It rained heavily the night before the retaking of New York's Attica Correctional Facility. A guard, William Quinn, had been killed. Negotiations had ended. The men on the D yard waited for the inevitable.

Four days earlier, on September 9, 1971, 1,281 prisoners had wrested control of Attica, taking 42 prison staffers hostage and delivering a manifesto demanding humane treatment including adequate healthcare, independent oversight, and an end to racial discrimination.

"We are men," said L.D. Barkley, one of the leaders of the revolt. "We are not beasts, and we do not intend to be beaten or driven as such."

In the early-morning light on September 13, men in D yard heard the thrum of a helicopter as it flew over Attica's 30-foot stone walls and flooded the yard below with tear gas. Steady gunfire from ground forces tore through the gas clouds, chipping the concrete and shredding the bodies of hostages and prisoners alike. Terrified, the men desperately searched for cover. They found none. One prisoner was shot 12 times at close range by two separate guns. Another lay dying of a gunshot wound when a New York state trooper stepped up to finish him off, firing buckshot directly into his neck. A paramedic later testified he saw a trooper execute a prisoner begging for help at point-blank range. State troopers and corrections officers fired nearly 400 shots, killing 39 people — 29 prisoners and 10 prison staff — and wounding 89 more.

The surviving prisoners were corralled and moved to A yard, stripped, and ordered to lie face down in the mud. If they moved, troopers beat them and threatened to shoot them where they lay. Hours later, still naked, they were ordered to stand and run, hands above their heads, through what judges would later refer to as the "gauntlet" — a tunnel leading inside that was lined with troopers and corrections officers. They struck prisoners with clubs and hurled racist epithets. Many prisoners stumbled to the ground and ended up crawling on pavement littered with shattered glass. Once inside, officers threatened some prisoners with castration. Others they forced to play Russian roulette with live ammunition or lined up against the wall in mock executions.

It took nearly three decades for the surviving D yard prisoners to reach a final resolution on their claims that those nightmarish days and nights constituted "cruel and unusual punishments," in violation of the Eighth Amendment. In the intervening period, a series of new laws and legal standards changed the landscape for incarcerated plaintiffs. The Supreme Court introduced one standard in 1976, further codified in 1994, that prison officials violate the Constitution only when they are "deliberately indifferent" to a prisoner's suffering. And in 1986, the court granted broad protections to law enforcement, as long as their actions were not "malicious and sadistic." Guards, the justices found, often had to make decisions "in haste, under pressure, and frequently without the luxury of a second chance."

One set of claims, over the failure of New York's corrections commissioner, Russell Oswald; Attica's warden, Vincent Mancusi; and other senior officials then in charge to provide adequate medical care and prevent retaliatory violence by officers after the uprising was quelled, was decided on the new deliberate-indifference standard. Those claims settled in 2000 without state officials admitting any wrongdoing; damages were capped at $10,000 for anyone not subject to torture, serial beatings, or gunshot wounds.

Another set of claims, covering the planning and execution of the retaking itself, was decided in 1991 on the malicious-and-sadistic standard. The plaintiffs' lawyers argued that the standard had been met, as defendants were responsible for the "wanton infliction of pain and suffering for the purposes of 'maliciously and sadistically' punishing rebellious prisoners."

The judges of the 2nd Circuit disagreed. Aspects of the plan, such as declining to give prisoners an ultimatum before opening fire or allowing correctional officers to participate in the retaking "despite the extreme hostility the officers bore toward the prisoners as a result of the takeover," might constitute negligence or even indifference, Judge Jon O. Newman wrote. But that was not enough, without evidence that those elements were designed to wantonly inflict pain. "Tactical decisions needed to be made," he wrote, and courts cannot substitute their own judgment for that of law enforcement officials on the ground.

One of the most infamous campaigns of state violence against incarcerated people in US history did not, in the eyes of the court, constitute cruel and unusual punishment.

A lone prisoner victory

Senior corrections officials agree that physical force is sometimes necessary to maintain order and safety for both staff members and the prisoners in their care. If prisoners are harming themselves or another person, for example, quick intervention can be critical.

Training documents Business Insider obtained from 37 state departments of correction show that officers in most states are guided to use the minimum amount of force necessary to maintain order. Many departments train officers on de-escalation techniques meant to defuse violence before force is necessary and instruct them to use force "only as a last resort."

But in the 50 years since the Attica uprising, many corrections departments have failed to check staff violence when it tips into excess. Government oversight reports and journalistic investigations over the years have documented systemic abuse in multiple state prison systems: guards brutalizing incarcerated people in New York state, a pattern of sexual assault committed by prison staff in California, and a culture in Alabama prisons in which "unlawful uses of force" were common, including two beating deaths by staff in 2019 alone.

In the face of these institutional failures, federal courts have declined to step into the breach. BI analyzed a sample of nearly 1,500 Eighth Amendment lawsuits, including every appeals court case with an opinion we could locate filed from 2018 to 2022 citing the relevant precedent-setting Supreme Court cases and standards. Of these, 208 cases involved claims of excessive force.

In analyzing these cases, BI found that courts have often sanctioned extreme acts of violence by guards against prisoners. Dozens of plaintiffs in BI's sample said they were beaten while immobilized in restraints. Another dozen said they were subjected to racist abuse or threatened with retaliatory violence. Others said they were placed in life-threatening chokeholds or hit with plastic or rubber bullets shot at such high velocity they cracked femurs and skulls. Multiple people said they were sexually abused by prison staff, including two while in restraints. All of these plaintiffs lost their cases.

Judges dismissed many excessive-force claims under strict administrative requirements imposed by the Prison Litigation Reform Act, a 1996 federal law designed to curb "frivolous" prisoner lawsuits. Judges dismissed others for failing to meet the malicious-and-sadistic standard, or due to doctrines that protect law enforcement officials like prison guards. Judges rarely questioned the authority of prison staff to determine when a use of force was justified.

Sixty-one of the excessive-force cases, almost a third, settled. Only one of the excessive-force plaintiffs, Jordan Branstetter, won his case in court.

In that case, Branstetter said a corrections officer at a state prison in Hawaii had viciously assaulted him for nearly 20 minutes, punching him in the back of the head as he curled into a fetal position on the floor, then kneeing him in the back, breaking two ribs, and choking him.

The Hawaii Department of Corrections and Rehabilitation did not respond to requests for comment.

Less than a third of the cases reached settlements — far less than is typical for civil suits filed in the outside world. Of the excessive-force settlements made public, two were for more than $1 million, but the typical award was about $9,000. None of those cases involved an admission of wrongdoing. Whether for technical reasons or because they viewed the use of force as necessary, federal courts across the country offered impunity to officers accused of excessive force the vast majority of the time.

In September 2022, Judge James Jones of the District Court for the Western District of Virginia ruled that officers at Virginia's Red Onion State Prison were justified in deploying a dog to attack Cornelius Lightfoot. Two officers, thinking Lightfoot had a weapon, tried to frisk him and, when he resisted, tackled him to the ground; a handler then allowed his dog to tear open the flesh of Lightfoot's thigh. An incident report showed that Lightfoot was unarmed by the time the dog attacked; he said in his complaint that the officers had acted in retaliation, taunting him just before the attack that the dog would get his "grievance-filing ass."

The officers said they thought Lightfoot had posed "a serious threat to staff safety." Jones reviewed surveillance footage and determined that Lightfoot was resisting the officers as they tried to subdue him and dismissed the case, ruling that "no reasonable jury could find that any of the defendants used physical force or the canine 'maliciously and sadistically to cause harm.'"

The UCLA law professor Sharon Dolovich discussed the malicious-and-sadistic standard in a 2022 Harvard Law Review article. "That this standard is intrinsically defendant friendly," she wrote, "is undeniable."

Jones, and every other judge mentioned in this story, declined to comment on the record for this story or did not respond to queries. Kyle Gibson, a spokesperson for the Virginia Department of Corrections, declined to comment on the Lightfoot case but said that the agency had "zero tolerance for excessive force or abuse" and that violators "are disciplined according to agency operating procedures."

At about the same time as Jones' ruling, judges with the 5th Circuit appeals court ruled that five officers at a Texas prison known as Coffield Unit were justified when they pepper-sprayed a prisoner who had refused to leave his cell, then put him in a chokehold and wrestled him to the ground. The prisoner, Robert Byrd, was serving a life sentence for capital murder; as he was splayed under the weight of four officers, a fifth officer smashed his outstretched arm with a riot baton, breaking a bone.

While officers later photographed a wooden shank they said was recovered from Byrd's cell, an internal prison investigation determined that Byrd was restrained and unarmed when he was struck and that at least one officer, the one wielding the baton, had deployed excessive force. Still, the appeals court decided that even if Byrd was unarmed, he was violently resisting, so force was "obviously necessary." All the officers had deployed force, Judge Stuart Kyle Duncan wrote in the majority opinion, "in a good-faith effort to maintain or restore discipline."

Amanda Hernandez, a spokesperson for the Texas Department of Criminal Justice, said the video footage of the incident was key to the state's case because it showed a "'hostile, combative, utterly noncompliant' prisoner who was committed to violent resistance."

"We are to accord prison officials 'wide-ranging deference,'" Duncan, one of the 5th Circuit judges who heard Byrd's case, wrote, quoting case precedent. "The Supreme Court has told judges not to micro-manage the force necessary to quell such volatile situations."

Judges dismissed other cases on technicalities.

In August 2022, D'Andre White, a prisoner at Ionia Correctional Facility in Michigan, filed suit claiming that, earlier that year, he'd been shackled by his hands and feet in a bathroom stall during a court appearance when he asked a guard to uncuff one hand so he could more easily use the toilet. The guard refused, White said, then grew irate at how much time White was taking. White said the guard then grabbed him by the throat, slammed him to the ground, kicked him repeatedly, and dragged him to the court's holding cell.

Robert Jonker, a judge in the District Court for the Western District of Michigan, ruled against White, finding that he had not fulfilled his prison's internal grievance process before filing suit, as required by the PLRA.

The Michigan Department of Corrections did not respond to requests for comment.

Two years later, in 2024, Judge Christine O'Hearn of the District Court for the District of New Jersey dismissed the case of Tyrone Jacobs, a federal prisoner who said that four officers had retaliated against him for filing complaints against the prison. He said the officers handcuffed him, pulled him from his cell, and, out of view of surveillance cameras, slammed his head against the wall and dragged his face along the concrete. Jacobs said one officer screamed, "I will fucking kill you."

Because Jacobs had missed a deadline to appeal his internal prison grievance, O'Hearn decided in favor of the defendants.

A 'good-faith effort' to restore discipline

In BI's sample of excessive-force lawsuits, one facility stood out: California State Prison, Sacramento, popularly known as New Folsom. The vast complex surrounded by steel fences and guard towers was built in the 1980s, just across from the Gothic granite tower of Old Folsom, the site of Johnny Cash's legendary 1968 live album. The new facility has a reputation for violence. California Department of Corrections and Rehabilitation data shows corrections officers there deployed force at a far higher rate than any other California prison over the past decade. In 2023, the most recent year for which data is available, New Folsom officers used force — fists, baton strikes, pepper spray, or high-velocity less-lethal ammunition — in nearly 700 documented incidents. That's nearly twice a day. By comparison, officers at the California City Correctional Facility, a high-security facility in Southern California that was recently decommissioned, used force 192 times — less than four times a week.

Violence by guards at New Folsom sparked three complaints of excessive force in BI's sample; all of the plaintiffs lost.

The allegations contained in the legal complaints, together with evidence from state oversight reports and criminal cases against former officers there, hint at a corrections culture in which casual violence prevails and retaliatory cruelty often goes unchecked.

Terri Hardy, a spokesperson for the California Department of Corrections and Rehabilitation, emphasized that in each California case mentioned in this story, the department prevailed, and said the department "takes every allegation of employee misconduct seriously."

One complaint describes an incident that took place in February 2015, in New Folsom's C yard, where a man named Tshombe Kelley, who was serving 52 years for murder, approached a group of officers to ask a question. When he and another prisoner didn't immediately comply with an order to back away and drop to the ground, incident reports show, officers swiftly reacted. One officer, who said he saw Kelley clench a fist, blasted him in the face with pepper spray. Kelley said he reeled back and stumbled to the ground; officers said he again failed to comply with an order to lie flat. Two other officers then deployed physical force, an incident report shows; Kelley said they punched him, kicked him, and dragged him in the dirt. Transcribed surveillance video describes the officers wrestling Kelley into handcuffs and pinning him down with their knees on his shoulder and back, as he pushed against their combined weight.

An officer heard him plead, "I can't breathe."

Instead of easing up, officers deployed a spit mask, a cotton bag that covers the face and head. Blinded and panicked, his throat burning from the pepper spray, Kelley later said, he lost consciousness.

Kelley sued and lost. Officers said in court filings that they feared Kelley and another prisoner might attack them; they said Kelley had refused a direct order to hit the ground and resisted their attempts to restrain him, and only one recalled hearing Kelley say he couldn't breathe. Surveillance video showed that as Kelley was pinned down — and struggling to breathe — he arched his back and thrashed his legs. Carolyn Delaney, a magistrate judge with the District Court for the Eastern District of California, found that the officers' use of force was necessary to combat Kelley's "ongoing resistance."

Judges also sided with guards who injured prisoners they didn't perceive to be resisting.

In October 2020, less than a year after Kelley's case was dismissed, a prisoner named Nathanael Carter Jr. noticed a fight erupt in the New Folsom B yard, according to his civil suit. Guards ordered all prisoners to the ground. Carter immediately complied, dropping to his stomach, arms spread-eagled. From the guard tower, an officer fired two less-lethal rounds from his state-issued 40 mm launcher into the crowded yard, according to multiple incident reports. Both shots missed the men fighting. But one round smashed into Carter's skull, leaving a hematoma the size of an egg and triggering migraines, blackouts, and memory loss.

Like Kelley, Carter lost his case. He'd argued in court filings that he was an innocent bystander who was shot despite "getting on the ground following instructions." The guard said he'd hit Carter by accident, and Dennis Cota, an Eastern District magistrate judge, ruled that the use of force related to "the prison's legitimate penological interest in maintaining security and order."

In more than a dozen cases in BI's sample, judges found that the question of whether a use of force was malicious and sadistic was immaterial, as long as officers were doing their job.

Federal courts grant broad protections to law-enforcement officers for actions taken "under the color of law" — in the line of duty.

That's how one California prisoner's case failed before the District Court for the Eastern District of California. In his complaint, the prisoner said that six corrections officers at a federal prison in Atwater in April 2021 threw him to the ground, handcuffed him, and slammed his head against the wall before dragging him to a holding cell where they physically and sexually assaulted him while calling him racist slurs.

Magistrate Judge Stanley Boone recommended dismissal of the case, finding that any remedy the court might impose "risks interference with prison administration." District Judge Jennifer Thurston agreed and dismissed the case.

Ben O'Cone, a spokesperson for the Federal Bureau of Prisons, did not address the Atwater case but said the agency "does not tolerate excessive use of force" and thoroughly investigates all allegations of employee misconduct.

Cases against corrections officers run into another set of challenges under the doctrine of "qualified immunity." Unless a court has previously found that a particular use of force constituted a constitutional violation, a defendant is given the benefit of the doubt under the doctrine. The Supreme Court standard, established in 1967 and refined in 1982, shields public officials from civil liability when they're legitimately acting in the line of duty. The standard has drawn national attention as an obstacle to police accountability. In prisons, BI has found, qualified immunity has also protected corrections officers who have been accused of excessive force.

That's how things played out in court in the wake of a December 2016 incident at the Darrington Unit, now called Memorial Unit, in East Texas. That day, a prisoner named Marquieth Jackson threw water at a corrections officer passing by his solitary-confinement cell. Incensed, the officer brandished his pepper spray and threatened Jackson. He then spun and blasted a prisoner in a nearby cell in the face at point-blank range.

Why he did so is contested: The officer, Tajudeen Alamu, said that after he was doused with water, he ran for cover by the cell of the other prisoner, Prince McCoy Sr. Alamu said that McCoy threw something that hit him in the face — court documents later identified it as a wad of toilet paper — and that his mind then "went blank" and he reacted instinctively. McCoy denied throwing anything and said Alamu attacked him in anger "for no reason at all."

Alamu did not respond to requests for comment by phone and mail.

After losing at the district court level, McCoy appealed and got a rare finding from the judges of the 5th Circuit. They decided that Alamu had been "malicious and sadistic" in his use of force, in violation of the Eighth Amendment. But after finding that no previous case in the 5th Circuit had established that pepper spraying a man confined in his cell constituted excessive force, they granted Alamu qualified immunity.

"How could any guard not know that an unprovoked use of pepper spray is unlawful?" Gregg Costa, one of the appeals court judges, wrote in a furious dissent. "Yet the majority concludes it would have been reasonable for a guard to think the law allowed him to gratuitously blind an inmate."

The other judges' reading of the qualified-immunity standard, Costa wrote, "ensures vindication of the most egregious constitutional violations."

McCoy appealed, and the case made it to a jury, which again found for the defendant. But the jury disagreed with the 5th Circuit on one critical point: The pepper-spray deployment, they found, had not been malicious and sadistic.

A culture of silence

This pattern of rejection by the courts is especially devastating to prisoners, given how hard it is for them to file suit in the first place.

For nearly 30 years, thanks to the PLRA, any prisoner who wants to file an excessive-force claim has to first file an internal grievance — a petition to prison administrators to address violations committed by their staff. But it can be dangerous for prisoners to report an incident involving the very officers who control every aspect of their daily lives. The cases BI reviewed contain multiple claims of retaliation against prisoners who decide to complain.

One complaint, filed by a New Folsom prisoner named Christopher Elliott, offers a window into the ordeal prisoners often face when they seek redress.

In January 2021, Elliott tried to raise an excessive-force complaint, filing a grievance that said a corrections officer had shoved him onto the concrete floor of his cell and jumped on him while his legs were shackled and his arms were cuffed behind his back. Medical records show a laceration on his left hand, which he said got pinned behind him in metal cuffs, spattering blood across the floor.

After Elliott filed the grievance, he said in a court filing, the corrections officer returned to his cell to issue a threat: If Elliott didn't stop pursuing the grievance, the officer would force Elliott to perform oral sex on him — and order Elliott killed.

When asked about allegations of violent retaliation by prison staff, Hardy, the California corrections spokesperson, said the department had "fundamentally reformed" its approach to investigating allegations of staff misconduct and had deployed body cameras and audio surveillance to "create an environment in which incarcerated and supervised persons are comfortable raising concerns without fear of retaliation."

Akiva Israel, a transgender woman who was incarcerated at another California men's prison, Mule Creek, filed an internal grievance in April 2021 accusing an officer named J. Padilla of threatening to sexually assault her. She said other gay and transgender prisoners immediately warned her to be careful: Reporting the officer might invite even worse consequences.

Israel later filed a civil complaint saying that a week after she submitted the internal grievance, officers handcuffed her and brought her to a prison administrator's office where they hurled transphobic and homophobic slurs and again threatened her with sexual violence. "You fuck with Padilla," she quoted one officer saying, "You fuck with me."

She said the officers then marched her to solitary, stripped her naked, threw her to the floor, and kicked her in the head. They then yanked her off the ground, she said, suspending her by the metal cuffs, causing "excruciating agony," and slammed her to the concrete floor.

Kimberly Mueller, a judge with the District Court for the Eastern District of California, dismissed Israel's case without prejudice on a technicality. Handling her case without an attorney, she had missed a deadline to file an amended complaint while being treated for breast cancer.

In Elliott's case, Kendall Newman, a magistrate judge in the same court, also recommended dismissal on technicalities: Elliott might have a case, Newman said, but he had not signed his complaint filing and his claims of retaliation were unsupported by evidence.

It has become so rare for the courts to find constitutional violations that the wins send shock waves through prison communities. On October 17, 2022, William Shubb, a senior judge in the Eastern District, sentenced a former New Folsom guard, Arturo Pacheco, to 12 years in prison for knocking the legs out from under a handcuffed 65-year-old prisoner who landed face-first on a concrete walkway, breaking his jaw. The prisoner, Ronnie Price, suffered a pulmonary embolism and died two days later.

In the lead-up to Pacheco's sentencing, a New Folsom prisoner named Mario Gonzalez fired off an urgent letter to Shubb, saying Pacheco and another indicted officer "know more than what they've shared." He said many more staff there should be prosecuted, including corrections officers who he said "cuff us and beat us" and lieutenants who he said had lied in incident reports to cover up excessive force.

In an earlier civil suit, Gonzalez said he'd reported to his prison psychologist that a group of officers was committing "illegal beatings of fellow inmates" and that he feared for his safety. Soon after, he wrote, four officers cornered him in his cell: One put Gonzalez, who then used a walker, into a headlock, wrenching his spine backward until he feared it would snap. Three others kicked him in the ribs, torso, back, and groin, then scooped urine and feces into his mouth.

"My back was broken. My ribs were broken," Gonzalez wrote to Shubb, injuries that he had documented in his civil suit and in prison grievances. "I have night terrors at least 4-5 times a week. I also cannot get that piss and shit taste out of my mouth." He said he reported the incident but believed no internal investigation had taken place. His case was dismissed repeatedly over six years while he was in prison, most of the time without a lawyer. He wrote to Cota, the Eastern District magistrate judge, alleging that officers were retaliating against him for being outspoken by locking him in solitary confinement and inciting fellow prisoners to attack him.

"I pray you please take action cause my life is endangered," he wrote in one letter.

Still, his complaint languished. Only after Gonzalez got a new lawyer and was released from prison in the fall of 2023 did Cota allow his case to continue. (The case remains ongoing.)

The California state prison system has been under official scrutiny for decades, springing from a 1995 decision by a federal judge finding a pattern of egregious violence perpetrated by guards at Pelican Bay State Prison, some 380 miles northwest of New Folsom, in violation of the Eighth Amendment. California prison officials, the judges found, "permitted and condoned a pattern of using excessive force, all in conscious disregard of the serious harm that these practices inflict."

It remains the only case decided under the malicious-and-sadistic standard to spark significant prison reforms in the state.

The court mandated a suite of new oversight mechanisms, including the appointment of a special master and a new use-of-force action plan.

Nearly a decade later, the special master issued a scathing evaluation: California prison officials had deliberately misled the court by filing false or misleading reports. The report found that administrators had endorsed a "code of silence" — an informal but aggressively policed policy under which corrections officers refuse to report misconduct to avoid being labeled "a rat."

The special master found California's entire system for investigating and disciplining officers accused of excessive force was "broken to the core." The court ordered a new plan, which included direct oversight and annual reports from the state's inspector general.

The special master's mandate has long since expired. Yet the inspector general's annual reports continue to identify severe deficiencies in how California prisons deploy and investigate the use of force.

In 2023, the most recent year examined, the inspector general reviewed 730 use-of-force incidents and identified 225 that appeared to involve staff misconduct, including 82 incidents where staff may have deployed excessive force. Prison officials initially failed to refer nearly half of those 225 incidents to internal affairs for investigation, including incidents involving the potential use of excessive force and those involving the potential withholding of medical treatment or failure to follow protocol.

The inspector general found that officers repeatedly failed to turn on their body cameras, sometimes wrote misleading or blatantly untrue use-of-force incident reports, or failed to report deployments of force at all. In the vast majority of cases, supervisors rubber-stamped the use of force as acceptable, often without interviewing the prisoner in question or reviewing all of the available video evidence. Even after the inspector general's investigators identified cases that appeared to involve excessive force, they found that prison officials sometimes declined to open internal affairs investigations into the officers involved.

These patterns had been long documented. In each of the five years preceding 2023, the inspector general found that California prison staff appeared to have violated use-of-force policies in at least 40% of the hundreds of incidents the office reviewed. Each year, the office also found significant deficiencies in how managers investigated use-of-force incidents — and found that supervisors regularly declined to take action against officers who deployed "unreasonable force."

If the courts were expected to provide a backstop, they failed.

Over the same five years in BI's sample, no federal judge found for the plaintiff in a single excessive-force claim filed by a California prisoner.

Over the past decade, Minnesota's prisons have experienced officer assaults, lockdowns, and chronic staffing shortages. They have faced allegations of substandard medical care, inhumane living conditions, sexual abuse by guards, and retaliation against prison employees who have sounded the alarm. "It's a very sick system," one former lieutenant told Business Insider. Officers "have each other's back," she said, "even if that means lying."

Within this troubled system, officers and prisoners said one facility has stood out: Minnesota Correctional Facility–Rush City.

A former Rush City therapist described it as one of the state's most dangerous prisons, and a former corrections officer there recalled near-daily fights. "The staff up there are a bunch of cowboys," a former Rush City lieutenant said. Officers there "go hands-on much quicker than they would at any other facility," he added. "It was a culture that was just ingrained from the day it opened."

The first lieutenant, who spent a year at Rush City, described the place as a "time bomb."

The routine brutality earned Rush City a moniker: Gladiator School.

Despite the frequent violence, Dario Bonga, a longtime Rush City prisoner, said one assault, in particular, had stuck with him. It was the day a prisoner bashed in James Vandevender's head.

Bonga was one of six prisoners and officers who said the attack was so brutal they still remembered it over a decade later.

A methodical attack

On June 8, 2012, Vandevender, then 25, had only a few months left on his yearlong sentence over assaulting someone during a fight. He and Bonga were working that day in the prison's industry area, folding balloons, when Bonga was startled from his work by a loud thud. A prisoner had swung at Vandevender's head with a four-by-four wooden post. Bonga watched in shock as the man, later identified as Mark Latimer, continued his methodical attack.

Surveillance footage obtained by BI corroborates Bonga's account. It shows Latimer pick up an unsecured wooden board from a shelf in the woodworking area, drop it, and walk away. A few seconds later he's back, and this time he quickly pulls out a wooden post. No officers are visible in the video; the unguarded woodshop wasn't operating that day.

In the surveillance footage, Latimer saunters several hundred feet across the workshop with the four-by-four. No one tries to stop him — no corrections officer; no one from Minncor Industries, the corrections division that oversees prison labor — as he approaches Vandevender's worktable, hoists the post over his shoulder, and begins to swing.

Only after the sixth blow — after Vandevender has collapsed onto the table, bleeding from his nose and mouth, and after Latimer has slipped into the crowd of panicked men — do officers come running.

Later, at the hospital, a doctor told Vandevender's mother, Peggy Vandevender, that her son had a 20 to 30% chance of survival. He spent 45 days in a coma and woke up 40 pounds lighter. His face was numb, and he couldn't speak or read. He thought he had a prison softball game that weekend, not processing that he had been in the hospital for a month and half.

Years later, the effects of Vandevender's traumatic brain injury persist. Tests indicated a decline in cognitive function. Seizures have forced him to take epilepsy medication. Deep depression sent him in search of meth, which landed him at Rush City again.

When Vandevender arrived back, about four years later, Bonga thought he was seeing a ghost. No one thought he could have survived that beating.

'Unacceptable' risks

In 2018, Vandevender filed a lawsuit alleging that prison officials, by failing to protect him from the attack that day, had violated his Eighth Amendment rights to be free from "cruel and unusual punishments." His attorneys argued that officials had been aware of the risks: For several months before the assault, officials had specifically instructed prisoners to pile and store the boards in an unsecured area that was accessible to prisoners, against prison policy. Vandevender's complaint said that in the weeks before the attack, a prisoner had warned a guard that "the open pile of wood was a threat to the health and safety of all of the inmate population and could be used as a weapon against him and other inmates." The prisoner said the guard told him it was none of his business and "not to worry about it."

There was reason for concern: Vandevender's complaint cited an incident in which, he said, one Rush City prisoner had assaulted another with the wooden handle of a pitchfork, "causing serious head injuries." When, six years after Vandevender's assault, a corrections officer named Joseph Gomm was killed by a prisoner wielding a sledgehammer taken from a work area at another Minnesota prison, Gomm's family sued, alleging a "long-standing culture" in which Minncor's revenue was prioritized over safety.

"Had there been more staff, had there been more cameras out there, absolutely Officer Gomm would not have been killed," a former Rush City corrections officer told BI. "Same thing with Vandevender."

Aaron Swanum, an information officer for the Minnesota Department of Corrections, said that among Minncor staff, only production supervisors are required to receive security training. At Rush City, he said, there is just one.

After reviewing the circumstances surrounding Vandevender's attack for his case, Tim Gravette, a corrections consultant, concluded that Rush City staffers were negligent for failing to properly follow state correction policies, and that if they had, Latimer couldn't have attacked Vandevender in the way he did. "I find the lack of work material accountability to be unacceptable practice," he wrote.

Paul Schnell, Minnesota's corrections commissioner, said that while he couldn't comment on Vandevender's case because it predated his tenure, "obviously we want to be in a place where we're trying to take the steps to keep people safe."

He said that since he became commissioner in 2019, he'd established an Office of Professional Accountability to address employee complaints, revived an independent ombudsman office to address internal grievances, started a body-camera pilot program, and, in the wake of Gomm's murder, increased the number of staff and cameras in the industry area of the prison where he died. The department confirmed that there have been no such changes at Rush City.

Whether a prisoner wins or loses a lawsuit, Schnell said, "we're certainly looking at our practices no matter what."

He said that "everything's incremental" when it comes to corrections reform.

"The challenge is that we were struggling to get our staffing complement up in general, so while we may have put more bodies in Minncor, we were shorter elsewhere," he said. "It's always give-and-take."

A guardrail against cruelty

From its beginnings, the Eighth Amendment was understood as a guardrail against unabashed cruelty; by the mid-20th century it was also being used to push back against inhumane prison conditions, violence, and medical neglect. Then, in the 1980s and 1990s, as mass incarceration was on the rise, the Supreme Court issued a series of opinions that shifted the focus away from these underlying abuses to the question of prison officials' intent.

In practice, these decisions made it difficult for prisoners to assert their constitutional rights.

One of those pivotal cases was 1994's Farmer v. Brennan. The court unanimously ruled that prison officials were liable for Eighth Amendment violations only if they acted with "deliberate indifference" to a prisoner's suffering. To meet this standard, Justice David Souter wrote, prisoners must show that officers were aware of and disregarded a serious risk of harm, saying this approach "comports best with the text of the Amendment." Officials were now on the hook only if they had the knowledge that a particular harm would occur if they didn't act.

While Souter said a court could infer awareness if the risk was obvious, the standard still required incarcerated plaintiffs to marshal proof of something ineffable — a prison official's inner thoughts.

Business Insider's analysis of a sample of nearly 1,500 Eighth Amendment cases — including every appeals court case with an opinion we could locate filed from 2018 to 2022 citing the relevant precedent-setting Supreme Court cases and standards — shows that mindset has become an extremely difficult standard to meet. For the vast majority of prisoners in BI's database who filed their suits without counsel, proving mindset can be almost impossible — 85% of their cases decided under the deliberate indifference standard lost.

All of the remaining pro se cases settled, often for modest amounts.

"However obvious the circumstances, people may at times remain oblivious," Sharon Dolovich, a law professor at UCLA, wrote in an anthology on the Eighth Amendment. "And when this is true of prison officials, no constitutional liability may lie, however 'soul-chilling' the conditions."

Deference to officials, coupled with "the long and troubling history of unspeakable maltreatment against incarcerated people by the very actors charged with their protection," she wrote, has created a landscape where "the power that prison officials have over incarcerated persons is sure to be abused."

In BI's sample, a few attorneys successfully proved mindset, sometimes by obtaining explicit circumstantial evidence, such as email exchanges introduced in the case of one Illinois prisoner that show prison healthcare providers floated the possibility of sending him to hospice care after his oncologist recommended treatment that would cost $15,000 a month. But such cases were rare.

Few sitting judges would comment to BI about the deliberate-indifference standard; some did not respond to interview requests, while others declined to comment. One who did, Lawrence Piersol, a federal judge in South Dakota, decided a case under the standard filed in 2020 by a prisoner named Jason Dunkelberger. While incarcerated at the South Dakota State Penitentiary, Dunkelberger said, the tips of his fingers were severed by a metal shear in the prison machine shop that he'd never been trained to use; in a deposition, he said he was told he'd be sent to solitary if he refused the assignment, given to him by a fellow prisoner put in charge by the machine shop's supervisor. He said he waited 90 minutes before being sent to the hospital, where the fingers were amputated.

The South Dakota Department of Corrections did not respond to requests for comment.

In his lawsuit, Dunkelberger argued that prison staff had violated his constitutional rights by failing to keep him safe. Because the directive to use the machine had come from a prisoner, and not an officer, Piersol ruled that officials couldn't be considered deliberately indifferent. Piersol said his decision spoke for itself, but he agreed to comment on Eighth Amendment cases generally.

"It's difficult for a prisoner to succeed," Piersol said. "But sometimes there are some decent settlements."

Dunkelberger's claim couldn't meet that high bar. Vandevender's didn't either.

Donovan Frank, a federal judge with the District of Minnesota, granted the prison officials qualified immunity in the Vandevender case, finding that he had failed to prove they "were subjectively aware of a substantial risk posed by the wooden boards." Even if they should have known that leaving them unsecured violated Rush City's tool policy, Frank wrote, that "does not satisfy the subjective-culpability requirement."

He dismissed the case before Vandevender could take discovery.

After Vandevender appealed, the 8th Circuit agreed with Frank, deciding that Vandevender was the victim of a surprise attack and that corrections officers therefore could not have violated his rights by failing to protect him. The court determined that the prior assault with a wooden pitchfork handle hadn't signaled a "pervasive risk."

When BI spoke with Mark Bradford, Vandevender's attorney, two years after he lost the case, he seemed defeated.

"I'm not sure what more you could possibly do to show deliberate indifference," he said. "It really is a troubling standard that the 8th Circuit has employed here."

Appended to the appeals court's judgment is a separate opinion, authored by Judge Jane Kelly, who wrote that she concurred only because she was bound by 8th Circuit precedent. "Our caselaw may set the bar too high for the typical inmate to sufficiently plead prison officials were deliberately indifferent to a substantial risk of serious harm in a case like this one."

'The easiest lie to tell'

The Eighth Amendment cases BI reviewed include claims of untreated cancers and heart disease, retaliatory beatings, sexual assaults, limb amputations, and prisoners wasting away in squalid cells littered with feces and dead flies. There was a New York teenager who said he was put in a vermin-infested cell in late 2021 where he was attacked by a bat and bitten by a poisonous spider, an Arizona prisoner who said in 2020 he was given only Tylenol to treat a broken jaw, and a Michigan man who filed a complaint in 2019 saying his eyesight deteriorated because prison doctors refused to conduct cataract surgery. Again and again, courts dismissed these cases, finding that prisoners had failed to meet the deliberate-indifference standard. The standard introduced three decades ago by the Supreme Court — and its interpretation by federal courts in the years since — has created formidable obstacles to accountability in this country's prisons.

The Arizona Department of Corrections, Rehabilitation & Reentry did not comment on the broken-jaw claim but said that Gov. Katie Hobbs had appointed a new corrections director, Ryan Thornell, in January 2023 "to make needed changes to the correctional system" and that he was ensuring "high-quality, patient-centered care and wellness are becoming standard practice." The New York and Michigan corrections departments did not respond to requests for comment.

Of the cases in BI's sample, 1,361 were argued under the deliberate-indifference standard. Only 10 plaintiffs prevailed in court; another 164 cases settled without the prison admitting liability. All 10 of the successful plaintiffs were among the minority in the sample who were represented by counsel.

David Fathi, the director of the National Prison Project at the ACLU, told BI the standard has been "an enormous barrier to justice for incarcerated people." If prisoners encounter conditions that are "inhumane, unhealthy, dangerous, or even lethal," he argued, "that should be enough to violate the Eighth Amendment — you shouldn't have to go looking for someone who was thinking bad thoughts."

David Shapiro, the executive director of the Chicago Lawyers' Committee for Civil Rights, has litigated dozens of Eighth Amendment cases on behalf of prisoners.

"I didn't know this person was going to get attacked by another incarcerated person," he said of defenses under the deliberate-indifference standard. "I didn't know that this person was having chest pains because they were experiencing a heart attack."

As long as prison officials assert that they didn't know about the risk, he said, a federal court will rarely find an Eighth Amendment violation.

"What is the easiest lie to tell?" he said. "I didn't know."

'A dark and evil world'

For generations, the federal courts took a mostly hands-off approach to conditions in America's prisons. That changed in the wake of the Civil Rights Movement, as judges began to issue Eighth Amendment rulings that secured key rights for prisoners.

In 1970, for instance, a federal judge put every Arkansas prison under court order, calling the state system "a dark and evil world completely alien to the free world." Six years later, another federal judge found prisons in Alabama "wholly unfit for human habitation" in violation of the Constitution.

About this time, a Texas prisoner named J.W. Gamble sued his facility over inadequate medical care, arguing that officers had failed to treat his intense pain after a 600-pound cotton bale fell on him during a work assignment. While the Supreme Court found that Gamble's constitutional rights hadn't been violated, the 1976 decision, written by Thurgood Marshall, established that prisoners have a right to medical care under the Eighth Amendment.

"Deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,'" Marshall wrote. "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met."

It was a consequential decision. It was also, fatefully, the court's introduction of the phrase "deliberate indifference."

"There it sat," John Boston, the former director of the Prisoners' Rights Project of the New York City Legal Aid Society, said, "extremely vulnerable to a more conservative court coming along and trying to define it downward in ways disadvantageous to prisoners."

That shift occurred quickly. As President Ronald Reagan ramped up the war on drugs, legislators from both parties, committed to a tough-on-crime agenda, began to pass a raft of criminal-justice measures. The impact of these policies is now well known. In less than 30 years the country's penal population grew sixfold to a peak of more than 2 million, leaving the US incarcerating more people than any other country.

The critical Farmer v. Brennan case came when Dee Farmer, a transgender woman, filed a claim saying federal prison officials had failed to protect her from sexual assault. In an interview, she described how, after being raped by another prisoner at knifepoint, she was sent to segregation for over a year.

When Farmer won her case before the Supreme Court, it was hailed as a major victory for transgender rights. The decision also cemented the current deliberate-indifference standard.

Farmer's lead attorney, the ACLU's foremost prison expert, Elizabeth Alexander, argued that the standard should hinge on what officials had the professional responsibility to know. The solicitor general, Drew Days III, disagreed, contending that officials should be held liable only for risks they were aware of. "Petitioner's 'should have known' approach ignores the 'deliberateness' requirement of the 'deliberate indifference' standard," he wrote in his brief.

The Supreme Court agreed with Days, finding that officials were liable only if they personally knew of and disregarded the risk, regardless of the gravity of the harm to the prisoner.

Some issued warnings at the time. Michelle Alexander, the noted civil-rights lawyer and author, who was then a clerk for Justice Harry Blackmun, suggested that the majority opinion "would allow a prison official to argue to the jury that although a particular risk of harm was plainly obvious, and a reasonable prison official would have been aware of it, he wasn't."

In his own concurring opinion, Blackmun described the new standard as fundamentally misguided. "A punishment is simply no less cruel or unusual because its harm is unintended," he wrote.

Alexander, in a recent email, described the decision as one of many during that period that created what she called "unconscionable obstacles to meaningful relief for people ensnared by our criminal injustice system."

Vandevender is one of hundreds of prisoners in BI's sample for whom those obstacles were insurmountable. Prisons are inherently dangerous places, the 8th Circuit concluded in his case, and "inmates bent on assaulting other inmates will use even the most harmless objects as weapons."

Judge James Loken, who authored the majority opinion, wrote that, for Vandevender, "the outcome was tragic, and an assault with this weapon was, in hindsight, no doubt avoidable."

Still, he concluded by quoting the Farmer decision, writing, "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of Eighth Amendment punishment."

A fiancée's warning

Six years after Latimer's assault on Vandevender, Rush City experienced another violent attack. This time, officials were repeatedly warned of the risk.

Trina Murray was at home in bed one night when she got the call. She was confused; her daughter never phoned that late. She listened with a rising panic as she learned that her only son, David Hodges, had been assaulted at Rush City.

Hodges is a large man, tall and broad-shouldered, with the word "family" inked onto his right forearm. But Murray still worried about his exposure to violence when, in 2011, he was sent to prison for sexual assault. She knew what Minnesota's prisons could be like, having worked in two of them.

She tells one story from when she was an officer at Minnesota Correctional Facility–Lino Lakes, a medium-security prison outside Minneapolis, in the 1990s. There, in her telling, she witnessed a group of officers placing bets on how many prisoners they could send to solitary confinement. When she reported the behavior, she became the target of a campaign of retaliation. The officers, all men, followed her to her car. They called her the N-word, she said, and told her to go back to Africa. Later someone threw a rock through the window of her home. Eventually, she quit.

After the call that evening in September 2018, she scrambled to learn what had happened to her son. In incident and investigative reports, Hodges claimed that another prisoner, Courtney Osgood, had entered his cell with a shank, angry that Hodges had refused to pay off a debt owed by Hodges' cellmate. Osgood grabbed Hodges' locs, ripping some out, and attempted to stab him. Hodges, who had been making coffee on a small hotplate, threw the boiling water at Osgood, who raced out of the cell.

Prison officials weren't aware of the altercation, according to an incident report, until Hodges' then-fiancée called the prison, concerned about his safety. Once alerted, Hodges' subsequent civil complaint said, they sentenced Osgood to 20 days in segregation — and gave twice that to Hodges. Gene Olson, a prison lieutenant who investigated the incident, said in a deposition that he couldn't prove Hodges' account of the attempted stabbing because officials couldn't track down the shank. Osgood also denied Hodges' account in a message to BI, calling it a "fabricated narrative."

In segregation for about six weeks, locked in a tiny cell, the lights on 18 hours a day, Hodges said, he obsessed about one thing: what was waiting for him when he got out.

"It's prison politics 101, if I assault you and I hurt you real bad, you're looking to get your lick back," he said. "Needless to say, I'm a big guy, and I know this time he was coming with help."

Hodges begged officers to move him to a different unit, verbally and in writing. Murray, his mother, along with his fiancée, his sister, and his grandmother, called and wrote over a period of six weeks to the prison and to state corrections headquarters, imploring officials to take action because they feared for his life. "What exactly must he do to get a transfer to another facility for his safety?" his fiancée asked in a late-October email to the warden at the time, Jeffrey Titus. "Why must something really bad happen before he is taken seriously."

Every prison in Minnesota has an incompatibility-review committee composed of prison staff that meets to decide whether particular prisoners pose a risk to each other and need to be separated. Their deliberations, a former corrections staffer at Rush City told BI, are usually documented in great detail. Rush City's panel, which included Olson, had met in late September 2018 and decided that Hodges and Osgood didn't need to be separated. Ashlee Berts, a corrections program director who oversaw the committee, said in a deposition two years later that no notes were kept to explain their rationale. She said she didn't remember who was on the committee, whether it had convened in person or over email, and what was discussed. Olson said under oath that, despite the pleas from Hodges and his family, he didn't believe Hodges faced any threats.

Schnell, the corrections commissioner, said he expected his staffers to fully document incompatibility reviews. "It's news to me that there wasn't that information," he said of Berts' claim that no records were kept. "We want to be in a position where we can say that we have documentation that we did that and the basis for it."

In early November, just hours after Hodges was released from segregation, Osgood and a fellow prisoner assaulted him in the living unit, throwing a mixture of hot water and capsaicin, a chili-pepper extract, in his face. Surveillance video shows Hodges trying to escape as the two men come toward him. They land a series of punches as Hodges waves his arms in a futile attempt to make contact with his assailants. His eyes were blinded and burning, he told BI, saying it felt like an eternity before officers arrived. Medical records show he suffered a nasal fracture, second-degree burns, and an eye injury.

Ten days after the assault, the committee made a new determination: Hodges and Osgood were incompatible, and Hodges' transfer request was granted.

Almost five years later, Hodges discussed the incident while sitting in an empty visitors' room at Minnesota Correctional Facility–Moose Lake, a state hospital turned prison an hour north of Rush City. The window blinds concealed a barbed-wire fence just outside. He wears wire-framed glasses now, to help with the blurred vision he's lived with since the attack. "I had a lot of sleepless nights," he said. "Every time I think about the situation, I'll have flashbacks." In a July 2019 incident report, an officer described finding him crying in the midst of an anxiety attack.

Like Vandevender before him, Hodges filed a lawsuit alleging that prison officials at Rush City failed to keep him safe.

With Vandevender, the court's ruling hinged on the fact that he'd experienced a surprise attack. But the attack on Hodges came after a campaign of urgent warnings that he feared for his life.

The defendants argued that launching the incompatibility review was itself proof they hadn't been deliberately indifferent to Hodges' welfare. A federal judge, Wilhelmina Wright, accepted the officers' claim that they had determined in good faith that Osgood no longer posed a threat.

"The fact that this conclusion proved to be incorrect does not demonstrate that Defendants recklessly or intentionally ignored an obvious risk," Wright wrote in deciding in the officers' favor. The 8th Circuit — the same appeals court that decided Vandevender's case — agreed with Wright on appeal, finding that the officials had simply "predicted incorrectly." Hodges' claim failed.

A modern-day 'Lord of the Flies'

The sample BI analyzed is full of cases in which officers failed to act on warnings that prisoners were at risk.

Marc Bakambia, another Rush City prisoner, said that after a group of prisoners beat him up and threw him over a railing, he was placed in their same unit and assaulted again, leaving him with bone fractures and a traumatic brain injury. Craig Shipp claimed he had sought orthotic shoes for his diabetes and degenerative joint disorder but Arkansas prison and medical staff denied his repeated requests; he said he eventually developed an infection severe enough to result in the amputation of his right foot. Mitchell Marbury claimed he requested a transfer after a friend warned him that a fellow prisoner was out to get him; he said an Alabama corrections officer laughed and told him to get a shank. Less than a week later, he said, he was stabbed in the facility's day room.

The Arkansas and Alabama corrections departments did not respond to requests for comment; the Minnesota corrections department did not comment on the Bakambia case.

"Marbury's argument is essentially that every prisoner who tells prison officials about an unspecified threat from an unspecified inmate without more is entitled to protective custody or a transfer," 11th Circuit judges wrote in the majority opinion. "Our caselaw establishes a higher standard for deliberate indifference."

"The Eighth Amendment does not allow prisons to be modern-day settings for Lord of the Flies," Judge Robin Rosenbaum wrote in a scathing dissent. By not holding officials responsible, she said, "the Majority Opinion condones this behavior and ensures it will occur again."

In reviewing Hodges' appeal, Kelly, the 8th Circuit judge, wrote her own opinion, as she had in the Vandevender case. She disagreed with how her colleagues assessed the question of mindset, writing that a committee finding alone should not release prison officials from liability. She also noted that "the absence of documentation regarding prison decisions or prison officials' inability to remember events central to their decision-making process may be relevant," raising the question of whether those gaps could have been deliberate.

Many corrections officers are made aware of the mindset standard. BI requested officer training materials from every state prison system and obtained them from 37 — most of which explicitly trained on deliberate indifference. Taken together, the documents indicate that the standard, as interpreted by federal courts, could encourage prison staff to remain incurious about what goes on in their facilities.

As Oregon's training materials say, "basically, deliberate indifference is a cognitive choice to do what you did."

Fathi, of the ACLU, reviewed a sample of the training materials BI obtained and said the guidance might lead officers "to act in ways that violate people's rights and that harm people very severely."

Many of the materials, he said, appear to train officers to treat prisoner complaints with suspicion. In a 2021 Mississippi slide deck, for instance, corrections officials were told prisoners try to compromise their integrity "as entertainment and for their amusement" or "to facilitate an escape, assault, rape or murder." A slide in a 2018 Utah training PowerPoint displayed the header "inmates do crazy things… then sue YOU for it."

"It's good to train them on the law," Fathi said. "But they should also make clear that we expect more than the absolute minimum that's required to avoid violating the Constitution."

Memory issues

On a muggy June morning in 2023, as the sun was just beginning to peak out in Euless, Texas, James Vandevender was already up in his father's modest one-story house in the Dallas suburb, pouring himself a cup of coffee. He had moved there from Minnesota, after his last prison stint, looking for a fresh start.

He was dressed in khakis for his job installing high-end appliances. A tattoo of his son's name showed below his shirt sleeve, and a scar cut across his cropped brown hair.

He moved through the same routine as every morning: packing his lunchbox, scarfing down breakfast, and swallowing an array of anti-seizure pills and antidepressants.

Still, that day, he forgot to put the ice pack in his lunchbox and had to redo it. When he headed outside to toss out the trash, he couldn't remember where he stowed the garbage bins. By the time he and his coworkers gassed up and headed off to the first house, Vandevender had misplaced his phone.

As they wrapped up their first job and headed back to their truck, Vandevender realized he'd left his tool bag inside.

At the next house, the men were tasked with installing a mounted range hood they'd never encountered before. It was a tricky job, Vandevender said. By late afternoon, visibly frustrated, he called the installation a "fucking joke."

His coworker Mike, in a black baseball cap to protect from the sweltering sun, took a breather in the driveway, away from the tension inside. "He's been having memory issues all day long. It's an everyday thing," he said of Vandevender. "That's when he gets frustrated."

Ashley Christen, the mother of Vandevender's 20-year-old son, said that when the two of them were growing up in rural Minnesota, Vandevender was smart and quick-witted, known for delivering the best one-liners. As a kid, he loved to hunt and spend time on his grandfather's dairy farm; his mother, Peggy, said he was fun and lovable, always offering to help out around the house.

But since the assault, they both said, he's struggled to communicate. He's forgetful, irritable, and prone to snap. Peggy said he relied on scribbled notes to get through the day.

"It shouldn't have happened," she said. "It was because of their lack of watching the people," she added. "It was due to their negligence."

On a recent fall afternoon, 12 years after Latimer bludgeoned him with the wooden post, Vandevender sat down with a friend to watch surveillance footage of the attack for the first time. He doesn't remember anything from that day; his first recollection is waking up weeks later, confused and shackled, in a hospital bed flanked by corrections officers.

"I just want to make sure you're mentally prepared to see it," the friend told him, before pressing play. "I want to," Vandevender said.

When the video finished, there was a long silence.

Eventually, he started talking. He said the footage took him back to his time in prison — the smell, the barbed wire, the disrespect. He said that he noticed Latimer picked up the post from an unauthorized part of the industry area, where prisoners weren't allowed, and that any unused lumber should have been disposed of. He said he felt the weight of what it must have been like for his mother, when she got the call every parent of an incarcerated child dreads.

When asked about the life he could have had, the one where he got out of prison at age 25 without the burdens of a traumatic brain injury, he struggled to respond.

"I don't want to talk about it," he said.

Nearly three years into Bill Clinton's first term as president, US senators took to the floor to tackle an urgent concern. Prisoners across the country were filing too many lawsuits.

"The vast majority of these suits are completely without merit," Sen. Orrin Hatch, the Republican chair of the Judiciary Committee, said in September 1995. "It is time to lock the revolving prison door and to put the keys safely out of reach of overzealous federal courts."

Sen. Harry Reid, who would go on to become the Senate Democratic majority leader, ticked off a litany of ridiculous cases he said were clogging up the nation's courts. There was the Missouri prisoner who sued because his facility didn't have salad bars on the weekends. And the Nevada prisoner who said his constitutional rights had been violated when he received chunky peanut butter — not smooth — from the prison canteen.

"And to think, we, the taxpayers, are paying for all of this," Reid said.

Reid and Hatch were speaking in support of the Prison Litigation Reform Act, introduced by the most powerful man in the Senate at the time, the Republican Bob Dole. Dole, then the majority leader, had pitched it as a common-sense reform that would sharply curb such "frivolous lawsuits." Hatch insisted it wouldn't affect prisoners who raised legitimate claims.

The National Association of Attorneys General helped craft the legislation and circulated top-10 lists of "frivolous" prisoner lawsuits, including the complaints about salad bars and peanut butter, to garner support. A few attorneys general — from red and blue states alike — took their case to The New York Times. "We feel strongly that convicted criminals should not be granted unlimited free access to our courts to conduct their costly and most often frivolous lawsuits," they wrote.

"It was about resources," a former attorney general who backed the legislation said. "You are just struggling to run what was then the state's largest law office. So to me it was a question of degrees. Let's find some balance and look at cases that need to be looked at and get rid of steak and wine and peanut butter cases."

Some elected officials issued warnings. Sen. Ted Kennedy of Massachusetts called the bill "patently unconstitutional," and Joe Biden, then a Delaware senator, said it placed "too many roadblocks to meritorious prison lawsuits." But it passed easily, buried in an omnibus appropriations bill, with little legislative debate about its potential repercussions.

In April 1996, Clinton signed the PLRA into law.

A separate system of justice

While it had never been easy to file a lawsuit from prison, the rules of play had been roughly the same as for any other indigent person seeking redress in court. The PLRA changed that, effectively carving out a separate and unequal system for prisoners.

Prisoners could now win monetary damages only if the harm they endured was physical, rather than mental or emotional. Strict caps on attorney fees discouraged lawyers from representing prisoners, leaving the vast majority of plaintiffs, many without a high-school diploma, to file on their own.

Many prisoners would no longer get their day in court: A judge or staff attorney would screen cases before any evidence could be presented or any motions could be made. If the screener deemed a case frivolous or decided it had failed to clearly state a constitutional claim, the judge could simply dismiss the case. A prisoner who had three suits dismissed in this way — the "three strikes" rule — would be barred from filing another without paying prohibitive court fees.

Crucially, any claims that made it to court would be dismissed if a prisoner could not show they had exhausted their prison's internal grievance process — procedures that a number of state corrections departments have turned into arcane, highly technical affairs.

"In a busy court, there's a template to get rid of the cases," Nancy Gertner, a former federal district judge in Massachusetts, said of the PLRA, "and invariably they're gotten rid of."

The senators were right that there had been an uptick in prisoner lawsuits. But that increase closely tracked the rise of the prison population as the war on drugs and punitive sentencing laws more than doubled incarceration rates from 1986 to 1996, the year the PLRA became law.

Reid had compared prisoners to "an alcoholic locked inside a liquor store," abusing the nation's legal system with easy access to the courts. But legal scholars have found that the rate of prisoner legal filings had actually stayed relatively consistent.

In fact, Margo Schlanger, a law professor at the University of Michigan, found that in the year before the PLRA was signed into law, prisoners filed a similar number of lawsuits per capita as people on the outside.

Within five years of its passage, prisoner suits dropped by 43%, even as the prison population continued to grow, according to Schlanger's research. Schlanger examined prisoner filings again in 2022 and found that the filing rate never rebounded.

Cases that prisoners have filed since the law's passage, she found, have struggled to succeed. To understand why, Business Insider analyzed a sample of nearly 1,500 federal cases alleging "cruel and unusual punishments" in violation of the Eighth Amendment, including every appeals court case we could locate with an opinion filed from 2018 to 2022 citing the relevant Supreme Court cases and standards.

Some were filed by former prisoners after their release, or by their families, who were not bound by the PLRA. But in an examination of the roughly 1,400 cases filed by people while they were imprisoned, the impact of the PLRA jumped out — 27% of those cases failed because of the law's requirements.

In BI's district court sample, the PLRA's effects were more dramatic — 35% failed because of the law.

A few dozen of the claims BI examined appeared to center on minor matters: For instance, an Indiana prisoner claimed he developed a rash after he wasn't allowed to shave, an Alabama prisoner said he was served undercooked food, and a Michigan prisoner sued saying he'd been denied shoes while being held in a dirty shower. But the vast majority clearly involved claims of substantive harm. Among them were dozens of claims that prisons had allowed retaliatory beatings, stabbings, sexual assaults, and egregious forms of medical neglect.

These include the case of Kenneth Coleman, a Florida prisoner. He said prison officials put him in the same cell as an "enemy" who later assaulted him, leaving his left eye with a sag. He lost his case for failing to complete the prison's grievance process before filing suit. They include a case out of Colorado, in which the plaintiff said she began self-mutilating after medical providers failed to dispense the hormone blockers that had been prescribed to treat her diagnosed gender dysphoria; her case was dismissed because the court ruled that self-harm didn't count as a physical injury. And they include the case of Benjamin Gottke in Louisiana, whose left leg was amputated below the knee after, he said, corrections officials failed to protect him from being assaulted. His case was dismissed at screening for failure to properly state his legal claim.

The Louisiana and Colorado corrections departments declined to comment on the record. A spokesperson for the Florida Department of Corrections did not comment on the Coleman case but said, "We ensure the safety and healthcare of our inmate population in accordance with Florida law."

When prisoners' cases are knocked out by the PLRA, they rarely succeed on appeal. Such appeals, BI found, failed nine out of 10 times.

Victor Glasberg, a civil-rights attorney in Virginia, has represented prisoners for decades and successfully litigated an Eighth Amendment case about conditions on the commonwealth's death row. "The Prison Litigation Reform Act is the worst piece of federal legislation to have been enacted in my lifetime, and I was born in 1945," he said. "It is malicious, vindictive, and grossly unfair."

An undiagnosed tumor

Kevin Harrison Jr. was 24 years old and not long into a life sentence for murder when he first noticed lumps on the left side of his chest. In July 2011, he saw Michael Hakala, a doctor at Southeast Correctional Center in Missouri who worked for a prison healthcare company called Corizon Health, now YesCare, which was then contracted to provide healthcare to the state's prisoners. In a civil complaint he would later file, Harrison said Hakala assured him that the lump was benign without ordering a biopsy.

Two years later, the lumps had grown considerably, Harrison's complaint said. During shirtless basketball games, he said, other prisoners told him he looked as if he'd been shot.

Harrison said Hakala again assured him that nothing was wrong.

More than seven years after his first appointment, in November 2018, Harrison said he was granted a visit with another doctor; that doctor also worked for Corizon. Concerned by what had become a gnarled mass, the doctor ordered a biopsy. At 31 years old, Harrison was told he had a rare form of skin cancer.

He underwent what he described as a grueling, invasive surgery that required doctors to cut deep into his pectoral muscle to remove the tumor. He wore a bandage for months as his chest slowly healed, and he lived with debilitating pain. Several years later, the muscle pain and spasms have barely abated, he said, and with his follow-up appointments often delayed he worries the cancer will return.

In March 2022 he filed suit against Hakala and other medical staff alleging that they had violated his constitutional rights by failing for years to biopsy his tumor.

His case was dismissed during screening.

Patricia Cohen, a magistrate judge for the Eastern District of Missouri, found that his handwritten complaint, filed without counsel, had failed to make a clear Eighth Amendment claim: He hadn't shown he could prove the defendants had intentionally delayed his treatment.

As in many claims dismissed at screening, the judge gave Harrison 30 days to file an amended complaint. In this case, a court clerk, Nathan Graves, said Cohen had provided Harrison with "clear instructions" for how to do so. Harrison, whose request for an attorney was denied by the judge, told BI he missed the deadline because he was locked in solitary confinement for assaulting two corrections officers. He refiled the case last year, which is still pending; the defendants have yet to respond to the underlying claims.

Tad Eckenrode, Hakala's attorney, declined to comment on the pending litigation but noted that Harrison's claims remained unproven allegations; the Missouri Department of Corrections declined to comment. A YesCare spokesperson declined to speak about Harrison's case but said by email, "Our industry is filled with mission driven professionals who are committed to serving incarcerated individuals, many of whom have never received healthcare in their life, within a challenging prison environment," adding that "ignoring the many successes and positive advancements in our industry only serve to make it more difficult to retain and recruit medical professionals to serve incarcerated populations."

Of the 376 cases in BI's sample disqualified by the PLRA, 75% were dismissed at screening, denying the plaintiffs the chance to argue their case in court — or seek discovery. Over half of those cases involved allegations of inadequate medical care, including several for potentially fatal illnesses, such as Harrison's cancer.

"As a result of the PLRA, people who have suffered horrific harm, people who have extremely meritorious and compelling cases, get thrown out of court for reasons that have nothing to do with the merits of their case," said David Fathi, the director of the National Prison Project at the ACLU. "It just tilts the playing field against prisoners across the board."

Several cases in BI's sample dismissed at screening involved claims that negligence had left prisoners with permanent disabilities. A Kansas plaintiff said one of his feet was amputated after an infection was allowed to fester; a prisoner in California said he was left with persistent migraines and dizziness after a guard, while trying to quell a fight between two other prisoners, shot him in the head. Eight prisoners who alleged that they'd been sexually assaulted had their cases dismissed at screening.

The Kansas Department of Corrections declined to comment; a spokesperson for the California Department of Corrections and Rehabilitation did not address the shooting claim but said the department had "fundamentally reformed its approach to addressing allegations of staff misconduct to enhance staff accountability and improve transparency."

A ticking clock

Prisons are hierarchical systems, largely insulated from the outside world, where corrections officers control every aspect of a prisoner's life. The PLRA effectively requires prisoners experiencing abuse or neglect to confront those officers directly, mandating that they pursue grievances internally before they have the right to seek redress in court. Prisoners in multiple cases said that requirement came with consequences.

In the spring of 2016, a Texas prisoner named Juanita Ornelas began a prolonged battle with the prison bureaucracy. Ornelas, a transgender woman who said she presents as masculine in prison for safety reasons, said she was being repeatedly sexually and physically abused by another prisoner at the William R. Boyd Unit in East Texas.

Ornelas, who was serving time on weapons charges, was required by Texas corrections policy to try to resolve the issue informally and then to submit a formal grievance, on a specified form, all within 15 days of the incident. The unit's grievance coordinator would then have at least 40 days to respond, at which point, if Ornelas wasn't satisfied, she would have another 15 days to file an appeal.

In a complaint that she would later file in the Western District of Texas, Ornelas said she had been terrified her attacker would kill her if she filed a grievance. She said that she had witnessed attacks on other people who had filed grievances and that it was common knowledge that officers at Boyd often ratted out prisoners who disclosed sexual abuse. When Ornelas finally asked an officer for a grievance form, she said in a memorandum she introduced in court, the officer refused and instead told her to stop snitching.

Desperate for help, she said, she instead submitted several I-60s — a form Texas prisoners use for routine transfer requests — to Alexander Hamilton, an investigator in the criminal justice department's office of the inspector general who had once visited the unit. Ornelas thought if she reported the assaults directly to Hamilton, she would have a better chance at getting moved out of danger.

But her I-60s to Hamilton went unanswered and the abuse continued, she said.

Amanda Hernandez, a spokesperson for the Texas Department of Criminal Justice, said that Ornelas' claims were investigated and could not be substantiated and that "the agency takes all allegations of abuse seriously," promptly forwarding them to the appropriate authorities. The office of the Texas attorney general, which represented Hamilton, did not respond to queries.

In early June 2016, officials moved Ornelas to a different prison. It had nothing to do with the rape allegations, she told BI; she'd been accused of housing a weapon in her cell, though she said it wasn't hers. There, 200 miles away, she submitted a series of grievances to document the abuse she said she experienced at Boyd. Even then, Ornelas said in her memorandum, officials repeatedly refused to process the forms or said they hadn't received them. In January 2017, she said — nine months after she had sent her first I-60 to Hamilton and four months after she went on a hunger strike — a grievance form was finally processed.

"I couldn't believe it was so hard to report something like that," Ornelas said. "They just completely ignored and disregarded the sexual-abuse report."

A year later, Ornelas filed a pro se lawsuit alleging that Hamilton had violated her Eighth Amendment rights by failing to protect her from repeated sexual assaults. Though Ornelas said the rapes were so violent they left her bloodied, the attorney general never weighed in on the underlying claims in court, focusing on Ornelas' failure to meet the deadline for submitting a prison grievance before filing suit; a district judge, Alan Albright, agreed with that assessment and dismissed her case. On appeal, the 5th Circuit ruled that even if Ornelas had followed prison protocols, she'd still lose the case: She had offered no proof that Hamilton ever saw or received the letters.

The offices of Albright and the other federal judges who presided over cases decided in this story declined to comment, didn't respond to interview requests, or, in the case of Cohen, the judge in Missouri, said the decisions spoke for themselves.

'Byzantine grievance processes'

The requirement to exhaust a prison's internal grievance system before filing suit is one of the PLRA's most significant obstacles. Of the prisoner cases knocked out by the law in BI's sample, nearly one in four failed because judges decided the plaintiff had not fully complied with the grievance process.

"The exhaustion-of-remedies requirement definitely incentivizes prison systems to create Byzantine grievance processes," Corene Kendrick, the deputy director of the ACLU National Prison Project, told BI. "If you fail to meet a single deadline, or if you worded something in a way that wasn't quite specific enough, the courts will often just throw the cases out."

Legal scholars have described prison grievance procedures as something out of Kafka.

In Colorado, for instance, a grievance can be denied if the handwriting is deemed illegible or if the prisoner uses more than "one line of dialogue" to describe the abuse allegation. In Florida, a grievance can be rejected if more than one issue is discussed in a single form. In West Virginia, only one staple may be used to attach the pages.

Many states require prisoners to use an official grievance form, which prisoners sometimes depend on corrections officers to supply. Once filed, the form may go into oblivion.

"A lot of times, especially in segregation, you give the grievance to an officer," one West Virginia prisoner told BI. "Nine times out of 10 it's going in the garbage."

Andy Malinoski, a representative of the West Virginia Department of Commerce, responding on behalf of the state corrections division, said the agency "adamantly denies" the prisoner's claim and "is committed to the safety, quality of life, and well-being of those in the care of the legal system in our state."

Tiffany Yang, an assistant law professor at the University of Maryland, authored a study last year finding that the PLRA had effectively provided a playbook to prison systems on how to narrow the pathway to judicial relief. She documented instances in which state corrections departments had responded to a successful prisoner lawsuit by amending their grievance requirements to make the rules more complex. She called this cycle the "prison pleading trap."

"Each prison system can define its own internal grievance procedure, and that decision has created a system that is designed to fail the very people that it should protect," Yang told BI. "Even if an incarcerated person is successful in overcoming administrative exhaustion, what prison officials can do with that defeat is to transform it into a blueprint for how to amend the grievance policy to make it more difficult for future litigants."

In her study, Yang discussed a 2005 case in Arkansas in which the courts allowed a prisoner to move his case forward against medical staffers he said had denied him dental treatment, ruling that they were identifiable even though his grievance listed only their job titles, not their names. The state corrections department then updated its procedures to require all Arkansas prisoners to specify, in their first grievance, the full names of each individual involved. As Yang wrote, that alone can prove to be an impossible hurdle in situations in which officials don't wear name badges, hide their badges, or refuse to provide their names to prisoners.

The Arkansas Department of Corrections did not respond to queries.

In a 2022 legal brief, the ACLU joined with other civil-rights groups in arguing that because prison administrators design the procedures that prisoners must follow before suing them, there is "a perverse incentive to make grievance processes as impenetrable as possible."

The statute of limitations for civil suits is typically measured in years. But most prisoners must file a grievance on a much tighter timeline. In Louisiana, prisoners are encouraged to seek an informal solution and then have three months to file a grievance. In Arizona, they have 10 days to make an informal complaint and then five days after that to file the formal grievance. In Michigan, they have two days to resolve the issue informally and then five days after that to submit a grievance form. If they don't file on time, they can't win in court later.

Even when an incident has left a prisoner consigned to the hospital or solitary confinement, the clock can continue to tick.

A former Minnesota prison lieutenant told BI that, at the facilities where she worked, "a fairly high percentage" of prisoners had no idea how to navigate the grievance process. She said that prisoners were alerted to its existence, but only through a "two-second conversation" during intake. Prisoners at facilities in several states told BI they were never instructed by staff on how to properly complete these forms, and instead relied on rare visits to the library or on fellow prisoners — untrained jailhouse lawyers — for guidance.

Paul Schnell, Minnesota's corrections commissioner, said the department continually tries to improve its grievance system. He expressed surprise at the lieutenant's claim, "given the number of grievances we get."

"If the door is closed for people, that's not OK," he said. "We want to make sure people have a mechanism" for exercising their due-process rights.

In any case, filing a grievance comes with risks. The risk of retaliation from other prisoners and staff, as Ornelas feared in Texas. Or the risk of formal punishment. In some states, such as Alaska, officials can hand down disciplinary action if they believe a prisoner has abused the grievance system.

Again and again, a law meant to end frivolous prisoner lawsuits has halted Eighth Amendment claims on technicalities regardless of the underlying merits of their case. Many were thrown out over missed grievance deadlines; others because a prisoner failed to provide the full name of a staffer or use the proper terminology in stating their claim.

Unintended consequences

From the moment it was enacted, the PLRA faced intense criticism. In testimony before the Senate Judiciary Committee in September 1996, an advocate for incarcerated teenagers warned that the law "contains several provisions that hinder efforts to protect children from danger and abuse" in juvenile institutions; the American Bar Association admonished Congress for passing a law that it said contained "unconstitutional" provisions.

David Keene, as chair of the American Conservative Union, called for the law to be reformed, saying in a 2008 op-ed article that "it had the unintended consequence of virtually insulating prison officials from external oversight." In 2014, the United Nations' Committee Against Torture expressed concern that the law was "curbing prisoner lawsuits at the expense of inmates' rights."

One of the most sustained efforts at reform coalesced in 2007, more than a decade after the PLRA was signed into law. The bipartisan SAVE Coalition rallied behind a bill introduced by Rep. Bobby Scott of Virginia that sought to ease some of the law's most onerous requirements. "It needed reform because there's so many instances where legitimate claims couldn't be heard," Scott told BI. "On the meritorious cases, prisoners just don't have rights."

Those who testified on behalf of the bill included a retired federal judge who said the PLRA "unnecessarily constrains the judge's role, limiting oversight and accountability"; a former director of the California prison system, who said the legislation created "often-insurmountable obstacles" for prisoners; and a former Republican attorney general who, after himself spending time in prison for mail fraud, called the PLRA a "deeply flawed" law that "undermines the protection of constitutional rights that all Americans, including prisoners, share."

Sarah Hart, as an assistant district attorney in Philadelphia, had assisted Congress in drafting the PLRA and testified against the proposed reforms, arguing that "the current system allows corrections managers to learn of serious problems in the prison, take prompt action to stop them, and remedy past problems."

Keene, who went on to serve as president of the National Rifle Association, told BI that one of the reasons he took up criminal-justice reform was that his son had spent time in a federal prison. During testimony before the House Judiciary Committee in 2007 in support of Scott's bill, Keene said it was impossible for his son to properly file grievances, accusing prison officials of intentionally giving him the wrong forms and of reading his confidential legal mail. "The process is broken," he said, quoting a letter his son wrote from prison. "It feels like I'm playing poker in a rigged game."

In their March 1995 letter in The New York Times, the state attorneys general insisted that the PLRA wouldn't block meritorious cases, that "no reasonable individual would accept that cases of sexual assault by prison guards or unchecked and rampant tuberculosis within the prison population should be dismissed or disregarded as nonmeritorious."

On the contrary, in the decades since the law was enacted, many prisoners accusing guards of assault have had their cases blocked by the PLRA. In BI's sample, PLRA technicalities likewise knocked out cases involving allegations of sexual harassment by a corrections officer, delayed treatment for hepatitis C, and prolonged stints in solitary confinement.

Just months after the PLRA became law, Jon O. Newman, a federal judge on the 2nd Circuit Court of Appeals, authored an article in the Brooklyn Law Review. In it, he examined the three lawsuits attorneys general cited as frivolous in their New York Times op-ed, at least two of which made their way onto the Senate floor. He found that the Nevada prisoner hadn't filed suit because he preferred chunky peanut butter over creamy. He sued because he said that the commissary had charged him $2.50 for the jar — nearly a week's wages for a prisoner — and that he never received the item. "I readily acknowledge that $2.50 is not a large sum of money," Newman wrote. "But such a sum is not trivial to the prisoner whose limited prison funds are improperly debited."

The Missouri prisoner who was ridiculed for wanting a salad bar, meanwhile, had filed suit with dozens of other prisoners alleging major deficiencies at their facility, including insufficient food, meals contaminated by rodents, a lack of proper ventilation, and dangerous overcrowding that the plaintiffs said had resulted in the housing of healthy people together with those with contagious diseases.

"The prisoners' reference to salads was part of an allegation that their basic nutritional needs were not being met," Newman wrote. "The complaint concerned dangerously unhealthy prison conditions, not the lack of a salad bar."

Decades later, it was as if Newman's article had never appeared. In a 2015 brief before the Supreme Court, Michigan's attorney general at the time, Bill Schuette, pulled out the peanut-butter anecdote again to argue that a prisoner's case should be dismissed under the PLRA.

His brief used the word "frivolous" 48 times.

In the 1980s and 1990s, a series of Supreme Court decisions and a new law sought to curb "frivolous" prisoner lawsuits and give more deference to prison officials. Together, they changed the legal landscape of the Eighth Amendment — the foundational constitutional protection against "cruel and unusual punishments."

Heavy criticism soon followed — from the American Bar Association, members of Congress, and Supreme Court justices themselves. Ted Kennedy, then the senior senator from Massachusetts, described one critical measure, the 1996 Prison Litigation Reform Act, as "a far-reaching effort to strip federal courts of the authority to remedy unconstitutional prison conditions."

In successive decades, judges and legal scholars have continued to argue that these developments erode protections for the 1.2 million people incarcerated nationwide. Top law-enforcement officials, on the other hand, have argued that prisoners were clogging up the courts with costly, meaningless actions. And federal judges have hesitated to substitute their own judgment for that of correctional personnel on the ground.

Little has been known about how the Supreme Court standards and the 1996 law shaped outcomes for cases alleging Eighth Amendment violations — and how many of the underlying claims dealt with frivolous matters.

Business Insider set out to investigate. Guided by advice from legal scholars including Margo Schlanger, a law professor at the University of Michigan, and attorneys who have argued Eighth Amendment cases, BI built and analyzed an original database of 1,488 federal Eighth Amendment lawsuits.

BI found that constitutional protections had been dramatically weakened. Cases settled a third as often as civil-rights suits filed by nonprisoners. And plaintiffs won their cases less than 1% of the time.

Here's how we arrived at our findings.

We started with cases in appellate courts

BI sampled lawsuits using Westlaw, a legal-research platform, searching for opinions that cite one of the two Supreme Court standards that now guide how federal courts evaluate Eighth Amendment claims. While Westlaw is one of the most complete databases of legal filings, it is, like the others, not completely comprehensive.

Claims that allege excessive force are governed by a standard called "malicious and sadistic," so to sample those claims BI searched Westlaw for opinions that mentioned the standard and cited one of the Supreme Court's precedent-setting decisions, Whitley v. Albers or Hudson v. McMillian.

Cases alleging constitutionally inadequate healthcare, a failure to protect, or inadequate conditions of confinement are governed by the "deliberate indifference" standard; to sample those claims, BI searched Westlaw for opinions that mentioned the standard and cited Farmer v. Brennan, Wilson v. Seiter, or the earlier Estelle v. Gamble, the relevant Supreme Court precedent-setting cases.

Because so few Eighth Amendment cases make it to the appeals stage, we were able to pull all opinions that fit these parameters over the course of five years — from 2018 to 2022 — spanning two presidential administrations and the COVID-19 pandemic, which affected prisons and courts nationwide.

Then we sampled cases at the district courts

A great many cases filed in district court never reach the appeals courts. In consultation with constitutional scholars, we pulled a sample of district-level cases to understand how Eighth Amendment cases founder earlier in the process. For these, we pulled all cases with judicial decisions filed in the third quarter of 2022 that fit the same search parameters.

Our district sample captured many more cases that failed under mechanisms imposed by the PLRA.

Together, our samples spanned cases from every circuit in the United States filed by prisoners held in hundreds of US prisons in 47 states, Washington, DC, and Puerto Rico. They are likely not comprehensive. If a case file did not mention the Supreme Court standards or the precedent-setting cases — as when a prisoner without counsel lacked knowledge of the law and the case was dismissed on technical grounds at prescreening — our search would not have captured that case. The impact of the PLRA may be greater than our dataset indicates.

About one in 10 cases contained additional claims unrelated to the Eighth Amendment, including claims filed under the First Amendment or the Americans with Disabilities Act. We tracked only the outcomes of their Eighth Amendment claims.

The sample is dominated by suits filed by people while they were incarcerated but also includes cases filed by formerly incarcerated people or their surviving families. BI excluded cases unrelated to incarceration and those pertaining to pretrial detainees. We excluded any case from our district sample that also appeared in the circuit sample. We also excluded cases that had not reached a final disposition, including subsequent appeals, by September 1, 2024.

Our data analysis

A team of researchers read federal court filings associated with each case and logged details in 59 variables including plaintiff names and incarceration status; the claim category and standard applied; defendant names, roles, and employers; alleged harm suffered, such as broken bone, amputation, or death; whether defendants asserted an affirmative defense, such as qualified immunity; whether the plaintiff had counsel; and judge and court names. If a plaintiff had a lawyer at any point during their case, we logged them as having legal representation.

Researchers assigned each case a final disposition category based on the standard or procedural mechanism under which the case was ultimately decided. BI counted all cases that failed under any mechanism of the PRLA — whether they were dismissed at screening, or were struck because prisoners failed to exhaust the prison's grievance process before filing suit, or fell short of any other of the law's requirements — as having failed under the PLRA. This tally included cases in which a judge granted a plaintiff leave to amend. If the plaintiff filed an amended complaint, we logged the case according to its final resolution.

When defendants voluntarily withdrew their cases for reasons clearly unrelated to reaching a settlement; died without a family member or estate to continue their case; or otherwise failed to respond to a court order resulting in dismissal, BI counted these cases as abandoned or withdrawn.

BI's sample included 86 cases with claims governed under both the "malicious and sadistic" and "deliberate indifference" standards. For those, we analyzed the case on both standards, recorded each claim's disposition, and assigned a final disposition category to the case based on the longest surviving claim. For example, if a judge dismissed a plaintiff's excessive-force claim but allowed the plaintiff's claim of inadequate medical care to go to a jury trial, we counted the case outcome under the "deliberate indifference" standard.

In 12 cases, judges granted summary judgment to claims governed by both standards in a single order. Ten of these cases alleged excessive force and alleged inadequate medical care for the injuries they said resulted; two claimed both excessive force and inadequate conditions of confinement. We assigned all these cases as having lost on the "malicious and sadistic" standard since the claims centered on an excessive-force complaint.

The sample includes 28 cases in which a jury found in favor of the defendants. BI counted these as cases in which the plaintiffs lost on the relevant standard.

BI counted cases as having failed on qualified immunity, the Supreme Court doctrine that can shield public officials from civil liability, only when that standard was decisive in the dismissal of a plaintiff's claim. Another Supreme Court precedent, known as Bivens, governs cases filed against federal officials; we tallied a case as a Bivens failure only when a judge dismissed a claim solely because it had not met Bivens standards.

All cases were recorded as having reached a settlement when the settlement was clearly stipulated in the docket or when the defendant and the plaintiff submitted a joint motion for dismissal pursuant to an out-of-court settlement agreement. To identify damages paid, BI reviewed the docket for disclosed settlement amounts and supplemented this research with news reports and public announcements.

BI counted two categories of cases as plaintiff wins: cases in which the plaintiff won at jury trial and cases in which judges made decisions in favor of the plaintiff — whether for damages or for injunctive relief.

To supplement and contextualize our analysis of the 1,488 lawsuits, containing tens of thousands of pages of court records, we reviewed hundreds of pages of training materials obtained through public-records requests from 37 states, as well as medical records, incident reports, and surveillance footage obtained through records requests and court filings. We reviewed scholarly literature on the Eighth Amendment; read Supreme Court decisions, dissents, and archives; and reviewed archived congressional debates. And we interviewed more than 170 people, including prisoners and their families, attorneys and legal scholars, correctional staff and prison healthcare providers, policymakers and law-enforcement officials, and current and former federal judges.

The prisoners write in carefully lettered script or on old electric typewriters. There are sometimes grammatical errors or misspellings. But the language is direct. They describe facing Stage 4 cancer after their symptoms went undiagnosed for years. The denial of orthotic shoes to treat a diabetic condition that led to a severe wound and amputation. Nineteen years locked in solitary confinement.

Some describe beatings and sexual assaults by fellow prisoners that they say corrections officers failed to prevent. Others say they were assaulted by officers themselves.

The Eighth Amendment, which bars "cruel and unusual punishments," was intended by the founders as a bulwark against prisoner abuse. Over the years it came to mean any treatment that "shocked the conscience." But prisoners and civil-rights attorneys have said that it is now nearly impossible to win such claims in court.

To investigate whether that constitutional protection holds, a Business Insider team read tens of thousands of pages of court records for nearly 1,500 Eighth Amendment complaints, including every appeals court case with an opinion we could locate filed from 2018 to 2022 citing the relevant precedent-setting Supreme Court cases and standards. We reviewed hundreds of pages of training materials, medical records, incident reports, and surveillance footage. We read cases from prisoners convicted of violent and nonviolent crimes — some who have spent decades behind bars for murder or sexual assault, others sentenced to short stints for marijuana possession or third-degree assault. We spoke with more than 170 people, including prisoners and their families, attorneys and legal scholars, correctional staff and prison healthcare providers, and current and former federal judges.

We uncovered a near evisceration of protections for this nation's 1.2 million prisoners, largely propelled by legal standards and laws put into place at the height of the war on drugs.

In our analysis, plaintiffs prevailed in only 11 cases, including two class actions — less than 1%.

"If a right is unenforceable, then it's not much of a right," Paul Grimm, a former federal judge for the District of Maryland, said after reviewing BI's findings. "It is essentially unavailable."

One Tennessee prisoner wrote a letter to the court after failing to overcome these steep odds in his own case.

"To everyone I tried to talk to and ask to file grievances and complaints to bring the wrongs to light," he wrote, "I'm sorry that I tried to bring hope and law and order to a place that has no hope or process of order."

Failed oversight

Over decades, federal and state oversight agencies have repeatedly found that US prison systems have failed to protect prisoners in their care. Just this year, an inspector general found that staff in federal prisons had failed to adequately respond to medical emergencies, contributing to 166 prisoner deaths. The Department of Justice recently found that people held in Georgia state prisons had experienced "horrific and inhuman conditions" stemming from what the DOJ called "complete indifference" by the institutions. "Inmates are maimed and tortured," the department wrote, "relegated to an existence of fear, filth and not so benign neglect."

Some years ago, an oversight monitor found that California prisons' system for disciplining officers accused of excessive force was "broken to the core."

For prisoners inside these systems, the courts are often the only backstop left.

But in the 1980s and 1990s, as the nation's prison population exploded, a new law and a series of revised legal standards radically restricted the ability of prisoners to prevail in Eighth Amendment lawsuits.

The 1996 Prison Litigation Reform Act, passed with robust bipartisan support, effectively carved out a separate and unequal system for prisoners who seek to file suit.

It required prisoners to complete a prison's internal grievance process before filing a claim in court — and then survive a screening process. After that, their claims faced exacting Supreme Court standards. Claims that guards had used excessive force were now decided under a 1986 standard that granted broad protections to prison staff as long as their actions were not "malicious and sadistic." Claims that prison staff have failed to keep prisoners safe — whether from violence, negligent healthcare, or inhumane conditions of confinement — were now decided under a Supreme Court standard, refined in 1994, which says such failures violate the Constitution only if officials were "deliberately indifferent."

Together, the standards shifted the focus away from the underlying claims of abuse, however extreme, and onto the question of prison officials' intent.

David Fathi, the director of the National Prison Project at the ACLU, said the emphasis on mindset has become "an enormous barrier to justice for incarcerated people." If abuse or neglect exists in prisons, he said, "that should be enough to violate the Eighth Amendment."

"You shouldn't have to go looking for someone who was thinking bad thoughts."

Altogether, said Kathrina Szymborski Wolfkot, a former appellate attorney at the MacArthur Justice Center, these laws and standards have made federal courts "inhospitable places for incarcerated people." Though some attorneys turn to state courts instead, there they face another set of challenges, such as caps on damages for malpractice claims or, in some cases, weak state constitutional protections.

The Department of Justice, the ACLU, and other powerful litigators have sometimes succeeded in winning Eighth Amendment cases that usher in reforms through consent decrees or injunctive orders. But such outcomes are rare. The DOJ has secured consent decrees in just four prison cases over the past decade.

A separate and unequal system

In restricting access to the courts, lawmakers in the 1990s argued that most prisoners filed suits over "frivolous" matters. Yet only a few dozen of the claims in BI's sample were over minor complaints, such as being denied shoes to wear in a dirty shower.

Among cases that prisoners lost, we logged 161 claims that guards had failed to protect a prisoner from being beaten or stabbed, including four fatalities. We identified 42 failed cases alleging untreated cancer, heart disease, HIV, or hepatitis C. We logged 78 claims of untreated mental illness, including eight that ended in suicide. There were 21 claims of sexual assault by prison staff. There were claims of confinement in extreme filth, including exposure to poisonous spiders, black mold, and feces.

The vast majority of prisoners, BI found, are navigating all of this without attorneys, in part because of the PLRA, which prevents attorneys from recovering their full litigation costs.

In the outside world, most civil suits settle — about 73%, one study found. In BI's sample, only 14% of prisoner lawsuits did, sometimes for paltry amounts or no damages at all. One North Carolina prisoner who said guards beat him while he was in restraints settled for $250.

By the time the cases were settled or decided in favor of the plaintiffs, those in charge — the wardens and medical directors — had almost always been dropped as defendants, limiting the ability of those judgments to drive institutional change.

Billions of taxpayer dollars go to corrections contractors, to run everything from food services to healthcare to staffing to data management, and the legal obstacles introduced in the 1980s and '90s have shielded these for-profit companies as well. For example, hundreds of private prison health providers or their employees were named as defendants in BI's sample. Of these cases, 14% settled and plaintiffs prevailed in less than 1%. One law-review article concluded that the low risk of liability had influenced companies' cost-benefit analysis and "leads to dangerous, ineffective healthcare that is shielded from constitutional challenge."

More than one federal judge described prisoner claims as tragic — before going on to cite precedent or the narrow standards in deciding against the plaintiffs. Several issued fiery dissents. One was issued in an August 2019 case filed by a prisoner who was denied a transfer he said was necessary for his safety. "We do not sentence people to be stabbed and beaten," Judge Robin Rosenbaum of the 11th Circuit wrote.

"The Eighth Amendment does not allow prisons to be modern-day settings for Lord of the Flies," she went on. "The Majority Opinion condones this behavior and ensures it will occur again."

This project was supported by a grant from Columbia University's Ira A. Lipman Center for Journalism and Civil and Human Rights in conjunction with Arnold Ventures. Data analysis and visualization were supported by the Fund for Investigative Journalism.

• Researchers find AI-related emissions will soon rival that of all the cars in California.
• AI electricity consumption could cause asthma deaths to spike by more than a third in the next six years.
• In Virginia alone, AI's backup diesel generators could lead to 190 air-pollution-related deaths.

Researchers have found that the training of one large AI language model — like Meta's Llama 3.1 — would generate as much air pollution as a car driving round-trip from New York to Los Angeles 10,000 times. The total cost of AI's health impacts, they found, could reach $20 billion within six years.

The team of researchers from the University of California at Riverside and the California Institute of Technology conducted what they say may be the first study of its kind assessing AI's impacts on air pollution. The paper, "The Unpaid Toll: Quantifying the Public Health impact of AI," which will be released later today, finds that the generation of electricity for data centers hosting artificial intelligence applications could pollute the air so much that by 2030 an additional 1,300 people may die prematurely each year as a result.

That would be a 36% increase over the current annual asthma-related deaths in the country.

The researchers — led by Shaolei Ren of UC Riverside and CalTech's Adam Wierman — examined the release of nitrogen dioxide, sulfur dioxide, and particulate matter with a diameter of 2.5 micrometers or less, which can penetrate deep into the lungs, by power plants and diesel generators associated with AI facilities.

The boom in artificial intelligence has resulted in a spike in electricity demand. McKinsey & Company, the consulting firm, projects that data centers will use 11 to 12% of the total electricity consumed in the United States in 2030, up from 3 to 4% last year. While the carbon emissions and water usage implications of that growth have started to draw scrutiny, the direct health impacts of the air pollution these facilities generate have been mostly ignored.

"There is something like this, air pollution, which is affecting people right now," Ren said in an interview. "We aren't paying attention to it at all."

The researchers estimate that the generation of electricity for AI data centers could trigger roughly 600,000 asthma symptom cases a year by 2030.

Last year, the researchers estimate, the generative AI boom led to a public health burden of $5.6 billion. By 2030, they calculated, AI's electricity-related public health costs will top $20 billion. That's more than double the public-health costs of coal-based US steelmaking, they write, and will rival the emissions produced by California's 35 million cars.

The cost estimates are based on a risk assessment tool developed by the Environmental Protection Agency that assigns a dollar figure to what it would take to avoid negative health outcomes, such as premature deaths, asthma symptoms, heart attacks, and missed days of school or work.

For Ren, whose field of study is responsible artificial intelligence, his interest in air quality dates back to his childhood. He lived in a small mining town in China until the age of six, where he saw a correlation between poor air quality and adverse health outcomes in his community, including lung cancer.

The paper is what's called a preprint, a standard practice in computer science research in which researchers make a paper public before submitting it for peer review.

Diesel generators appear deadly in Virginia

The researchers also examined air pollution driven by emissions from diesel generators used by data centers for backup power and by the manufacturing of the silicone chips used in artificial intelligence.

To examine the impact of diesel-generators, the researchers looked at those permitted in Virginia, home to one of the densest collections of data centers in the world. Generators, according to the paper, produce 200 to 600 times the nitrogen dioxide per unit of power produced than a natural gas power plant.

"Diesel generators represent a major source of on-site air pollutants for data centers and pose a significant health risk to the public," the researchers wrote.

Even assuming that emissions by Virginia-permitted generators were just 10% of what the commonwealth's regulations allow, they would cause an additional 13 to 19 deaths each year. If the diesel generators emitted 100% of what is allowed, they would lead to 130 to 190 additional deaths, the researchers found.

The public health burden of Virginia's data center generators amounts to $220 million to $300 million a year under the 10% assumption and as much as $3 billion a year under the 100% assumption, according to the study.

The researchers found those health effects are not contained to the state, as air pollution travels. They found it's actually a county in Maryland — Montgomery County — that is most affected by Virginia's AI generators.

The effects, according to the EPA tool, would also be felt in West Virginia, New York, New Jersey, Pennsylvania, Delaware,Washington D.C., and as far away as Florida.

"We thought the air pollution was limited to a small area," Ren said. "That's not true. There is actually cross-state air pollution." He and the other researchers found that the harmful effects are felt disproportionately by "economically-disadvantaged communities."

Ren said that understanding the broad dispersion of negative health outcomes could encourage AI companies to alter their site locations or AI training schedules. Health impacts are higher during the day, he said, and some locations have higher or lower health effects.

The researchers also call for greater transparency from the big tech companies that lead large language model training.

Those companies, including Amazon, Google, Microsoft, and Meta don't currently detail the air pollution impacts of their AI operations in their annual sustainability reports, the researchers wrote.

"If you look at the sustainability reports from these companies, they mention carbon and water, but they don't mention anything about air pollution," Ren said. "They should start reporting this in the same way."