Access Denied: The Injustice of PLRA Exhaustion

Authors

Rachel Kincaid

Abstract

Law students learn to “think like a lawyer” by studying appellate decisions that contain extensive reasoning and result from vigorous advocacy by lawyers on both sides. These well-reasoned decisions allow students to learn how to distill legal rules from judicial opinions: to focus on the rationale behind a court’s decision so that they might be able to predict how the court would deal with a different factual scenario. But this focus on extensively reasoned and argued appellate court opinions obscures the access-to-justice crisis plaguing our legal systems; most people cannot even afford to pay a lawyer to represent them, let alone to represent them through multiple appeals. This is nowhere truer than in the context of prison litigation, where systemic barriers stand in the way of incarcerated people even accessing the courts, let alone getting legal counsel to help vindicate their rights.

But some of the primary barriers to justice for incarcerated people were purposely erected by the U.S. Congress through the Prison Litigation Reform Act, which deliberately makes it more difficult for incarcerated people to file lawsuits challenging the constitutionality of their conditions of confinement and restricts their remedies when they do so successfully.

This Article is the first to focus on the access-to-justice effects of the PLRA’s exhaustion requirement for pro se incarcerated plaintiffs, meaning the vast majority of prisoner plaintiffs, who sit at the intersection of two systemically disfavored groups: pro se litigants and incarcerated people.

Repository Citation

Rachel Kincaid, Access Denied: The Injustice of PLRA Exhaustion, 109 Marq. L. Rev. 645 (2025).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss2/5