[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

                     U.S. GOVERNMENT PRINTING OFFICE

38-767 PDF                 WASHINGTON DC:  2008
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP, 
Washington, DC 20402-0001









































                       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.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

      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.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                                 
