme Court ruled in the Buddhist prisoner’s favor, and it seemed that the door had inched open for Black Muslims as well. Indeed, Cruz’s progeny includes cases supporting religious practice rights of Native American traditional believers, as well as such nontraditional practices as Satanism, Wicca, and the like. However, it is ever problematic for a political body such as a court to determine what is and what is not religious, as may be seen in the 1981 case Africa v. Pennsylvania.¹⁶ There, the federal appeals court used analogy to determine what was and what was not religious. In a nutshell, the court held that absent the indicia found in traditional faiths, such as hierarchy, buildings of worship, and denomination of a supreme being, for example, courts should decline to grant rights to religious practice. Given that Africa involved a claim raised by a member of the MOVE organization, it should be no surprise that the court was swayed by the revolutionary beliefs of the claim ant, rather than a true concern over the adherent’s religious beliefs. It is undeniable that throughout the world there are religions that are non-hierarchical, have no formal buildings (at least of brick or stone), and do not posit the existence of a supreme being, such as some forms of Buddhism.

That said, courts have tended to be more expansive of prisoners’ rights claims in other contexts. In fact, cases have been brought challenging other prison conditions, regarding decent medical care, for example, as well as fair misconduct hearings, other First Amendment rights (e.g., free speech), and more. Some prisoners challenged unfair transfers to other prisons, unjust firings from jobs, or improper parole regulations. The 1960s and 1970s marked a wave of civil suits addressing a plethora of unjust conditions. These cases are legendary, recounting incidents of prison staffers filing false disciplinary charges, locking prisoners down under specious administrative charges, delaying or denying transfers, denying parole to those who were eligible, and the like, in direct retaliation against jailhouse lawyers for their lawsuits. Some retaliatory state actions took a decidedly more dangerous turn when a jailhouse lawyer was labeled a “snitch” by prison officials, a label that in some prisons can get a person killed.¹⁷

The law, as we have seen, is an elusive thing. Yet how can we say what the law is without looking at the people who wear the title “judge”? Whether one wins or loses in the wheel of fortune that is the law, a definitive factor is often the judge on the case.

In the view of the American wit H. L. Mencken, “a judge is a law student who marks his own examination papers.” Radical historian Howard Zinn has opined that “the judge is [a] monarch” and his courtroom “essentially a tyranny.”¹⁸ One enters thinking it is a “bastion of democracy” or a “hall of justice,” only to be sorely disappointed. The judge, Zinn explains, “is in control of the evidence, the witnesses, the questions, and the interpretation of law.”¹⁹

When called as an expert witness in a trial in the mid-1980s, the historian expected to tell the jury about the history of civil disobedience in America. There was little objectionable about such testimony, for the accused were charged with doing some small, mostly symbolic damage to a nuclear submarine to protest the growing nuclear arms race. As Zinn recounts, the judge performed the additional functions of prosecutor and censor:

The judge would not let me speak. From the very first question—Can you tell us about the history of civil disobedience in the United States?—as I began to answer, the judge stopped me. Objection sustained, he said loudly. I had not heard any objection from the prosecuting attorney.

Indeed, at this point the prosecuting attorney, a young man, spoke up, Your Honor, I did not object.

Well, said the judge, why didn’t you?

Because, the prosecutor said, I thought the question was relevant.

I disagree, the judge said, with finality.²⁰

Indeed, in a brief span of years following the American Revolution, the U.S. Supreme Court’s chief justice (who had previously sat as a senator on the judiciary committee that determined the constitutional powers of federal judges), one Oliver Ellsworth, wrote in a 1799 opinion, “The common law of this country remains the same as it was before the Revolution.” Judge Ellsworth’s opinion reflects the inherent conservatism of courts, which look back to the hoary precedents of a long-dead past in order to answer questions of an ever-changing present and unseen future. The law is heavy with the weight of past precedents, which is the lens through which judges still look upon the world.

Perhaps the best insights into legal precedents came not from a jurist but from Jonathan Swift, who, in his satirical masterpiece Gulliver’s Travels, observed:

It is a maxim among lawyers, that whatever hath been done before may legally be done again; and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of directing accordingly.²¹

The law is a tool of class domination and, as we have seen, of racial domination as well. But it can sometimes be wielded against that domination by those who make themselves adept at its use. Although it favors the wealthy, it has occasionally been utilized by those who are without means, as shown by the wins notched by jailhouse lawyers who litigated for civil rights and constitutional protections.

But the law, in its elusiveness, can be readily and quickly changed.

This is precisely what happened in 1996, under the neoliberal reign of President William J. Clinton, in his infamous Prison Litigation Reform Act. Much like his welfare “reform” efforts, at the bottom line the law meant a diminution of the rights of the poor and powerless, and the strengthening of state power. Under the act, prisoners became limited in the number of suits they could file, dismissal of cases became easier to make, injunctions harder to obtain and limited in force and time, attorneys’ fees sharply diminished; prison administrator defendants could waive answering claims (which defendants are required to answer as a matter of course in non-prison-related civil actions), and no suits could be brought against the state for mental or emotional injury.

What led to the emergence and the passage of the Prison Litigation Reform Act?

It was a convergence of several elements. Clinton’s political opportunism, the efforts of the archconservative U.S. Senator Orrin Hatch (R-Utah), national actions on the part of the states’ attorneys general, and the unquenchable maw of the nation’s trash-flash media, which went berserk with a wave of stories about “crazy prisoner” lawsuits.

Every major American broadcast network (and their cable/satellite cousins) aired features about the jailbird who sued because he got creamy instead of chunky peanut butter in his commissary bag. Or the dude who filed a First Amendment challenge to the prison for not delivering his Playboy magazine on time.

Such reports were as common as popcorn in a movie theater. The problem with these reports is that they weren’t true.

This revelation came to light not due to the stalwart investigative efforts of the New York Post, but in the thin, monochromatic pages of the Prison Legal News. The Prison Legal News featured a remarkable article penned not by a prisoner (as most are), but by a federal judge, who put the kibosh on the notion of the “flood of crazy prisoner junk suits.” In the 1996 article, Chief Judge Jon O. Newman of the Second U.S. Circuit Court of Appeals (headquartered in New York) set forth his critical reply to a letter signed by the attorneys general of four states published in the New York Times.

The New York Times letter was an organized attempt by the National Association of Attorneys General to garner media and political support to change the law and restrict access to the courts by prisoners. In their joint letter describing the prisoner suits, the attorneys general used a series of lies, half-truths, and misrepresentations to buttress their arguments. Judge Newman would quote from their letter and contrast these assertions against the real cases filed. Newman’s article is a telling revelation of how politics and media mesh to create deeply flawed law:

“Typical of such suits is the case where an inmate sued, claiming cruel and unusual punishment because he received one jar of chunky and one jar of creamy peanut butter after ordering two jars of chunky from the prison canteen. Or the inmate who sued because there were no salad bars or brunches on weekends or holidays. Or the case where a prisoner is suing New York because his prison towels are white instead of his preferred beige.”

I wondered about the characterization of these suits, because, though I have seen many prisoner suits that lacked merit, it has not been my experience in 23 years as a Federal Judge that what the attorneys general described was at all “typical” of prisoner litigation.

New York Attorney General Dennis Vacco was kind enough to respond to my request for copies of the complaints in these three cases. Here is what I learned.

In the peanut butter case, the prisoner did order two jars of peanut butter from the canteen and one was the wrong kind. But he did not sue because he received the wrong product. He sued because, after the correctional officer quite willingly took back the wrong product and assured him that the item he had ordered would be sent the next day, the authorities transferred the prisoner that night to another prison, and his account remained charged $2.50 for the item that he ordered but never received. Maybe $2.50 doesn’t seem like much money, but out of a prisoner’s commissary account, it is not a trivial loss, and it was for loss of those funds that the prisoner sued.

As for the case of the beige and white towels, the suit was not brought just because of the color preference. The core of the prisoner’s claim was that the prison confiscated the towel and a jacket that the prisoner’s family had sent him, and disciplined him with loss of privileges. In the case, the prisoner stated, the confiscation “cause[d] a burden on my family who work hard and had to make sacrifices to buy me the items mention[ed] in this claim.”

Lastly, the salad-bar-claim allegation turns out to be a minor aspect of a 27-page complaint alleging major prison deficiencies including overcrowding, lack of proper ventilation, lack of sufficient food, confinement of prisoners with contagious diseases and food contamination by rodents. The inmate’s reference to the food was to point out that basic nutritional needs are not being met. The claim mentioned that the salad bar was available to corrections officers and to prisoners in other state prisons. It is hardly a suit about lack of a salad bar.²²

The nation’s media, however, anxious to juice up their audiences with sensationalist reporting of “those loony prisoner suits,” or to hit their economic advertising market with high scores in the “sweeps” (or ratings) period, decided to offer their services to this ignoble crusade instead of simply reporting the truth.

They chose fiction over fact.

Many of us may recall those oddly entertaining stories about prisoners suing over something as silly as peanut butter and claiming violations of the “cruel and unusual” clause of the Eighth Amendment to the Constitution.²³ Many of us may have laughed at the absurdity of it. “The nerve of that dude,” we may have snorted in derision. I’ve heard more than one prisoner, several of whom were jailhouse lawyers themselves, grumble that “guys like them make it hard for us to get our suits into court.”

But was this actually so?

What changed the law was something far more insidious than the occasionally silly suit. It was the convergence of several social forces: State power, the media, and political opportunism at the highest levels of government.

Media subservience to its political and class masters was transformed into law, enacted into statute with the signature of a former professor of constitutional law morphed into an imperial politician: William Jefferson Clinton.

And how this became law is worthy of note. Like a thief in the night the Prison Litigation Reform Act was attached as a rider (a usually minor clause attached to a bill) to an omnibus appropriations bill and signed into law, without a committee mark-up (a report from the Senate Judiciary Committee explaining its provisions), drastically changing the law and legal procedure.²⁴ This was thus a stealth law that altered the rules impacting the lives and liberties of millions of people.

Yet Bill Clinton, a constitutional scholar, affixed his presidential signature and the Great Seal of the United States to the bill, one of his many signals of abject surrender: playing nice with his political enemies while betraying his political allies, constituencies, and even his bedrock political principles.

In economist Michael Meeropol’s view, the Clinton presidency essentially surrendered to the forces of the right wing on social and class issues like welfare, the budget, and taxes. In his bills from 1995 to 1997, Meeropol noted, Clinton “signaled surrender: the Reagan revolution was going to achieve its major goals.”²⁵ It was a bipartisan triumph of neoliberalism and a betrayal of the progress made by the New Deal.

Clinton’s administration represented a Neo-Deal, which promoted the interests of the well-to-do folks on Wall Street and their political drones on Capitol Hill and in the White House. It was a trendy period called the “Me Decade,” but for the many poor and dispossessed souls in America’s dungeons it was a decade of exclusion. For the poor and the working class, and more so for those millions who dwelled in the nation’s prisonhouses, it was a time to be hated and scapegoated. On that, if nothing else, there was bipartisan consensus.

But as with any law, one may not accurately predict how it flies in the real world. That’s obviously because of the unwritten law of unintended consequences. For while state repression was a silent norm in U.S. penal practice, the media served to provide the state with a glowing reputation for fairness and evenhandedness, and wreathe it in the illusion of fair, humane treatment of the imprisoned.

That would soon change.

In the aftermath of 9/11, and the subsequent U.S. invasions and occupations of Afghanistan and Iraq, the events at Abu Ghraib and Guantánamo Bay have had dire consequences for America’s image and reputation abroad.

While it is generally known that the lower-ranking torturers and abusers of Iraqi prisoners were U.S. Army reservists, it is perhaps lesser known that several were prison guards in their civilian lives. Indeed, the ringleader with the most reported abuses was a guard at SCI-Greene in Waynesburg, Pennsylvania, the very prison where these words were written.

Long before U.S. Army Reserve Corporal Charles Graner brought pain, humiliation, and torture to Iraqi people detained in Abu Ghraib prison outside Baghdad, he was giving the blues to prisoners in Pennsylvania, where he was known as a brutal, sadistic, racist prison guard.

The real irony is, however, that the events of Abu Ghraib, meaning the ones released to American audiences—the naked pyramids, the hoodings, the wirings, the panties-on-the-head, etc.—if committed in an American prison, would have been insufficient for a judge or jury to award damages, for the Prison Litigation Reform Act (PLRA) signed by President Bill Clinton does not allow recovery for psychological or mental harm or injury.

This law violates Article 1 of the Convention Against Torture (CAT), a treaty to which the U.S. is a signatory. In any event, torture, whether mental or physical, amounts to a violation of international law: “For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”²⁶

There are also, in fact, U.S. laws against torture. But the law is an elusive thing. Even in this era of conservative courts, some judges found this more than their readings of the U.S. Constitution could accept.

One court has announced (albeit in footnote) that the Prison Litigation Reform Act’s passage wasn’t exactly on the up and up. In the case Ngo v. Woodford (2005), the U.S. Ninth Circuit Court of Appeals observed, “The PLRA’s sparse legislative history primarily consists of PLRA proponents parroting the frivolous cases compiled by the National Association of Attorneys General. . . . [S]adly, several of the most widely cited cases of frivolous lawsuits were mischaracterized by the proponents of the PLRA.”²⁷

The opinion cited Newman’s article and noted that the description of the facts of prisoners’ lawsuits contained in the attorneys general’s lists of frivolous suits circulated to Congress and the media were “at best highly misleading and sometimes, simply false.”²⁸

While the Ngo panel critiqued the Prison Litigation Reform Act, it did not declare it unconstitutional despite its fraudulent carriage into law. For, as we’ve learned, fraudulent law is still law, and judges on conservative courts are usually loath to seem supportive of something like prisoners’ rights.

At least one part of the Prison Litigation Reform Act was declared unconstitutional in the 2006 case Siggers-El v. Barlow. There, the U.S. District Court found that the law’s provision prohibiting damages for emotional or psychological injuries (at least as applied to First Amendment claims) violated the constitution.

At trial, a jury awarded a Michigan prisoner, Darrell Siggers-El, nearly $220,000 in economic, punitive, and emotional damages. The prison officials sought a remitter, or new trial, in the absence of more than minor physical injury. The court rejected the new trial argument, holding that “to bar mental or emotional damages would effectively immunize officials from liability for severe constitutional violations, so long as no physical injury is established.”²⁹

To support its reasoning the court set forth a daunting hypothetical instance that seemed inherently unjust. In the example, a sadistic guard holds an unloaded gun to a prisoner’s head, threatens to kill him, and pulls the trigger in a mock execution. “The emotional harm would be catastrophic,” the court noted, yet it would be “noncompensable.”³⁰ If, however, a guard pushed a prisoner without justification, and the prisoner “broke his finger,” the court would allow emotional damages caused by the injury.

Siggers-El thus turned on congressional intent, for “Congress did not intend to allow prison officials to violate inmate First Amendment rights with impunity, resolute with the knowledge that First Amendment violations will almost never result in physical injuries.”³¹

But as the Prison Litigation Reform Act became law through a legislative sleight of hand, who knows what Congress intended?

We can glean some idea from the words of Senator Orrin Hatch (R-Utah), then chair of the Senate Judiciary Committee, who said the following when he introduced the PLRA bill on the senate floor:

This landmark legislation will help bring relief to a civil justice system over-burdened by frivolous prisoner lawsuits. Jailhouse lawyers with little else to do are tying our courts in knots with an endless flood of frivolous litigation.

Our legislation will also help restore balance to prison conditions litigation and will ensure that Federal court orders are limited to remedying actual violations of prisoners’ rights, not letting prisoners out of jail. It is past time to slam shut the revolving door on the prison gate and to put the key safely out of reach of overzealous Federal courts. . . .

While prison conditions that actually violate the Constitution should not be allowed to persist, I believe that the courts have gone too far in micromanaging our Nation’s prisons.³²

With this burst of bile, Hatch and his fellow senators fought mightily to nail up the doors to the courts.

The problem, it seemed, wasn’t that there was too much violating of the Constitution in the nation’s prisons; there were too many suits complaining about it. The solution?

Simple.

Change the law.

Ten years later a small part of the bill designed to lessen court access and to limit access to a huge class of unrepresented people, was declared unconstitutional. (Perhaps by 2096, the whole thing will be thrown out.) Through pretexts, subterfuge, and lies, a bill meant to deny millions of Americans access to the courts by slashing lawyers’ fees to the bone (thus discouraging them from taking such cases), disallowing routine defenses and procedures that are the norm for other citizens, was passed into law as a rider.

Is it surprising that a nation that began its existence with Slave Codes, then continued for a century with an equally repressive set of Black Codes, would institute, by hook or by crook, Prisoner Codes?

Such is the stuff American law is made of today.