    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

       PRIVATE PRISON INFORMATION ACT OF 2007, AND REVIEW OF THE PRISON
    LITIGATION REFORM ACT: A DECADE OF REFORM OR AN INCREASE IN PRISON AND
    ABUSES?
    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 1889

                                   __________

                                NOVEMBER 8, 2007

                                   __________

                               Serial No. 110-62

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MAXINE WATERS, California            DANIEL E. LUNGREN, California
    WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
    ROBERT WEXLER, Florida               RIC KELLER, Florida
    LINDA T. SANCHEZ, California         DARRELL ISSA, California
    STEVE COHEN, Tennessee               MIKE PENCE, Indiana
    HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
    BETTY SUTTON, Ohio                   STEVE KING, Iowa
    LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
    BRAD SHERMAN, California             TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
    ADAM B. SCHIFF, California
    ARTUR DAVIS, Alabama
    DEBBIE WASSERMAN SCHULTZ, Florida
    KEITH ELLISON, Minnesota

                Perry Apelbaum, Staff Director and Chief Counsel
                     Joseph Gibson, Minority Chief Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                 ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

    MAXINE WATERS, California            J. RANDY FORBES, Virginia
    WILLIAM D. DELAHUNT, Massachusetts   LOUIE GOHMERT, Texas
    JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr.,
    HANK JOHNSON, Georgia                Wisconsin
    ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    ARTUR DAVIS, Alabama                 DANIEL E. LUNGREN, California
    TAMMY BALDWIN, Wisconsin
    BETTY SUTTON, Ohio

                          Bobby Vassar, Chief Counsel

                        Michael Volkov, Minority Counsel

                                C O N T E N T S

                                  ----------

                                NOVEMBER 8, 2007

                                                                       Page

                                    THE BILL

    H.R. 1889, the ``Private Prison Information Act of 2007''........     2

                               OPENING STATEMENT

    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Chairman, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................     1

                                   WITNESSES

    The Honorable Tim Holden, a Representative in Congress from the
      State of Pennsylvania
      Oral Testimony.................................................     6
      Prepared Statement.............................................     7
    Ms. Margo Schlanger, Professor of Law, Washington University in
      St. Louis, on behalf of the American Bar Association,
      Washington, DC
      Oral Testimony.................................................    13
      Prepared Statement.............................................    15
    Mr. David A. Keene, Chairman, American Conservative Union,
      Alexandria, VA
      Oral Testimony.................................................    29
      Prepared Statement.............................................    30
    Mr. Pat Nolan, Vice President, Prison Fellowship Ministries,
      Lansdown, VA
      Oral Testimony.................................................    31
      Prepared Statement.............................................    33
    Mr. Garrett Cunningham, former Prisoner in the Texas Department
      of Criminal Justice, Luther Unit, Navasota, TX
      Oral Testimony.................................................    36
      Prepared Statement.............................................    39
    Mr. Ryan W. Bounds, Deputy Assistant Attorney General and Chief
      of Staff, Office of Legal Policy, U.S. Department of Justice,
      Washington, DC
      Oral Testimony.................................................    41
      Prepared Statement.............................................    43

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable J. Randy Forbes, a
      Representative in Congress from the State of Virginia, and
      Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
      Security.......................................................     5

                                    APPENDIX

    Material Submitted for the Hearing Record........................    73

       PRIVATE PRISON INFORMATION ACT OF 2007, AND REVIEW OF THE PRISON
    LITIGATION REFORM ACT: A DECADE OF REFORM OR AN INCREASE IN PRISON AND
    ABUSES?
                                  ----------

                           THURSDAY, NOVEMBER 8, 2007

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 1:50 p.m., in
    Room 2141, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Scott, Johnson, Jackson Lee,
    Forbes, Gohmert, Coble, and Chabot.
        Staff present: Bobby Vassar, Subcommittee Chief Counsel;
    Gregory Barnes, Majority Counsel; Rachel King, Majority
    Counsel; Mario Dispenza, BATFE (Fellow); Veronica Eligan,
    Professional Staff Member; Michael Volkov, Minority Counsel,
    Carolyn Lynch, Minority Counsel, Kelsey Whitlock, Staff
    Assistant.
        Mr. Scott. The Subcommittee will now come to order. I am
    pleased to welcome you today to a hearing before the
    Subcommittee on Crime, Terrorism, and Homeland Security on H.R.
    1889, the ``Prison Information Act of 2007,'' and H.R. 4109,
    the ``Prison Abuse Remedies Act of 2007.'' Witnesses on the
    second panel on that bill may also testify generally on the
    issue or reforming the Prison Litigation Reform Act.
        We will first take up H.R. 1889. This is a simple piece of
    legislation that would do one thing. It would require prisons
    and other correctional facilities holding Federal prisoners
    under a contract with the Federal Government to comply with the
    Freedom of Information Act.
        There have been incidents where members of the press and
    public have attempted unsuccessfully to gain information from
    private prisons, even in situations as serious as prison
    escapes or incidents of assaults in prisons. There is simply no
    reason why these institutions, which are serving a governmental
    function, should not be subject to the Freedom of Information
    Act. This is a good Government bill, and I hope my colleagues
    will support it.
        I will recognize my good friend, the Ranking Member of the
    Subcommittee, Mr. Forbes, at this point on H.R. 1889.
        [The bill, H.R. 1889, follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Forbes. Thank you, Mr. Chairman.
        Mr. Chairman, in the interest of time, I will just submit
    my statement for the record and we can proceed with Mr.
    Holden's testimony.
        Mr. Scott. Thank you.
        [The prepared statement of Mr. Forbes follows:]
     Prepared Statement of the Honorable J. Randy Forbes, a Representative
          in Congress from the State of Virginia, and Ranking Member,
            Subcommittee on Crime, Terrorism, and Homeland Security
        Thank you, Chairman Scott.
        I want to thank you for scheduling this hearing.
        While I share my colleague's commitment to prison reform, I was
    hoping that our first hearing on this subject would focus on efforts to
    ensure and improve rehabilitation of prisoners. Unfortunately, the
    focus of today's hearing is misguided. Instead of addressing the real
    and significant needs of prisoners, we are considering changes to the
    Prison Litigation Reform Act, which will only re-open the floodgates of
    frivolous litigation.
        The proposed legislation will cause an explosion of frivolous
    prisoner litigation that will clog up the courts, waste valuable legal
    resources, and affect the quality of justice enjoyed by law-abiding
    citizens. I am further concerned that the time and money spent
    defending these cases could be better spent providing job training,
    drug treatment, education and other valuable programs to prisoners to
    make sure they can become productive members of society.
        In 1996, Congress took appropriate steps to limit frivolous
    prisoner litigation by passing the Prison Litigation Reform Act or
    PLRA. The PLRA took common-sense steps to reduce the number of
    petitions filed by inmates claiming violations of their rights. Under
    the PLRA, inmates are 1) required to exhaust all administrative
    remedies before filing a case in federal court, 2) prohibited from
    receiving filing fee waivers if they have a history of filing frivolous
    or malicious lawsuits, and 3) had to demonstrate physical injury to
    claim monetary awards for compensatory damages.
        In this bill, each one of these common-sense provisions is repealed
    or removed.
        These provisions are removed despite the fact that evidence shows
    that the PLRA worked in decreasing the amount of frivolous prisoner
    litigation. According to records kept by the Administrative Offices of
    the federal courts, in 1995, the year before the PLRA was passed, over
    41,000 cases were filed by federal prisoners alleging violations of
    their civil rights. Since that high mark, the number of cases has
    dropped to about 24,000 cases filed per year. This marked decrease
    occurred because the PLRA kept the frivolous cases off the court
    dockets.
        Let me give you some examples of those frivolous cases. One inmate
    claimed $1 million in damages because the ice cream he was served
    melted. An inmate alleged that being forced to listen to his unit
    manager's country and western music constituted cruel and unusual
    punishment. Yet another claimed that his rights were violated because
    he was forced to send packages via UPS rather than U.S. mail. In
    perhaps the most frivolous lawsuit of them all, one inmate sued because
    he was served chunky instead of smooth peanut butter.
        The changes called for in this bill will lead to the filing of
    cases just like the ones I just described. This bill is cynically aimed
    at pleasing an important constituency of my colleagues on the other
    side of the aisle--the trial lawyers. If enacted, thousands of trial
    lawyers will churn out frivolous case after frivolous case in the hope
    of securing a big payday. And that will be a payday that will come at
    the expense of prisoners who have legitimate claims and whose rights
    have actually been harmed during their incarceration. Those legitimate
    claims will never be heard because they will be buried under all of the
    paperwork generated by all of the new lawsuits.
        I look forward to working with Chairman Scott on finding a way to
    ensure that we do not return to a time when the wheels of justice can't
    turn because court dockets are too clogged with frivolous lawsuits.
        I also look forward to hearing from Representative Holden and
    learning more about his bill which would require private prisons to
    comply with the Freedom of Information Act requirements.
        I yield back the balance of my time.

        Mr. Scott. Without objection, all the Members may include
    opening statements in the record at this point.
        We only have one witness on this panel. Congressman Tim
    Holden from Pennsylvania's 17th District. He is the chief
    sponsor of the bill. He is familiar with the prison system from
    his 7 years serving as chair of Schuylkill County for 7 years,
    and the time he served as a probation officer. He also serves
    as a member of the Congressional Correctional Officers Caucus.
    He is now in his eighth term in Congress and is Chairman of the
    Subcommittee on Conservation, Credit, Energy and Research on
    the Agriculture Committee.
        He and his wife Gwen live in St. Clair, which is in
    Schuylkill County. Congressman, your written statement is
    already entered into the record in its entirety. You are
    familiar with the timing device, so we will recognize you at
    this time for your comments.

      TESTIMONY OF THE HONORABLE TIM HOLDEN, A REPRESENTATIVE IN
                CONGRESS FROM THE STATE OF PENNSYLVANIA

        Mr. Holden. Thank you, Chairman Scott and Ranking Member
    Forbes and Members of the Subcommittee for allowing me to
    testify today in support of H.R. 1889, the ``Private Prison
    Information Act.'' H.R. 1889 simply seeks to require private
    prisons and other correction facilities holding Federal
    prisoners under contract with the Federal Government to make
    the same information available that public institutions are
    required by law under the Freedom of Information Act.
        As the Federal Government increases its use of private for-
    profit facilities for incarceration of Federal prisoners, it is
    imperative that we ensure that information about the operation
    of these prisons is readily available. Roughly 25,000 Federal
    criminal prisoners are jailed in private facilities at any
    given time, yet private prisons are not required to publicly
    disclose information about daily operations of their
    correctional facilities. The veil of secrecy surrounding
    private facilities needs to be lifted, and H.R. 1889 will hold
    these institutions accountable to the American public.
        Earlier this year, an inmate at the Northeast Ohio
    Correctional Center, a private Federal prison in Youngstown,
    Ohio escaped by overpowering a prison guard. The Ohio
    Correctional Institution Inspection Committee, comprised of
    members of the Ohio General Assembly, held a surprise
    inspection at the prison less than a year prior and reported
    that 44 inmate-on-inmate assaults were recorded between June,
    2005 and May, 2006. Inspectors thought the number high
    considering that a total of 305 assaults were recorded in 2005
    for Ohio's 32 other correctional facilities. However, a lack of
    additional information and accountability to lawmakers
    prevented any further action.
        The facility did not respond to the media when asked if any
    of the assaults were severe, how they were handled or
    prosecuted, or how many assaults occurred from May, 2006 to the
    present. NOCC, like many other private Federal facilities, do
    not submit reports to the Federal Government.
        Mr. Chairman, the problem here is quite straightforward.
    There was a clear lack of accountability on behalf of private
    prisons. Without accountability, we have no knowledge of how
    taxpayer money is being spent at the facility. We do not know
    how many correctional officers are employed, at what levels
    they are staffed, and how much training they have received. We
    also do not know if overstaffed members are being asked to
    perform the dual role of correctional officers as well.
        Most daunting of all, private prisons are not required to
    provide incident reports detailing health care oversight, rape
    or assault, weapons attacks, deaths, or escapes at the
    facility. Prior to being elected to Congress, I served 7 years
    as sheriff of Schuylkill County, Pennsylvania. In that
    capacity, I also served on the Schuylkill County Prison Board.
        Based on my experience as both the sheriff and a member of
    the Prison Board, I strongly believe that running a corrections
    facility is inherently governmental, although that is not why I
    am here today to talk about it. I strongly believe that H.R.
    1889 will put private prisons on the same playing field with
    the rules and regulations by which Federal prisons must abide.
        Mr. Chairman, if we do not address this critical situation,
    we risk the safety and security of not only the prison
    employees, but also that of our family and friends who live in
    our communities. This legislation simply ensures the public's
    right to have access to information concerning conditions
    within private prisons.
        Thank you, Mr. Chairman, for consideration of this bill.
        [The prepared statement of Mr. Holden follows:]
      Prepared Statement of the Honorable Tim Holden, a Representative in
                    Congress from the State of Pennsylvania
        Chairman Scott, Ranking Member Forbes and members of the
    Subcommittee, I want to thank you for the opportunity to testify before
    you today in support of H.R. 1889, the Private Prison Information Act.
        H.R. 1889 simply seeks to require private prisons and other
    correctional facilities holding federal prisoners under a contract with
    the federal government to make the same information available that
    public institutions are required to by law under the Freedom of
    Information Act (FOIA).
        As the federal government increases its use of private, for-profit
    facilities for incarceration of federal prisoners, it is imperative
    that we ensure that information about the operation of these prisons is
    readily available. Roughly 25,000 federal criminal prisoners are jailed
    in private facilities at any given time. Yet private prisons are not
    required to publicly disclose information about daily operations of
    their correctional facilities. The veil of secrecy surrounding private
    facilities needs to be lifted and H.R. 1889 will hold these
    institutions accountable to the American public.
        Earlier this year, an inmate at the Northeast Ohio Correctional
    Center (NOCC), a private federal prison in Youngstown, Ohio, escaped by
    overpowering a prison guard. The Ohio Correctional Institution
    Inspection Committee, comprised of members of the Ohio General
    Assembly, held a surprise inspection at the prison less than a year
    prior and reported that 44 inmate-on-inmate assaults were recorded
    between June 2005 and May 2006. Inspectors thought the number high,
    considering a total of 305 assaults were recorded in 2005 for Ohio's 32
    correctional facilities; however lack of additional information and
    accountability to lawmakers prevented further action.
        The facility did not respond to the media when asked if any of the
    assaults were severe, how they were handled or prosecuted and how many
    assaults occurred from May 2006 to the present. NOCC, like many other
    private federal facilities, does not send annual reports, leaving the
    collection of this information to inspections financed by the city and
    the state.
        Mr. Chairman, the problem here is quite straightforward; there is a
    clear lack of accountability on behalf of private prisons. Without
    accountability we have no knowledge of how taxpayer money is being
    spent at the facility. We do not know how many correctional officers
    are employed, at what levels they are staffed, and how much training
    they have received. We also do not know if other staff members are
    being asked to perform the dual role of correctional officers as well.
    Most daunting of all, private prisons are not required to provide
    incident reports detailing healthcare oversight, rape or assault,
    weapons attacks, death, or escape at the facility.
        Prior to being elected to Congress, I served seven years as Sheriff
    of Schuylkill County, Pennsylvania. In that capacity, I also served on
    the Schuylkill County Prison Board. Based on my experiences as both
    sheriff and a member of the board, I strongly believe that running
    correctional facilities is inherently governmental. Although that is
    not what I am hear to talk about today, I also strongly believe that
    H.R. 1889 will put private prisons on the same playing field with the
    rules and regulations by which federal prisons must abide.
        Mr. Chairman, if we do not address this critical situation, we risk
    the safety and security of not only the prison employees, but also that
    of our family and friends who live in our communities. This legislation
    simply ensures the public's right to have access to information
    concerning the conditions within private prisons. I thank the
    Subcommittee for considering this bill and urge you to report it
    favorably.

        Mr. Scott. Thank you. And thank you for bringing the bill
    to our attention. I think you have answered any questions I
    have. I will ask the gentleman, the Ranking Member, Mr. Forbes,
    if he has any questions.
        Mr. Forbes. Mr. Chairman, I don't have any questions for
    Congressman Holden.
        Mr. Scott. The gentleman from Georgia?
        Mr. Davis. I have none, Mr. Chairman.
        Mr. Scott. Thank you.
        The gentleman from Texas? Questions? Any questions of the
    witness?
        Mr. Johnson. I have none.
        Mr. Scott. The gentleman from North Carolina?
        Mr. Coble. Mr. Chairman, if I may just very briefly. Tim,
    Congressman, are there no requirements now that public prisons
    make public reports about their staffing, training or
    operational procedures?
        Mr. Holden. Mr. Coble, it is my understanding that private
    prisons have no reporting requirements. Of course, the public
    prison system has numerous rules and regulations that they must
    follow at our direction.
        Mr. Coble. Thank you.
        Thank you, Mr. Chairman.
        Mr. Scott. Thank you.
        Thank you, Mr. Holden, for your testimony. We will be
    taking up the bill in regular order, and I appreciate you
    bringing it to our attention.
        Mr. Holden. Thank you, Mr. Chairman, and Members of the
    Subcommittee.
        Mr. Scott. The hearing on this bill is now concluded.
        The witnesses on the next panel will take your seats
    please. The next part of the hearing will focus on problems
    that have resulted from passage of the Prison Litigation Reform
    Act, the PLRA. While the act has succeeded in its stated goal
    of reducing the number of frivolous lawsuits in Federal court,
    some provisions of the PLRA have had the unintended
    consequences of preventing many legitimate cases from being
    brought.
        Chairman Conyers and I introduced a bill last evening, H.R.
    4109, the ``Prison Abuse Remedies Act of 2007.'' Witnesses may
    testify on that bill or may testify generally about the Prison
    Litigation Reform Act and suggestions for reforms. Congress
    passed the PLRA in 1996 as part of an emergency appropriations
    bill. At the time, Congress stated two main reasons for the
    act: first, to reduce frivolous lawsuits by prisoners; and
    second, to decrease the amount of intrusive consent decrees
    governing our prison conditions.
        Although the PLRA effected major changes in the law and
    litigation, it was the subject of only one congressional
    hearing and only limited debate. The hastily written provisions
    have been the subject of six Supreme Court decisions deciding
    competing interpretations by the Federal courts of appeals.
    According to the administration Office of the U.S. Courts, the
    Bureau of Justice statistics, the number of lawsuits in Federal
    court has dramatically decreased since the passage of the PLRA
    from 36 cases per 1,000 prisoners prior to its passage, down to
    19 cases per 1,000 prisoners 5 years after its passage.
        Court monitoring has also decreased from 1995 to 2000.
    Court monitoring of prisons diminished significantly. The
    number of states with little or no court-ordered regulation of
    their prisons, that is those having no more than 10 percent of
    prisoners living in a facility under court supervision, more
    than doubled from 12 states to 28 states. The nearly impossible
    obstacles established by the PLRA and the diminished oversight
    by Federal administrative agencies and the judiciary, with that
    going on, some experts have gone so far to say that the ``PLRA
    is undermining the rule of law in America's prisons.''
        A coalition called SAVE, Stop Abuse and Violence
    Everywhere, composed of dozens of organizations and
    individuals, has come together to study the impact of the PLRA
    and to recommend modest changes to the law. Some of the changes
    they perceive as most necessary are the exhaustion requirement,
    which bars access to Federal court unless a prisoner
    successfully completes the prison administrative remedies; the
    elimination of the physical injury requirement which forbids
    access to the courts for serious constitutional violations
    where there is no physical injury; and removing juveniles from
    the purview of the PLRA. Although juveniles have never been a
    major source of litigation in Federal courts, Congress still
    included them in the 1996 law.
        The Commission on Safety and Abuse in America's Prisons
    also recommends several reforms: eliminating the physical
    injury requirement; eliminating the filing fee for indigent
    prisoners; elimination of the restrictions on attorneys' fees;
    lifting the requirement that correctional agencies concede
    liability as a prerequisite to court-supervised settlement; and
    a change in the exhaustion requirement.
        Additionally, the American Bar Association passed a
    resolution urging Congress to reform aspects of the PLRA,
    including elimination of the physical injury requirement;
    amending the exhaustion requirement; repealing restrictions on
    Federal courts in conditions of confinement cases; restoring
    attorneys' fees; elimination of juveniles from the purview of
    the PLRA; and repealing fee provisions that treat prisoners
    filing claims under the PLRA differently than prisoners filing
    other informal claims.
        It is now my privilege to recognize the Ranking Member of
    the Subcommittee, my colleague from Virginia, Mr. Forbes.
        Mr. Forbes. Thank you, Chairman Scott. Thank you for
    holding this hearing.
        At the outset, I would like to state that, as you mentioned
    Mr. Chairman, you filed this legislation last night. Much of
    the testimony that we have gotten we have only received
    recently. I am a little bit disappointed because one of the
    experts in this area is Congressman Lungren, who could not be
    here today. He helped write this legislation initially, and his
    input would be invaluable to us.
        Mr. Scott. Will the gentleman yield?
        Mr. Forbes. Yes.
        Mr. Scott. We will certainly have other hearings on it.
        Mr. Forbes. Well, the other thing I was going to ask the
    Chairman is if we can make sure this record can be held open
    for at least a week to allow Congressman Lungren to put his
    comments and information in the record.
        Mr. Scott. I would make that commitment, plus if another
    hearing is requested, it would certainly be granted.
        Mr. Forbes. Thank you, Mr. Chairman. I appreciate your
    graciousness on that.
        While I share my colleagues' commitment to prison reform, I
    was hoping that our first hearing on this subject would focus
    on efforts to ensure and improve rehabilitation of prisoners.
    Unfortunately, the focus of today's hearing I believe is
    misguided. Instead of addressing the real and significant needs
    of prisoners, we are considering changes to the Prison
    Litigation Reform Act which will reopen the floodgates of
    frivolous litigation.
        We had hoped to reach some bipartisan solutions to real
    abuses that we know unfortunately exist in our prisons.
    However, instead of offering our inmates today new hope, this
    legislation offers them new lawyers, dollars that we could be
    putting toward rehabilitation or prison security. We sin like
    we have in so much legislation in this Congress has done
    already to the trial lawyers.
        I want to tell all of you who are testifying today, we
    appreciate what you do. We appreciate you being here. We know
    that there are abuses in our prisons. I have talked to many of
    you about our concerns. But our concerns are how we roll up our
    sleeves and go in and change those abuses and not go back to
    where we were when we are flooded with litigation that we
    believe many times is frivolous and has a boomerang effect that
    instead of getting real reforms done, creates just a political
    pendulum that keeps swinging back and forth, and the people
    lost in it are the inmates because we don't ever go in there
    and say, ``How do we really make these changes that need to be
    made, instead of just opening up the doors to the courts?"
        The proposed legislation will cause an explosion of
    frivolous prisoner litigation that will clog up the courts,
    waste valuable legal resources, and affect the quality of
    justice enjoyed by law-abiding citizens. I am further concerned
    that the time and money spent defending these cases could be
    better spent providing job training, drug treatment, education
    and other valuable programs to prisoners to make sure they can
    become productive members of society.
        In 1996, Congress took appropriate steps to limit frivolous
    prisoner litigation by passing the Prison Litigation Reform
    Act, or PLRA. The PLRA took common sense steps to reduce the
    number of petitions filed by inmates claiming violation of
    their rights. Under the PLRA, inmates are, one, required to
    exhaust all administrative remedies before filing a case in
    Federal court; two, prohibited from receiving filing fee
    waivers if they have a history of filing frivolous or malicious
    lawsuits; and three, you had to demonstrate physical injury to
    claim monetary awards for compensatory damages.
        In this bill, each one of these common sense provisions is
    repealed or removed. These are not exactly modest changes, as
    the Chairman suggested. These provisions are removed despite
    the fact that evidence shows that the PLRA worked in decreasing
    the amount of frivolous prisoner litigation.
        According to records kept by the Administrative Office of
    the Federal Courts, in 1995, the year before the PLRA was
    passed, over 41,000 cases were filed--41,000 cases--by Federal
    prisoners alleging violation of their civil rights. Since that
    high mark, the number of cases have dropped to about 24,000
    cases filed per year. This marked decrease occurred because the
    PLRA kept the frivolous cases off the court dockets.
        Let me give you some examples of those frivolous cases. One
    inmate claimed $1 million in damages because the ice cream he
    was served melted. An inmate alleged that being forced to
    listen to his unit manager's country and western music
    constituted cruel and unusual punishment. Some of you might
    agree with that, but it was no place to be in our courts and no
    reason to give attorneys' fees. Another claimed that his rights
    were violated because he was forced to send packages via UPS
    rather than U.S. mail. And perhaps the most frivolous lawsuit
    of them all, one inmate sued because he was served chunky
    instead of smooth peanut butter.
        The changes called for in this bill will lead to the filing
    of cases just like the ones I just described. This bill is
    cynically aimed at pleasing important constituencies of my
    colleagues on the other side of the aisle, the trial lawyers.
    If enacted, thousands of trial lawyers will churn out frivolous
    case after frivolous case in the hope of securing a big payday,
    and that will be a payday that will come at the expense of
    prisoners who have legitimate claims and whose rights have
    actually been harmed during their incarceration.
        Those legitimate claims will never be heard because they
    will be buried under all the paperwork generated by all the new
    lawsuits. But worst of all, as I mentioned earlier, all the
    legislation like this will have that boomerang effect that will
    actually keep the pendulum swinging and prevent those like me
    and others on this Committee who want to effectuate real change
    from ever being able to do that because all of us continues to
    be held captive by various political constituencies.
        I look forward to working with Chairman Scott on finding a
    way to ensure that we do not return to a time when the wheels
    of justice can't turn because court dockets are too clogged
    with frivolous lawsuits.
        Mr. Chairman, I yield back the balance of my time.
        Mr. Scott. Thank you, Mr. Forbes.
        We have assembled a panel of experts, both academic experts
    and experts whose expertise has been gained through personal
    experience. Our first witness on this panel will be Margo
    Schlanger, professor of law at Washington University in St.
    Louis. She is testifying not only for herself, but also on
    behalf of the American Bar Association, where she is currently
    the reporter for the Task Force on Standards Relating to the
    Legal Status of Prisoners. She also serves on the Commission on
    Safety and Abuse in America's Prisons and is a member of the
    expert Advisory Committee on Data Collection and Confidential
    Reporting for the Prison Rape Elimination Commission.
        Our next witness will be David Keene, who is a
    distinguished attorney and chairman of the American
    Conservative Union. However, the experience that brings him to
    testify today is the he is the father of a young boy who is
    serving time in Federal prison. He has seen the impact of the
    PLRA as it operates in the real world, and we are grateful that
    he is willing to come and share his personal experiences today.
        The next witness will be Mr. Pat Nolan, vice president of
    the Prison Fellowship. He is also an attorney and was a member
    of the California State Assembly for 15 years, four of those as
    the Assembly Republican Leader. During his time in office, he
    was prosecuted based on a campaign contribution and spent 29
    months in Federal custody. There, he became very familiar with
    the aspects of the PLRA, and again we are fortunate that he is
    willing to share his personal experiences with us.
        Our fourth witness will be Garrett Cunningham, a former
    prisoner in the Texas Department of Criminal Justice. In 2000,
    he was housed at the Luther Unit in Navasota, Texas. While
    working in the prison laundry, he was sexually harassed by a
    supervisor. When he told people at the prison about what was
    happening, he was given no assistance. After the situation, he
    was terrified to report the crime, so he did not comply with
    the PLRA's technical exhaustion requirement, which left him no
    remedies to sue the prison or its employees.
        Our last witness is Ryan Bounds, deputy assistant attorney
    general for the Office of Legal Policy. He assists in the
    development and coordination of policies relating to civil
    justice reform, immigration, drugs and other subjects. Before
    joining the Department of Justice, he was a clerk at the U.S.
    Court of Appeals in the Ninth Circuit and practiced as a
    litigation associate at a law firm in Portland, Oregon. He is a
    graduate of Stanford University and Yale Law School.
        Each of our witnesses' written statements will be entered
    into the record in its entirety. I would ask each of the
    witnesses to summarize his or her testimony in 5 minutes or
    less. To help you stay within that time period, there is a
    lighting device at the table. When the light switches from
    green to yellow, you will have 1 minute to conclude your
    testimony. When it turns red, we would ask you to complete your
    testimony as quickly as possible.
        Professor?

      TESTIMONY OF MARGO SCHLANGER, PROFESSOR OF LAW, WASHINGTON
        UNIVERSITY IN ST. LOUIS, ON BEHALF OF THE AMERICAN BAR
                      ASSOCIATION, WASHINGTON, DC

        Ms. Schlanger. Thank you for this invitation to testify
    today about the urgent problems created by the Prison
    Litigation Reform Act. I am Margo Schlanger, professor of law
    at Washington University in St. Louis. I appear today both to
    share my own expertise in this area and also as the
    representative of the American Bar Association.
        I want to mention as well two groups whose recommendations
    in this are very helpful. Both have submitted written
    statements: the Vera Institute's Commission on Safety and Abuse
    in America's Prisons and the SAVE Coalition that the Chairman
    already mentioned.
        I have been working with the PLRA since 1996, the year of
    its enactment, first as a trial attorney in the U.S. Department
    of Justice Civil Rights Division assisting with interpretation
    and implementation of the then-new statute, and then as a law
    professor studying and writing about its provisions and
    effects. Over the 10 years, the PLRA's flaws have grown ever
    more evident.
        But before I talk about those flaws, I want to agree with
    some things that have already been said about the salutary
    effects of the PLRA, which is to say its lightening of the
    burdens imposed on jails and prisons by frivolous litigation.
    Prisoner lawsuits in Federal court are numerous and often
    frivolous, and they do pose real management challenges for
    courts and correctional authorities. The PLRA has ameliorated
    this problem in two different ways.
        First, it has drastically shrunk the number of cases filed
    by about 60 percent as a rate per prisoner. And second, the
    screening provisions which have not been mentioned yet, under
    which courts dispose of legally insufficient prisoner civil
    rights cases, without even notifying the sued officials that
    they have ever been sued or requiring any response from those
    officials. No longer under the PLRA need prison or jail
    officials investigate or answer complaints that are frivolous
    or fail to state a claim under Federal law.
        These are important provisions and these are important
    results, and nothing in the bill that Chairman Scott has
    proposed would change those. I think that is very important to
    notice.
        In addition to filing frivolous or legally insufficient
    lawsuits, prisoners do file serious cases, cases about sexual
    abuse, about religious discrimination, about physical abuse and
    the like. When the PLRA was passed, its supporters emphasized
    over and over that they did not want to prevent inmates from
    raising legitimate claims, and they pledged that the PLRA
    didn't do that. But the PLRA has failed to live up to that
    pledge.
        If that were not true, the dramatic decline in filings
    should have been accompanied by an increase in success rates in
    cases that were filed. There are fewer cases, but more of them
    would be good cases and so we would see an increase in success
    rates. But what we have seen instead over the past 10 years is
    a decline in success rates. Fewer cases settle. More cases are
    dismissed. Fewer cases win.
        The point is that there are new obstacles to successful
    adjudication of even constitutional meritorious cases. This is
    a problem because as a Nation we are committed to
    constitutional regulation of governmental treatment of even
    those who have broken society's rules. The erection of hurdles
    to accountability doesn't reduce the burden of litigation. It
    reduces accountability. It weakens the rule of law behind bars,
    and that is what the PLRA has done.
        So I urge the Committee's Members to support Chairman
    Scott's bill, the Prison Abuse Remedies Act of 2007. Let me
    talk in my 1 minute and 30 seconds remaining about the
    provisions that I think are most important. I should say also
    that I have been able to read through very quickly the deputy
    assistant attorney general's testimony. I think that it gets
    some of the legal environment in which this bill is placed
    incorrect, and I would be happy to talk about that if there are
    any questions.
        So there seem to me to be four very important things that
    Chairman Scott proposes to do. The others are good as well, but
    four are the most important. First, the PLRA's ban on awards of
    compensatory damages for mental or emotional injury without
    physical injury is a major obstacle to compensation and
    remediation for constitutional violations.
        It does not only apply to negligent infliction of emotional
    distress kinds of cases. It applies to constitutional
    violations--violations of religious rights, violations of all
    kinds, where there is no physical injury. It has been held by
    many courts to apply to coerced sex as well, where there is not
    forcible rape. Occasionally, it has even been held to apply to
    rape itself. So it is a huge obstacle.
        Second--I am not gong to get to all four--second the PLRA's
    provision banning Federal lawsuits by prisoners who have failed
    to comply with internal grievance procedures obstructs, rather
    than incentivizes, constitutional oversight of conditions of
    confinement. It encourages prison and jail authorities to come
    up with ever-higher procedural hurdles through their grievance
    procedures to immunize themselves from subsequent suits, and
    that is really a problem.
        Third, the application of the PLRA to juveniles is just
    unjustified and has a really perverse effect as well.
        And finally, the provision of the PLRA that many courts
    have read to ban enforceable injunctive settlements unless
    defendants confess liability for violations of Federal law
    undermines both the availability and effectiveness of court
    oversight.
        So I think my time is up, and so I had better stop. Thank
    you very much.
        [The prepared statement of Ms. Schlanger follows:]
                     Prepared Statement of Margo Schlanger

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Scott. Thank you, professor.
        Mr. Keene?

                TESTIMONY OF DAVID A. KEENE, CHAIRMAN,
              AMERICAN CONSERVATIVE UNION, ALEXANDRIA, VA

        Mr. Keene. Thank you, Mr. Chairman, and I thank the rest of
    you for the opportunity to appear before you this afternoon.
        My name is David Keene, and as Chairman Scott indicated
    earlier, while I am chairman of the American Conservative
    Union, I am here today not in that capacity, but because as the
    father of a young man serving in Federal prison, I have had an
    opportunity to see the impact of the Prison Litigation Reform
    Act as it operates in the real world.
        As Mr. Forbes indicated in his remarks, the PLRA was
    enacted for the best of reasons: to prevent abuse of the legal
    system by prisoners with a tendency to bring frivolous lawsuits
    and thereby tie up the courts and the prison system itself in
    time-consuming, expensive and ultimately meaningless legal
    controversies that have little to do with furthering either the
    cause of justice or improving the real-world operations of the
    prison system.
        This hearing and the attempt by the Chairman and others to
    come up with fixes for the PLRA is Congress' duty as it
    examines the way legislation invariably has some unintended
    consequences, and to perfect legislation and to perfect policy
    in a way to eliminate as many of those consequences as possible
    is the ongoing responsibility of those who enact our laws.
        It has been a long time since I have been to law school,
    but from my administrative law courses, as I remember them, I
    understood that if a Government agency promulgates regulations
    and rules by which it is supposed to operate, that it is
    required to follow those rules. In the prison system, that is
    not the case.
        We talk about whether or not prisoners can in all cases
    meet all of the requirements set by the internal rules and
    regulations established by one institution or another, but the
    fact of the matter is that in those institutions, prisoners are
    constantly told that those rules don't matter and don't count;
    that the rules are what the guards and the institution
    administrators say they are from day to day, often capriciously
    or for the convenience of those running the institution.
        By the same token, we run into a problem under this act
    that we find in any institution and in any Government agency,
    and that is when the people who oversee the operations are the
    same people who are being overseen, problems can always come
    up. This isn't a condemnation of the people within the
    institution. It isn't a condemnation of the guards in our
    prison system or the administrators of the prison system. It is
    a fact of human nature.
        What has happened in advertently is in attempting to
    restrict and in attempting to eliminate frivolous lawsuits, we
    have adopted policies which have in fact isolated these
    institutions and allowed them to operate without any effective
    oversight. A citizen dealing with any other agency who follows
    the rules promulgated by that agency ultimately has recourse to
    the courts. But as a practical matter, this often isn't the
    case in the prisons.
        A Federal prisoner has to meet what Professor Schlanger
    referred to as an ever-higher standard to try and get to the
    courts. This has created problems for legitimate cases. It has
    also created problems for almost any prisoner who has a
    difficulty and who has a grievance because it doesn't take long
    for someone incarcerated in one of our prisons to learn the
    lesson that the prison wants to teach them, and that is that
    nothing matters except what those in charge say, and that there
    is no real value nor any reward nor any purpose for filing
    grievances.
        In fact, one of the problems is not only that because of
    the technical requirements do you never get to the end that is
    sought, but that retaliation is the answer and is what comes to
    those who do file grievances. The result of that is the lesson
    is learned and fewer and fewer people are even willing to
    complain when they have legitimate reasons for doing so.
        As I indicated at the outset, my son is currently
    incarcerated and has run into these problems first-hand.
    Prisoners who cite the rules and regulations inside prisons in
    which they are housed are told that they don't mean a thing and
    learn quickly that they don't mean a thing. He ultimately had
    to go to court. A Federal district judge ruled that he did have
    the right to sue. His lawyers were not allowed to visit with
    him by prison administrators, and eventually the attorneys for
    the prison indicated that even his attorneys and the judge
    himself had missed a technicality and sought the case to be
    dismissed.
        The judge did dismiss it, saying he should come back and
    re-file it, but said he had no choice under this act, even
    though there were grievous violations of his constitutional
    rights. That is the kind of thing that has to be protected, has
    to be corrected, without at the same time opening the
    floodgates of frivolous litigation that Mr. Forbes, for
    example, is so concerned about.
        Thank you.
        [The prepared statement of Mr. Keene follows:]
                      Prepared Statement of David A. Keene
        My name is David Keene and while I am Chairman of the American
    Conservative Union, I am here today not in that capacity but because as
    the father of a young man serving time in a federal prison, I have had
    an opportunity to see the impact of the Prison Litigation Reform Act or
    PLRA as it operates in the real rater than conceptual world.
        The PLRA was enacted for the best of reasons . . . to prevent abuse
    of the legal system by prisoners with a tendency to bring frivolous
    lawsuits and thereby tie up the courts and the prison system itself in
    time consuming, expensive and ultimately meaningless legal
    controversies that had little to do with furthering either the cause of
    justice or improving the real world operations of the prison system.
        It's been a long time since I attended law school, but from what I
    remember of the Administrative Law course to which I was subjected some
    decades ago, an agency of the government that promulgates rules and
    regulations is required to follow those rules and regulations.
        This simple rule is adhered to by most if not all federal agencies,
    but it turns out that within the various prisons administered by the
    Bureau of Prisons, the regulations can be and are enforced
    capriciously, selectively or not at all based more on the convenience
    of those who are supposedly required to follow them than anything else.
        If a citizen dealing with any other agency of our government
    followed published rules and regulations only to be told that the
    agency isn't itself required to abide by them has recourse to the
    courts. A federal prisoner does not have that right under most
    circumstances at least until such time as he exhausts administrative
    remedies which require him to complain to the very same people he
    alleges have wronged him and submitted to their judgment on whether or
    not the actions they took or failed to take were in compliance with
    their own rules and regulations.
        In virtually every case, their judgment is final. The result is
    that few prisoners file grievance for the simple reason that they know
    it is useless to do so and, just as importantly, because they know they
    are likely to face retaliatory punishment if they do.
        As I indicated at the outset, my son is currently incarcerated and
    has run into these problems first hand. Prisoners who cite the rules
    and regulations inside the prison in which he is housed are told that
    the rules as written don't mean a thing because the rules at any given
    time are what the guards declare them to be and anyone who asks that
    they comply with written guidelines is forced to simply shut up.
        When a prisoner decides to complain, he must do so on approved
    forms which are often ``unavailable'' and he quickly learns that a
    complaint that is not properly executed on the appropriate form will be
    summarily dismissed.
        In one instance, my son was given what turned out to be the
    inappropriate form, filed it and after more than a month received
    notice that his complaint had been dismissed and that if he wanted to
    appeal the dismissal or renew the complaint he had twenty days from the
    date of the dismissal to do so. Unfortunately, he didn't receive this
    information until 28 days after the date of dismissal and was, as a
    consequence, told that his time for appeal had run out.
        In another instance, the correspondence between him and his
    attorney was held and opened by prison officials though it was clearly
    designated as ``Legal Mail'' from the attorney's offices. When this was
    raised in court, the charge against prison officials for violating
    their own rules and my son's constitutional rights was dismissed
    because he could show no ``physical damage.''
        This is apparently typical as was the fact that when we pressed
    forward seeking a remedy at law, he was roughed up by prison guards who
    told him they were tired of prisoners hiring lawyers when al they had
    to do was follow ``procedures.''
        As he put it in a letter to me after one such incident, ``these
    delays sprinkled throughout and the additional hurdles conspire to
    deprive inmates' access to an administrative remedy process . . . and
    that, therefore, the process is broken.'' He concluded by writing, ``It
    feels like I'm playing poker in a rigged game because in here the law
    is never your friend. The safeguards and rules are constantly flouted
    by the government. If laws are openly flouted by those whose duty it is
    to uphold them, what good are they?''
        One doesn't have to believe that prison guards or those running our
    prisons are either corrupt or inhumane to realize that it is a bad idea
    in practice to allow those whose activities are being overseen to be
    their own overseers.
        Those we incarcerate should not come away from their incarceration
    with the lessons they are learning in our prisons today. They are there
    because they didn't follow the law and are being told by the government
    that those in charge of our prisons don't have to do so unless they
    want to and that there is nothing they or anyone else can do about it.
        The PLRA was passed for legitimate reasons, but as is often the
    case when laws written by men and women in rooms like this are put into
    practice under real world circumstances, it has had unintended
    consequences.
        Those consequences are real and they need to be fixed. I urge the
    members of this subcommittee to make the adjustments in the law
    required to alleviate those consequences so that those we incarcerate
    can at least rely on the rules set for them and that those who abuse
    them or deprive them of the limited rights they have as prisoners can
    be brought to account.
        The SAVE Coalition in testimony here today has proposed just the
    sorts of changes that are needed and I hope you will give their
    recommendations the serious consideration they deserve.

        Mr. Scott. Thank you.
        Mr. Nolan?

                TESTIMONY OF PAT NOLAN, VICE PRESIDENT,
               PRISON FELLOWSHIP MINISTRIES, LANSDOWN, VA

        Mr. Nolan. I am Pat Nolan. As the Chairman mentioned, I was
    a member of the legislature for 15 years and very strongly
    supported efforts to curb frivolous litigation. Prior to my
    service in the legislature, I was an attorney with a law firm
    in Los Angeles--Kinkle, Rodiger and Spriggs--and we represented
    the counties of Orange, San Bernardino and Riverside, and
    virtually every city and special district within them. I saw
    the ridiculous claims brought by the vexatious litigants, and
    saw the frustration and the wasted resources that went into
    defending those.
        However, also as a prisoner I saw the other side of the
    coin, of routine interference with my ability to practice my
    faith, and because of the PLRA there were significant barriers
    to anyone getting redress from that interference. As a member
    of the legislature, I just assumed that prison officials would
    encourage religious activities. There are so many studies that
    show that religious inmates are less likely to be involved in
    disciplinary proceedings; that their behavior on the yard is
    better; they do better upon returning home to the community, a
    greater success rate.
        It was a shock to me to see that prison officials often
    interfered with religious practices. I have cited in written
    testimony some of the examples--denial of kosher meals to Jews;
    cancellation of Christmas mass for the women's jail in Los
    Angeles, saying, well, we don't have the staff to handle
    programming, as if mass on Christmas, the day our Savior came
    to earth to save us, was the same as a ping-pong tournament. To
    see those people trying to protect their ability to practice
    their faith, prevented from having access to the courts is
    frustrating.
        We just went through a significant battle with the Bureau
    of Prisons on the chapel library project. I think some of you
    are aware of the difficulties there were with their policy.
    Fortunately, they have a strong leader in Director Lapin and he
    changed that policy. But if he hadn't, do we really want the
    inmates that were denied access to books such as St.
    Augustine's works, the City of God, or access to Rick Warren's
    books? Would we like to deny them access to the courts? The
    PLRA does that.
        For holy days, it is especially a problem because of the
    timeliness. The exhaustion of remedies provision, and this is a
    case in California. A fellow said he was told on Monday that he
    had to work on Easter Sunday. Now, the Muslims had gotten
    Ramadan off, but he was forced to work on Easter Sunday. When
    he filed his complaint, they hadn't gotten to it to even
    consider it by the time Easter had come and gone. The
    exhaustion requirement basically bars him from getting any
    redress of that. And that goes not just for Christians. It goes
    for any of the faiths that have holy days to observe.
        The second class of people that I am familiar with, I am on
    the Prison Rape Elimination Commission and I am also on the
    Commission on Safety and Abuse in America's Prisons. It is
    heartbreaking the stories of men and women who have been raped
    in prison, raped either by corrections officers or by other
    inmates. The PLRA ends up keeping them from getting any
    compensation. You will hear more about it from Garrett.
        But the number of inmates that have been frustrated, not
    only victimized first by being raped, but secondly then denied
    any access to any recompense in the system is truly astounding.
    The physical injury requirement has been interpreted by some
    courts as saying oral sex is no physical injury, and even that
    forced rape, unless there is tearing, is not a physical injury.
    Now, I know that isn't what you all intended, but it is the way
    the courts are interpreting it, so we need to address this.
        The core of the PLRA is the elimination of frivolous
    litigation, and that is still there. The screening that occurs
    at the district court level, where literally they can round-
    file a frivolous case. They don't need to respond to it. They
    don't need to serve it on anybody. It is over. You have given
    them authority to do that.
        That has resulted in the reduction of the number of cases,
    but sadly we have set the screen too fine, so we are screening
    out people that want to protect their ability to practice their
    faith, and it is screening out those that have been victimized
    while in the custody and care of our Government.
        And so we are just saying, please address these mistakes.
    None of us can write anything perfect, but please address these
    things that were unintended, but are the consequences of this,
    and allow access to the court for people trying to practice
    their faith, and people that have been victims of rape while
    they are inside prison.
        Thank you.
        [The prepared statement of Mr. Nolan follows:]
                        Prepared Statement of Pat Nolan
        Mr. Chairman and members, I am grateful for this opportunity to
    discuss the impact of the Prison Litigation Reform Act, now that we
    have had a decade of experience with it. My name is Pat Nolan. I am a
    Vice President of Prison Fellowship, and lead their criminal justice
    reform arm, Justice Fellowship. I also serve as a member of the Prison
    Rape Elimination Commission and the Commission on Safety and Abuse in
    America's Prisons.
        I bring a unique background to this work. I served for 15 years as
    a member of the California State Assembly, four of those as the
    Assembly Republican Leader. I was a leader on crime issues,
    particularly on behalf of victims' rights. I was one of the original
    sponsors of the Victims' Bill of Rights (Proposition 15) and was
    awarded the ``Victims Advocate Award'' by Parents of Murdered Children.
    I was prosecuted for a campaign contribution I accepted, which turned
    out to be part of an FBI sting. I pleaded guilty to one count of
    racketeering, and served 29 months in federal custody.
        Prior to serving in the legislature, I was an attorney with Kinkle,
    Rodiger and Spriggs. We represented Orange, San Bernardino and
    Riverside counties, as well as virtually every city and special
    district within them. So, I am very familiar with the burden and
    frustration that accompanies nuisance suits against government
    entities.
        Congress passed the Prison Litigation Reform Act to restrict the
    ability of prisoners with too much time on their hands from clogging
    the courts with ridiculous claims. And it has largely worked well to
    reduce the number of vexatious prison litigants. However, in the years
    since the PLRA became law it has become clear that two classes of
    prisoners are affected by PLRA that were never intended by Congress to
    be prevented from accessing the courts: inmates who have been prevented
    from practicing their religion and victims of prison rape.
        First, we would assume that prison officials, even atheists would
    encourage prisoners to become involved in religion. An increasing
    number of academic studies have demonstrated, that offenders who
    actively practice their faith inside prison are less likely to cause
    trouble, and more likely to become law-abiding citizens after their
    release. If you were a corrections officer at work in a prison, and six
    inmates were walking toward you across the yard, would it make a
    difference if they were coming from choir practice? You bet it would.
        You don't have to be a believer to acknowledge what the scientific
    research has shown--religion reduces recidivism, and that costs
    taxpayers less and makes our communities safer.
        And while many prison officials encourage religious participation,
    there are also many who routinely interfere with religious programs in
    prison. This hindrance of religion is motivated not because they are
    against religion. Instead, it results from a more basic instinct--
    lethargy. Volunteers coming into the prison causes more work for the
    staff. If all you care about is having less work, then you would
    naturally discourage the volunteers from coming into the prison and you
    would discourage inmates from participating in religious activities.
    However, if you care about the safety of the public after the inmates
    are released, you would do all you could to encourage volunteers who
    can mentor inmates and help them live law-abiding lives after they
    return home. This is the situation that religious volunteers find:
    there are many prison officials who are open to our work, but there are
    also many others who discourage it.
        For instance, in some cases prison officials have denied Bibles to
    inmates, refused kosher meals to orthodox inmates, and rejected
    requests from Muslim inmates to have their Ramadan meals after sundown.
    In my own case, the chaplain of the California Legislature sent me an
    NIV Study Bible. He complied with federal regulations in every way--the
    Bible was sent from the publisher, shrink-wrapped and sent through the
    US postal service. But it was rejected and returned with a form that
    said it ``does not comply with BOP regulations'', with no explanation
    of how it had not met the regulations. This happened not once, but
    three times! Why would the mail room prevent an inmate from having a
    Bible? In prison, the inmates say, ``Why do they do it? Because they
    can.''
        If inmates who were denied Bibles, kosher meals or Ramadan meals
    after dark seek help from the courts, they would be prevented from
    doing so, because none of these actions by the prison officials
    resulted in a ``physical injury'', a requirement of the PLRA. Prison
    Fellowship believes that inmates' ability to practice their faith
    should not hinge on being able to show that they have sustained a
    physical injury. And my hunch is that Congress didn't think of this
    when they put that requirement in the PLRA.
        When a specific religious holy day is involved, another requirement
    of the PLRA prevents relief in the courts: the ``exhaustion'' of
    administrative remedies. If a prisoner is prevented from attending
    Christmas Mass, or is forced to work on Yom Kippur, it usually only a
    day or two ahead of time that they find out. Even if they file the
    grievance immediately, the holy day has come and gone before they even
    get a hearing n their grievance.
        When the LA County Women's Jail announced that they were canceling
    Christmas Mass (but allowing it for the men's jail), Sister Susanne
    Jabro asked the Lieutenant why women's Mass had been canceled it. He
    told her that most of the staff wanted the day off, and therefore they
    would be ``short-staffed'' and were canceling all inmate activities in
    the women's jail. The jail's actions are problematic in a couple of
    aspects. First, the Lieutenant equated sacred Mass with other ``inmate
    activities'' such as a ping pong tournament and Toastmasters. And to
    accommodate the convenience of the staff, Catholic inmates were being
    prevented from celebrating a holy day of obligation, a day of great joy
    in honor of the day God sent his Son to save us. Fortunately, when
    Sister Susanne appealed to Sheriff Block, he reinstated Christmas Mass
    immediately, and reassigned the Lieutenant. However, had Sheriff Block
    not intervened, the administrative process would have dragged on long
    past Christmas and into the New Year.
        In another case a California inmate was told he had to work on
    Easter, even though the Muslims were allowed days off of work for
    Ramadan. He found out on Monday that he would have to work the next
    Sunday, Easter. The administrative process hadn't even addressed his
    complaint by the time Easter arrived. So, the inmate was forced to
    work, and was prevented from attending Easter services. I don't think
    Congress intended that result when it passed the PLRA.
        Of course, there is another important reason why inmates should be
    free to practice their faiths. The Constitution requires it, and
    Congress has reinforced prisoners' religious freedom by passing the
    Religious Freedom Restoration Act and the Religious Land Use and
    Institutionalized Persons Act.
        However, the PLRA has served to neuter RFRA and RLUIPA by denying
    access to the courts for inmates who have been prevented from
    practicing their faith. The physical injury and exhaustion requirements
    have resulted in dismissal of otherwise valid claims such as:

            1.  Prison officials confiscated two Bibles from an inmate. The
            inmate properly filed grievances complaining that the bibles
            were missing and in one letter to the Warden, mentioned that
            the officials were ``bordering'' on a free exercise of religion
            violation. When the Bibles were not returned, he filed a pro se
            suit alleging that officials had unlawfully withheld religious
            materials. The court dismissed the suit, finding that he had
            failed to exhaust administrative remedies only because his
            grievances did not explicitly state that the deprivation of his
            bibles impeded his ability to practice his religion. Dye v.
            Kingston, 2005 WL 1006292 (7th Cir. Apr. 27, 2005)
            (Nonprecedential Disposition) (42 U.S.C. 1997e(a)).

            2.  A man was denied the kosher diet required by his Jewish
            beliefs. After a trial, the jury awarded the man damages for
            the denial of his right to practice his religion. But the
            appellate court threw out the award because forcing a man to
            violate his religious beliefs does not meet the PLRA's
            ``physical injury'' requirement. Searles v. Van Bebber, 251
            F.3d 869 (10th Cir. 2001) (42 U.S.C. 1997e(e)).

            3.  A Christian prisoner alleged that a prison rule prohibiting
            outgoing funds of more than $30 impeded him from practicing his
            religious belief in tithing. The court dismissed his pro se
            suit for injunctive relief because he had pursued
            administrative remedies, but had not submitted a specific
            Religious Accommodation Request Form. Timly v. Nelson, 2001 WL
            309120 (D. Kansas Feb. 16, 2001) (42 U.S.C. 1997e(a)).

            4.  A Jewish inmate who had been prohibited from participating
            in Jewish services won his suit before a jury in the district
            court. The court found that non-exhaustion was excusable
            because prison officials had effectively prevented the inmate
            from pursuing the grievance process. Prison officials had
            repeatedly told him that special ``Jewish consultants'' were
            responsible for deciding who could participate in Jewish
            services and holidays, not the officials who adjudicated the
            grievance process. Nevertheless, the court of appeals threw out
            the award, finding that the inmate had failed to exhaust his
            administrative remedies as required by the PLRA. Lyon v. Vande
            Krol, 305 F.3d 806 (8th Cir. 2002) (42 U.S.C. 1997e(a))

            5.  An Orthodox Jew alleged in a pro se complaint that prison
            officials refused to allow him to attend Jewish services and
            celebrate Passover because he was, ``not Jewish enough.'' He
            had properly filed a special religious accommodation form,
            which subsequently went missing from his file. The court held
            that he had not exhausted his administrative remedies only
            because he did not re-file the special form that he had
            correctly filed in the first place. Wallace v. Burbury, 305
            F.Supp.2d 801 (N.D. Ohio 2003). (42 U.S.C.A. 1997e(a)).

        There is another type of prisoner the PLRA has inadvertently
    effectively blocked from access to the courts: victims of prison rape.
    As I mentioned earlier, I am a member of both the Prison Rape
    Elimination Commission and the Commission on Safety and Abuse in
    America's Prisons. Both commissions heard heart-rending testimony from
    inmates who have been savagely raped and beaten. Most were too
    traumatized and terrified to report it while they were in prison.
        If their assailant were a correctional officer, they were at risk
    of retaliation. If they were attacked by another inmate, their life
    would be at risk for being a ``snitch.'' Yet, the PLRA prevents them
    from going to court unless they have exhausted their administrative
    remedies. In most prisons, that means reporting the rape within 15
    days; in some, it's as few as two days. Despite the physical and mental
    trauma of being raped, the inmate must file a report in a very narrow
    window of time.
        The Prison Rape Elimination Commission recently heard testimony
    that children in the custody of the Texas Youth Commission (TYC) were
    repeatedly raped and molested by high TYC officials. How did they get
    away with it? One of the officials had a key to the complaint box and
    simply threw away complaints that incriminated him and his friends. The
    children had no chance to ``exhaust'' their administrative remedies
    because their rapist was the administrative remedy. Under the PLRA,
    these children would have no recourse in federal courts.
        Through my work on the commissions, I have met many victims of
    prison rape. I'd like to tell you a little about them so you can
    understand how the PLRA has victimized them a second time. Keith was a
    securities dealer, Marilyn owned a car-repair shop with her husband, TJ
    was in high school, and Garrett and Hope were college students. Keith
    and TJ were violently raped by fellow prisoners. Marilyn, Hope and
    Garrett were violently raped by correctional officers. Yet, federal law
    prevents them from filing suit to be compensated for the trauma they
    endured. Why? Because they were in prison when they were raped, and
    they ran didn't meet either or both the physical injury or the
    exhaustion prerequisite.
        Keith testified to the Prison Rape Elimination Commission about the
    practical reasons that the exhaustion requirement of the PLRA
    effectively barred him from court. Keith had informed his counselor
    that he felt threatened by another inmate. Incredibly, the counselor
    placed that inmate in Keith's cell, and Keith was beaten and raped by
    the inmate, as he had predicted. Keith told the commission why he
    hadn't filed a grievance:

    ``. . . in many institutions that informal complaint is going to go to
    the individual you're complaining of, whether it be--in my case it was
    the counselor who moved the assailant into my cubicle, knowing that I
    was already reporting that I felt threatened by him. But, that's the
    procedure that allows you to be able to even go into court for civil
    action.

    The Prison Litigation Reform Act requires you to have exhausted your
    administrative remedies, which that informal complaint by policy
    becomes the first step. I'm not going to go to a person that I've
    already been threatened by to hand him an informal complaint and say,
    you know, I'm about to start a process against you and you're the
    person who's supposed to protect me now as I go through this process.
    It is not going to happen.''

        Marilyn was brutally raped at the hands of prison guard. Afterward
    he taunted her, ``Don't even think of telling, because it's your word
    against mine, and you will lose.'' The authorities simply sloughed off
    her claims at the time. But Marilyn had hidden her sweatpants--with DNA
    evidence of the officer's attack--and took them to the FBI after her
    release. Even then, for three years nothing happened. Finally the case
    went to trial, and a jury convicted the officer of several counts of
    sexual assault. He is now in prison. The justice system cannot wipe
    away the degradation and abuse Marilyn suffered, but it at last held
    the contemptible guard accountable. However, the state of Texas refuses
    to pay for Marilyn's medical and mental health treatment, and the PLRA
    prevents her from going to federal court to seek justice because she
    didn't exhaust her remedies.
        Then, we come to the requirement of physical injury. As incredible
    as it seems, some courts have held that forced oral sex does not meet
    the physical injury requirement of the PLRA, and other courts have held
    that sexual activity without tearing is not a physical injury. These
    applications of the PLRA are within the plain meaning of the statute,
    but they clearly deny justice to these prisoners.
        I have given you just a few examples of where the PLRA has denied
    justice to victims of prison rape and inmates denied their religious
    practices. Congress never intended that such inmates be barred from
    court. The reforms suggested by Congressman Scott address these
    horrible injustices while leaving intact the screening provision of
    PLRA, which allows the courts to dismiss frivolous cases before the
    case is served on defendants or entered into the docket. The Scott
    amendments to PLRA will allow the to dispense with the chunky peanut
    butter cases without also barring the serious cases of religious
    interference and prison rape.
        When the opponents of these reforms offer up the old chestnuts
    about peanut butter and cold food, please remember the children in
    Texas, the Christian, Jewish and Muslim inmates denied access to
    practice their faith, and Marilyn, Garrett, Keith, TJ, Hope and
    thousands of others raped in prison and denied the ability to practice
    their faith. The least Congress can do is give them access to justice.
    Thank you.

        Mr. Scott. Thank you.
        We have a vote coming up. I think, Mr. Cunningham, we can
    receive your testimony, and then we will have to break for a
    vote. We have one 15-minute vote and two subsequent votes after
    that, so it may be 20 minutes before we can get back. So Mr.
    Cunningham, we will hear from you.

     TESTIMONY OF GARRETT CUNNINGHAM, FORMER PRISONER IN THE TEXAS
       DEPARTMENT OF CRIMINAL JUSTICE, LUTHER UNIT, NAVASOTA, TX

        Mr. Cunningham. Good morning, ladies and gentlemen. I would
    like to thank Chairman Scott and Representative Forbes for
    holding this hearing about the harmful impact of the Prison
    Litigation Reform Act.
        My name is Garrett Cunningham. As a former prisoner within
    the Texas Department of Criminal Justice and a victim of prison
    violence and abuse, I have first-hand experience with the
    harmful effects of the PLRA. In 2000, I was housed at the
    Luther Unit in Navasota, Texas. While at the Luther Unit, I
    worked in the prison laundry under the supervision of
    Corrections Officer Michael Cheney.
        After just a few weeks of working with Officer Cheney, he
    began to touch me in a sexual manner during pat searches. At
    first, I thought it was an accident, but as it continued every
    day, I soon realized his inappropriate touching was
    intentional. He also stared at me when I showered and made
    sexual comments.
        I was afraid to tell anyone about my problems with Officer
    Cheney, but in March, 2000 I finally went to the unit
    psychologist and told him about the touching and crude
    comments. He asked me if I thought it was an accident, and I
    told him that it could not be because it happened all the time.
    He advised me to stay away from Officer Cheney. The prison
    psychologist's advice did nothing to prevent the continuing
    sexual harassment, so a month later I decided to go to the
    prison administration for help.
        I approached the assistant warden and the second-in-command
    officer and told him about Cheney's sexual comments and sexual
    touching during pat searches. They told me that I was
    exaggerating and Cheney was just doing his job. I eventually
    confronted Cheney and told him to stop touching me. He only got
    angry and continued to harass me. I tried again to get help
    from prison administrators, but I was told to keep my mouth
    shut.
        Officer Cheney eventually raped me in September 2000. On
    that day, I had just finished my job at the prison's laundry
    and began walking to the back of the room in order to take a
    shower. Suddenly, Cheney shoved me, knocking me off-balance. I
    screamed and struggled to get him off me, but he was too big.
    Officer Cheney weighed about 300 pounds. I am 5' 6'' and weigh
    about 145 pounds. While I struggled, Cheney handcuffed both my
    hands. He then pulled down my boxers and forcibly penetrated
    me.
        When I screamed from the terrible pain, Cheney told me to
    shut up. I tried to get away, but I could barely move under his
    weight. After it was over, I was dazed. He took me to the
    showers in handcuffs, turned the water on, put me under it. I
    was crying in the shower and I saw blood running down my legs.
        When he took the handcuffs off me, he threatened me. He
    said if I ever reported him, he would have other officers write
    false assault cases against me, and I would be forced to serve
    my entire sentence or be shipped to a rougher unit where I
    would be raped all the time by prison gang members. He also
    warned me not to say anything to the officials I had complained
    to before because they were his friends and they would always
    help him out.
        At first, I didn't dare tell anyone about the rape. Under
    the PLRA, however, I would have had to file a first prison
    grievance within 15 days of being raped. I had no idea at that
    point that I was even required to file a grievance and wanted
    to bring a lawsuit. Even if I had known, during those first 15
    days my only thoughts were about suicide and how to get myself
    into a safe place like protective custody so I would not be
    raped again.
        In October of 2000, I was so afraid of being raped again
    that I told the unit psychologist that Cheney had raped me. He
    moved me to another job with a different supervisor and told me
    that if anyone asked why my job was changed, I should say I
    wanted a change of scenery. A few days later, I was given a new
    position in the laundry right next door to where Cheney worked.
    I continued to see him regularly, and he continued to touch me
    in appropriately.
        I wrote the internal affairs department two times about
    Cheney's inappropriate touching. They never addressed my
    concerns and failed to take precautions to protect me. I was
    too scared to file a written complaint against Cheney because I
    feared retaliation from prison officials. Instead, I requested
    a private meeting with an internal affairs investigator.
    Internal affairs failed to take my concerns seriously until I
    contacted the ACLU, and even then Cheney was never punished for
    assaulting me.
        Officer Cheney went on to sexually harass and assault other
    prisoners. A year later, Nathan Essery began working under
    Cheney's supervision in the same laundry where I had previously
    been assigned. On several occasions, Nathan was forced to
    perform sexual acts on Cheney.
        Fortunately for Nathan, he was able to collect Cheney's
    semen during two of the attacks and the DNA positively linked
    the samples to Cheney. Cheney finally resigned from the Luther
    Unit in January of 2002 when he was indicted for his crimes
    against Nathan Essery. He was later convicted of inappropriate
    contact with an incarcerated person, but he was never required
    to serve any time.
        For me, I found no justice. When I was in prison, the fear
    of retaliation by staff or other prisoners haunted me and
    prevented me from reporting the rape right away. My fear led to
    suicide just to escape the pain of my situation, because my
    previous complaints to prison officials resulted in sharp
    rebukes and the prison psychologist's assistance was limited. I
    felt hopeless.
        I will sum it up. My time is up. My hope is that Congress
    will acknowledge the realities of prison life, which makes
    exhausting administrative remedies under the PLRA impossible at
    times. It is time to fix the PLRA so that prisoners can bring
    their constitutional claims to Federal court. Chairman Scott's
    bill, which he just introduced, would do that, and I support
    it.
        I thank you for your time and attention and look forward to
    your questions.
        [The prepared statement of Mr. Cunningham follows:]
                    Prepared Statement of Garrett Cunningham

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Scott. Thank you.
        We just have a few minutes to get to the floor, so we will
    come back as soon as we can, but will probably be at least 10
    or 15 minutes.
        [Recess.]
        Mr. Scott. The Subcommittee will come to order.
        Mr. Bounds?

    TESTIMONY OF RYAN W. BOUNDS, DEPUTY ASSISTANT ATTORNEY GENERAL
    AND CHIEF OF STAFF, OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF
                        JUSTICE, WASHINGTON, DC

        Mr. Bounds. Thank you, Mr. Chairman, Mr. Ranking Member,
    and Members of the Subcommittee for including the department in
    this hearing on proposals to address denials of prisoners'
    constitutional and Federal rights. This is a critical subject
    and the Administration and the Department of Justice are
    dedicated to working with the Congress on these and other
    proposals.
        I want to note at the outset that the Department of Justice
    obviously comes at this issue in particular, prison litigation,
    from both sides because not only do we defend cases that are
    brought against the Bureau of Prisons, which are under the
    Department of Justice, but also the Civil Rights Division seeks
    to vindicate the Federal and constitutional rights of prisoners
    both in state prisons as well as in other institutions through
    the Civil Rights Division. So the Department of Justice takes
    this issue very seriously. It is obviously critical to our
    mission, and I appreciate being allowed to testify before the
    Committee today.
        I also want to say at the outset that we just reviewed
    recently a draft text of the Prison Abuse Remedies Act, which
    is the formal subject of this particular hearing. We haven't
    had a chance yet to review it in detail. The department is
    looking forward to doing so, however, but hasn't taken a
    position on the bill. That said, we look forward to reviewing
    the bill and we look forward to working with the Subcommittee
    on that proposal and other proposals as they come before the
    Subcommittee.
        The Chairman and the Ranking minority Member and several
    members of this panel have fairly characterized the motivation
    to reduce the filing of frivolous lawsuits that motivated the
    enactment of the Prison Litigation Reform Act in 1996. I won't
    rehearse the particular characterization of the provisions of
    the act that work to reduce the filing of frivolous claims
    here.
        I did want to take just a moment, however, to reflect on
    the ways that the act works to advance the cause of expediting
    the effective remediation of meritorious claims that are
    brought by prisoners. For instance, it is not just the case of
    the exhaustion requirement works to screen out claims, it also
    works to make sure that prisoners, to the extent that they are
    able, bring their claims to the attention of the proper prison
    authorities so that those prison authorities who are on the
    frontlines can effectively remedy the violations that are afoot
    in their facilities.
        If it works, it is the most expeditious way to address
    denials of rights that prisoners are experiencing in
    facilities. So that exhaustion requirement does bear an
    important role in ensuring in the first instance that
    prisoners' rights are restored to them.
        The other aspect of the exhaustion requirement that is
    important for ultimately vindicating the rights of prisoners in
    both state and Federal institutions is that it narrows the
    dispute to a more readily adjudicable issue and allows the
    creation of a more confident record for the ultimate
    adjudication of the case if it is filed and proceeds to trial.
    So the exhaustion requirement does screen out cases, but it
    also facilitates the adjudication of meritorious claims that
    may get to the courts, or the more ready resolution of claims
    by the prison officials themselves.
        Another provision of the act that enhances the resolution
    of meritorious claims is the frequent filer provision that bars
    the filing of lawsuits in Federal courts by prisoners without
    paying the filing fees if they have already filed three
    nonmeritorious claims that have been dismissed from the courts,
    either because they are frivolous or malicious or fail to state
    a claim. That provision allows the courts to focus on cases
    that are brought by people who do not have a history of being
    overly litigious and bringing nonmeritorious claims in the
    courts.
        As I am sure that many Members of the Committee and many
    people in this room can imagine, some people are just more
    prone to filling lawsuits than others, and oftentimes those
    sorts of people may bring less meritorious cases on average
    than the typical filer. So to the extent that this provision
    allows those people to proceed with their meritorious claims,
    it requires them to pay their fees up front, you will deter
    unnecessary litigation or at least unjustified litigation and
    allow the courts to focus on the more meritorious litigation.
        Another provision that I wanted to highlight are the
    deadlines for reconsidering and the tailoring requirements that
    apply to consent decrees and other prospective litigation that
    the courts impose as a result of civil rights litigation on
    behalf of prisoners. First, it is important to note that the
    Civil Rights Division, which brings a lot of cases for
    prospective relief on behalf of state and local inmates,
    believes that this provision does not meaningfully deter the
    effective relief that the department often seeks not only
    through consent decrees, but also through settlements and
    memoranda of understanding.
        But also it is important to note that these deadlines and
    the tailoring requirements that apply to prospective relief
    deter the courts from continuing consent decrees long past the
    effective remediation of a violation of a Federal right and
    allows prison officials to know there is an end game, the
    opportunity to get out from under an onerous consent decree by
    actually remedying the violation that was the subject of the
    decree.
        So it restores the positive incentives to actually come
    into compliance with the constitutional obligations of the
    administration of the facility, and as a result expedites the
    effective redress of the prisoner's claims.
        Overall, reducing nonmeritorious claims through these and
    other mechanisms allow courts to focus on the well-founded
    claims that prisoners no doubt have and that is the objective
    of the bill. I would like to close with an observation that the
    chief justice made just earlier this year in a case that was
    interpreting the Prison Litigation Reform Act. He said, quite
    rightly I think, ``The challenge lies in ensuring that the
    flood of nonmeritorious claims does not submerge and
    effectively preclude consideration of the allegations with
    merit.''
        With that, I will conclude. Thank you very much.
        [The prepared statement of Mr. Bounds follows:]
                      Prepared Statement of Ryan W. Bounds

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Scott. Thank you very much.
        I want to thank all of our witnesses for their testimony. I
    will now have questions for the panel. I recognize myself first
    for 5 minutes.
        Mr. Bounds, it is presently a requirement that there be a
    physical injury, and it appears to be interpreted that physical
    injury means an injury with documented medical expenses. Is it
    true that some courts have ruled that a rape without medical
    expenses is not a physical injury?
        Mr. Bounds. Thank you, Mr. Chairman. I have to admit, I am
    not familiar with the medical expense rule. Obviously, the
    statute on its face does not require that.
        Mr. Scott. Well, have some courts ruled that a rape does
    not constitute a physical injury?
        Mr. Bounds. I have seen representations to that effect. I
    know that courts have held the opposite. My belief is that no
    circuit court of appeals, which generally will finally resolve
    these legal issues, has held that sexual abuse alone is not
    physical injury for purposes of the act. I don't believe that
    that is the Department of Justice's----
        Mr. Scott. Say that again?
        Mr. Bounds. I don't believe that a United States Court of
    Appeals has held that sexual abuse does not rise to the level
    of physical injury itself for purposes of the act. And I don't
    believe that the department has taken that position.
        Mr. Scott. Professor, what is the highest court that has
    ruled that a rape is not a physical injury? Thank you.
        Ms. Schlanger. I believe that the adjudication of this
    issue has all been in the district courts. So no court of
    appeals that I am aware of has opined either way on the issue.
    These cases tend to be pro se. They tend not to be appealed. So
    the action is in the district courts in large part, and the
    district courts have been split on that question. But there are
    a number of district courts that have held that rape without
    more, and particularly coerced sex without more, sex under
    threat, does not constitute a physical injury.
        Mr. Scott. Can you say a word about why the exhaustion of
    administrative remedies is a problem in these cases?
        Ms. Schlanger. The basic problem--and there are a number of
    reasons that exhaustion is particularly hard--I would say that
    the basic problem is several-fold. One is that there are a
    number of kinds of problems that occur in prisons, like the
    ones that Mr. Cunningham was talking about, where people are
    not in a position to exhaust in the way that the prison has set
    as timely. So they are not yet in a safe space from which they
    can complain.
        And yet, prison remedies don't make exceptions like that.
    So some of it is that they are not in a mental space from which
    they can complain. Sometimes, you will actually have cases in
    which a prisoner is in the hospital because of an assault, and
    the prison administrative remedies won't exempt that prisoner
    from the filing timelines. So that is one reason. It has to do
    with timing and the way that people----
        Mr. Scott. And then the exhaustion now denies you any
    remedy at all, if you haven't gone through the steps. Is that
    right?
        Ms. Schlanger. That is correct.
        Mr. Scott. Mr. Bounds, what is wrong with allowing the case
    to go forward and stayed while some administrative process,
    some administrative review goes forward?
        Mr. Bounds. As I say, I cannot speak to any provisions of
    the bill. I understand there is a presentment requirement that
    tweaks the exhaustion requirement in the current law. I can't
    speak to the merits of that proposal because the department
    hasn't reviewed it in detail.
        As far as a general limitation on the exhaustion
    requirement, I would note that it is usually the case when you
    sue a Government agency that you have an opportunity to make
    your claim against in the first instance that you have to
    exhaust that. Usually, it is a jurisdictional bar. The
    difficulty with exhausting in certain circumstances does not go
    unnoticed, obviously, but it is just a normal standard
    requirement where you have an opportunity to raise your claim.
        Mr. Scott. But you will acknowledge that in these cases, it
    presents in some cases an unreasonable barrier, in some cases?
        Mr. Bounds. I certainly can't deny that there could be
    cases in which it would be an unreasonable barrier. I do think
    that prisons and other incarcerating facilities should have
    systems where you can make a claim to someone who is not
    immediately involved with the person who may be the subject of
    the claim.
        Mr. Scott. You mean the perpetrator of the violation?
        Mr. Bounds. Right. So for instance, the Bureau of Prisons
    regulations make it very clear that you can circumvent the
    people with whom you interact and about whom you have been
    making a claim in order to get redress from the agency before
    you go to court.
        Mr. Scott. Okay. On the injunctions, if I understand the
    present law, if you have an injunction after 2 years you either
    have to retry it or the injunction is automatically dissolved.
        Mr. Bounds. Effectively, that has to be on the notion that
    in some way it is sua sponte from the court, but that is the
    standard. The court has to find once the motion for termination
    of the prospective relief has been filed, that there is still a
    federally constitutionally cognizable basis for continuing that
    prospective relief.
        Mr. Scott. And who has the burden of showing that?
        Mr. Bounds. The plaintiff, the petitioner.
        Mr. Scott. And you can imagine that if the violation were
    ongoing and you had the injunction to stop the violation filed
    by a prisoner who is no longer in that prison, there is no one
    to carry that burden.
        Mr. Bounds. Well, I think that the expectation is that once
    a state or local facility, if they are the ones who are subject
    to this prospective relief, this injunction, or this consent
    decree, has been found to have violated the constitutional
    obligations, that they are going to be somewhat more careful in
    future about doing it.
        To the extent that they revert right back to the violations
    that they were previously committing before that consent decree
    or injunction was entered, it seems fairly clear that you would
    have to prove that they are doing it, but that is what you have
    to do in any legal context. If someone is violating a right,
    you have to prove they are doing it. Even if there is a consent
    decree, you have to go back to court and say they are violating
    the terms of the consent decree and that requires producing
    evidence that they are doing so.
        Mr. Scott. Mr. Forbes?
        Mr. Forbes. Thank you, Mr. Chairman.
        Mr. Bounds, first of all, we must apologize. We know this
    legislation was just filed last night and you haven't had time
    to really analyze it. We look forward to your comments as you
    have been able to do that.
        Mr. Keene, I can sympathize with you having a son in there.
    I do not have a son in the prison system, but I have a lot
    people I care about and love in there. The incidents that we
    hear are not exceptional incidents. We know they are going on
    through the prison system and we have to do something to try to
    remedy them. I just don't think this is the right course to do
    that, but I understand we need to do it.
        Professor, I thank you for your work on this and for coming
    in. You only have 5 minutes here. It is a short period of time,
    but I know you have written a law review article on this.
        Mr. Chairman, I would just like to ask unanimous consent to
    put in the record a law review article from your alumni,
    Harvard Law Review, that deals with Mrs. Schlanger's research.
    Let me just quote a couple of the things that it says. It says,
    ``The manifest strength of Professor Schlanger's article is its
    unprecedented empirical foundation. The wealth of data that she
    assembled seems to lend apolitical credibility to her
    criticisms of the PLRA.
        ``But a closer examination of the data reveals that many of
    Professor Schlanger's major conclusions cannot stand without
    the support of controversial political assumptions that the
    proponents of the PLRA would be unlikely to accept. To
    political allies of Professor Schlanger, this criticism may do
    nothing to diminish the persuasiveness of her analysis. To
    readers with less faith in Professor Schlanger's political
    assumptions, however, it is important to disentangle the
    empirical from the political. Thus, with great respect for
    Professor Schlanger's extensive research, this note attempts to
    show that from an empirical perspective, her data proved
    neither the failure nor the success of the PLRA.''
        In turn, can I just ask that that be submitted for the
    record?
        Mr. Scott. I would not object. I would point out that I
    graduated from Boston College Law School.
        Mr. Forbes. Oh, I am sorry. Okay. [Laughter.]
        Your undergraduate was Harvard. That is what I was
    thinking. [Laughter.]
        But I think you would still understand this is a fairly
    good law school, so we will put it in.
        Mr. Scott. Without objection, so ordered.
        Mr. Forbes. Mr. Cunningham, again we just really sympathize
    with your situation. It is not a rarity. We have guards that
    are terrible guards. We have some guards that are good guards.
    We understand that situation. The question I ask for you,
    though, is this. The act that was committed against you was a
    criminal act. What makes you feel, because the PLRA only deals
    with civil situation, that from an evidentiary point of view,
    you would have been able to prove in a civil action what
    apparently hasn't happened in a criminal action that you
    brought forward?
        Mr. Cunningham. That is a good question. I think it would
    be kind of hard to answer. A lot of it would be a strong focus
    on one's behavior patterns while he was in there. My complaints
    could have been brought up in court. There is documentation in
    my file, in my psychological file when I was complaining
    against this officer.
        Mr. Forbes. I don't want to cut you off, but I want to just
    point out this. I understand the evidence you would use, but
    how would that be different in a criminal action which you
    could have brought, that the PLRA had nothing to do with, and
    between a civil action? In reality, it would be very little
    difference.
        The real essence of your problem is that we put guards in
    positions where they are able to do these kinds of things with
    very little ability for us to hold them accountable because of
    evidentiary problems. That is something we have to get at the
    heart of or we are never going to correct this problem because
    you have a right to bring a criminal action, and apparently you
    didn't bring that criminal action.
        I am trying to find the answer. I don't have a
    predisposition on that. What is your take on that? Why do think
    you would have been more successful with the PLRA than you
    would have with a criminal action against this guard?
        Mr. Cunningham. I don't really have an answer for that one.
        Mr. Forbes. Okay.
        Pat, I want to ask you another question. I understand the
    religious freedom issues. And you know, I support everything
    you guys do. I think you do wonderful work. I want you to
    continue to do that. But why does pulling the caps off of
    attorneys' fees going to help with this?
        Mr. Nolan. Yes, I haven't addressed that.
        Mr. Forbes. But that is part of this. The devil is in the
    details for us, and conceptually when you come in here, we
    agree. I mean, we know these problems are going, but why pull
    the caps off of attorneys' fees? Because what it is going to do
    is drive attorneys to be looking for frivolous cases and it is
    going to clog the system down for the legitimate ones like Mr.
    Cunningham's, which are never going to get heard.
        Mr. Nolan. I came in here really to address the religious
    freedom and the prison rights, because I am on the Prison Rape
    Commission. I would say, though, that attorneys won't chase
    frivolous cases because to get fees you have to win. If it
    really is frivolous----
        Mr. Forbes. Let me tell you, then you haven't ever watched
    the ambulance chasers that I have watched because they would
    rather put 20 of them out there. The more hooks they have in
    the water, the more opportunity they have for----
        Mr. Nolan. But one of them has to win. One of them has to
    not----
        Mr. Forbes. But they have a better chance with 20 of them
    out there than they do with one or two.
        Mr. Nolan. I am really not an expert on what people have--I
    would like to address your question to Mr. Cunningham, because
    number one, I don't think an individual can pursue a criminal
    case. Much of the testimony we have had before the Prison Rape
    Elimination Committee is the refusal of local prosecutors to
    bring cases even when the prison has asked that they be
    prosecuted. They say, well, you know, they are in prison; what
    do you expect. I mean, there are lots of excuses, but one of
    the main focuses of the Prison Rape Elimination Commission is
    to address the lack of prosecution of proven cases.
        Secondly, the standard of proof Mr. Cunningham would have
    to have had in a civil case is much less than the criminal.
        Mr. Forbes. I understand that. The evidentiary problem is
    the tough one that he would have.
        My time is up, Pat, but let me just tell you this. I
    understand. I agree with the problems that you are raising. I
    just hope that we can roll up our sleeves and get real fixes to
    those problems instead of just having this pendulum swing back
    and forth where we really never get at the point.
        And the only thing I will tell Mr. Cunningham, the toughest
    thing you have is you are put in a position where there is no
    evidence that you can bring against these situations, whether
    it is a civil case or a criminal case. That is an unfair
    position to be in. We have to find a way to break through that
    in some way.
        Mr. Nolan. Mr. Forbes, can I bring up the case of a lady in
    Texas? Marilyn Shirley was in prison, was raped by a guard who,
    as he was raping her said, ``and don't bother to report this
    because who are they going to believe--a criminal like you or a
    fine upstanding officer of the law?"
        She saved her sweat pants. It was evidence. She hid it.
    They shook down her cell repeatedly, trying to find the
    evidence. They didn't find it. On the day she was released, she
    went to the prison officials and said, ``Here are the
    sweatpants with his semen in it.'' And they proved it. That man
    is in prison, but she is barred from getting any medical or
    mental health coverage. Here she is a victim of a brutal rape
    and she is barred? That is the problem. She had the evidence
    and she still can't get any help financially for what she
    endured and continues to endure with the nightmares.
        Mr. Scott. Mr. Johnson?
        Mr. Johnson. Thank you.
        One of the things that has held us in great stead as a
    Nation throughout our history has been our adherence to the
    constitutional principles upon which the country was founded.
    One of the bedrock processes was the judicial process. It was
    part of the ``equal branches of Government.'' You had the
    executive branch, the legislative branch, and then you had the
    judicial branch.
        One of the things that the judicial branch has always been
    held in high esteem for is affording individuals their rights
    to take their disputes to trial. The judge or the jury, whoever
    the fact-finder might be, would be the one to make the ultimate
    decision, if you get to that point. You may not get to the
    point based on the procedural rules that have to be adhered to.
        But the bottom line is that whole process is what makes us
    a civilized Nation, an ability to go to court to have your
    issues addressed. And so the Prison Litigation Reform Act was a
    way of cutting down or eliminating the ability of a certain
    class of individuals to go to court and have their claims
    heard. It was prisoners, and prisoners are not thought of as
    human beings with rights, apparently, by some of those of us in
    the legislative branch. We don't respect the ability of judges
    to be able to procedurally deal with frivolous claims.
        So what we did was we, under the guise of trying to
    eliminate frivolous claims, we eliminated a whole lot of
    opportunities for prisoners to go to court and sue for damages.
    Now, you have that criminal process and you have that civil
    process. The civil process is where the person who has been
    aggrieved can go to court and force changes and receive
    compensation for the harm that has been done to them.
        It is very important that we preserve that right and
    protect that right. I believe that the Prison Litigation Reform
    Act was an affront to our Constitution and it has set us up to
    where we have a lot of things happening in places that we will
    never know about.
        Mr. Cunningham, things that you have experienced, and I
    really appreciate you coming to this hearing today. You
    displayed a lot of courage in telling us about your experience.
    That is real and this is something that is not isolated. It
    happens more than we would like to think it does. The only way
    to keep it from happening more is the ability to bring it to
    court, for litigants to be able to bring it to court, sue,
    establish what happened by the rules of evidence, and then
    penalize those who would tolerate such conditions that lead to
    that kind of problem, punish them by getting in their
    pocketbooks.
        That is what the civil process is all about, so people
    don't pay attention until you get in their pocketbook. That is
    what lawyers do, trial lawyers. They serve as a powerful
    deterrent to wrongdoing by corporations and institutions such
    as Government. If we don't have lawyers watching out for what
    governments do, government runs amok. You are a prime example
    of being a victim of Government that has run amok.
        So I appreciate the attempt here by Chairman Scott with
    this legislation to mitigate some of the harsh impact of the
    hastily approved Prison Litigation Reform Act, and bring some
    balance back into the system so that we can once again be proud
    of the fact that all people have rights in this country,
    including those who have been convicted, sentenced and are
    serving their time, but they are still human beings.
        Thank you.
        Mr. Scott. Thank you, Mr. Johnson.
        Let me just make a comment on the fact that the bill was
    introduced last night. There was no intention to run this
    through and count this as the hearing on that bill. It is just
    one example of how it could be dealt with. We will be having a
    hearing on the bill so that people will have a fair opportunity
    to comment.
        The gentleman from Texas?
        Mr. Gohmert. Thank you, and I do appreciate everybody being
    here today. I appreciate everybody's perspective. Is my time up
    already? Okay. All right. [Laughter.]
        Mr. Gohmert. I know you wanted to cut me off, but gee.
    [Laughter.]
        But I do appreciate your being here. I understand
    everyone's perspective.
        Mr. Keene, I know here you are with the American
    Conservative Union and yet, as a father, all our hearts would
    go out, I would hope as yours has. And Pat, with what you have
    been through. There is nobody up here who would want anybody to
    be raped. Although, I tell you, I am tempted to say it ought to
    be a possible punishment for guards that do that to people
    entrusted to their care. I mean, that is how strongly I feel
    about it.
        But the other side also is, and we don't have any wardens
    here and we don't have any guards of the thousands and
    thousands who do a good job, and who are sued all the time.
    Judges, guards, wardens--all the time. And I know, Pat, in your
    statement you mentioned, you know, don't come back at me about
    peanut butter and stuff.
        Well, one of the cases I dealt with involved a lawsuit
    because an inmate felt it was his constitutional right when he
    is standing in the mail room waiting, hoping desperately that
    maybe he has a message from home, to have to endure the smell
    of flatulence from all the other inmates standing around him,
    and that he ought to have a right not to have to endure that.
        Now, I recognize that is a problem none of us would want to
    endure, but those are lawsuits that have been filed. That is
    one of the things that PLRA tried to deal with. I am a
    conservative Republican, but I am often bothered when other
    conservatives throw out the term ``frivolous'' to describe a
    lawsuit that they barely won, the jury was out for hours, and
    it was not frivolous. It just happened they won, because I
    don't consider that frivolous. I call that a close case.
        But I am telling you, there are thousands and thousands and
    thousands of good, honest, honorable people trying to do a job,
    and then to be held up in court. And I can also tell you my
    personal experience from seeing lawsuits involving our state
    institutions being sued in Federal court on what really were
    frivolous claims. It took around an average of about a year to
    get out from under a truly frivolous claim in Federal court,
    and that is when you have a legitimate motion to dismiss for
    summary judgment.
        So what happens if these good, honest, honorable, decent
    people are allowed by our own doing here in this Committee to
    be held up for a year while they are trying to buy a house or
    do things? Oh, you are involved in this lawsuit. It comes up on
    the claims. You are allowing inmates who have committed crimes
    to hold up good, honorable, decent people to this kind of
    harassment and that was the direction of the PLRA.
        Now, to the end of the religious violations--and I am doing
    more talking than asking questions, obviously because I don't
    think this has adequately been heard by witnesses, and I am
    really more of a witness in this thing as a former judge--but
    when good, honest, honorable, decent people are allowed to be
    subjected to this kind of harassment by people who are true
    criminals--you know, maybe they did or didn't take a check and
    put it in a different account or something--then we have
    failed.
        The remedy it seems to me is fix the administrative
    remedies. Don't allow a complaint box that can be opened by
    guards or by anybody. Allow them to file electronically with
    someone outside of that institution. Because Mr. Chairman, if
    you allow a stay for a year or 2 years or whatever how long the
    administrative procedure takes, there are going to be many,
    many more thousands of people who are unjustly held up in court
    when they shouldn't be than those who are actually approached.
        So when Mr. Johnson--and I respect your position--but when
    you said some of us don't respect the ability of judges to deal
    with frivolous claims, that is not my position. My position is
    we need to protect the judges from having to deal with those
    frivolous claims. As a judge who often worked into the wee
    hours--and I finished reviewing all of your testimony about two
    or three this morning--most people don't work that late. As a
    judge, I never made a jury or anybody work past 2:30 a.m.
    myself, and that was only a rare occasion. Most judges can't
    physically work like I did to deal with the caseload. We owe
    the judges better than to open the floodgate to litigation.
        Let's fix the administrative remedies so we can directly
    hold people accountable when they are raped. Get them to the
    health facility where we gather evidence when somebody is raped
    so they can prove civil and criminal. And then on the religious
    violations, let them get outside that, exhaust the remedies,
    and so they can go to court if the administrative remedy fails.
    But I would say the administrative remedy is the key. Get that
    remedy outside the prison where the abuse occurred, to people
    that can respond and actually build legitimate cases.
        Thank you.
        Mr. Scott. Will the gentleman yield?
        Mr. Gohmert. Well, my time is up. I am glad to. You are the
    Chairman.
        Mr. Scott. One of the problems we have in frivolous cases
    is you don't know it is frivolous until you have had some sort
    of screening.
        Mr. Gohmert. Exactly. And that is my point. Let us do this
    with your administrative remedy first instead of allowing them
    to go to court, file a claim, stay it, and send it back to the
    administrative remedy. The guy's name is in there in the
    pleading, and all that time you are going back and staying it.
    Dismiss it. If you want to do something, at least----
        Mr. Scott. If the gentleman would yield again?
        Mr. Gohmert. Sure.
        Mr. Scott. The problem with some of the administrative
    processes is that you would have to complain to the person who
    is the subject of your complaint.
        Mr. Gohmert. That is my point. We fix that to where you
    will file electronic complaints that go outside the prison so
    that guard you are complaining against, like Mr. Cunningham, he
    never sees it until it goes to the head over the prison that is
    not even in the prison. That is what I am suggesting. That is
    definitely a problem. You are right.
        Mr. Scott. Until you have such a process, you are barred
    from bringing a bona fide claim because you didn't exhaust the
    remedies that are there now. If we can fix the process where
    you can actually have a reasonable opportunity to file a
    complaint administratively, that would be different, but that
    is not where we are right now.
        Mr. Gohmert. Could I offer one other observation from Mr.
    Nolan's statement? That is, Pat, you mentioned that it has
    become clear there are two classes of prisoners affected by
    PLRA that were never intended by Congress to be prevented, and
    that is inmates with religious violations and victims of prison
    rape.
        I would submit fix those two areas, then, because those are
    legitimate points. Make it more easy so that we don't have the
    circuit court saying that a sexual abuse claim is not a
    physical injury. I agree. I have never seen a circuit case that
    said that, but we could eliminate that and allow religious
    complaints and address those without opening the flatulence
    claims that just don't pass the smell test, so to speak.
        Thank you. [Laughter.]
        Mr. Scott. The gentlelady from Texas?
        Ms. Jackson Lee. Let me thank the Chairman for this
    hearing, and at least give credit to a Committee that is
    willing to oversee and investigate unpopular issues, frankly.
    Certainly, it is unpopular to talk about enhanced, or what
    might be perceived to be enhanced rights for prisoners. But I
    am delighted of the witnesses, and forgive me for being delayed
    at another meeting, but particularly Mr. Nolan, I believe, who
    spoke about the religious concerns and some others.
        So let me lay just a premise to say that in my own state of
    Texas, Harris County Jail, for example, has seen the loss of
    life, which probably started with some physical injury, of
    about 101 prisoners. Of course, some died for health reasons,
    so I am not categorizing all of them in the category of
    violence, but certainly health reasons or mishandling generated
    really a very high census on death.
        So what I perceive of this reform underlying bill, which I
    have not had a chance to completely study, is to really be
    preventive in nature. I think it is valuable to have some
    constraints on what one would call ``frivolous.'' Citing
    materials that we have here, since the passage of the PLRA we
    have seen some 37 cases per 1,000 prisoners generate into 19
    cases per 1,000 prisoners. But my concern is that among that
    decline are serious issues.
        For example, in the state of Texas we have a food problem,
    a soy food problem that I was getting hundreds--let me says
    tens of tens--of calls from families about their inmates
    getting sick. I might imagine that a number of those cases
    being filed under the underlying legislation would be
    categorized as frivolous. But yet people were getting sick and
    we ultimately found now a scandal of the quality of the food,
    the wrong direction to have gone.
        I take the Jena Six case. I use that widely, but it has
    some relevance to it, because as we discovered, some of the
    treatment of Michael Bell, the youngster that is sort of the
    eye of the case, a great degree of intimidation, name-calling,
    and other uncomfortableness because he was a teenager in an
    adult jail.
        The underlying bill excludes juveniles from the PLRA. And
    then, of course, the question of physical injury. That is so
    harsh a definition, and the reason, of course, is because any
    medical treatment is within, I assume, the prison system, if
    any. And of course, how can you account for medical expenses,
    though I think if we tried hard we could.
        So professor, let me raise this question with you, and I am
    going to get to Mr. Bounds as well, and I understand that you
    have not studied the legislation, but we appreciate your
    presence here.
        Respond to those examples, and in particular respond to the
    examples of men raped and sodomized; a child prisoner raped and
    repeatedly assaulted with the knowledge of a corrections
    officer; a man whose confidential HIV status was announced to
    other prisoners by corrections officers who illegally opened
    his sealed medical records; a female prisoner strip-searched by
    male corrections officers who attempted suicide allegedly as a
    result of the trauma of the search; and the definition of
    ``physical injury,'' which is presently underlying the current
    law and the need to change that in order to give nonfrivolous
    suits a chance to be heard.
        Ms. Schlanger. The thing about both the bill and other
    proposals for reform is that none of them would open up the
    floodgates to frivolous cases because every reform proposal
    preserves the idea that the first thing that happens when a
    case comes in is that a judge will say, ``If this is frivolous,
    it is out of here.'' Not it is stayed or it might be out of
    here, but it is out of here. So I don't think there is any fear
    of opening up any floodgates.
        So I think the answer to your question is that the statute,
    which was very hastily written, did not define ``physical
    injury'' in any way whatsoever except in contrast to mental or
    emotional injury. What that has meant is that constitutional
    injuries and mental injuries both have been deemed to not be
    physical injuries, and have been excluded. And so the obvious
    fix, it seems to me, if there is a concern about frivolous
    kinds of emotional claims, is to say something like ``no
    negligent infliction of emotional distress claims in prison,''
    something along those lines. But not to have this idea that
    constitutional claims and claims that are founded in the very,
    I have to say, very onerous burdens of constitutional law. It
    is not as if a prisoner raises a claim so easily. If a prisoner
    actually makes out a claim, then it is going to be serious. So
    all of those claims, regardless of whether they affected the
    prisoner's mental health or whether they affected the
    prisoner's property or whether they affected the prisoner's
    physical well being, all those claims, if they raise a
    constitutional claim ought to be compensable in court, it seems
    to me. And we don't have to worry about frivolous cases because
    of the screening provision.
        Ms. Jackson Lee. You make a good point. I would like Mr.
    Bounds to be able to answer the question that I would just lead
    in, Mr. Bounds. In essence, the professor says that we are
    demonizing these other cases because of the present current
    law. Can you not see the need to define what I have just
    listed, if you were listening, as physical injury? Or to reform
    the legislation?
        Mr. Bounds. It seemed that several of the examples at least
    that you listed related to sexual violence. As we were
    discussing earlier, it is an open question, at least at the
    circuit court level, whether as a matter of law those cases
    would not involve physical injury for purposes of bringing suit
    for money damages under the act. I think it is certainly easily
    arguable that those sorts of sexual abuse cases would be
    compensable under the act. It has not been resolved at the
    circuit court level.
        Ms. Jackson Lee. Under the underlying law, you are saying?
        Mr. Bounds. Yes. Because the statute on its face does
    require physical injury, but it does not purport to speak to
    sexual abuse per se.
        Ms. Jackson Lee. But I think there is confusion on the
    district courts. Wouldn't you be happier if you had
    clarification so that people who are violated violently like
    this in a prison would be able to have an address of their
    grievances or religious violations in the court? The professor
    has already said the judges would be able to distinguish if it
    was a frivolous case.
        Mr. Bounds. What I would say--without speaking to any
    specific proposals, although the department obviously would be
    happy to work with the Committee on specific proposals or
    fashion language that would get at the sort of cases you are
    talking about--is that it is an open question whether the act,
    without any amendment, would be correctly construed to prevent
    money damage cases for the sexual abuse cases that you are
    talking about.
        Now, it appears to be true that some district courts have
    read it to exclude it. Other district courts have read it not
    to exclude such claims. Usually, before Congress acts, it waits
    just by the dint of delay in legislation for courts of appeals
    to resolve these legal issues.
        For religious claims in particular, the point was made I
    think by Mr. Nolan that one of the problems with exhaustion in
    the religious claims, and it goes also to the lack of money
    damages, is that you have already missed your holiday
    celebration or whatever the immediate deprivation of religious
    rights may be, under certain provisions of the act. But that
    doesn't mean that you can't remedy ongoing violations of your
    first amendment rights by seeking prospective relief in the
    courts. There is no provision of this bill that prevents
    seeking injunctions for ongoing violations of religious
    liberties. None.
        Ms. Jackson Lee. Let me just conclude, Mr. Chairman, by
    saying I beg to differ. It is a difficult place to be in a
    prison. Anything complex that doesn't go to the heart of the
    issue and is not immediate is going to be very difficult to
    pursue. I think the witnesses are talking about the ability to
    immediately pursue an injury that is prevented by the
    underlying law.
        I thank you and yield back.
        Mr. Scott. Thank you.
        The gentleman from North Carolina?
        Mr. Coble. Thank you, Mr. Chairman.
        I have been here, there and yonder. I missed a good portion
    of the hearing. I apologize for that.
        Thank you all for being with us.
        Mr. Keene, do you feel that your son's experiences were
    resolved, of the let-down of the legal system or the failure of
    the prison officials to respond as they should, or both?
        Mr. Keene. I think, Mr. Coble, that the problems that he
    experienced were the same kinds of problems that anyone would
    experience in a closed situation where the people who are
    responsible for enforcing the laws or the rules in this case
    are the same people who might be charged for breaking them. I
    think that is the real difficulty.
        The judge indicated earlier that it would be better if this
    could be handled administratively. I agree with that. The
    problem is that the administrative bar and the way it is
    manipulated against people bringing charges is the difficulty.
    The fact is that there are a whole series of technical things.
        If you are a prisoner and you want to file a grievance and
    they can't find the right form, then it is dismissed because
    you didn't use the right form. In his case, it comes back and
    you have 15 days to appeal, but they date it 20 days before it
    comes back so that your appeal right is gone, and it is gone
    forever.
        So those kinds of things is the way it works. The question
    is, and I think that this Committee and I think Mr. Forbes and
    Mr. Scott both acknowledge the problem, and what the Chairman
    has done has put this on the table. I don't know what the
    solution is, necessarily, but the problem is a serious one that
    needs to be solved.
        In Mr. Forbes's opening comments, he talked about how we
    should be rehabilitating prisoners. My son makes the point to
    me that here we lock people up because they break our rules,
    our laws, and then when they get there the lesson they learn is
    that none of the rules matter because the rules change on a
    daily basis. He says, ``What kind of a lesson is that to the
    people once they are released?"
        Mr. Coble. And that is where hypocrisy comes into play.
        Mr. Keene. Let me add one other thing. There are the bars
    of the technicalities and the not turning over the forms and
    doing all that. There is also the fear of retaliation on the
    part of prisoners who bring these grievances. In Mr. Bounds'
    prepared testimony, he said, ``Prisoners need not fear
    retaliation from prison officials for bringing grievances.''
    That is easy to say for someone who has not been there or
    doesn't have any experience with people who have been.
        This doesn't mean they drag the prisoner off and beat him.
    In my son's case, they have denied him access to prescription
    medicine. They will hold up his mail for weeks. They will
    transfer cells, do searches. There are all kinds of things in
    any environment, in any work environment where you can harass
    people who do things you don't like. And in a prison, it is
    very, very serious because they have control, obviously, of
    everything that the prisoner does and the way he lives.
        So I think the question is how do you solve that? I don't
    claim to have the answer, but I think it is a serious problem.
        Mr. Coble. Well, it is my belief that probably two of the
    most pressing problems are corruption within the system, A, and
    prison overcrowding. Do you agree with that, Mr. Cunningham?
        Mr. Cunningham. Yes, sir.
        Mr. Coble. Mr. Nolan?
        Mr. Nolan. Absolutely.
        Mr. Coble. Mr. Bounds, let me put this question to you.
    With respect to the Prison Litigation Reform Act, concerns have
    been raised about whether Federal contracts with private
    detention companies are subject to adequate transparency and
    accountability. Could you explain what kind of oversight the
    Justice Department performs on these contracts? You may not be
    able to do that today. If you can, I would like to hear from
    you. If not, we would appreciate hearing from you subsequently.
        Mr. Bounds. It is an interesting question. I am sorry that
    I don't have any background information on that, but I would be
    happy to take the question back to the department and get an
    answer from the Bureau of Prisons.
        Mr. Coble. I thank you for that.
        Finally, Mr. Chairman, let me ask a very general question.
    Is legal counsel available to prisoners as a practical matter?
    I think your smile, Mr. Nolan, has answered my question.
        Mr. Nolan. In fact, I have a specific example. My attorney
    arranged--my legal mail was always opened even though that is
    flatly illegal. It was always opened. I had a phone call with
    my attorney scheduled. You had to be in the counselor's office.
    My counselor said, ``I am too doggone busy doing my work. I am
    not going to leave. If you want to call, you call, but I am
    going to sit right here.'' So I had no ability to have a
    private conversation with my attorney.
        Mr. Coble. My time has expired, but if the Chairman will
    permit you to respond, Mr. Keene.
        Mr. Keene. I would like to comment on that also, if I may.
    Most prisoners obviously can't afford a lawyer and don't have
    access to one. In our case, and in any prison there are good
    employees and bad employees. My son got a lawyer, had me get
    him one, because one of the guards took him aside and said you
    are going to have to do this. We got an attorney because a
    guard actually advised us. But his legal mail was opened. That
    was found not to be something that caused any real injury by
    the court, so he couldn't do it. That is a violation of their
    rules, as well as constitutional rights.
        You would have--and here I am paying for the lawyer. The
    lawyers would be scheduled to meet with him. They would arrive
    at the prison for an appointment. The prison would refuse to
    let him see them. At one point where he had the right to amend
    the complaint with a deadline obviously imposed by the court,
    they wouldn't let the lawyers in to let him sign it. At that
    point, the Federal judge said they had gone too far.
        But the fact is, as he made the point to me, most prisoners
    don't have access to a lawyer and couldn't afford one. He is
    lucky, and I am not, but he is lucky that I was able to pay for
    one.
        Mr. Coble. Was this a private facility, Mr. Keene?
        Mr. Keene. No, no. He is in a Federal facility.
        Mr. Coble. Okay. Thank you all for being here.
        Thank you, Mr. Chairman.
        Mr. Scott. Thank you.
        Mr. Bounds, I just had one other quick question. Is there
    any reason to have juveniles covered by the PLRA?
        Mr. Bounds. I believe that the reasoning that applies to
    juvenile litigants is the same that applies to adult litigants.
    There are obviously large numbers of juveniles in state and
    local facilities across the country. I don't know the extent to
    which--I know it has been represented that they weren't the
    source of a great deal of Federal filings before the PLRA. I
    don't know the extent to which that would obtain if they were
    excluded from the PLRA now. I know that is something that is
    considered in this proposal. As I mentioned, the department
    would be happy to comment on the proposal, but I haven't----
        Mr. Scott. And if you could get information on that,
    whether or not they have been filing any cases, whether or not
    there is any reason to believe that they would start filing
    frivolous cases, and whether or not they ought to be precluded,
    if a juvenile doesn't get through the administrative process,
    whether or not even a clear constitutional violation ought to
    be precluded from court review because the juvenile didn't go
    through the administrative process just right.
        Mr. Bounds. I will be happy to take those questions back.
    But predicting what the behavior of potential litigants who are
    juveniles and incarcerated around the country would be is going
    to be very difficult. They are overwhelmingly not in Federal
    facilities, so that is another level of complexity. They are
    not going to be in our custody. But I will look into that.
        Mr. Scott. The PLRA covers people in state facilities, too.
        Mr. Bounds. Of course, but since they are not in Federal
    custody, the Bureau of Prisons wouldn't have any information
    about what they have been filing against Bureau of Prisons, so
    we only know it in so far as we saw it. Our relationship to
    juvenile inmates is vindicated in the rights of the plaintiff
    on their behalf against state facilities.
        Mr. Scott. Okay.
        Other questions? The gentleman from Texas.
        Mr. Gohmert. Thanks. I don't need 5 minutes.
        But something that nobody has mentioned so far, and it is
    in this bill, like most bills, claims by prisoners cost nothing
    to file. They file a pauper's oath. They have lots of time.
    They have a free law library, and that is why you get so many
    frivolous claims is because there are then no consequences. And
    there still is nothing that I find, and Mr. Keene I understand
    your position, and each of you. But I see nothing in this bill
    that will prevent retaliation or allow a prisoner to gather
    evidence to make the case. What I see is the floodgates opening
    up.
        And when I hear people say, you know, ``look, let the judge
    decide,'' it tells me that people have no respect for the kind
    of time that the judges I know spend--and there are some
    exceptions that don't work hard at all--but the vast majority
    don't have time. And the clerical staff, and they are
    overworked, and there are not enough of them. And all that is
    involved in frivolous claims.
        And I am telling you, I don't use that word lightly, but
    there have got to be consequences for those people, and the
    PLRA has the three strikes. You file three----
        Mr. Scott. Would the gentleman yield?
        Mr. Gohmert. Sure.
        Mr. Scott. Mr. Bounds, can you tell me what the present law
    has for filing fees for prisoners?
        Mr. Bounds. I would defer to Professor Schlanger. I don't
    actually know.
        Mr. Scott. Okay. Professor?
        Ms. Schlanger. The current law is $350, either up front or
    over time, depending on how much money the prisoner has.
        Mr. Scott. Can that be waived?
        Ms. Schlanger. No. No, it cannot. It is $450 for appeals,
    $350 for district court filings.
        Mr. Gohmert. I know in Texas, they can't get away with that
    without allowing a pauper's oath if you just don't have the
    money.
        Mr. Scott. Wait a minute.
        Ms. Schlanger. The PLRA amended the Federal in forma
    pauperis statute to require that all prisoners pay the fees
    regardless of indigence. So prisoners are not similarly
    situated to other indigent litigants. They have to pay the fee.
        Mr. Gohmert. So you support no financial consequences?
        Ms. Schlanger. No, no, no. Not at all. The proposal that
    Chairman Scott has put forward is to retain that provision when
    the filings are frivolous. So if you file a case that does not
    make it past pre-screening, which is a screening for
    frivolousness, then you still have to pay the fee. Only if your
    case is deemed to have some initial merit would the fee be
    waived, and in that case only if you are also indigent.
        So the point is that the PLRA imposed--let me just say that
    when the PLRA was passed, when it was considered, the fee was
    $75. When it was passed, it was $95. In recent years, it has
    gone up to $350, which in prison is a lot of money. So the fees
    are quite significant for indigent prisoners, and this bill
    would not change that except for those people who actually file
    cases that make it past the equivalent of a 12(b)(6) motion, a
    motion for failure to state a claim.
        Mr. Gohmert. I still go back to my point. I don't see
    anything remedied here that allows an inmate to secure evidence
    or to prevent retaliation during that long process. I think
    that is where we could really help if we worked together on
    some administrative remedies. And for goodness sake, if you are
    raped, then you ought to have the ability to go to a health
    clinic there in the hospital. Evidence could be gathered, that
    kind of thing, and you would know right away.
        Anyway, there are things that can be done without clogging
    the courts back up so the truly legitimate claims get lost in
    the shuffle. So thank you for your indulgence.
        Ms. Jackson Lee. Mr. Chairman?
        Mr. Scott. Mr. Cunningham, do you want to respond?
        Mr. Cunningham. Yes. I just wanted to make a quick comment
    about the procedure. There is that 15-day time limit from the
    day of the incident. That is unrealistic. I mean, even out
    here, 15 days in society is unrealistic for anybody to file a
    claim. When you are in a controlled environment like that, and
    you have 15 days to file a step-one grievance, and to say that
    retaliation is not a big factor in there.
        Mr. Gohmert. I didn't say it wasn't a big factor.
    Retaliation is a huge factor. So I didn't want you to misquote
    me. I am not saying it is not a big factor. I am saying it is a
    problem that this doesn't address. And you are right. You
    mentioned the 15 days in your statement that I read earlier
    this morning.
        Mr. Cunningham. Yes. I mean not just from my standpoint,
    but I have heard people that worked with--and the DLC testified
    also. They also agreed that retaliation is a factor for
    prisoners when they are filing grievances.
        Mr. Gohmert. And normally the way we deal with that in most
    sexual abuse cases, most laws, that is what is called, as you
    may be aware, evidence of outcry. Most laws would allow
    evidence of outcry, and then the fact-finder would determine
    whether or not there was a good excuse for not doing it timely,
    rather than making it, as you are suggesting, lets not make it
    a prohibition to bringing the claim later because you could be
    under the guy's thumb for 15 days, and that wouldn't be
    appropriate.
        So you make a good point, and that is something we could
    and should address, and I appreciate you bringing it forward.
        Mr. Cunningham. Thank you.
        Mr. Scott. Let me ask, Mr. Cunningham, you said 15 days.
    That is at the facility you were at. Is that right?
        Mr. Cunningham. Yes, that is statewide in Texas.
        Mr. Scott. Mr. Nolan, you wanted to make a comment. Could
    you comment on whether or not 15 days is----
        Mr. Nolan. In some states, it is as few as 2 days. If you
    haven't filed within 2 days, you are cut off. I might say the
    lady Marilyn Shirley who kept her sweatpants didn't report it
    at all, and that is why she is barred from claims because this
    guy laughed at her and said, ``don't bother to report it; who
    are they going to believe?'' So they ignored her.
        But Mr. Gohmert, so many things you have brought up are
    very important. The Prison Rape Elimination Commission is
    working on the standards to deal with them systemically. Do you
    have an 800 number? Who is there to follow through? Who will
    watch the watchers? These are all serious things that we are
    trying to address through standards.
        But in addition to that, the personal--Marilyn Shirley was
    injured personally. It is not enough for her to say, ``Gee, we
    are going to try to fix it in the future so this doesn't
    happen.'' What does she do to get her medical bills paid? That
    is the situation.
        Mr. Gohmert. You understand, I am agreeing that the
    arbitrary short time limit is a problem, and normally the way
    the law outside of prison deals with it is that it can be
    evidence that maybe it is a fabricated claim.
        Mr. Nolan. I really like that idea of----
        Mr. Gohmert. Well, that is the way we normally handle it.
        Mr. Nolan. Yes.
        Mr. Gohmert. Thank you.
        Mr. Scott. The gentlelady from Texas?
        Ms. Jackson Lee. I would like to thank you, Mr. Chairman. I
    would like to clear up first of all, Mr. Nolan, that is a
    horrific case. It is just an abomination. So I think we should
    emphasize the point, and I hear my good friend, the former
    judge in Texas, Judge Gohmert, talk about clogging the courts.
    But I think the point is well taken that the courts now are
    sensitized to frivolous cases.
        I think that if that case, of that violation of that woman,
    and she had been able to file a case, there certainly would
    have been no confusion about her having to be addressed. Just
    from the facts that you know, do you think that that would be
    caught up in a frivolous definition?
        Mr. Nolan. No. I think if she could have gotten into court,
    her claim would have been taken seriously and there would have
    been damages. Instead, she is just barred. She is out in the
    cold.
        Ms. Jackson Lee. And let me tell you what else the
    underlying bill does.
        Mr. Nolan. I should say, in there, it is the exhaustion
    requirement, not the physical injury. It is the exhaustion
    requirement.
        Ms. Jackson Lee. All remedies. But let me tell you what
    else it does, and there are wonderful, committed, dedicated
    public servants that work in our prison system, but anytime
    someone gets information can misconstrue it. That can be a
    chilling effect against the prisoners by those prison guards
    who make the point there is no use to doing anything anyhow,
    they won't take frivolous cases. Is there something to that,
    Mr. Nolan and professor--the chilling effect?
        If you would answer that question and the question of my
    concern for two things: one, the mental and emotional injury is
    not attended to, and that can be as dangerous as a physical
    injury; and the other one is, can you point out why juveniles
    absolutely should not be under this particular underlying bill?
    Mr. Nolan, is there some chilling effect when you caretakers
    are making the point that everything is frivolous, based on
    their understanding of the law?
        Mr. Nolan. Not just frivolous, but who is anybody going to
    believe. Also, you know, inside prison, you don't want it known
    that you have been raped because you are punked or you are
    turned out. That, in the perverse prison culture, says you are
    subject to more rapes by everybody because you have already
    been turned out. That is the sad thing inside prison. So you
    don't want it known. You don't want your medical records made
    public and known to everybody for any tests you have or
    anything. And all this happens frequently.
        So yes, there is the chilling effect. The Prison Rape
    Elimination Commission is trying to deal with that. How do we
    get medical help for these people? How do we get the crime
    scene set up for evidence to take place? A crime has occurred.
    Why isn't there a rape kit? Why isn't there the collection of
    evidence at the time, contemporaneous with it?
        And then oftentimes, the victim gets put in solitary
    confinement, not the attacker. They are cut off from visitation
    from their family, from phone calls. So we have turned the
    system on its head, and the Prison Rape Elimination Commission
    is trying to deal with that.
        But just the intimidation--in Texas, for instance, the guy
    that had the key to the complaint box was the guy who was doing
    the raping. And he had buddies in the central office at the
    Texas Youth Commission that were, if any complaint got through,
    his buddies in the state office were round-filing them. The
    Texas Rangers did a great job of investigating, and that was
    sidetracked until the parent of a child spoke out.
        Ms. Jackson Lee. I am glad you put that on the record. It
    was sidetracked.
        If I could have the professor answer the question about the
    juveniles. I would like to work with you because the TYC is the
    poster child for this question.
        Ms. Schlanger. I would like that, Congresswoman. I think
    the first point about retaliation is that the basic approach
    for making retaliation less of a problem in prison is to allow
    prisoners a longer period of time before they have to bring
    their problem to the attention of the authorities, because that
    allows them to reach a safe space before they have to complain.
        So there is a reason why this Congress has made the statute
    of limitations in most kinds of complaints a year or 2 years,
    rather than 10 days. That reason is because what that means is
    that people who have problems can get to a place from which it
    is safe for them to raise those issues. So getting rid of
    administrative exhaustion as a pre-filing component of
    litigation deals with retaliation in that way. It allows people
    to have enough time that they can get to a place from which it
    is safe to complain.
        The point about juveniles, juveniles hardly ever litigate.
    Juveniles also hardly ever file grievances. What happens to
    kids who are being mistreated in prison is that their parents
    complain for them where their parents are in a situation that
    they can do that. Most juvenile systems deem complaints by
    parents not to be sufficient to exhaust remedies and so those
    complaints by parents--I say ``most"--I don't actually know
    that.
        Mr. Gohmert. I was going to say, my experience is juveniles
    complain a lot.
        Ms. Schlanger. But they don't complain filing forms
    labeled, you know, ``T-376.'' I mean, I have kids. They
    complain a lot, too, but they don't write it down. They don't
    file administrative grievances. So I think that there are two
    issues. One, juveniles don't sue very often. And two, they are
    not very able to exhaust administrative remedies.
        The third point that you asked me to address was: Aren't
    mental and emotional injuries serious? I think the answer to
    that is if the underlying cause of action is a constitutional
    cause of action, then as a matter of constitutional law those
    injuries are serious. If the underlying cause of action is that
    somebody is complaining about having to smell flatulence in the
    mail room, then it is not serious. Right? But that case doesn't
    raise a constitutional complaint.
        Mr. Gohmert. It depends on the flatulence, of course, but--
    --
        Ms. Schlanger. Fair enough. So I think the point is that of
    course, before there can be a remedy, there has to be a good
    cause of action in Federal court. That means a constitutional
    cause of action. So if what you experience when you are
    deprived of the ability to practice your religion is deemed
    mental or emotional harm, yes, it is very serious.
        I don't mean to malign the good corrections professionals
    in our country, of whom I have met hundreds and hundreds, but
    if somebody does in fact do some act of mental abuse, then if
    it rises to a constitutional level, then by definition it is
    serious. The Constitution does not acknowledge trivial
    injuries. So yes, it is quite serious.
        There was one other point that you asked me to address. No,
    that was retaliation, and I already did it. I am sorry. I don't
    mean to filibuster. I just forgot. Excuse me.
        Ms. Jackson Lee. Thank you. Some of these are demonized,
    and I think this bill opens our eyes about how we stop
    demonizing people who have real issues in the prisons.
        Thank you.
        Mr. Scott. The gentlelady yields back.
        The gentleman from Texas?
        Mr. Gohmert. Yes, one issue raised by the professor. I
    don't recall where you went to law school.
        Ms. Schlanger. At Yale.
        Mr. Gohmert. Yale. I think even at Yale, they talk about
    exhaustion of administrative remedies as being kind of the
    gatekeeper function for getting to Federal court. I want the
    record to reflect for those who have not been trained at Yale,
    to know this is not a new doctrine. It is not a new concept.
    This has traditionally been the gatekeeper for getting into
    Federal court. You exhaust your administrative remedies before
    you are allowed to come to Federal court. Correct?
        Ms. Schlanger. Not in constitutional law, congressman. It
    is an innovation. The law was very clear prior to the PLRA.
        Mr. Gohmert. You made the point with that regard, but here
    again, I think people that have never been to law school, they
    are hearing you talk about this, and heard all the talk about
    the unfairness.
        Ms. Schlanger. Right.
        Mr. Gohmert. But the fact is, anybody watching C-SPAN,
    those that didn't go to law school, need to know, and by your
    reaction I am afraid they will still get the wrong impression,
    this is a regular concept for how you go about getting into
    Federal court. Isn't that correct?
        Ms. Schlanger. Well, I know you want me to say ``yes,'' but
    I want to----
        Mr. Gohmert. Okay. Well, then if you can't say yes, then
    let me say ``yes'' for you. Yes, this is a common way that we
    get to Federal court.
        Now, on constitutional issues, we have an exception, but
    the doctrine is there--exhaustion of administrative remedies.
    It is taught, and if I had to go back and get a Yale law book,
    I am sure it would approach it from here is the doctrine, this
    is the principal doctrine. Now, there are exceptions like
    constitutional. Could you agree with that even?
        Ms. Schlanger. Well, let me say that in administrative law
    exhaustion, there are a bunch of acknowledged exemptions as
    well, for futility and for various kinds of issues that cannot
    be remedied before the administrative agencies, and those are
    acknowledged.
        Mr. Gohmert. If I were a judge, I would still want you to
    answer the question.
        Ms. Schlanger. I am trying, Congressman.
        Mr. Gohmert. Isn't that the basic concept, that first you
    normally have to exhaust your administrative----
        Ms. Schlanger. Those exceptions do not apply under the
    PLRA. It is not ordinary administrative law exhaustion.
        Mr. Gohmert. I understand that.
        Ms. Schlanger. The courts have been very clear about that.
        Mr. Gohmert. But I am going back to my original question.
    Isn't that normally the basic doctrine toward getting into
    Federal court that you must first exhaust your administrative
    remedy?
        Ms. Schlanger. Only when you are suing Federal agencies
    under the Administrative Procedures Act.
        Mr. Gohmert. Okay. Well, I don't have time to go into the
    exceptions to show that that is not entirely accurate. I wish
    you would have answered the question. You go into a court
    saying Federal courts, it is not normally the requirement that
    you exhaust administrative remedies--I just think we have
    issues. I wish you would answer the question, and then we could
    have agreed on the different exceptions. But thank you.
        Mr. Keene. Congressman, could I say something about that?
        Mr. Scott. Very briefly.
        Mr. Keene. I would answer that ``yes.'' The problem with
    the exhaustion of administrative procedures in the prison
    context is that often your ability to exhaust those procedures
    is dependent upon the very people that have control, that they
    won't give you the form. And that is a problem. Okay.
        Mr. Scott. Thank you.
        I would like to thank the witnesses for their testimony
    today. Members may have additional questions which we will
    forward to you and ask that you answer as quickly as possible
    so that the answers can be made part of the record. We have
    received numerous written statements on this issue,
    approximately a dozen, which without objection will become part
    of this hearing record.
        Without objection, the hearing record will remain open for
    1 week for the submission of additional materials.
        Without objection, the Committee stands adjourned.
        [Whereupon, at 4:20 p.m., the Subcommittee was adjourned.]
                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John Conyers, Jr., a Representative
    in Congress from the State of Michigan, and Chairman, Committee on the
                                   Judiciary
        The Prison Litigation Reform Act, enacted effective April 1996,
    changed the landscape of prisoners rights litigation. While proponents
    of the legislation pitched their rhetoric toward the reduction of
    frivolous litigation by jailhouse lawyers, the PLRA swept beyond
    litigation by individual prisoners and into the authority of the
    federal courts and U.S. Department of Justice to fashion remedies in
    broad based prison litigation.
        The Act made major procedural and substantive changes in prison
    conditions of confinement cases and in the federal rights of both state
    and federal prisoners to litigate about prison conditions. The Act also
    curtailed the authority of the federal courts to remedy prison
    conditions and requires that any prospective relief be limited in
    duration and drawn as narrowly as possible to accomplish its purpose.
        Evidence produced by advocacy groups in the decade since its
    enactment indicate that some of the so-called reforms under the Act may
    have worsened prison condition by narrowing the scope of federal
    review.
        Dating back to 1996, advocacy groups like Human Rights Watch
    documented pervasive sexual harassment, sexual assault and privacy
    violations by guards and other corrections department employees in
    several large states, including the state of Michigan. The reports
    exposed the twofold failure of the states to conduct impartial
    investigation and to protect complainants from retaliation. In a 1998
    follow-up report, the prison abuse issues in Michigan were found
    illustrative of corrections departments across the nation.
        After gaining access to state women's prisons facilities, a 1995
    Justice Department investigation in Michigan detailed pervasive sexual
    abuse and found that nearly every woman interviewed reported sexually
    aggressive acts by prison guards.
        The DOJ investigations also found that women at the Scott and Crane
    facilities had been raped, sexually assaulted, subjected to groping and
    fondling during pat-frisks and subjected to improper visual
    surveillance by guards (male) when they had a reasonable expectation of
    privacy.
        While DOJ negotiated a consent decree with the Michigan Department
    of Corrections concerning the violations detailed in their 1995 report,
    the agreement was roundly criticized by the advocacy community in my
    district as too narrow in scope and limited in duration to correct what
    had been deemed systemic problems. There was wide agreement between the
    witnesses at my district hearing on the issue that PLRA's limitations
    on the federal court's authority to grant relief and DOJ's ability to
    litigate under CRIPA were the cause of the weak consent decree.
        The Prison condition and reform issue represents an important
    opportunity to elevate the humanity of the disproportionately
    incarcerated minority community. Against the backdrop of my experience
    with the Michigan prison cases, I believe that it is appropriate that
    we hold this hearing to explore the kinds of reforms necessary to
    eliminate limitations on federal authority to remedy abusive
    conditions. Almost from the beginning it was clear that the pendulum
    had swung too far against prisoner advocacy. I look forward to the
    testimony of the witnesses.
    Prepared Statement of the Honorable Daniel E. Lungren, a Representative
     in Congress from the State of California, and Member, Subcommittee on
                    Crime, Terrorism, and Homeland Security
        Thank you Mr. Chairman for this opportunity to present my views to
    the Crime Subcommittee of the House Judiciary Committee on ``Review of
    the Prison Litigation Reform Act (PLRA). A Decade of Reform or an
    increase in Prison Abuses.'' In my capacity as the former Attorney
    General of the State of California and the Chair of the Criminal Law
    Committee of the National Association of Attorneys General, my office
    worked with the Office of then Governor Tom Ridge of Pennsylvania, and
    Senators Spencer Abraham of Michigan , Harry Reid of Nevada, and Jon
    Kyl of Arizona in crafting the PLRA. I appreciate this opportunity to
    discuss the circumstances surrounding the enactment of this important
    legislation. It is from this vantage point as a former state official,
    I have concerns that any significant departure from the PLRA could
    reverse the progress we have made in reducing frivolous prisoner
    lawsuits.
                   the burden of frivolous inmate litigation
        The issue of prisoner lawsuits presented the California Department
    of Justice with a burdensome challenge. In order to be able to respond
    to this litigation we staffed our correctional law section with 57
    attorneys, 23 paralegals, and 5 graduate legal assistants. The cost to
    California taxpayers in fiscal year 1995-96 reached $10.3 million.
    However, the burden imposed by this devotion of resources to prisoner
    lawsuits could not be measured solely in terms of the costs incurred by
    the Correctional Law Section itself. Equally important were the
    opportunity costs related to attorneys and support staff not available
    for criminal cases, environmental cases, anti-trust cases and the like.
        While I was, and remain, committed to the interests of fairness in
    each prisoner litigation case, seldom was that the issue. In fact, a
    study by the Ninth Circuit Court of Appeals found that 99 percent of
    these cases filed by prisoners were ultimately won by the state.
    Allowing the Federal courts to be used for recreational purposes by
    prisoners with little else to do served to undermine both the purpose
    of incarceration and the larger public interest. I will take this
    opportunity to share the facts in a small sampling of these inmate
    lawsuits to illustrate this very point:

            1.  Lawrence Bittaker filed over three dozen suits against my
            state. In one such case he complained because his meal was
            allegedly in poor condition. He claimed his sandwich was soggy
            and his cookie was broken.

            2.  Kevin Howard alleged that prison officials implanted an
            electronic device in his brain which controlled his thoughts.
            Those thoughts were then allegedly broadcast over the prison
            P.A. system. I should add that the Department of Corrections in
            its defense had to prove that it did not perform surgery on Mr.
            Howard. A Sergeant with the D.O.C. drafted a declaration
            stating that the prison did not have the technological
            capability to transmit thoughts through a P.A. system.

            3.  Ronald Adams claimed he suffered cruel and unusual
            punishment when, during a lockdown, he was served two cold sack
            lunches and one hot meal, rather than the usual two hot meals
            and one cold meal.

            4.  Rodney Alcala claimed that his rights were violated because
            he had to send packages using UPS rather than the U.S. Mail. He
            also sued for the inability to make ``800'' calls.

            5.  Carlos Garcia claimed that his constitutional rights were
            violated because he did not get five free stamped envelopes
            from prison officials. The judge appointed a private legal firm
            to represent the case which went to a jury trial. The state won
            the case.

            6.  Lee Max Barnett claimed his rights were violated because
            his mail was stamped with a notation that it was sent from
            prison. This death row inmate previously sent harassing and
            offensive mail to the parents of a witness who testified
            against him. The card he mailed stated how happy Barnett was
            that the witness had recently died in an accident.

            7.  Russell Newman claimed his photocopy costs were illegally
            raised by 5 cents per copy and filed suit for $1.45 refund and
            thousands of dollars in general damages.

            8.  Ronald Golden claimed that his constitutional rights were
            violated because he believed a correctional officer had placed
            a cricket in his cup.

        It goes without saying that such abuses of the civil justice system
    were no longer tolerable. A bipartisan group of Members in this and the
    other Body sought to put an end to the notion of prisoner litigation as
    sport through the adoption of the PLRA. An article penned by Senator
    Reid captured well the reaction to similar abuses in other states.
    Senator Reid painted the following picture:

            Life can be tough. Mom brought home creamy peanut butter when
            you asked for extra chunky? You didn't get that fancy weight
            machine you wanted for Christmas? Don't like the type of music
            they play over the stereo system at work?

            Well, heck. Why not file a lawsuit?

            OK, I know what you're thinking: ``I can't afford a lawyer.''

            Suppose though, I told you about a plan that provides you with
            an up-to-date library and a legal assistant to help in your
            suit. This plan not only provides legal research, it also gives
            you, absolutely free, three square meals a day. And friends, if
            you get tired of legal research, you can watch cable TV in the
            rec room or lift weights in a modern gym.

            ``OK, OK.'' You're saying. ``What's the catch? How much do I
            have to pay to sign up for this program.?

        Well, folks, that's the best part. This assistance plan is
    absolutely free. All you have to do to qualify is to commit a crime,
    get caught and go to the pen.
        While as Attorney General of California, I had to frame the issue
    somewhat differently in our legal proceedings. However, Senator Reid's
    comments reflected a common sense understanding that those who have
    been sentenced to serve time in our penal institutions are there to pay
    their debt to society. The idea that a prisoner could use their status
    as a basis for their own entertainment at the expense of the People of
    California or the People of the State of Nevada defies the moral logic
    of punishment. Those who have lost their liberty because of the harm
    that they have inflicted on others must not be empowered by the laws of
    our nation to use that status as a vehicle of retribution against those
    institutions entrusted with the responsibility carrying out justice on
    behalf of the people.
                       the delicate balance of federalism
        There is another underlying aspect of the PLRA which, in my
    estimation, deserves our attention. The actions of the Congress in
    crafting the parameters of prisoner civil litigation have a direct
    impact on the states and the operation of their prison systems. This
    relationship of dual sovereigns entailed by our nation's system of
    federalism should be reflected in legislation affecting state run penal
    institutions. Such deference is of particular importance in light of
    the fact that about 95 percent of criminal prosecutions occur at the
    state and local levels of government. The punishment of those convicted
    of committing crimes within the jurisdiction of the states is an
    integral aspect of the exercise of the responsibility borne by them to
    protect the safety of their citizens. A proper understanding of
    federalism entails a respect for this aspect of the exercise of the
    police power.
        In the period prior to the enactment of the PLRA, Congressional
    acquiescence to the use of the federal courts by prisoners as a means
    of disrupting the operation of their prison systems reflected a
    disregard for the constitutional role of state governance.
        Deputy Assistant Attorney General Ryan Bounds provides one such
    example in his testimony relating to consent decrees. He points out
    that ``It is one thing for the federal courts to maintain a supervisory
    role over prisons when established civil rights have been violated. It
    is another matter entirely when federal courts impose administrative
    requirements on prisons that are not based on any actual violation of
    federal law.'' It was for that reason that the PLRA provided that
    judicially enforceable prospective relief in prison condition cases
    must involve the violation of a federal right. In another example, the
    statute makes explicit reference to a ``respect for the principles of
    comity'' in relationship to preliminary injunctive relief, and the need
    for prospective relief to extend ``no further than necessary to correct
    the violation of the Federal right, and that prospective relief is
    narrowly drawn and the least intrusive means to correct the
    violation.'' The PLRA thus embodies an appropriate balance between the
    need to protect the civil rights of prisoners and an appropriate
    respect for the role of the states in a system of government based upon
    the principle of federalism.
                     the plra and the interests of justice
        In the end the interests of justice are also ill served by a prison
    litigation system which lacks adequate parameters to constrain
    frivolous and malicious prisoner litigation. The magnitude of the
    quantity of cases brought before the federal courts can adversely
    impact the quality and the depth of the scrutiny each of these cases
    receives. The PLRA has successfully accomplished its objective of
    reducing inmate litigation. According to the Bureau of Justice
    Statistics, in 1995 there were 41,679 prisoner lawsuits filed. This
    inundation of the federal docket threatened to diminish the integrity
    of the review process--most notably as it related to the review of
    meritorious claims which might be filed. In Brown v Allen, Justice
    Jackson's concurring opinion in the context of habeas corpus litigation
    has relevance here. He noted that ``[i]t must prejudice the occasional
    meritorious application to be buried in a flood of worthless ones. He
    who must search a haystack for a needle is likely to end up with the
    attitude that the needle is not worth the search.''
        In this regard, the success of the PLRA should perhaps not be
    viewed exclusively through a quantitative prism concerning the decline
    in the number of inmate lawsuits to 24,614 petitions within ten years
    It is perhaps arguable that the Act has improved the quality of the
    adjudication process as well as its efficiency through mechanisms such
    as:

              The screening provisions of the Act which serve to
            filter out frivolous cases.

              The requirement of a physical injury in cases
            involving claims of mental or emotional injury.

              The exhaustion requirement requiring that prisoners
            use the prison grievance procedure process before entering the
            courthouse door.

              The filing fee requirement to ensure a level of
            seriousness as evidenced by a financial commitment--which may
            be spread out over a period of time.

              A limit on frivolous and abusive filers.

        These and other provisions of the PLRA have played an important
    role in reigning in frivolous and abusive inmate lawsuits. Over the
    last twelve years of its application, the Act has played a vital role
    in restoring the penal function of incarceration, the integrity of the
    judicial process and the proper functioning of federalism. As the
    former Attorney General of my State and as a Member of Congress, it is
    my view that any departure from the PLRA which would undermine the
    underlying purpose and function of the Act would be a serious error
    that threatens to return us to the widely documented failures of the
    pre-PLRA era.
        This is not to suggest that issues raised during our hearing such
    as sexual assaults within our nation's prisons or any misinterpretation
    of the Act relating to the exercise of religion within correctional
    facilities should not be addressed. Rather, it is my belief that any
    effort to do so can be done so with a specificity which preserves the
    intent of the Prison Litigation Reform Act.
        Mr. Chairman, I would once again like to thank you again for this
    opportunity to share my views with you and the subcommittee. I look
    forward to working with you and our colleagues on this issue which is
    of such great importance to our criminal justice system.

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          Prepared Statement of Angus Love, Esq., Executive Director,
                     Pennsylvania Institutional Law Project
         Regarding the Need to Amend the Prisoner Litigation Reform Act
        The Pennsylvania Institutional Law Project [PILP] provides free
    civil legal assistance to over 100,000 institutionalized persons in the
    Commonwealth of Pennsylvania. We have been providing this service for
    25 years. Accordingly we have considerable experience litigating civil
    rights cases on behalf of incarcerated persons before and after the
    passage of the Prisoner Litigation Reform Act [PLRA] in 1996.
        While we agree and respect the goal of reducing frivolous
    litigation in these and any other area of the law, the PLRA has had
    some unintended consequences that need be addressed by Congress. With
    the passage of time, we now have a better grasp of the PLRA's impact
    and can correct the flaws in this important legislation. The PILP
    concurs with the American Bar Association's Resolution calling for
    amendments to the physical injury requirement and the exhaustion
    provisions. The Report of the Commission on Safety and Abuse in
    America's Prisons,'Confronting Confinement' also argues for amendments
    to these two key sections of the PLRA.
        The exhaustion of grievances section, 42 U.S.C. 1997e[a] looks to
    the regulations of the prison in which the incident that gave rise to
    the litigation for guidance and interputation. This is a wise course of
    action as the local prison administrators are the best source of
    information about their regulations. The problems lie in the often
    tight deadlines for registering a grievance after an incident. In
    Pennsylvania, the Department of Corrections gives inmates 15 days to
    file a grievance. Strict adherence to this provision as suggested by
    Justice Alito in Woodford v.Ngo decision reduces the statute of
    limitations which is normally two years to 15 days. Inmates, untrained
    in law and often illiterate, face major barriers trying to comply with
    this provision. I have seen several meritorious claims fall because of
    the failure to comply with the exhaustion requirement as currently
    written. In my opinion, this allows an often meaningless technicality
    to prevent a review on the merits on an individual's claim. Cases
    should succeed or fail or the merits and not on overly stringent
    procedural barriers.
        The requirement of a physical injury at first glance seems like a
    reasonable way to reduce frivolous litigation but fails in its
    application as the section was poorly written and left the courts with
    an impossible task of putting a round peg in a square hole. Much of
    prison litigation and the rights still retained by prisoners are not
    about excessive use of force. Religious rights, unreasonable searches
    and seizures, equal treatment under the law, inhumane physical
    conditions, various forms of torture, sexual humiliation and abuse will
    not produce a physical injury but are violations on inmate's civil
    rights. The courts have wrestled with these provisions and adopted
    various legal fictions to try and comply with this seemingly impossible
    requirement. The best course of action is an amendment. When the Abu
    Ghraib scandal broke, I was struck by the thought that many of the
    degrading practices at that facility would not be actionable because of
    this provision of the PLRA. I have also read that Supreme Court
    interputations of the PLRA were used by former Attorney General
    Gonzales in crafting his much disputed analysis of the legal definition
    of torture.
        The efforts to require inmates to pay the filing fee is another
    well meaning provision that should be revisited in light of significant
    increase in the filing fees for docketing a complaint and for taking an
    appeal. Currently the fee of $350 for a district court filing and $450
    for an appeal impose a significant financial hardship to inmate who are
    lucky if the make more than 20 cents per hour in Pennsylvania's system.
    As is often the case, in practice these theoretical ideas hurt the most
    vulnerable and fragile persons while violation of rights are not so
    discriminating. For these reasons, I urge Congress to reexamine the
    PLRA.

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