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

                        PRISON ABUSE REMEDIES ACT OF 2007

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 4109

                                   ----------

                                 APRIL 22, 2008

                                   ----------

                               Serial No. 110-149

                                   ----------

             Printed for the use of the Committee on the Judiciary

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

                                   SPINE deg.
                       PRISON ABUSE REMEDIES ACT OF 2007

                       PRISON ABUSE REMEDIES ACT OF 2007

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 4109

                                   __________

                                 APRIL 22, 2008

                                   __________

                               Serial No. 110-149

                                   __________

             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
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                           COMMITTEE ON THE JUDICIARY

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

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

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

    MAXINE WATERS, California            LOUIE GOHMERT, Texas
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    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

                        Caroline Lynch, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 APRIL 22, 2008

                                                                       Page

                                    THE BILL

    H.R. 4109, the ``Prison Abuse Remedies Act of 2007''.............     3

                               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
    The Honorable Louie Gohmert, a Representative in Congress from
      the State of Texas, and Ranking Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................    10
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Chairman, Committee on the
      Judiciary......................................................    11
    The Honorable Daniel E. Lungren, a Representative in Congress
      from the State of California, and Ranking Member, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................    13

                                   WITNESSES

    Mr. Stephen B. Bright, Southern Center for Human Rights, Atlanta,
      GA
      Oral Testimony.................................................    17
      Prepared Statement.............................................    19
    Mr. John J. Gibbons, Newark, NJ
      Oral Testimony.................................................    24
      Prepared Statement.............................................    27
    Ms. Sarah V. Hart, Assistant District Attorney, Philadelphia
      District Attorney's Office, Philadelphia, PA
      Oral Testimony.................................................    30
      Prepared Statement.............................................    33
    Mr. Ernest D. Preate, Jr., JD, Scranton, PA
      Oral Testimony.................................................    71
      Prepared Statement.............................................    73
    Ms. Jeanne S. Woodford
      Oral Testimony.................................................    77
      Prepared Statement.............................................    80

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Chairman, Committee on the Judiciary...........................    12
    Letter from Martin Horn, Commissioner of the Department of
      Corrections and Probation of New York City, submitted by Jeanne
      S. Woodford....................................................    91

                                    APPENDIX

    Material Submitted for the Hearing Record........................   109

                       PRISON ABUSE REMEDIES ACT OF 2007

                                  ----------

                            TUESDAY, APRIL 22, 2008

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 4:43 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Scott, Conyers, Gohmert and
    Lungren.
        Staff Present: Bobby Vassar, Subcommittee Chief Counsel;
    Rachel King, Majority Counsel; Mario Dispenza, (Fellow) ATF
    Detailee; Karen Wilkinson (Fellow) Federal Public Defender
    Office Detailee; Veronica Eligan, Professional Staff Member;
    Kimani Little, Minority Counsel; and Kelsey Whitlock, Minority
    Staff Assistant.
        Mr. Scott. The Subcommittee will now come to order. I am
    pleased to welcome you to today's hearing before the
    Subcommittee on Crime, Terrorism, and Homeland Security on H.R.
    4109, the ``Prison Abuse Remedies Act.''
        This is a follow-up of our hearing we held in November of
    last year entitled ``Review of Prison Litigation Reform Act: A
    Decade of Reform Or an Increase in Prison Abuse?'' That hearing
    began to look at some of the unintended consequences of the
    1996 Prison Litigation Reform Act. The purpose of this hearing
    is to begin looking at how to address those problems.
        While the PLRA has helped to decrease frivolous lawsuits,
    it has also in some cases made it nearly impossible for
    prisoners with meritorious claims to bring lawsuits in Federal
    court.
        I will remind everyone that H.R. 4109 does not in any way
    amend the main aspect of the PLRA, the screening provision. The
    screening will continue to take place so that every case will
    be screened before it goes to Federal court. This will ensure
    that frivolous cases will not clog up the courts.
        My bill will eliminate the most egregious problems with the
    PLRA. First, it will eliminate the physical injury requirement
    which currently excludes prisoners who have had their religious
    liberties violated or who are living in appalling conditions.
    In some cases it even excludes persons who have been raped if
    there is no technical, quote, physical injury from the assault.
        Second, the bill will modify the exhaustion requirement,
    allowing prisoners and prison administration 90 days to work
    through the administrative process instead of cutting off those
    prisoners who are unable to complete the administrative
    process, sometimes through no fault of their own.
        Third, the bill will exclude juveniles from coming under
    the purview of the PLRA, because most juveniles simply cannot
    be expected to navigate the tricky aspects of the complicated
    statute.
        Finally, the bill restores the attorneys' fees provision
    and the filing fees provision so that indigent prisoners filing
    under the act will be treated the same way as any other
    indigent person filing a lawsuit in Federal court.
        I know that both sides of the aisle have been working hard
    on this issue to see if we can find some common ground. I
    remain hopeful that we will be able to make some progress this
    year at drafting a manager's amendment that will have the
    support of all the Committee Members.
        I would like to give one example of how the unintended
    consequences of the act actually affect an individual prisoner.
    At the last hearing we heard from Garrett Cunningham, who had
    been raped by a prison guard in Texas. After the attack he was
    in shock and also afraid to report the attack for fear of
    retaliation. As a result, he did not exhaust all of his
    administrative remedies as required by the act, so he was not
    able to file a suit in Federal court.
        Besides the exhaustion issue, rape victims are also barred
    in some courts because of the physical injury requirement. The
    PLRA requires that there be an actual physical injury, and some
    circuits have determined that rape is not a physical injury.
        It is absurd to think that Congress intended to leave rape
    victims without access to Federal court, and along with many
    persons in Congress and in a bipartisan effort worked hard to
    pass the Prison Rape Elimination Act. That act formed a
    commission that is now investigating the prevalence of rape in
    Federal court. Given the concern that Congress expressed in
    passing that bill, it is contradictory to have in place a law
    that forecloses the opportunity for prisoners to seek redress
    once they have been harmed.
        With that said, it is my pleasure to recognize the Ranking
    Member of the Subcommittee, Judge Gohmert.
        [The bill, H.R. 4109, follows:]

        Mr. Gohmert. Thank you, Chairman Scott. And I do want to
    thank you for the opportunity here today. This is the second
    hearing we have had on the subject of prison litigation. During
    the first hearing we had a general discussion on the subject of
    prison litigation; however, at that time neither the Members of
    this Subcommittee nor the witnesses had the opportunity to
    review the provisions of H.R. 4109, the ``Prison Abuse Remedies
    Act.''
        Now that we have had an opportunity to examine the bill, we
    believe that if it were passed in total, it would repeal every
    meaningful protection of the Prison Litigation Reform Act, or
    the PLRA. The proposed legislation would cause an explosion of
    frivolous prisoner litigation that would clog up the courts,
    waste valuable legal resources, and affect the quality of
    justice enjoyed by law-abiding citizens.
        In 1996, Congress took appropriate steps to limit frivolous
    prisoner litigation by passing the PLRA. It was passed on a
    bipartisan basis to address legitimate concerns about excessive
    prisoner litigation. Our colleague on the Subcommittee,
    Representative Dan Lungren of California, was a leader in that
    effort.
        Prior to the enactment of the PLRA, the National
    Association of Attorneys General estimated the cost of
    frivolous prisoner lawsuits at more than $80 million per year.
    At that time prisoners filed a disproportionate share of the
    civil lawsuits filed in Federal courts. In 1994, only 2 years
    before the PLRA was passed, about 25 percent of the lawsuits
    were filed by prisoners, who made up less than 1 percent of the
    population. Most of these cases were dismissed without merit,
    but that in and of itself takes a tremendous amount of work,
    for anybody who has worked in the courts, around the courts, or
    know what is involved to get to that point of dismissal without
    merit.
        But this avalanche of litigation drew the concern of the
    judiciary. As Justice Robert Jackson observed many years
    earlier, this clogging of the Federal courts with frivolous
    cases, quote, prejudiced the occasional meritorious application
    to be buried in a flood of worthless ones, unquote.
        Another distinguished jurist, Judge Harvey Wilkinson of the
    Fourth Circuit, called on Congress to address frivolous
    litigation in 1994. Judge Wilkinson noted that the contemporary
    legal system invites prisoners to sue, and that, quote, that
    the Supreme Court has lamented that these petitions often
    result in the squandering of judicial resources with little
    offsetting benefit to anyone.
        Congress responded to these calls for action and passed the
    PLRA. As enacted, the PLRA takes commonsense steps to reduce
    the number of petitions filed by inmates claiming violations of
    their rights. Under the PLRA, inmates are, number one, required
    to exhaust all administrative remedies before filing a case in
    Federal court; number two, prohibited from receiving filing fee
    waivers if they have a history of filing frivolous or malicious
    lawsuits; and three, had to demonstrate physical injury to
    claim monetary awards for compensatory damages. Now, in this
    bill, each one of these commonsense provisions is basically
    repealed or made ineffective. These provisions are made
    ineffective despite the fact that evidence shows that the PLRA
    worked in decreasing the amount of frivolous prisoner
    litigation. And I don't use the term ``frivolous'' lightly,
    because I know, as a former judge and chief justice, there were
    many times the plaintiff's bar has gotten a bad rap over what
    many call frivolous lawsuits when, in fact, they were lawsuits
    that narrowly lost at a jury trial, in which case there was
    evidence to support both sides, and one side lost. I don't
    consider those frivolous.
        What I am talking about here truly are frivolous cases. I
    have seen them firsthand. Now, according to the records kept by
    the administrative offices of the Federal courts, in 1995, the
    year before the PLRA 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 per year. This marked decrease occurred because
    the PLRA kept the frivolous cases off the court dockets.
        Supporters of the H.R. 4109 state the PLRA needs to be
    amended because it has prevented inmates by vindicating their
    rights by raising legitimate claims. More than 24,000 lawsuits
    filed per year is hardly evidence of an inability to pursue
    claims. However, I expressed at the prior hearing and I think
    Members are willing to make adjustments to the provisions of
    PLRA where there appears to have been injustice.
        During the first hearing our Members identified three areas
    where some limited amendments to the PLRA may be appropriate;
    one where prisoners who were victims of sexual assault,
    including forced oral sex, should be allowed to pursue
    nonetheless a lawsuit, and that some Federal circuit courts
    already allow these suits. We want to see that they do. Second,
    prisoners who allege violations of their rights to free
    exercise of religion should also be allowed to pursue suits.
    Third, prisoners who filed administrative complaints at
    correction facilities should be protected from retaliation by
    correction officials.
        We agree on those things. That is important. These are
    commonsense fixes that should properly balance the rights of
    prisoners seeking judicial redress, the society's legitimate
    concern for good management of its prisons, and efficient
    operations of the court.
        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 came to a crawl because court dockets were clogged
    with these kinds of frivolous suits. And we don't want to ever
    see a case where resources are taken from other places where
    they are needed, where they are dealing with the ill, the
    infirm, our senior citizens, and having to be put into the
    courts so that they can address a mass of frivolous claims.
        Thank you, Mr. Chairman.
        Mr. Scott. Thank you.
        We are joined by the Chairman of the full Committee, the
    gentleman from Michigan, Mr. Conyers.
        Mr. Conyers. Thank you, Chairman Scott. I am pleased to
    join a distinguished panel here of Members, a former State
    attorney general, a former chief justice of the State courts,
    and a distinguished counsel from North Carolina, long-serving
    Member of the Committee. I think that these five witnesses will
    help us put into perspective the kinds of changes that are
    being suggested to the Prison Litigation Reform Act. One is for
    the juveniles to have access to the courts to address abuse.
    Reasonable. Two, we want to remove the current requirement of a
    physical injury before an inmate has a right to seek judicial
    review of a complaint. Reasonable. And finally, the removal of
    procedural technicalities that result in the mandatory
    dismissal of meritorious claims.
        And so I would like to see and listen carefully to the
    remedy of the distinguished Members of Congress that are on
    this Crime Subcommittee in the Judiciary as to how we go about
    that.
        Juveniles that are abused in prison have a safe way to
    complain and seek judicial help, or they ought to have a safe
    way. This isn't provided under current law. Juveniles are the
    most abused of inmates. When a child is raped or sexually
    abused by a prison guard, current law requires him to follow a
    rather complicated set of procedures that often involves the
    filing of a complaint with the very guard that abused him or
    her. Frequently out of fear or lack of skill, the juvenile
    doesn't file a proper complaint. The Prison Abuse Remedies Act
    will remove juveniles from the reach of the Prison Litigation
    Reform Act, which has in some cases set up unsurmountable
    obstacles for juveniles.
        The second part, number two, this reform act eliminates the
    need to show physical injury in order to sue for compensatory
    damages. In the last few years, courts have had to dismiss
    meritorious cases because there has been no physical injury.
        A case in point, female inmates challenged the use of strip
    searches by male guards. One woman was so traumatized, she
    attempted to take her life. The court had no choice but to
    dismiss the case under existing law because there was no
    demonstrable physical injury.
        Prisoners who complain of sexual assaults that leave no
    marks, confinements under inhumane conditions, deprivations of
    religious freedom, and psychological assaults are frequently
    denied; these cases are denied access to Federal court because
    no one can point to physical injury. And so we correct the
    problem.
        And, finally, the bill eliminates the high procedural bars
    that have stopped meritorious claims because under the existing
    law, it requires inmates to attempt to resolve their problem
    within the prison system before seeking judicial remedies. Many
    prison grievance procedures, however, have short deadlines, and
    so the inmates can't handle and navigate through all this
    without a lawyer, and their cases get dismissed.
        So I am happy to join my colleagues at this important
    hearing. I look forward to hearing from our distinguished panel
    of witnesses.
        Mr. Scott. Thank you.
        [The prepared statement of Mr. Conyers follows:]

    Prepared Statement of the Honorable John Conyers, Jr., a Representative
    in Congress from the State of Michigan, and Chairman, Committee on the
                                   Judiciary

        I want to talk about three parts of the Prison Abuse Remedies Act
    that I consider critical.

            1.  The ability for juveniles to have access to the courts to
            address abuse;

            2.  The removal of the current requirement of a physical injury
            before an inmate has a right to seek judicial review of a
            complaint; and

            3.  The removal of procedural technicalities that result in the
            mandatory dismissal of meritorious claims.

        First, I want to make sure that juveniles who are abused in prison
    have a safe way to complain and seek judicial help. Current law does
    not provide this. Juveniles, children, are the most abused inmates.
    When a child is raped or sexually abused by a prison guard, current law
    requires him to follow a complicated set of procedures that often
    involves filing a complaint with the very guard that abused him. Out of
    fear or lack of skills, or both, the juvenile does not file a
    complaint. The Prison Abuse Remedies Act will remove juveniles from the
    reach of the Prison Litigation Reform Act, which has set up these
    unsurmountable obstacles for juveniles.
        Second, the Prison Abuse Reform Act eliminates
        the need to show physical injury in order to sue for compensatory
    damages. In the law few years, courts have had to dismiss meritorious
    cases because there has been no physical injury. In one case, female
    inmates challenged the use of strip-searches by male guards. One woman
    was so traumatized she attempted suicide. The court had no choice but
    to dismiss the case under existing law because there was no physical
    injury.
        Prisoners who complain of sexual assaults that leave no marks,
    confinement under inhumane conditions, and deprivations of religious
    freedom currently are denied access to federal court because they can
    point to no physical injury. This bill corrects this problem.
        Third, the bill eliminates the high procedural bars that have
    stopped meritorious claims. Existing law requires inmates to attempt to
    resolve their problem within the prison system before seeking judicial
    remedies. Many prison grievance procedures, however, have short
    deadlines, unclear rules, and complicated procedures. Most inmates
    cannot navigate these complicated rules without the help of a lawyer.
        Instead of dismissing a case on technical grounds, the Prison Abuse
    Remedies allows the Court to stay a case for 90 days so that an an
    inmate can present his problem to prison officials.
        Allowing these lawsuits in appropriate circumstances will not open
    the floodgates to frivolous litigation, but rather will send the
    message that our prisons, whether run by public or private
    institutions, must respect fundamental constitutional rights consistent
    with the protection of inmates and prison personnel and the maintenance
    of prison security. I look forward to hearing our witnesses discuss
    these and other issues.

        Mr. Scott. We are joined by the gentleman from California,
    who I understand has a statement.
        Mr. Lungren. Thank you very much, Mr. Chairman. Thank you
    for allowing me to offer a few comments on the Prison
    Litigation Reform Act and the suggested changes contained in
    your bill.
        This is an issue which has been a real interest to me for
    some time. As was mentioned previously, in my capacity as the
    attorney general of the State of California, I was the Chair of
    the Criminal Law Committee of the National Association of
    Attorneys General, and my office at that time worked, and I
    worked personally, with then-Governor Tom Ridge of
    Pennsylvania, Senator Spencer Abraham of Michigan, Harry Reid
    of Nevada and Jon Kyl of Arizona to write the Prison Litigation
    Reform Act.
        And so it is from this vantage point as a former State
    official who was in charge of a department that spent, I
    believe, at the time I was attorney general, $8 million a year
    just on prisoner litigation, at a time when the ninth circuit
    did their own study of the issue of prisoner litigation, and in
    their report I believe said that 99 point something percent of
    the cases filed in the ninth circuit were ultimately dismissed,
    or, if they went to a hearing, were at that point in time found
    to be without merit; 99 point something percent. That sounds to
    me to be frivolous lawsuits. So I have some concerns that any
    significant departure from our response to that problem could
    reverse the progress we have made in reducing frivolous
    prisoner lawsuits.
        My concern is not driven by lawsuits over broken cookies or
    the emotional distress caused by inmates because of the
    requirement that they be seated next to criminals. Those are
    just two examples of the lawsuits that we had to answer for,
    spend time going to court on before we had relief that has been
    delivered by the PLRA. But at the heart of the matter, it seems
    to me, is we have an obligation to victims of crime not to
    provide those who have harmed them with legal weapons that make
    a mockery of the notion of punishment.
        You know, I think it is important to state the obvious.
    Those who inhabit our Nation's prisons are criminals, and they
    are there because they have been found to have violated the
    rights of their fellow citizens. So I hope we keep this in mind
    to avoid the mistake of following into emotionally satisfying
    rights talk with respect to prisoners.
        It is, in my judgment, a mistake of categories to confuse
    the rights of a convicted murderer or rapist with those of a
    criminal defendant who is appropriately clothed with the
    presumption of innocence until his or her fellow citizens
    conclude that the facts will determine otherwise.
        As Judge Easterbrook pointed out in Johnson v. Daley, it is
    a false notion that prisoners and free persons have similar
    constitutional rights; however, this is not to suggest that the
    prisoners are not without the protection of the law. For the
    subservient relationship of prisoners to the State, which has
    no counterpart with respect to free persons, it, in itself,
    gives rise to legal obligations by the State. Punishment for a
    crime carries penalties contained within the law and should not
    entail retribution against inmates outside the parameters of
    duly enacted statutes. I think that is something on which we
    can all agree.
        It is for that reason that I share the sentiments expressed
    by Pat Nolan of the Prison Fellowship, contained in a statement
    of November 8 of last year. It is entirely appropriate and even
    necessary, I believe, for this Committee to communicate in
    clear and unequivocal terms that the personal injury
    requirement should not bar recovery in sexual assault cases
    with respect to mental or emotional injury claims. And it is my
    hope that we can craft language to address any uncertainty that
    may exist concerning this issue.
        Furthermore, in our consideration of exhaustion, it seems
    to me that we should be able to take care of the problem
    mentioned by everybody of the possibility of intimidation,
    which renders it impossible for an inmate to be able to utilize
    the State proceedings. But it seems to me in consideration of
    legislative changes, it is also necessary for us to consider
    the need to address what are clear circumventions of the intent
    of the act.
        An issue has arisen relating to the United States Supreme
    Court's decision in Jones v. Bock, indicating that exhaustion
    must be raised as an affirmative defense. The Court made clear
    that this is something for us, the Congress, to address. It
    seems to me there is no reason to make exhaustion a jury
    question and wait until the end of the trial to resolve the
    issue. So on the one hand, it seems to me we can craft language
    to take care of the problem of intimidation and not have
    exhaustion as an excuse which allows intimidation to be
    protected. We also ought to deal with the issue of exhaustion
    as an affirmative defense.
        The attorneys' fees provisions that have been mentioned
    have been circumvented where former prisoners have filed
    lawsuits for civil rights violations even under circumstances
    where they have filed on behalf of inmates still serving prison
    sentences. Lawsuits under the Federal law relating to prison
    conditions have also been held not to be subject to the
    existing attorney fee provisions of the act.
        It seems to me this is something we ought to take a look at
    where former inmates may bring a 100-count lawsuit on behalf of
    prisoners serving their sentence, and where the plaintiffs
    prevail on 1, fail on 99, and collect attorneys' fees outside
    of the scope of the PLRA for all 100 counts.
        Under current law, prospective relief means all relief
    other than compensatory monetary damages. Such prospective
    relief is subject to the limitations of PLRA. For example, such
    relief may be narrowly drawn, extend no further than necessary,
    and be the least intrusive course of action. Prospective relief
    can include things ranging from injunction, a declaratory
    judgment, or even punitive damages. In some jurisdictions the
    courts have not deemed nominal damages, recovery of a dollar,
    to be subject to the limitations of the PLRA, and as a
    consequence, we have had cases where there is no real injury.
    Someone was denied the use of a book for 1 hour. That is an
    actual case. These cases are brought where there is no
    justification for the use of Federal court resources, much less
    that of State officials.
        So it just seems to me--and I have seen this, and I know
    some people don't like to realize this, but sometimes some
    prisoners use litigation as a form of recreation. There is
    little encumbrance to the abuse of the judicial system, and as
    a result, when it encumbers the judicial system, legitimate
    claims of prisoners who have been abused get overwhelmed and
    sometimes pushed to the end of the line.
        So I just hope we can work together in a bipartisan spirit,
    Mr. Chairman, to deal with those issues that I think have
    legitimacy and that we can have agreement on, but at the same
    time not undercut what I think the value of the Prisoner
    Litigation Reform Act provided us, and that is ridding us of
    the frivolous lawsuits that were in the vast majority of cases.
    And when it is 99 percent by the number--by the count of the
    ninth circuit, it seems to me that fits the definition of
    frivolous.
        And I thank the Chairman for granting me his indulgence for
    this time.
        Mr. Scott. Thank you.
        The gentleman from Michigan.
        Mr. Conyers. Mr. Chairman, if I might just make a note. I
    had visiting me a distinguished minister from Tennessee, the
    Reverend Ben Cox, who I can remember when he was a Freedom
    Rider and a religious leader. He is still very active, and I
    just wanted to know that he was--that the record would show
    that he was in our hearing today.
        Mr. Scott. Thank you very much. It is good to see you.
        We have a distinguished panel of witnesses here today to
    help us consider the important issues currently before us. Our
    first witness is Stephen Bright, who is the president and
    senior counsel for the Southern Center for Human Rights in
    Atlanta, where he has been a nationally recognized leading
    advocate for human rights regarding prisons and jails in the
    South for over 25 years. He also teaches at Yale Law School and
    previously taught at law schools at Harvard, Georgetown, Emory
    and other universities. He received the American Bar
    Association's Thurgood Marshall Award in 1998.
        Our second witness will be Judge John J. Gibbons, founder
    of the Gibbons Firm's John J. Gibbons Fellowship in Public
    Interest and Constitutional Law. He is a former chief judge in
    the United States Court of Appeals for the Third Circuit where
    he served from 1970 to 1990. He is the past president of the
    New Jersey State Bar Association, life member of the American
    Law Institute, and fellow of the American Bar Foundation.
        Next witness will be Sarah V. Hart; currently works for
    District Attorney Lynne Abraham in Philadelphia. She has worked
    for almost three decades in criminal justice at the Federal,
    State and local levels. From 1979 to 1995, she served as a
    prosecutor in Philadelphia, during which time she testified
    before Congress about the Philadelphia prison cap case and
    assisted Congress as a drafter of the PLRA and its 1997
    amendments. From 1995 to 2001, she served as chief counsel for
    the Pennsylvania Department of Corrections, where she
    successfully defended the PLRA in Federal court. After her
    stint as a visiting professor at Rutgers, she returned to the
    Philadelphia DA's office.
        Our next witness will be Ernie Preate; began his legal
    career as a district attorney in Lackawanna County in 1977
    until 1989. In 1989, he took office as the Attorney General of
    Pennsylvania. In 1995, his life changed forever when he pleaded
    guilty to mail fraud and served a year in prison. His year in
    prison changed his views on the criminal justice system, and
    after returning to legal work, he has primarily worked as a
    lobbyist working for Enlightened Public Policy and has
    represented many public interest clients.
        And our last witness will be Ms. Jeanne Woodford, who began
    her career in corrections in 1978 following her graduation from
    Sonoma State University with a B.A. in criminal justice. She
    has utilized her education and experience to become a leader in
    the field of corrections for over 30 years. She served as
    warden at San Quentin prison in California, and in 2004 became
    the director of the Department of Corrections, the largest
    correctional system in the United States. Currently she is the
    chief of the San Francisco Adult Probation Department.
        Our witnesses will begin. I would appreciate it if you
    would confine your testimony to 5 minutes. Your complete
    statement will be made part of the record in its entirety, and
    there is a lighting device which will start on green, go to
    yellow when 1 minute is left, and will go to red when the 5
    minutes are up.
        Mr. Bright.

       TESTIMONY OF STEPHEN B. BRIGHT, SOUTHERN CENTER FOR HUMAN
                          RIGHTS, ATLANTA, GA

        Mr. Bright. Mr. Chairman, Members of the Committee, thank
    you very much. It is an honor to be here.
        I want to start just by telling you that my problems with
    both the exhaustion requirement and with the application of
    this act of juveniles can be summarized by a case of a young
    man, Stephen Z., who was sent to a juvenile facility for theft.
    He was initiated when he got there by being jumped and beaten
    by a number of inmates until he had a seizure. That was one of
    four beatings that he had the first year that he was in this
    facility, four. Now, one of them was a rape, but the other
    three were not. This is not just sexual assaults we are dealing
    with here. The child was so upset about this he was put on
    suicide watch because he was about to take his life rather than
    deal with this. That was all in 2002. The next year he was
    beaten with socks, but with padlocks in them; again, severely
    beaten.
        Now, he didn't file a grievance for this reason: The
    practice in this facility was to handcuff one inmate to another
    and then have other inmates beat him while he was handcuffed.
    The officials knew these things were going on. I want to make
    that clear in terms of notice to the facility. Some of these
    wounds he had had to be surgically stitched up. There was no
    secret about this.
        His mother complained to the facility, wrote to two
    juvenile court judges. One judge wrote the Governor. She
    arranged to see the superintendent of the facility. This mother
    is desperate to talk about what is happening to her child. So
    everyone knows what is happening. The grievance procedure, five
    steps; and the first step, 2 days. And I just ask you, if
    anybody is seriously interested in knowing about grievances, to
    do something about them when you have got a statute of
    limitation of 2 days. We give a lawyer in a personal injury
    lawsuit 2 years to file a lawsuit, and we expect children,
    mentally ill people, mentally retarded people, illiterate
    people to file within 2 days. It was five steps of a bunch of
    appeals and all that.
        The Justice Department later said this was a completely
    dysfunctional system. The court said despite the heroic efforts
    of this mother to protect her child, she didn't comply with the
    exhaustion provisions of the Prison Litigation Reform Act. They
    had to be filed by the child himself, not by his mother. They
    had to be filed within 2 days. So that is the law today.
        You can take this other, Chad Benfield, raped in the South
    Carolina prison, once so severe that he was hospitalized.
    Again, everybody knew this man was raped. He was hospitalized
    for it. He begged for protective custody. Again, everybody
    knows this happened. He attempted suicide because of what was
    happening. And he thought that he couldn't file a grievance for
    being raped. First of all, he was transferred from one prison
    to another. He was also raped in the second prison. His sort of
    common sense understanding was, when I got sent to another
    prison, I couldn't file a grievance on what happened in the
    first prison.
        Secondly, the grievance procedure couldn't give him damages
    for what happened to him. So his commonsense thought of it was
    that he didn't have a grievance to file.
        Common sense has nothing to do with the system that we have
    created. It is a system of all sorts of complicated procedures
    and technical requirements that exist for the purpose of
    tripping people up so they can't bring a lawsuit. Now, we have
    just got to be candid about that. One case that we had, the
    grievance was thrown out because the grievance was written
    outside the margins on the form. One that I filed myself on
    behalf of a client was dismissed because it had to be filed by
    the inmate himself, not by his lawyer.
        We are treating these grievance systems, which are set up
    by the people who are going to be sued, as if they are some
    sort of habeas corpus system. Of course there you have a year,
    a 6-month statute of limitations, you have lawyers who at least
    can try to comply.
        I represent all the inmates at the jail in Atlanta. We have
    begged them to set up a grievance system to deal with things
    like a young man who is handcuffed behind his back and an
    officer shoots him with a taser while he is sitting there
    completely defenseless. There are things like that happening in
    this jail, and we would like for people to be able to file
    grievances. The system is that most of the time you can't find
    a form. When you can, you can't find a person to take it. When
    you file it, maybe half the time you will get back a response
    saying it has been denied, and the other half of the time you
    won't get back a response at all. Now what does the prisoner
    do, file a mandamus with the warden because nobody has
    responded to his grievance?
        If we are going to have these sort of hypertechnical
    requirements, we need to put lawyers in these prisons because I
    will tell you, most lawyers can't follow these. And it may be
    that in some parts of this country, there are grievance systems
    which work and which are not to trip people up, but are to find
    out what is going on in the facilities, but I will tell you,
    where I practice, these are Mickey Mouse proceedings, kangaroo
    courts that exist for the purpose of tripping people up. And I
    have been at meetings where people very candidly admitted that.
        I was begging the sheriff in this case, please set up a
    grievance system. And the county attorney said, yes, if you
    would set up a grievance system, we could defeat these lawsuits
    they keep filing because nobody would probably comply with
    them.
        Let me just say a quick word about physical injury. I think
    everybody was offended by what happened in Abu Ghraib. Most
    people don't know you couldn't file a lawsuit for it in the
    United States under the Prison Litigation Reform Act. There is
    no physical injury. We had a very similar lawsuit in the prison
    in Georgia where the guards rampaged through the prison,
    stripped people naked in front of women people, had them tap
    dance, hold one leg in their hand, and stand on one foot, hold
    the other foot in their hand, switch back and forth as fast as
    they could, all this sort of degradation and humiliation. The
    tenth circuit said that that is not actionable because there
    was no physical injury for what happened there. You know, cases
    where people have been sodomized, they said there was no
    physical injury in this particular case.
        I just want to say this real quickly. You have a prison
    population with a very large number of mentally ill people,
    mentally retarded people, illiterate people, people have
    nothing to do because there are no educational programs, no
    vocational programs, people have no understanding of the legal
    system because there is no access to anybody who can give them
    any legal advice, and all you have to have is a legal pad and
    piece of paper, and you can write on it and send it to the
    court. Now, that is the lawsuits about cookies breaking and
    peanut butter that everybody wants to make so much about, and
    as long as you have a high population of mentally ill people
    and people of limited intelligence in our prisons, you are
    going to get some of those. But let me tell you, what this act
    is doing is for the rare people--and most people don't have
    lawyers. They don't have access to a lawyer. You could change
    the attorneys' fees and give people all the attorneys' fees in
    the world; lawyers are not going to want to go to some remote
    part of the State, put up with all the delay and everything to
    get to see a prisoner to find out there is probably no lawsuit
    there anyway because they didn't file their grievance on time
    or the person is inarticulate or mentally ill, whatever.
        All I am saying is, these are legitimate lawsuits. They are
    people that are grievously injured in violation of our
    Constitution and our laws. And if we want to have the
    Constitution apply in the prisons, and if we don't want to go
    back to an era which I think we are where people are chained to
    desks and chained to chairs and not allowed to even go to the
    bathroom, those kinds of suits are being dismissed as a result
    of this provision. Thank you.
        Mr. Scott. Thank you, Mr. Bright.
        [The prepared statement of Mr. Bright follows:]

                    Prepared Statement of Stephen B. Bright

        I appreciate the opportunity to address the Subcommittee on
    insuring that the Constitution and the rule of law apply in the prisons
    and jails in this country.
        I have been concerned about this issue since bringing suit in 1976
    on behalf of people confined in deplorable conditions in a small county
    jail in Kentucky. More recently I have been counsel in two cases, both
    involving the same large metropolitan jail, the Fulton County Jail in
    Atlanta, regarding failure to provide people being held there with
    life-sustaining medical care and failure to protect them from life-
    threatening assaults, as well as other issues, such as the jail's
    failure to release people when there was no longer legal bases for
    holding them. One of those cases is ongoing.
        In the last 25 years as an attorney at the Southern Center for
    Human Rights, I am and have been involved in many other cases concerned
    with patently unconstitutional conditions and practices in prisons and
    jails throughout the South. The Center is a non-profit public interest
    program, which receives no government funds and is thus not prohibited
    from responding to some of the most urgent and compelling violations of
    the Constitution of the United States in this country.
        Unfortunately, we are able to respond to only a very small
    percentage of the pleas we receive each day from people in prisons and
    jails and their families. We are concerned about some provisions of the
    Prison Litigation Reform Act--such as the exhaustion requirement, the
    physical injury requirement, the Act's application to children, and the
    limits on the power of the federal courts--because these provisions
    often result in denying justice to people who deserve it.
        Much of the support for the PLRA was based on arguments that
    demonized prisoners and trivialized their concerns. However, the men,
    women and children who are incarcerated in this country are not members
    of a faceless, undifferentiated mass unworthy of protection of the law.
    They are individuals, who vary considerably in the crimes they have
    committed, the lives they have led, their potential to be productive
    members of society, and their commitment to lead useful and productive
    lives. Most of them will return to society. They have families and
    friends who care about their safety. A significant number are mentally
    ill, have limited intellectual functioning, are addicted to substances
    or have a combination of these features.
        In this very large population, there are some who, without
    educational or vocational programs or access to legal advice, attempt
    to file their own lawsuits, some of them quite misguided. But the
    issues that we address on their behalf are of fundamental importance to
    their lives, safety, and dignity. For example, we have brought cases on
    behalf of--

              HIV-positive men housed in a warehouse. Some suffered
            from pneumonia, which went untreated until they drowned in
            their own respiratory fluids. Others stood in long lines in the
            middle of the night to get pills they took on empty stomachs.
            When they took the pills, they vomited. Some died from
            starvation despite begging for food.

              Children convicted as adults who were raped when
            housed with older prisoners. One youth, Wayne Boatwright, who
            was just 18, was choked to death by three other inmates as they
            raped him. The prison failed to protect him despite pleas to
            the prison officials by the young man, his mother and
            grandmother to protect him from being raped. Other inmates at
            the same prison were bashed in the face and head with steel
            padlocks inside socks, broomsticks, trash cans, metal door
            plates and handmade knives.

              A woman who woke up with blood spurting from her neck
            because a mentally ill inmate slashed her from ear to chin with
            a razor as she slept. A single correctional officer had been
            assigned to supervise 116 women sleeping in bunk beds crowded
            into one huge room. Sometimes a single officer was responsible
            for the safety of 325 women in four dorms.

              A man put in four-point restraints and left there for
            days without being allowed to go to the bathroom.

              Men forced to sort through garbage on a conveyer belt
            containing hepatitis- and AIDS-infected needles and other
            medical waste without protective clothing at a ``recycling''
            plant within a prison. One of many resulting injuries was
            permanent injury to a man's eye after a piece of glass flew
            into it.

        These are not trivial matters. But the exhaustion requirement of
    the PLRA bars access to the federal courts for even the most egregious
    violations of the Constitution if people held in prisons and jails do
    not comply with the hyper-technical requirements of complicated
    grievance systems--some of them procedural mazes which would challenge
    many lawyers. People who are mentally ill, mentally retarded, or
    illiterate may be unaware of the two or three deadlines that may apply
    at various stages of the process, unable to find the right form to fill
    out or the right person to give it to, and unaware of what to do if no
    action is taken on the grievance for weeks or months.
        Recovery for even the most degrading treatment--even the
    universally condemned practices at Abu Ghraib--is barred if there is no
    physical injury. A federal court threw out a suit we brought for such
    conduct.
        Beyond that, we waste a lot of time and precious judicial resources
    litigating questions of whether inmates have complied with every last
    stage of grievance processes, were capable of doing so, were prevented
    from doing so by prison officials and other collateral issues, as well
    as questions such as whether a sexual assault or lack of care leading
    to a stillbirth constitutes a ``physical injury'' under the PLRA.\1\
    ---------------------------------------------------------------------------
        \1\See, e.g., Hancock v. Payne, 2006 WL 21751 at *3 (S.D. Miss.
    2006) (concluding that ``bare allegation of sexual assault'' does not
    satisfy physical injury requirement); Liner v. Goord, 196 F.3d 132, 135
    (2d Cir. 1999) (concluding that ``the alleged sexual assaults qualify
    as physical injuries as a matter of common sense''); Pool v. Sebastian
    County, 418 F.3d 934, 943 n.2 (8th Cir. 2005) (noting assertion that no
    physical injury resulted from failure to care for pregnant woman
    leading to delivery of stillborn baby); Clifton v. Eubanks, 418 F.
    Supp.2d 1243 (D. Colo. 2006) (concluding that improper medical care
    leading to stillbirth constituted physical injury).
    ---------------------------------------------------------------------------
        I would like to address the exhaustion requirement, the physical
    injury requirement and the application of the PLRA to juveniles.

    I. THE PLRA EXHAUSTION REQUIREMENT SHOULD BE MODIFIED SO THAT TECHNICAL
    PROBLEMS WITH PRISONERS' GRIEVANCES DO NOT FOREVER BAR JUDICIAL REVIEW.

        The exhaustion requirement of the Prison Litigation Reform Act \2\
    has been interpreted not only to require prisoners to present their
    claims to prison officials before filing suit, but also to bar claims
    if inmates fail to comply with all of the technical requirements of the
    prison or jail grievance systems.\3\ Grievance systems usually have two
    or three levels of review--for example, an inmate may be required to
    seek an informal resolution by a certain deadline, file a formal
    grievance within a specified deadline if the problem cannot be resolved
    informally, and file an appeal within yet another deadline if the
    formal grievance is denied. The deadlines in some systems are as short
    as three to five days.
    ---------------------------------------------------------------------------
        \2\ 42 U.S.C. Sec. 1997e(a)(2008) provides: ``No action shall be
    brought with respect to prison conditions under section 1983 of this
    title, or any other Federal law, by a prisoner confined in any jail,
    prison, or other correctional facility until such administrative
    remedies as are available are exhausted.''
        \3\ Woodford v. Ngo, 126 S.Ct. 2378 (2006).
    ---------------------------------------------------------------------------
        Thus, while an attorney who has been trained in the law may have
    two years under the applicable statute of limitations to file an
    lawsuit in an automobile negligence case, a prison system may give
    people who are mentally ill, illiterate or of limited intelligence just
    five days to file their grievances or be forever barred from seeking
    vindication of their rights in court.
        The exhaustion provision of the PLRA puts the potential civil
    rights defendants in charge of defining the procedural hurdles that a
    prisoner must clear in order to sue them. This produces a perverse
    incentive for prison officials to implement complicated grievance
    systems and require hyper-technical compliance with them in order to
    shield themselves from prisoners' lawsuits. That has become the main
    purpose of many grievance systems.
        I once helped a client complete a grievance form and dropped it off
    with a deputy warden on my way out of the prison to be sure it was
    filed within the five-day deadline. Nevertheless, it was denied because
    a rule required that the inmate file the grievance. As I said
    previously, the hyper-technical requirements of the grievance systems
    pose a challenge even to attorneys.
        In another case, an inmate was beaten with a sock full of
    combination locks. Filing a grievance was not the first thing on his
    mind during the five days he had to file one--he was in and out of
    consciousness during that time. Nevertheless, it was argued that he
    could not file suit because of his failure to comply with the deadline.
        Other trivial technical defects like using the wrong form,
    directing a grievance to the wrong person, or filing the wrong number
    of copies all could bar prisoners' claims from court.\4\ Inmates may
    not be able to obtain the required forms--or even pencils with which to
    fill complete them. They may not be able to give grievances to the
    designated persons or may be afraid to do so for fear of retaliation.
    Even when an inmate files within the deadline, in some situations no
    action is taken on the grievance.
    ---------------------------------------------------------------------------
        \4\ See Margo Schlanger & Giovanna Shay, Preserving the Rule of Law
    in America's Prisons: The Case for Amending the Prison Litigation
    Reform Act, http://www.acslaw.org/files/
    Schlanger%20Shay%20PLRA%20Paper%203-28-07.pdf at 8 (March 2007).
    ---------------------------------------------------------------------------
        A prisoner who learns upon filing suit that she has failed to
    comply with prison rules cannot simply return to court after filing the
    appropriate forms and comply with the rules. By the time a court
    determines that a claim is procedurally defaulted under the PLRA
    exhaustion provision, the deadline for using the prison grievance
    system will be long past.
        Gravely serious claims are dismissed for failure to comply with
    grievance procedures. For example, a prisoner's suit alleging that he
    had been beaten and seriously injured by guards was dismissed for
    failure to comply with a grievance procedure that required an attempt
    at informal exhaustion within two days and the filing of a grievance
    within five days.\5\ The prisoner said that he had been placed in
    segregation after the beating, and that the officers had not given him
    grievance forms. Another suit alleging repeated rapes by other inmates
    was dismissed for failure to timely exhaust; the inmate who sought to
    file the suit said that he ``didn't think rape was a grievable issue.''
    \6\ A prisoner who had been beaten by other inmates maintained that he
    had failed to file a grievance within the 15 days required because he
    had been hospitalized; the magistrate judge recommended staying the
    case for 90 days to allow him to exhaust (as the amendment in the
    Prison Abuse Remedies Act would permit), but the district court
    dismissed the case instead.\7\
    ---------------------------------------------------------------------------
        \5\ Latham v. Pate, 2007 WL 171792 (W.D. Mich. 2007).
        \6\ Benfield v. Rushton, 2007 WL 30287 (D.S.C. 2007).
        \7\ Washington v. Texas Department of Criminal Justice, 2006 WL
    3245741 (S.D. Tex. 2006).
    ---------------------------------------------------------------------------
        These are not isolated examples.\8\ And they do not begin to tell
    how many cases are not brought because it is clear that they will be
    dismissed for failure to comply with grievance procedures.
    ---------------------------------------------------------------------------
        \8\ For other cases dismissed for failure to exhaust, see Giovanna
    Shay & Johanna Kalb, More Stories of Jurisdiction--Stripping and
    Executive Power: Interpreting the Prison Litigation Reform Act (PLRA),
    29 Cardozo L. Rev. 291, 321 (2007).
    ---------------------------------------------------------------------------
        The Prison Abuse Remedies Act would correct this problem by
    allowing federal courts to stay proceedings for up to 90 days to permit
    prisoners to exhaust administrative remedies. Prison officials would
    have had an opportunity to resolve such complaints, but they would not
    be able to dodge accountability by asserting inmates' failure to comply
    with complex and technical requirements.
        The argument that the PLRA need not be amended because courts can
    simply conclude that administrative remedies are not ``available''
    within the meaning of the statute simply ignores reality. Grievance
    procedures may be ``available'' in a legal, technical sense, but they
    are too complicated for most prisoners to comply and they are strictly
    enforced to avoid justice rather than obtain it.
        It is reasonable to require a prisoner to inform the authorities of
    a violation of rights so that officials may promptly deal with it. But
    that can be accomplished by requiring a statement to a warden within a
    reasonable time. The officials in charge of the system should be
    responsible for forwarding complaints to the various levels of review
    if they want to have such a system. But they should not be encouraged
    to impose upon prisoners procedural requirements more complex and
    demanding than the legal system requires of attorneys. That is what the
    PLRA does now and why the exhaustion requirement should be repealed.

    II. THE PLRA'S PHYSICAL INJURY REQUIREMENT BARS RECOVERY FOR DEGRADING
        AND DEHUMANIZING ABUSE OF PRISONERS, AND IT SHOULD BE REPEALED.

        People in this country and around the world were horrified by
    images of Abu Ghraib, as undoubtedly were all the members of this
    Subcommittee. What few people know is that if such conduct occurs in a
    prison or jail in this country, those subject to it would have no
    redress in the federal courts due to the ``physical injury''
    requirement of the PLRA.\9\
    ---------------------------------------------------------------------------
        \9\ 42 U.S.C. Sec. 1997e(e) (2008) provides that ``no federal civil
    action may be brought by a prisoner confined in a jail, prison, or
    other correctional facility, for mental or emotional injury suffered
    while in custody without a prior showing of physical injury.''
    ---------------------------------------------------------------------------
        We had such a case. Officers who hid their identity by not wearing
    or by covering their badges rampaged through a prison--swearing at
    inmates, calling some of them ``faggots''; destroying their property;
    hitting, pushing and kicking them; choking some with batons; and
    slamming some to the ground. The male inmates were ordered to strip and
    subjected to full body cavity searches in view of female staff. Some
    were left standing naked for 20 minutes or more outside their cells,
    while women staff members pointed and laughed at them. Some were
    ordered to ``tap dance'' while naked--to stand on one foot and hold the
    other in their hands, then switch, and rapidly go from standing on one
    foot to the other. The Court of Appeals for the Eleventh Circuit held
    that this conduct did not satisfy the physical injury requirement of
    the PLRA.\10\
    ---------------------------------------------------------------------------
        \10\ Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc).
    ---------------------------------------------------------------------------
        Other courts have found the physical injury requirement was not
    satisfied by

              a ``bare allegation of sexual assault'' even where
            male prisoners alleged that a corrections officer had sexually
            assaulted them repeatedly over a span of hours,\11\
    ---------------------------------------------------------------------------
        \11\ Hancock v. Payne, 2006 WL 21751 at *3 (S.D. Miss. 2006).

              prisoners being housed in cells soiled by human waste
            and subjected to the screams of psychiatric patients,\12\
    ---------------------------------------------------------------------------
        \12\ Harper v. Showers, 174 F.3d 716, 719-20 (5th Cir. 1999).

              a prisoner being forced to stand in a 2\1/2\ foot
            wide cage for 13 hours, naked for the first 10 hours, in acute
            pain, with clear, visible swelling in leg that had been
            previously injured in car accident,\13\
    ---------------------------------------------------------------------------
        \13\ Jarriett v. Wilson, 162 Fed. Appx. 394, 399 (6th Cir. 2005).

              a prisoner who complained of suffering second-degree
            burns to the face.\14\
    ---------------------------------------------------------------------------
        \14\  Brown v. Simmons, 2007 WL 654920 at *6 (S.D. Tex. 2007).

        There are far more cases that are never brought or promptly
    dismissed because of the physical injury requirement. Prior to
    enactment of the PLRA, we brought suit on behalf of women who were
    constantly splattered with bodily waste as a result of being housed
    with severely mentally ill women. Our clients could not sleep at night
    because the mentally ill women shrieked and carried on loud
    conversations, often with themselves. We would not bring that suit
    today. Our clients were degraded, they were deprived of sleep, but they
    suffered no physical injury.
        Recently, we have concluded that suits could not be brought by men
    who complained of being chained to a bed in one case and a grate in the
    floor in another, each left for several days without breaks and so they
    had to defecate and urinate on themselves repeatedly, or by women who
    complained that officers barged into their shower and toilet areas
    without announcing themselves, opened the shower curtains and made
    sexual comments to them.
        Denying money damages is significant for several reasons. Damages
    awards create incentives for prison administrators to improve policies
    and training and not retain officers who abuse prisoners. Beyond that,
    the physical injury requirement changes the framework of the debate
    because it provides incentives for officials to argue that truly
    reprehensible and degrading conduct was acceptable because it did not
    produce a ``physical injury.''
        The ``physical injury'' provision of the PLRA should be repealed.

         III. JUVENILES SHOULD BE EXEMPTED FROM THE PROVISIONS OF THE
                         PRISON LITIGATION REFORM ACT.

        The PLRA is applied to juveniles.\15\ All of its problems are
    magnified when it is applied to children. Incarcerated minors account
    for very little prison litigation, and are even less equipped to
    navigate technical areas like exhaustion. At the same time,
    incarcerated juveniles are at-risk for abuse and may be particularly in
    need of court intervention.
    ---------------------------------------------------------------------------
        \15\ See Anna Rapa, Comment: One Brick Too Many: The Prison
    Litigation Reform Act as a Barrier to Legitimate Juvenile Lawsuits, 23
    T.M. Cooley L. Rev. 263, 279 (2006).
    ---------------------------------------------------------------------------
        It was revealed last year that some officials of the Texas Youth
    Commission had extended the sentences of youths in their custody if
    they refused to have sex with a supervisor.\16\ A Texas Ranger who
    investigated abuse at the West Texas State School in Pyote told a
    legislative committee, that he had seen ``kids with fear in their
    eyes--kids who knew they were trapped in an institution that would
    never respond to their cries for help.'' \17\ Even worse, this Texas
    law enforcement officer was unable to interest local prosecutors in the
    case.
    ---------------------------------------------------------------------------
        \16\ Ralph Blumenthal, Texas, Addressing Sexual Abuse Scandal, May
    Free Thousands of Its Jailed Youth, N.Y. Times, March 24, 2007.
        \17\ Staci Semrad, Texas Ranger Tells of Prosecutor's ``Lack of
    Interest,'' N.Y. Times, March 9, 2007, at A20.
    ---------------------------------------------------------------------------
        Another example is provided by a case from Indiana, Minix v.
    Pazera.\18\ While incarcerated as a juvenile on a theft charge in
    various Indiana facilities, S.Z. was repeatedly beaten by other
    detainees--once with padlock-covered socks. He was also raped. S.Z.
    suffered visible injuries and symptoms, including bruising, a split
    lip, a seizure-like reaction, and a bloody nose, yet staff failed to
    take adequate measures to protect him. S.Z. was afraid to report this
    abuse, because some of the staff actually instigated fights among
    juvenile detainees, even handcuffing some of the youths so that others
    could beat them. S.Z.'s mother, Cathy Minix, however, reported these
    assaults and threats both to staff at the facility and to state judges
    (who relayed the complaints to the Governor). She attempted to meet
    with the superintendent of one of the facilities, but staff members
    prevented the meeting. Ultimately, S.Z. was ``unexpectedly released on
    order from the Governor's office.''
    ---------------------------------------------------------------------------
        \18\ 2005 WL 1799538 (N.D. Ind. 2005).
    ---------------------------------------------------------------------------
        Despite all of Mrs. Minix's efforts to notify state officials of
    the abuse, when she and S.Z. filed suit, it was dismissed for failure
    to comply with the PLRA grievance requirement. The grievance policy
    then in effect in Indiana juvenile facilities had numerous steps, the
    first one requiring that grievances be filed within two business days.
    The Court noted that although Mrs. Minix had made ``heroic efforts'' to
    help her son, it could not replace the requirement that he personally
    file a grievance. Among other things, it noted, ``[h]er communications
    didn't comply with the general time constraints built into the
    grievance process.''
        After the Minix family suit was dismissed from federal court, the
    Department of Justice investigated the Indiana juvenile facilities in
    which S.Z. had been held. It concluded that these facilities failed
    ``to adequately protect the juveniles in its care from harm,'' in
    violation of the Constitution. The Department specifically noted that
    the grievance system in the Indiana juvenile facilities--the same
    grievance system that resulted in the dismissal of S.Z.'s suit--was
    ``dysfunctional'' and contributed to the constitutional violations in
    the Indiana system.\19\
    ---------------------------------------------------------------------------
        \19\ Letter from Bradley J. Schlozman, Acting Assistant Attorney
    General, to Mitch Daniels, Governor of the State of Indiana (Sept. 9,
    2005), available at http://www.usdoj.gov/crt/split/documents/
    split_indiana_southbend_juv_findlet_9-9-05.pdf (quotes appear on pages
    2, 3, and 7).
    ---------------------------------------------------------------------------
        These cases illustrate why it is critically important to keep
    courthouse doors open to civil rights actions on behalf of incarcerated
    children. The Prison Abuse Reform Act would accomplish this by
    exempting people under 18 from the provisions of the PLRA.

                                   CONCLUSION

        To put the amendments proposed in the Prison Abuse Remedies Act in
    perspective, I would like to point out that even if they are adopted,
    most of the men, women and children in prisons and jails will not be
    filing lawsuits because the overwhelming majority of them have no
    access to lawyers and are incapable of filing suits themselves.
        At one time people in Georgia's prisons had access to lawyers from
    federal legal services programs as well as lawyers and law students
    from a program operated by the law school at the University of Georgia.
    These programs not only helped prisoners bring meritorious suits
    regarding truly egregious practices and conditions, they also advised
    prisoners when there was no basis for bringing a suit. This is the most
    effective way to prevent frivolous suits. But all that is long gone.
    Since 1996, legal services programs which receive federal funding have
    been prohibited from representing prisoners. Many states stopped
    providing legal assistance to prisoners at some time after that.
        Today, a few states like California, Massachusetts and New York,
    have small programs that provide legal services to a small percentage
    of the many prisoners who seek their help. A few national and regional
    programs, like the National Prison Project and our program, are able to
    take cases in a few states. But in some states there is not a single
    program or lawyer who provides legal representation to prisoners. In
    the part of the country where I practice, private lawyers were never
    very interested in responding to prisoner complaints even before the
    PLRA's restriction on attorney fees. Responding to prisoners' pleas for
    legal representation because of beatings, rapes, sexual harassment,
    denial of medical care or other egregious, even life threatening denial
    of rights is not attractive to lawyers in private practice.
        For a lawyer in private practice, just seeing the potential client
    for an initial interview may involve a long drive to a remote part of
    the state where many prisons are located, submitting to a search,
    hearing heavy doors slam as he or she is led to a place in the prison
    for the interview, waiting--sometimes for hours--for the potential
    client to be brought up for the interview, and conducting a semi-
    private interview in a dingy room. The potential client may be mentally
    ill, mentally retarded, illiterate, or inarticulate. The lawyer will
    not know until he or she gets there. Investigation of the case is
    immensely difficult because most, if not all, of the witnesses are
    other prisoners or corrections officers. It is easier to get
    information from the Kremlin than from many departments of corrections.
    The lawyer may discover that no suit can be filed because the prisoner
    did not file a grievance or suffered no physical injury. And then there
    is the long drive back. This is not the way to develop a law practice
    that pays the bills and supports a family.
        The exhaustion requirement, the physical injury requirement, the
    limits on the power of the federal courts and other aspects of the PLRA
    before you today discourage lawyers from making these trips,
    interviewing inmates, and bringing lawsuits on their behalf. But even
    if Congress were to correct every one of those barriers to obtaining
    remedies for constitutional violations, most lawyers are not going to
    make those trips. They can make better and more secure livings doing
    real estate closings, handling personal injury cases, or a whole range
    of legal work that involves less stress and produces more income.
        It is too bad and it should concern us. We believe in the rule of
    law, protection of constitutional rights, and equal justice. But these
    larger issues are not before you today. Instead, the Prison Abuse
    Remedies Act contains a few modest amendments that would eliminate the
    incentive for prisons and jails to adopt complicated grievance systems
    to avoid being sued and would prevent meritorious claims from being
    barred on hyper-technical grounds or because there was no physical
    injury. These amendments are in the interest of justice and they should
    be adopted.

        Mr. Scott. Judge Gibbons.

                TESTIMONY OF JOHN J. GIBBONS, NEWARK, NJ

        Mr. Gibbons. Mr. Chairman and Members of the Committee,
    thank you for inviting me to speak on H.R. 4109, the ``Prison
    Abuse Remedies Act of 2007.''
        Over many years as both a judge on the United States Court
    of Appeals----
        Mr. Scott. Could you check your mic? Can you bring it a
    little closer to you?
        Mr. Gibbons. Can you hear me now? Okay.
        Over many years as both a judge on the United States Court
    of Appeals for the Third Circuit and as an attorney, I have
    become familiar with the difficult challenges faced by inmates
    and correctional facility managers.
        I became most informed on the scope and degree of these
    challenges, however, when I served as co-chair of the
    Commission on Safety and Abuse in American Prisons, created by
    the Vera Institute of Justice. The Commission heard from
    hundreds of experts, correctional facility personnel and
    inmates. We visited jails and prisons nationwide. We found that
    oversight and accountability are critical to ensuring safety in
    corrections facilities, and that Federal court litigation has
    been one of the most effective forms of that oversight and
    accountability.
        The Commission identified several aspects of the PLRA that
    inhibit access to the Federal courts and thus diminished the
    level of productive oversight and accountability that the
    courts have been demanding. That is discussed in the report at
    page 83 and following.
        The Commission recommended four changes to the PLRA that
    would improve access to the Federal courts: One, that Congress
    should eliminate the physical injury requirement; two, that
    Congress should eliminate the filing fee requirement and the
    restrictions on attorneys' fees; three, that Congress should
    lift the requirement that correctional agencies concede
    liability as a prerequisite to court-supervised settlement; and
    four, that changes in the exhaustion rule should be made and
    require meaningful grievance procedures.
        Now, this is not an exhaustive list of reforms that could
    be made, but I am pleased to support H.R. 4109 because it
    adopts essentially all of the Commission's recommendations and
    also makes other significant amendments to the PLRA that will
    ensure that Federal courts can provide justice to individual
    inmates and compel reforms in institutions often riddled with
    abuse.
        Let me first address the important role that the judicial
    branch plays in improving the conditions in jails and prisons.
    Compared to other institutions, I believe courts do a
    reasonably good job in resolving conflicts. Moreover, courts
    are often the only means of external and sustained oversight of
    prisons and jails, and courts have proven to be quite good at
    monitoring conditions of confinement.
        It was Federal intervention, including intervention by my
    former court, that led to the elimination of dangerous, out-of-
    date correctional facilities in many States and that reduced
    hazardous overcrowding in other prisons. Court involvement
    improved treatment of prisoners, addressing unnecessary and
    excessive force by corrections officers. Litigation also
    secured improvement in the appalling and substandard medical
    and mental health services of prisoners. For example, my law
    firm represents all of New Jersey inmates diagnosed with HIV
    and AIDS under a consent decree entered into in 1992, before
    the enactment of the PLRA, which prohibited segregated housing
    and led to improved medical treatment. Decrees like these are
    advances that should be praised and preserved, not bemoaned and
    rolled back.
        The most obvious winners from court involvement in jails
    and prisons may be the inmates, but the improvement of safety
    and reduction of abuses in prisons in America benefits
    everybody, including corrections staff, inmate family members
    and the greater public. These benefits are all the more
    significant given the continued rise in the incarcerated
    population. According to a new Pew Public Safety Performance
    Project report, 1 in every 100 adults in the United States is
    now in jail or imprisoned.
        But we cannot cling to the illusory belief that what
    happens in prisons stays in prisons. Inmates take what they
    experienced in correctional facilities and share that
    experience with the society at large once they are released,
    and staff bring home the problems they confront in prisons
    where they work. Thus, it behooves all of us to improve the
    treatment of inmates, and the one method that has been proven
    is through litigation resulting in judicial resolution and
    oversight.
        Unfortunately, the passage of the PLRA produced a decline
    in effective judicial oversight. The PLRA unnecessarily
    constrains the judge's role, limiting oversight and
    accountability, and ignoring the judiciary's demonstrated
    capacity and ability to handle what are generally basic civil
    rights cases.
        There may have been a need to reduce illegitimate claims,
    although there was never any demonstration of that need during
    any congressional hearing that I am aware of. But assuming the
    need for attention to illegitimate claims, the purported
    curative aspects of the PLRA have led to a dangerous overdose,
    squeezing out legitimate claims and greatly diminishing
    judicial oversight. Data may indicate that the prisoner
    lawsuits have been almost cut in half, but they do not
    demonstrate that frivolous claims have been properly reduced.
        One would assume that if only frivolous suits were
    eliminated, the percentage of successful suits would increase.
    If we assess whether a claim is meritorious based on its
    success, then the PLRA must be characterized as having failed,
    because the proportion of successful suits has declined since
    it was passed, and with that decline we have also seen an
    erosion of judicial oversight. Between 1995 and 2000, States
    with little or no court-ordered regulation of the prisons
    increased from 12 to 28 States.
        Reform of the PLRA need not open up the floodgates of
    unmeritorious prison litigation, as some people fear. The
    amendments to the PLRA in H.R. 4109 reflect thoughtful
    modifications that would permit and facilitate meritorious
    claims and thus useful and effective judicial oversight without
    burdening the courts.
        Pre-PLRA courts knew how to get rid of frivolous claims
    without waste of judicial resources, and they haven't
    forgotten. Pre-PLRA, the chief burden on the courts was
    actually the fierce and unmeritorious resistance by government
    organizations to meritorious claims.
        As Justice John Paul Stevens observed in commenting on the
    PLRA, Congress has a constitutional duty to respect the dignity
    of all persons, even those convicted of heinous crimes. The
    amendments to H.R. 4109 go a long way toward recognizing and
    fulfilling that duty. The bill takes significant steps toward
    rectifying the overbroad and overly harsh provisions of the
    PLRA that have denied inmates with meritorious claims their day
    in court. The bill reaffirms Congress's faith in the judiciary
    to resolve and improve conditions of abuses in our Nation's
    teeming jails and prisons.
        Thanks for inviting me to speak to you today. And I look
    forward to answering any of your questions.
        Mr. Scott. Thank you.
        [The prepared statement of Judge Gibbons follows:]

                   Prepared Statement of the John J. Gibbons

        Mr. Chairman and members of the Committee, thank you for inviting
    me to speak on H.R. 4109, the ``Prison Abuse Remedies Act of 2007.'' My
    name is John Gibbons. Over many years as both a Judge on the U.S. Court
    of Appeals for the Third Circuit and as an attorney I have become
    familiar with the difficult challenges faced by inmates and
    correctional facilities. I became most informed on the scope and degree
    of these challenges, however, serving with former U.S. Attorney General
    Nicholas de B. Katzenbach as Co-Chairs of the Commission on Safety and
    Abuse in America's Prisons.
        Created by the Vera Institute of Justice, the Commission--composed
    of a group of twenty distinguished pubic servants--undertook a 15-month
    public examination of the most pressing safety and abuse issues in
    correctional facilities for prisoners, staff, and the public. The
    Commission heard from hundreds of experts, correctional facility
    personnel, and inmates. We visited jails and prisons nationwide. The
    Commission issued a report in June 2006, including thirty
    recommendations; among these were four recommendations concerning
    reform of the Prison Litigation Reform Act (PLRA).
        In its report, Confronting Confinement, and recommendations, the
    Commission stressed the importance of oversight and accountability in
    addressing safety and abuse in corrections facilities. We found that
    federal court litigation has been one of the most effective forms of
    that oversight and accountability. The Commission identified several
    aspects of the PLRA that inhibit access to the federal courts and thus
    diminish the level of productive oversight and accountability the
    courts have demanded. The Commission recommended four changes to the
    PLRA that would improve access to the federal courts: (1) eliminate the
    physical injury requirement; (2) eliminate the filing fee requirement
    and restrictions on attorney fees; (3) lift the requirement that
    correctional agencies concede liability as a prerequisite to court-
    supervised settlement; and (4) change the exhaustion rule and require
    meaningful grievance procedures. The Commission on Safety and Abuse in
    America's Prisons, Confronting Confinement, at 86-87 (June 2006). This
    is not, as the report stressed, an exhaustive list of reforms that can
    be made. Indeed, I am pleased to support H.R. 4109, which adopts
    essentially all of the Commission's recommendations, and also makes
    other significant amendments to the PLRA that will ensure that federal
    courts can provide justice to individual inmates and compel reform of
    institutions riddled with abuse.
        Let me first address the important role the judicial branch plays
    in improving the conditions in jails and prisons. I may have a certain
    bias, but I tend to think judges can do a reasonably good job of
    resolving conflicts. Moreover, courts have often been the only means of
    external and sustained oversight of prisons and jails. And courts have
    proven to be quite good at monitoring conditions of confinement.
        In discussing prison and jail conditions and prisoner abuse it is
    important not to lose historical perspective. Notwithstanding the
    problems we confront today, thirty to forty years ago prisons were in a
    far more deplorable state.
        It was judicial intervention that led to the elimination of
    dangerous out-of-date correctional facilities in many states and
    reduced hazardous overcrowding in other prisons. See, e.g., Guthrie v.
    Evans, 93 F.R.D. 390 (S.D. Ga. 1981); Duran v. Anaya, 642 F. Supp. 510
    (D.N.M. 1986). Court involvement improved treatment of prisoners,
    addressing unnecessary and excessive force by corrections officers.
    See, e.g., Sheppard v. Phoenix, 210 F. Supp. 2d 450 (S.D.N.Y. 1991);
    Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995). Litigation also
    secured improvement in appalling and substandard medical and mental
    health services for prisoners. For example, my law firm represents all
    of New Jersey's inmates diagnosed with HIV and AIDS under a consent
    decree entered into in 1992, before the PLRA, which prohibited
    segregated housing and led to improved medical treatment. Roe v.
    Fauver, C.A. No. 88-1225 (AET) (D.N.J. March 3, 1992). Decrees like
    these are advances that should be praised and preserved, not bemoaned
    and rolled back.
        The most obvious winners from court involvement in jails and
    prisons may be inmates. But as the Commission Report makes clear, the
    improvement of safety and reduction of abuse in prisons in America
    benefits everyone, including corrections staff, inmates' family
    members, and the greater public. Confronting Confinement, at 11. This
    fact is all the more significant given the continuing rise in the
    incarcerated population. According to a new report by the Pew Public
    Safety Performance Project, one in every one hundred adults in the
    United States is now in jail or in prison. The Pew Center on the
    States, One in 100: Behind Bars in America 2008 (Feb 28, 2008),
    available at http://www.pewcenteronthestates.org/uploadedFiles/
    One%20in%20100(3).pdf. But we cannot cling to the illusory belief that
    what happens in prison stays in prison. Inmates take what they
    experienced in correctional facilities and share that with society at
    large once they are released, and staff bring home the problems they
    confront in there. Thus it behooves us all to improve the treatment of
    inmates and the one proven method has been through litigation and
    judicial resolution and oversight.
        As scholars of prison litigation have observed, court have
    generally not sought out radical solutions divorced from the realities
    confronting prison officials. On the contrary, ``the litigators and the
    judges in these cases sought out and relied on the best and the
    brightest among the acknowledged leaders in American corrections,''
    relying on their testimony as expert witnesses and their judgment as
    special masters and monitors. See Malcolm M. Feeley & Van Swearingen,
    The Prison Conditions Cases and the Bureaucratization of American
    Corrections: Influences, Impacts, and Implications, 24 PACE L. REV.
    433, at 437-38 (2004).
        In the Commission's study of prisons, we found that litigation was
    often welcomed, even invited, by prison administrators who sought
    improvement in their facilities. Indeed, criminology professor and
    researcher Barbara Owen told the Commission that corrections officials
    have asked her, ``why don't you call up some of your friends and have
    them sue me?'' Confronting Confinement, at 85. James Gondles, the
    executive director of the American Correctional Association, explained
    that litigation has led to increases in budgets and improvement in
    programs in correctional facilities, preventing the need for additional
    lawsuits. Ibid.
        Unfortunately, the passage of the PLRA marked a decline in
    effective judicial oversight. The PLRA unnecessarily constrains the
    judge's role, limiting oversight and accountability, and ignoring the
    judiciary's demonstrated capacity and ability to handle what are
    generally basic civil rights cases. While there may have been a need to
    reduce illegitimate claims, the purported curative aspects of the PLRA
    have led to a dangerous overdose, squeezing out legitimate claims and
    greatly diminishing judicial oversight. Data may indicate that prisoner
    lawsuits have been almost cut in half, but they do not demonstrate that
    frivolous claims have been properly vetted. If we assess whether a
    claim is meritorious based on its success then the PLRA must be
    characterized as having failed because the proportion of successful
    suits has declined since the PLRA was passed. Ibid. And with that we
    have also seen an erosion of judicial oversight. The Commission found
    that between 1995 and 2000, states with little or no court-ordered
    regulation of prisons increased more than 130 percent, from 12 to 28
    states. Ibid.
        Reform of the PLRA need not open up the floodgates of prisoner
    litigation as some fear. The amendments to the PLRA in H.R. 4109
    reflect thoughtful modifications that would permit and facilitate
    meritorious claims, and thus useful and effective judicial oversight,
    without overburdening the courts. In addressing the PLRA last year, the
    Supreme Court aptly characterized the task before you: ``Our legal
    system . . . remains committed to guaranteeing that prisoner claims of
    illegal conduct by their custodians are fairly handled according to the
    law. The challenge lies in ensuring that the flood of nonmeritorious
    claims does not submerge and effectively preclude consideration of the
    allegations with merit.'' Jones v. Bock, 127 S. Ct. 910, 915 (2007). I
    now turn to how H.R. 4109 meets this challenge and improves upon the
    efforts of the PLRA.
        Section 2 of H.R. 4109 eliminates the physical injury claim
    requirement for seeking compensatory damages under the PLRA. Without
    this critical change to the law, the PLRA bars an inmate from filing a
    federal civil rights action ``for mental or emotional injury suffered
    while in custody without a prior showing of physical injury.'' 42
    U.S.C. Sec. 1997(e). Serious abuse, of course, need not leave indelible
    physical traces. Sexual assault is one of the most insidious examples
    that may not leave visible marks or scars, but assuredly causes harm
    and trauma. Other abuses also may not cause physical injuries but do
    rise to the level of constitutional violations and merit legal redress.
    These include denial of due process, horrific conditions of
    confinement, and denial of religious freedom and free speech rights.
        Sections 7 and 8 of H.R. 4109 restore attorney fees for PLRA claims
    and eliminate the filing fees for indigent prisoners. The PLRA is
    currently replete with provisions creating disincentives and economic
    burdens, discouraging inmates from filing claims, and deterring lawyers
    from representing inmates, even in meritorious cases. It makes little
    sense to discourage lawyers' involvement in prisoner cases if the
    purported goal of the PLRA is in part to improve the quality of claims.
    Indeed, counsel may serve as a screening mechanism, vetting some claims
    raised by an inmate and often presenting them more clearly than might
    the inmate.
        Section 6 of H.R. 4109 removes provisions in the PLRA that permit
    federal courts to issue consent decrees only if the correctional
    agencies acknowledge they had committed constitutional violations. 18
    U.S.C. Sec. 3626 (a)(i)(A), (c)(1). These provisions have undermined
    the settlement of cases because they struck at the very appeal of
    settlement, which is avoidance of concession of liability. In my
    experience as both a judge and as an arbitrator it strikes me as
    particularly odd to close off the options of opposing parties. Keeping
    all alternatives on the table is the surest way to achieve resolution
    of the conflict to the satisfaction of both sides. With the elimination
    of these requirements, federal courts will be more likely able to issue
    consent decrees and undertake their agreed upon critical oversight
    function. Section 6 also returns to the courts greater flexibility in
    managing their cases by providing them the authority to extend time
    periods before parties may move for termination of prospective relief.
    Currently defendant parties may move to terminate relief two years
    after an order and then every year thereafter. This amendment will
    reduce premature re-litigation and economize judicial resources,
    trusting in the courts to oversee their cases.
        Section 3 of H.R. 4109 makes some much needed modification to the
    exhaustion requirement. At present, and as interpreted by the Supreme
    Court as recently as 2006 in Woodford v. Ngo, 126 S. Ct. 2378 (2006),
    the PLRA bars a prisoner from filing a claim in federal court unless
    the inmate has exhausted all administrative remedies and grievance
    procedures provided by the correctional facility. Failure to exhaust,
    which includes any procedural default such as failing to meet a two day
    grievance deadline, results in the automatic dismissal of the case.
    Section 3 amends the PLRA, providing that while an inmate must first
    present her claim for consideration to prison officials, if a prisoner
    fails to so present and the federal court does not find the claim to be
    frivolous or malicious, then the court shall stay the action for up to
    90 days and direct the prison officials to consider the claims through
    the relevant procedures.
        The amendment goes a long way toward curing the inequities that
    occur when an otherwise valid claim is dismissed on the basis of
    technical violations, technical processes that are often unfair and
    unclear to prisoners.
        Consider, for example, the scenario Justice Stevens discusses in
    his dissent in Woodford v. Ngo. An inmate who is raped by prison guards
    and suffers a serious violation of his Eighth Amendment rights may be
    barred by the PLRA from bringing such a claim if he fails to file a
    grievance within the narrow time requirements that are often fifteen
    days, but in nine states span only two to five days. 126 S. Ct. 2401-
    02.
        Or consider the case of Balorck v. Reece, in which a prisoner was
    hospitalized during the five-day period he had to file a grievance for
    failing to treat his heart conditions. Discharged back to prison thirty
    days later, he was not permitted to file a grievance by the Grievance
    Aide, and because he then failed to ask for an extension of time to
    file as per prison policy, his claim was dismissed for non-exhaustion.
    2007 WL 3120110 (W.D. Ky. Oct. 23, 2007).
        Precluding an inmate who has suffered sexual assault from raising a
    legitimate claim in federal court--who may have failed to meet the
    parsimonious time requirements of the state's grievance system owing to
    a reasonable fear of retaliation or immediate trauma--does not comport
    with the legislative intent of the PLRA. Nor should hyper-technical
    adherence to unfair grievance procedures that are mischaracterized by
    prison staff prevent an injured inmate from filing his claim in federal
    court. As Senator Orrin Hatch explained in introducing the legislation,
    ``I do not want to prevent inmates from raising legitimate claims.''
    141 Cong. Rec. 27042 (Sept. 29, 1995) (quoted in Woodford, 126 S. Ct.
    2401). Added co-sponsor Senator Strom Thurmond, ``[The PLRA] will allow
    meritorious claims to be filed, but gives the judge broader discretion
    to prevent frivolous and malicious lawsuits filed by prison inmates.''
    141 Cong. Rec. 27044 (Sept. 29, 1995) (quoted in Woodford, 126 S. Ct.
    2401). The amendments in H.R. 4109 help realize that laudable goal of
    the sponsors of the PLRA. Some critics suggests that alleviating the
    exhaustion requirements will reward lazy inmates who fail to file
    timely grievances and will result in stale claims. However, in my
    experience in both adjudicating and litigating prisoner complaints, I
    rarely encountered an inmate who was loathe to complain and file a
    grievance, barring fear of retaliation.
        It deserves mentioning that the grievance procedures themselves
    must be improved. It is neither sensible nor just to require that
    inmates exhaust procedures that do not afford them legitimate means to
    remedy their complaints. The Woodford v. Ngo decision left unaddressed
    ``whether a prisoner's failure to comply properly with procedural
    requirements that do not provide a `meaningful opportunity for
    prisoners to raise meritorious grievances' would bar the later filing
    of a suit in federal court.'' 126 S. Ct. at 2403 (Stevens, J.,
    dissenting (quoting majority opinion)). At least three justices made
    clear that they would likely consider such preclusion unconstitutional.
    Id. at 2403-04. (Stevens was joined in dissent by Justices Souter and
    Ginsburg). The PLRA should be amended to fulfill the constitutional
    requirement ``that prisoners, like all citizens, have a reasonably
    adequate opportunity to raise constitutional claims before impartial
    judges.'' Id. at 2404 (citing Lewis v. Casey, 518 U.S. 343, 351
    (1996)).
        At a minimum, Congress should not apply the exhaustion requirement
    in instances where the grievance procedures do not provide a meaningful
    opportunity to raise meritorious grievances. Congress previously
    tethered exhaustion to fulfillment of federal standards for grievance
    procedures. The predecessor to the PLRA, the Civil Rights of
    Institutionalized Persons Act (CRIPA), limited application of the
    exhaustion rule to the existence of grievance procedures that met the
    standards set by the Department of Justice. 42 U.S.C. Sec. 1997e(a)(2)
    (1994), amended by Prison Litigation Reform Act of 1995 Sec. 803(d); 28
    C.F.R. Sec. Sec. 40.1-40.22. Our Commission recommended a return to
    this link and a return to encouraging meaningful grievance procedures.
        The DOJ standards include simple but essential features such as
    written grievance procedures available to all employees and inmates, 28
    C.F.R. Sec. 40.3; assurance of invoking grievance procedures regardless
    of discipline or classification to which inmates may be subject, 28
    C.F.R. Sec. 40.4; applicability to a broad range of complaints, 28
    C.F.R. Sec. 40.4; affording a reasonable range of remedies, 28 C.F.R.
    Sec. 40.6; and a simple standard form for initiating grievances. States
    or subdivisions of the states may apply to the Attorney General for
    certification of grievance procedures. 28 C.F.R. Sec. 40.11. An
    application for certification shall be denied in the event the Attorney
    General finds the procedures do not comply with these standards or are
    ``no longer fair and effective.'' 28 C.F.R. Sec. 40.16. These
    regulations also require the Attorney General to notify the federal
    appellate and district courts of the certification status of the
    grievance procedures. 28 C.F.R. Sec. 40.21. The legislative history
    indicates the very purpose behind exhaustion under CRIPA was to
    ``stimulate the development and implementation of effective
    administrative mechanisms for the resolution of grievances in
    correctional . . . facilities.'' H.R. Conf. Rep. No. 897, 96th Cong. 2d
    Sess. 9 (1980). The PLRA turned that laudable goal on its head, making
    exhaustion a blunt instrument barring even meritorious claims
    regardless of the inadequacy of the grievance procedures.
        Also improperly included in the overbroad sweep of the PLRA are
    juvenile inmates. Happily, section 4 of H.R. 4109 seeks to rectify this
    morally unsound application and exempts juveniles from the PLRA.
    Especially vulnerable to abuse in jails and prisons, yet less mentally
    equipped than adults to maneuver administrative and legal processes, it
    is especially galling to burden juveniles with the stringent time and
    filing requirements of the PLRA. Moreover, I have not seen statistical
    evidence that juveniles have filed excessive, frivolous lawsuits.
        In conclusion, I unhesitatingly express my support for H.R. 4109.
    The bill takes significant steps toward rectifying the overbroad and
    overly harsh provisions of the PLRA that have denied inmates with
    meritorious claims their day in court. In addition, the bill reaffirms
    Congress's faith in the Judiciary to resolve and improve conditions and
    abuses in our Nation's teeming jails and prisons.
        As Justice Stevens observed in commenting on the PLRA, Congress has
    a ``constitutional duty `to respect the dignity of all persons,' even
    `those convicted of heinous crimes.''' Woodford v. Ngo, 126 S. Ct. at
    2404 (Stevens, J., dissenting) (quoting Roper v. Simmons, 543 U.S. 551,
    560 (2005)). These amendments in H.R. 4109 go a long way toward
    recognizing and fulfilling that duty. I thank the Chairman and the
    members of the Committee for the opportunity to present this
    information to you.

        Mr. Scott. Ms. Hart.

       TESTIMONY OF SARAH V. HART, ASSISTANT DISTRICT ATTORNEY,
       PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA, PA

        Ms. Hart. Thank you very much, Mr. Chairman Scott, Ranking
    Member Gohmert and Members of the Subcommittee. I greatly
    appreciate the opportunity to testify here today.
        H.R. 4109 proposes substantial amendments to the PLRA.
    Congress, however, passed the PLRA to address three critical
    problems: First, to address frivolous inmate lawsuits that were
    costing States millions of dollars, wasting correctional and
    judicial resources; second, the problem of long-standing
    consent decrees that governed over 39 of our State correctional
    systems; and third, federally ordered prison population caps
    that required the mass release of dangerous prisoners.
        In the 1970's and 1980's, many prisons entered consent
    decrees, believing that they could help improve prison
    conditions. Consent decrees permitted parties to craft sweeping
    injunctions that were not limited by the traditional
    requirements governing Federal court injunctions. Prison
    managers, however, ultimately found that these consent decrees
    impaired their ability to manage prisons. Consent decrees
    provisions that seemed wise when they were entered proved to
    become outdated and counterproductive. New political
    administrations were bound to the poor policy choices of prior
    administrations.
        Despite this, consent decrees were very, very difficult to
    change. Congress heard from numerous witnesses who complained
    about the adverse effects of long-standing injunctions and how
    hard they were to change. Many of these consent decrees had
    far-reaching operational and financial implications. Texas
    prisons, for example, could not exceed 95 percent of their
    designed capacity. This required that they keep 7,500 empty
    beds and construct new prisons and staff them.
        These orders also had substantial public safety
    implications. For 9 years I served as the district attorney's
    counsel opposing a prison population cap that required the
    release of tens of thousands of pretrial detainees over a
    several-year period. Philadelphia's prior mayor had agreed to a
    consent decree to settle a class action without any trial,
    without any finding that there was a single constitutional
    violation. He agreed to reduce the prison population, to reduce
    the budget by agreeing to mass prisoner releases.
        Following the Federal prison cap order, the number of
    fugitives in Philadelphia nearly tripled. Outstanding bench
    warrants skyrocketed from 18,000 to over 50,000. That is the
    equivalent of a year's worth of prosecutions in Philadelphia, a
    year's worth of crime victims with no justice. In one 18-month
    period, Philadelphia rearrested for new crimes 9,732 defendants
    released by the Federal court order. Their crimes included 79
    murders, 959 robberies, over 2,200 drug-dealing cases, over 700
    burglaries, 90 rapes, 14 kidnappings, over 1,000 assaults, and
    over 200 gun crimes.
        This also included the murder of rookie police officer
    Daniel Boyle, who was shot by a prisoner repeatedly released by
    the Federal prison cap. Daniel Boyle's father testified
    repeatedly before Congress, urging that they enact the PLRA to
    prevent other families from facing what he had faced with the
    loss of his son. When the new mayor came in, Ed Rendell, the
    first thing he did, his first official act as mayor, was to
    file a motion to terminate that prison population cap, but he
    was unable to do that based on the law as it existed prior to
    the PLRA. Only after the PLRA passed was he able to stop the
    Philadelphia prison cap.
        H.R. 4109 proposes to eliminate the limits on consent
    decrees that establish prison population caps or require the
    release of prisoners. It also would require limit consent
    decrees and injunctions.
        Quite simply, if H.R. 4109 was the law today, the
    Philadelphia prison cap could be reestablished as a Federal
    court injunction without any trial showing a constitutional
    violation, and prosecutors would be powerless to stop the entry
    of mass prisoner release orders or have any meaningful way to
    stop those releases.
        H.R. 4109 also would permit the kinds of sweeping decrees
    and injunctions that the PLRA limited. These include ones that
    are not narrowly tailored, injunctions that trump State laws.
    There are a number of very essential requirements designed to
    limit the intrusiveness of Federal court injunctions that would
    be eliminated by this act.
        H.R. 4109 also proposes to end the current requirement that
    a prisoner exhaust administrative remedies before filing a
    Federal lawsuit. The PLRA exhaustion requirement, however, does
    not stop inmates from filing State lawsuits; rather, it takes
    the sensible approach that prisoners should first raise the
    claims with State officials before they go to a Federal court.
        Correctional officials rely on inmate grievances to alert
    them to problems arising in prisons. The current system allows
    corrections managers to learn of serious problems in the
    prison, take prompt action to stop them and remedy past
    problems. It also provides an opportunity for alternative
    dispute resolution. Under the new proposal, there would be no
    incentive for inmates to do this.
        H.R. 4109 also would vastly increase the fees for State and
    local taxpayers for prisoner lawyers. Under the PLRA,
    prisoners' attorneys are entitled to substantial attorneys'
    fees already. For example, in Philadelphia, prisoners'
    attorneys litigating just a preliminary injunction motion
    received $250,000. Other States have paid out millions of
    dollars in fees under the PLRA. Prisoners' attorneys, however,
    now want State and local taxpayers to pay them at prevailing
    market rates. That means, in Philadelphia, up to $450 an hour.
    They also want to eliminate the proportionality requirement,
    and they also want to reinstate getting fees for related
    claims, even when they are unsuccessful. Under current law,
    however, State and local prisoners already receive attorneys'
    fees that are vastly better than what wounded Iraq veterans get
    if they get a medical malpractice claim. They are required to
    pay out 25 percent of their judgment.
        This Committee also heard recently from Debbie Smith over
    the Debbie Smith DNA Act. If Debbie Smith filed a suit against
    her rapist, she doesn't get dime one for attorneys' fees, and
    she doesn't get to go to Federal court.
        The bottom line here is that State and local taxpayers are
    already paying substantial money for attorneys' fees to
    litigate these claims. The PLRA has put on some sensible
    limitations to that, but it should not--we should not have
    State and local taxpayers underwrite and pay out attorneys'
    fees that are vastly disproportionate to what other plaintiffs
    get.
        Thank you very much for the opportunity to speak here
    today.
        Mr. Scott. Thank you.
        [The prepared statement of Ms. Hart follows:]

                      Prepared Statement of Sarah V. Hart

        Mr. Scott. Mr. Preate.

          TESTIMONY OF ERNEST D. PREATE, JR., JD, SCRANTON, PA

        Mr. Preate. My name is Ernie Preate. I am a lawyer up in
    Scranton, Pennsylvania, and, as you know, I am a former
    attorney.
        I have heard several significant proposals here today from
    both the Minority and Majority for amending the PLRA, and I
    commend the Committee for taking up this task, and I hope that
    you can come to some resolution of it.
        As a prosecutor for 25 years, I really never understood the
    true vulnerability of prisoners and the loss of hope that
    permeates most prisons and prisoners until I became one. And as
    part of my last life's work for the last 10 years, I have been
    graciously allowed by the Pennsylvania Department of
    Corrections to visit inside the walls of its prisons and to
    talk to both the men and the women about their fears and their
    hopes. Last year I visited 15 of the 26 Pennsylvania prisons,
    including the old and daunting big houses, Graterford,
    Huntingdon, Rockview, and the death row institution SCI-Greene.
    I spoke to almost 10,000 inmates in these question-and-answer
    sessions. Some of the inmates I sent there myself.
        I want to make it clear that my knowledge of the prisons--
    and I have been doing this for 10 years--most of the guards and
    the staff are professionals, and they act that way, and they do
    their job very well. But then there are some, and I have
    outlined some of them, the instances in my written testimony,
    where there are rogue guards that engage in beatings, and that
    creates grievances.
        Now, I am in a unique position there to understand the
    real-life consequences of the legislation that you pass and
    that my Commonwealth passes. As I say, most people do not have
    an intimate knowledge of what goes on inside a prison. Most
    people just have pictures from television, some books that they
    have read. But inside a prison it is different.
        I can say with confidence, Mr. Chairman, that the PLRA is
    deeply flawed, and its unintended consequences have done
    serious harm to the principle that a justice system must, after
    all, be fundamentally just.
        A serious problem with the PLRA currently as written is
    that it requires a prisoner to exhaust administrative remedies
    in order to file a Federal lawsuit. This means that he or she
    must file internal grievances through possibly three or four
    levels before the claim can be brought in Federal court. This
    restriction applies both in county and State prisons. The
    problem with that is it is very difficult to get the forms. It
    takes a very short period of time in which to file. And then,
    in fact, most of these claims are frivolous and are weeded out,
    however, through the provisions of the current PLRA. And I
    support that provision, and I think it is important that it
    remains in your bill, Mr. Scott. And H.R. 4109 does contain
    that screening provision, and I support that.
        The problem with the PLRA is that it stifles the true
    complaints, and it is well to remember here that what we are
    talking about are inmates. We are not talking about lawyers.
    The Pennsylvania Department of Corrections, which is a very
    good institution, has an 18-page inmate grievance procedure
    that you must follow. And it says, you must do this, you must
    do that, you must file the pink copy with so and so, you must
    file the golden copy with so and so; it must be clear,
    understandable, legible, et cetera, et cetera. And if you mess
    up, you are out. If you miss the deadlines, you are out.
        The Woodford v. NGO case, which Jeanne Woodford was one of
    the petitioners in that case, that made it clear, the United
    States Supreme Court in 2006 made it perfectly clear, if you
    miss one of those deadlines by 1 day, if you don't get the
    paper filed in time, you are out of court. There are no
    exceptions. The United States Supreme Court's finding rules.
        So we are talking about people here who are inmates with
    less than an eighth-grade education. They are to interpret an
    18-page document that was drafted by lawyers. These timelines
    and other grievance procedure information are simply too
    difficult, it seems to me, to say, your rights are dependent
    upon, your access to the courts are dependent upon how you can
    manage your way through this 18-page morass.
        Retaliation. That is a terrible problem inside of prisons.
    Intimidation is one of the problems that the PLRA requirements
    that inmates first exhaust their remedies with inmate grievance
    systems has spawned. In cases involving abuse by guards against
    inmates, requiring that the inmate first file the grievance
    exposes the inmate to future retaliation by the very person
    that perpetrated the harm against him. An inmate learns the
    quickest route to the hole is to complain about the conduct of
    a guard. If you think that retaliation is not an everyday part
    of prison life, then you don't know the reality of prisons.
        I just want to say one thing. That is this, that the PLRA,
    as Margo Schlanger once said and has written, the exhaustion
    requirement is a rule requiring administrative exhaustion and
    punishing fate--cross every ``T'' and dot every ``I''--by
    conferring constitutional immunity for civil rights violations.
    It is simply unsuited for the circumstances of prisons and
    jails where physical harm looms so large and where prisoners
    are so ill-equipped to comply with legalistic rules.
        I made, if I may, Mr. Chairman, a couple of suggestions in
    my written testimony. One of them is that, in the 90-day period
    that you have provided for, for the prison and the prisoner to
    deal with these issues that are raised, that you authorize the
    courts to use alternative dispute resolution. It is, I think,
    important that that be permitted in the system to help reduce
    the costs and to improve the efficiencies.
        Secondly, I have outlined a case here in my written
    testimony where a person who is a paraplegic, suing under the
    Americans with Disabilities Act, is forced to go through the
    PLRA in order to perfect his claim in Federal court. It seems
    to me what has happened here is that the ADA's intent is going
    to be frustrated. There is a case I cite in my notes, in my
    testimony, that says the way that you get to justify and to
    uphold your Federal ADA claim has to go through the PLRA and
    its requirements. I do not think that was the intended
    consequence of the PLRA.
        Again, I support H.R. 4109, and I look forward to answering
    your questions. Thank you.
        [The prepared statement of Mr. Preate follows:]

                  Prepared Statement of Ernest D. Preate, Jr.

        Good Afternoon. My name is Ernie Preate, Jr. I'm an attorney
    licensed to practice law in the Commonwealth of Pennsylvania and the
    federal District Courts in Pennsylvania and the Third Circuit Court of
    Appeals.
        I would like to thank Chairman Scott, Ranking Member Gohmert, and
    the rest of the Committee for inviting me to speak to you today about
    the ``Prison Abuse Remedies Act of 2007.'' I rise in support of H.R.
    4109.
        I'd like to give you a brief background of my life experiences that
    brings me before you today. I am a former District Attorney in
    Scranton, Pennsylvania, and a former Attorney General of Pennsylvania.
    I'm also an attorney in private practice who defends accused criminals
    in state and federal courts; I also litigate Civil Rights claims on
    behalf of inmates and former inmates. But perhaps my most important
    experience for purposes of this testimony is that I was once a
    prisoner. I pled guilty to Mail Fraud in 1995 in connection with
    improperly gathering less than $20,000 in campaign contributions nearly
    20 years ago. It was a violation of our state election law to take cash
    contributions in excess of $100. At some of my fundraisers, some people
    paid in cash, most paid by check. It was wrong for me to accept the
    cash contributions, and I am deeply sorry to the people of Pennsylvania
    for my actions. As punishment, I spent nearly twelve months in federal
    prison.
        On one hand, I thus understand the importance of a strong criminal
    justice system. Criminal offenders need to be held accountable for
    their actions, but this punishment must be imposed in accordance with
    Constitutional standards. From my unique perspective, the proposed
    bill, H.R. 4109, provides the proper balance between weeding out the
    numerous frivolous civil lawsuits filed by prisoners and ensuring that
    meritorious ones receive their day in Court.
        Enforcement of the law is central to our system of justice and to
    the protection of our communities. As a prosecutor, I focused on
    criminal law enforcement, but it is equally important that
    constitutional standards and civil laws be obeyed. The rule of law
    applies to everyone in this country, including prisoners and officials.
    Therefore, to the extent that the PLRA interferes with the rule of law
    and undermines the protection of constitutional rights that all
    Americans, including prisoners, share, it should--and must--be amended.
        As a prosecutor for nearly 25 years, I never fully understood the
    true vulnerability of prisoners, and the loss of hope that permeates
    most prisons and prisoners. Then I became one. And, as part of my
    life's work, for the last 10 years I have been graciously allowed by
    the Pennsylvania Department of Corrections to visit inside the walls of
    its prisons and to talk to both men and women about their fears and
    their hopes.\1\ Last year I visited 15 of the 26 Pennsylvania Prisons,
    including the old and daunting ``big houses''--Graterford, Huntington,
    Rockview and the death row institution, SCI-Greene. I spoke to almost
    10,000 inmates, some of them I sent there myself. Thousands have
    written to me, not just about their individual cases or issues, but
    about whether laws will be changed, such as the PLRA, and the
    Pennsylvania Post-Conviction Relief Act, which, along with the Anti-
    Terrorism Effective Death Penalty Law (ATEDP), effectively obliterates
    the great Writ of Habeas Corpus. They talk to me about whether ill and
    aged lifers have any chance of pardon or parole, and, whether those who
    are truly innocent can ever be freed.
    ---------------------------------------------------------------------------
        \1\ The Department and I have mutually agreed that I would not
    discuss individual cases, grievances or prison policies during these
    question and answer sessions. To be clear, I proposed some of these
    restrictions myself.
    ---------------------------------------------------------------------------
        I am in a unique position to understand the real life consequences
    of legislation that is passed, by you and my Commonwealth. I know that
    most individuals, including those who crafted the PLRA, have a limited
    knowledge about realities of prison life, and, therefore, could not
    have predicted the stifling consequences of this law. It was only when
    I was a prisoner that I understood the critical importance of the
    federal courts' oversight of prisons. Based upon ALL my experiences, I
    can say with confidence that the PLRA is deeply flawed and its
    unintended consequences have done serious harm to the principle that a
    justice system must, after all, be fundamentally just.
        A serious problem with the PLRA as currently written is that it
    requires a prisoner to exhaust administrative remedies in order to file
    a lawsuit in federal court. This means that he or she must file
    internal grievances through possibly 3 or 4 levels before the claim can
    be brought in federal court. This restriction applies in both county
    and state prisons.
        I can tell you from my own experiences, both as an inmate and as a
    civil rights attorney that inmates can be very intimidated in bringing
    grievances. I litigated one civil rights lawsuit against the Lackawanna
    County Prison where a few rogue guards, after midnight, routinely,
    without provocation, beat and terrorized inmates, and even other
    guards. There was no question about the one guard's inmate beating. The
    stomping boot print was clearly visible on his back. The next day, the
    prisoner verbally complained to the day shift officer. So did his
    father, a well-known businessman. The result: that night the rogue
    guard retaliated with a second brutal assault. With the father
    complaining and the assaults public and out of control, a criminal
    investigation and a newspaper investigation ensued. Eventually, the
    family hired me to pursue a lawsuit. I can't tell you the amount of my
    client's settlement, but I can tell you that two of the guards
    ultimately pled guilty and their punishment was--probation! Probation.
    Think of what kind of message this sends to inmates not just in
    Lackawanna County but to inmates everywhere.
        Intimidation of inmates is one of the problems with the PLRA's
    requirements that the inmate first exhaust his remedies with the inmate
    grievance system. In cases involving abuse by guards against inmates,
    requiring that the inmate first file a grievance exposes the inmate to
    future retaliation by the very people he is vulnerable to and are
    harming him. An inmate learns that the quickest route to the isolation
    of the ``hole'' is to complain about the conduct of a guard. If you
    think that retaliation is not a part of every day prison life, then you
    don't know the reality of prisons.
        In the above lawsuit, we learned in depositions of other assaults.
    In one, the inmate was handcuffed to a pole and beaten by this rogue
    guard, and the beating did not stop until the warden's long time
    secretary, hearing of the beating, ran down two flights of stairs to
    the guard and put a stop to it. This inmate was so intimidated and
    fearful, he didn't file a grievance or even a federal lawsuit.
        Moreover, in the vast amount of cases, the guard will deny having
    done anything wrong, and the institutional review officers will simply
    deny, deny, deny (at each level) finding that the guard has denied and
    the guard is credible. Of course, this inmate may now find himself
    subject to retaliatory discipline with concocted violation of prison
    rules, such as failing to stand for a count, cursing at or threatening
    a guard, or constant random searches of his person and his cell.
        I know of one case litigated by a colleague of mine where the
    inmate filed a grievance that the guards were retaliating against him
    for filing a prior grievance. The inmate complained that the guards
    were putting pebbles in his soup. What did the prison officials do in
    response to this grievance? The first ``investigative'' act was to
    search the inmate's own cell and ``find'' pills not prescribed to
    him.\2\
    ---------------------------------------------------------------------------
        \2\ Mincy v. Klem, Slip Copy, 2007 WL 1576444, M.D.Pa., May 30,
    2007, Mincy v. Chemielewski, 2006 WL 3042968, M.D.Pa., October 25,
    2006. Appeal of grant of summary judgment is now before the Third
    Circuit.
    ---------------------------------------------------------------------------
        The United States Supreme Court has recently made it perfectly
    clear: the exhaustion requirement is non-discretionary.\3\ This means
    that if a grievance is dismissed due to procedural defects, such as the
    inmate filing his appeal of the grievance one day late, his case is
    dismissed for failure to exhaust.
    ---------------------------------------------------------------------------
        \3\ Woodford v. NGO, 546 U.S. 81 (2006).
    ---------------------------------------------------------------------------
        In my view, the exhaustion requirement runs afoul of basic due
    process requirements under the U.S. Constitution for notice. Let me
    give you an example. In Pennsylvania, the grievance procedures,
    according to the Third Circuit, encompass an initial grievance and two
    levels of appeal, all of which have timelines.\4\ Nowhere on the state
    forms does it say what the timelines are for filing the initial
    grievance and for appealing the decision of the grievance officer to
    the Superintendent and the Superintendent's decision to review in
    Harrisburg. However, when the Superintendent is given the inmate's
    Appeal, at least in one of the state prisons where I have a client, it
    stated right on the form used for recommended action to the
    Superintendent: ``your answer is due by (specific) date.'' Clearly the
    staff are notified of the time dates, but not inmates. This should
    change.
    ---------------------------------------------------------------------------
        \4\ Spruill v. Gillis, 372 F.3d 218 (C.A.3 (Pa.) 2004)
    ---------------------------------------------------------------------------
        It is helpful to compare the prison grievance processes required by
    the PLRA to that of other legislation. In virtually every phase of
    administrative review, both state and federal, when decisions are made,
    such as Social Security denials, Workers' Compensation denials,
    Unemployment Compensation denials, Equal Employment Opportunity
    findings, it clearly states on the official finding or denial that
    there is a right to an appeal and the timeline for appeal of that
    decision. However, from what I have observed, nowhere on correctional
    complaint forms does it inform the inmate of his or her right to file a
    complaint or appeal, to whom the appeal should be directed, and, the
    timeline for submission of the appeal.
        It is important to remember here that the education level for most
    inmates in Pennsylvania prisons is less than an eighth grade education.
    These timelines, and other grievance process information, are contained
    in an 18 page ``policy statement'' ADM-804 that is given to inmates
    along with 26 other official policies that the inmate must be aware of.
    Though it is carefully crafted by lawyers, even inmates who can barely
    read are expected to understand their rights and responsibilities.
    Again, even if an inmate has a legitimate and meritorious complaint, if
    it is one day late, it is never going to be redressed
        I would also note that Pennsylvania has no comparable PLRA, because
    of its sovereign immunity statutes for state and local governments.\5\
    Inmates therefore, have no ability to sue in Pennsylvania State Courts,
    the state or local governments for assaults by guards or other
    prisoners, for monetary compensation, as such events do not fall within
    the exceptions enumerated under the Pennsylvania sovereign immunity
    statutes. Therefore all such lawsuits are filed in the federal courts.
    ---------------------------------------------------------------------------
        \5\ 42 Pa.C.S.A. Sec. 8522, 42 Pa.C.S.A. Sec. 8542.
    ---------------------------------------------------------------------------
        Another hazard of the grievance process is that the grievance
    process may be futile in terms of providing any relief or redress. What
    good would it do to complain, through the grievance process, a single
    beating by a guard? The grievance process will not provide him monetary
    recompense for his physical injuries. The Supreme Court in upholding a
    3rd Circuit case held that a complaint of excessive force (beating by
    guard) must be grieved to final decision even though the administrative
    remedy cannot provide the inmate with the relief he could get in a
    section 1983 complaint (monetary recompense).\6\
    ---------------------------------------------------------------------------
        \6\ Booth v. Churner, 532 U.S. 731 (2001), affirming Booth v.
    Churner, 206 F.3d 289 (Ca.3(Pa.) 2000).
    ---------------------------------------------------------------------------
        A second problem with the PLRA I would like to address is the
    requirement that an inmate receive ``physical injury'' in order to be
    awarded compensatory damages. Most of the Circuits have defined
    physical injury as something more than de minimis. You have heard
    extensive previous testimony that the physical injury requirement has
    been used to deny redress to inmates who have been raped and sexually
    assaulted.\7\ This requirement also appears to unfairly restrict
    damages which may be awarded to a disabled persons under the Americans
    with Disabilities Act (ADA).\8\
    ---------------------------------------------------------------------------
        \7\ Hancock v. Payne, 2006 WL 21751 (S.D. Miss.). Copeland v.
    Nunan, 205 F.3d 743 (CA 5(Tex) 2001)
        \8\ 42 U.S.C.A. Sec. 12131 et seq.
    ---------------------------------------------------------------------------
        Let me give you an example from one of my own cases. I represent a
    paraplegic, a well known wheelchair racer. He was prescribed by his
    Board Certified Urologist to have clean rubber gloves and clean
    catheters to allow him to perform his elementary bodily functions. He
    was instructed to take all reasonable efforts during this process to
    not be in a place where he could transmit his germs to others , or
    where he could pick up the germs of others. He did this on his own for
    10 years with only occasional urinary tract infections (UTI), which, is
    to be expected in such cases.
        But when he went to state prison, for nearly a year he was never
    examined by the staff physician. He was placed in a cell with another
    inmate and he was not given a fresh supply of gloves and catheters for
    each bodily function elimination. He was told to wash the items
    himself. Therefore, it was not surprising that he began to develop
    repeated urinary tract infections.
        The prison doctor, who had not seen the inmate for nearly a year
    since his arrival, without even examining the inmate, nor contacting
    his treating physician, told him that he was ordering a permanent
    catheter, called a Foley Catheter, to be inserted in the inmate's penis
    and that he carry a bag in which his urine would be collected.
        My client, who was under 30, educated and in good physical shape,
    strongly objected. As one Board Certified Urologist testified, a Foley
    Catheter, increases rather than decreases the rate of UTI's. Further,
    prolonged use of a Foley Catheter causes a decrease muscle functioning
    of the penis and associated parts. Over time these muscles atrophy. The
    inmate urged the doctor to call his treating physician. The prison
    doctor never did call the treating physician.
        As a result, the prison doctor ordered that the inmate be given a
    new bodily elimination regime. He could only urinate once every six
    hours, that each time he did so, he had to travel to the nurse's
    station, be examined by the nurse who would press on his stomach to see
    if the bladder was distended, and, only if it was, would she give him
    the necessary catheter and gloves. To his humiliation, she had to watch
    him do it himself. And if she believed he was not distended enough, she
    would refuse him those necessary implements. On several occasions, he
    was refused. The urgency to eliminate became excruciatingly painful.
    Several times he wet himself. His existence because so tortured that he
    would refuse food and drink so he could wouldn't have the urgency to
    eliminate.
        He filed a grievance begging to be allowed to catheterize himself
    as needed and without humiliation. He even attached a letter from his
    treating physician. His complaint was denied at every level, upholding
    the prison doctor. Thus, we filed a federal lawsuit against the doctor
    and prison officials, alleging discrimination against him because he
    was disabled. He testified that he was aware of no one else in the
    healthy male prison population who was prescribed such a cruel and
    horrendous regime, alleging he was subjected to this regime only
    because he was disabled, a paraplegic.
        In a Motion to Dismiss, the medical provider argued that he
    received no physical injury. While we were able to argue some physical
    injuries (increased bladder infections, physical pain and incontinence)
    it is possible that this could be lost on summary judgment.\9\
    ---------------------------------------------------------------------------
        \9\ But see Kiman v. New Hampshire Department of Corrections, 451
    F.3d 274 (1st Cir. 2006) where the First Circuit held that the lower
    court must determine whether the inmate must exhaust his administrative
    remedies as a prerequisite to suit under the ADA.
    ---------------------------------------------------------------------------
        In my view, this is a clear violation of the ADA. Non-paraplegic
    inmates were not prohibited from urinating and forced to an every six-
    hour schedule. The PLRA applies to all inmate suits in federal
    Courts.\10\ The physical injury requirement runs directly in conflict
    with the ADA, in that the ADA is about equal rights and emotional
    trauma to a disabled person and not physical injuries. In U.S. v.
    Georgia,\11\ the Supreme Court held that a disabled inmate who is
    discriminated against could sue for compensatory damages. The
    requirement for physical injury potentially eviscerates the Americans
    with Disabilities Act as it applies to inmates, rendering its
    protections meaningless.
    ---------------------------------------------------------------------------
        \10\ 42 U.S.C.A. Sec. 1997e sections (a) (exhaustion requirement)
    and (c)(1) (dismissal) both specifically state ``any other Federal
    law'' and section (e) refer to ``[n]o Federal civil action''.
        \11\ 546 U.S. 151, 126 S.Ct. 877 (2006)
    ---------------------------------------------------------------------------
        As a former Attorney General, I take seriously the litigation
    burden felt by the Courts and government officials. I was responsible
    for defending against inmate lawsuits prior to passage of the PLRA.
    However, any lessening of that burden must be carefully tailored to
    maintain accountability for violations of prisoners' Constitutional
    rights. The PLRA can be reformed without changing its most effective
    measure: the screening provision \12\ that requires courts to review
    prisoners' cases prior to authorizing service on the defendants, and to
    sua sponte dismiss cases that are frivolous, malicious, fail to state a
    claim, or seek damages from an immune defendant. That provision
    represents the key mechanism to realize the PLRA's stated purpose of
    reducing frivolous prisoner suits. The fixes for the PLRA proposed in
    H.R. 4109 do not interfere with this critical provision.
    ---------------------------------------------------------------------------
        \12\ 42 U.S.C.A. Sec. 1997e (c)
    ---------------------------------------------------------------------------
        I also would propose to this Subcommittee that you consider
    including in H.R. 4109, a provision that during the 90 day stay options
    in Sec. 3(a)(2) that use of Alternative Dispute Resolution (ADR)
    processes be authorized as a means of early resolution of legitimate
    inmate grievances.. ADR consists of Mediation, Arbitration or Early
    Neutral Evaluation (ENE)
        To briefly explain, mediation involves negotiation moderated by a
    trained mediator. Arbitration is an agreement to litigate the case de
    novo before an arbitrator whose decision is binding. ENE involves
    sending a case to a neutral attorney with subject matter expertise. The
    ENE attorney can provide a non-binding evaluation and is available to
    assist the parties in reaching agreement. To a pro se prisoner, this
    outsider's view may well terminate a non-meritorious claim early
    without running up financial costs in the system and cutting
    inefficient use of time by parties, attorneys and courts.
        ENE was started by 20 attorneys in the Northern District of
    California in the 1980's and is spreading across the United States.
    Indeed, the Federal District Court for the Western District of
    Pennsylvania in Pittsburgh recently adopted ENE as an ADR tool.
    Unfortunately, it does not cover social security or prisoner cases. By
    authorizing the use of these ADR programs, I believe many districts
    across America will adopt ADR for prisoner cases.
        These ADR programs, used in other federal cases, provide an
    impartial and accessible forum for just, timely and economical
    resolution of federal legal proceedings. Our own federal courts have
    recognized that the ADR processes are effective and economical use of
    the court's resources. In particular I believe ENE would be valuable in
    prisoner litigation as the neutral attorney could provide a neutral
    look the inmate claims to see whether the claim can be best resolved
    without litigation.
        Lastly, as a solo practitioner, I must add my voice in support have
    to support the other testimony regarding the unfair provisions of the
    PLRA limiting attorneys fees. As a solo practitioner I have learned of
    many meritorious cases involving First Amendment rights, and in
    particular retaliation against prisoners for exercising their rights.
    Since these cases involve only nominal damages and not physical injury,
    the 150% requirement makes it impossible for someone such as me to
    represent an inmate in a meritorious case. The inmates seldom have
    access to funds to pay an attorney up front, and if my recovery is
    limited to 150% of a nominal damage award, there is no way that I would
    be able to devote my time to such a case. I willingly do pro bono work
    for Pennsylvania inmates and am a registered lobbyist in Pennsylvania
    for criminal justice reform minded individuals and groups. But, as a
    solo practitioner I cannot litigate without adequate recompense for my
    time.
        In fact, it is, in my opinion as a former Attorney General, that
    the 150% requirement is the single greatest contributing factor to the
    unwillingness of the states to settle cases, since they know they will
    not be required to pay the attorney's fee if only a nominal amount of a
    buck or two is awarded. They can afford to pay $1.50 in attorney's
    fees, but not the actual fee earned by the attorney based upon the time
    required for the lawsuit. Not only does the 150% requirement preclude
    attorneys from taking on meritorious cases involve clear rights
    violations, but it also can waste the court's resources because it
    eliminates the incentive for the government to settle the case prior to
    the attorney spending large hours on the case and thus raising their
    liability for the attorney's fee.
        I urge you to support, and consider co-sponsoring H.R. 4109 in
    order to ensure that prisoners' meritorious claims can be heard in
    federal court. It is critical maintain the federal courts' ability to
    effectively oversee the corrections system and to maintain inmate
    belief that the system can work for them. Fixes to the PLRA are long
    overdue, and I commend Congressman Scott and Congressman Conyers for
    their leadership on this very important issue.

        Mr. Scott. Thank you very much.
        Ms. Woodford.

                    TESTIMONY OF JEANNE S. WOODFORD

        Ms. Woodford. Thank you. Good afternoon. Thank you,
    Congressman Scott, Congressman Gohmert, and all Members of the
    Committee, for giving me the opportunity to testify today about
    H.R. 4109, the ``Prison Abuse Remedies Act of 2007.''
        I am the former warden of San Quentin State Prison and the
    former director and under secretary and, for a short time,
    acting secretary of the California Department of Corrections
    and Rehabilitation. I have 30 years of experience in the field
    of corrections. I am here to testify in support of making
    necessary fixes to the Prisons Litigation Reform Act.
        As a prison administrator, I was often unable to address
    deficiencies in our prisons, not only due to a lack of
    resources but, just as often, due to a lack of political will.
    I also was witness to the frustration of the Attorney General's
    Office on occasion when put in the difficult position of trying
    to defend a policy or a practice that was clearly in conflict
    with the law solely because the executive branch of State
    government was more comfortable following the order of a court
    than correcting a deficiency, itself. The political
    ramifications that result when a government official appears to
    choose prisoners and prisons over other State needs continues
    to prevent government leaders from adopting policies and
    appropriating money to address grossly deficient prison
    conditions.
        Any good prison administrator should not fear the
    involvement of the courts. I have come to understand the
    importance of court oversight. The courts have been especially
    crucial during recent years as California's prison population
    has exploded and prison officials have been faced with the
    daunting task of running outdated and severely overcrowded
    facilities. Right now, virtually every aspect of California's
    prison system is under court oversight. This is true for health
    care, for mental health care, for dental care, for prison
    overcrowding and for conditions for youth. The list goes on and
    on.
        The California Department of Corrections and Rehabilitation
    also has been subject to Federal court intervention to address
    such issues as employee investigations, employee discipline and
    even the code of silence that was responsible for hiding the
    wrongdoings of some staff in their actions against prisoners.
        All of this court intervention has been necessary because
    of the State's unwillingness to provide the department with the
    resources or to make the policy changes needed to bring about
    necessary reform in the prison system.
        The PLRA allows States to move to terminate consent decrees
    after 2 years. The San Quentin death row consent decree, which
    deals with conditions of confinement, is one example of a case
    where improvements were interrupted because of the provisions
    of the PLRA. More time was spent litigating about whether the
    decree was in effect than remedying the inadequate conditions
    on San Quentin's death row.
        Death row prisoners are a perfect example of where court
    intervention may be absolutely necessary. Some of the most
    difficult conversations I had as a warden were with the family
    members of the victims of death row inmates. Understandably,
    these family members are in pain beyond belief. Some would ask
    me questions like, why did I even feed the prisoners? I had to
    explain to them that, as a prison administrator, my role was to
    provide for the safety and security of prisoners, staff and the
    public. Without court intervention, I believe I would not have
    been able to meet this responsibility. In California's prison
    system, it normally takes up to a year or more to exhaust
    administrative remedies through every level of appeal.
        What is a prisoner to do if he or she is not receiving
    adequate medical treatment for a serious heart condition, for
    example? That prisoner may be forced to suffer for over a year
    waiting for a response to a grievance. I do not think that the
    PLRA was intended to cause this kind of harm.
        There also exist countless reasons why prisoners may be
    unable to complete the grievance process. For instance,
    prisoners may be transferred from one prison to another or
    paroled before they are able to fulfill each level of the
    appeal. Grievances may be rejected because a prisoner cannot
    clearly articulate his or her complaint or for a minor problem,
    such as using handwriting that is too small. Many of these
    prisoners are mentally ill and are barely literate, as others
    have talked about.
        In December of last year, the Sacramento Bee reported that
    the release dates for nearly 33,000 prisoners in California
    were miscalculated. As a result, prisoners have been forced to
    stay in prison beyond their appropriate sentences. According to
    some courts, these prisoners, however, will not be able to
    recover compensatory damages for this violation of their rights
    because over-detention does not meet the physical injury
    requirement.
        Having served as the CDCR director and as under-secretary
    and as acting secretary for over 2 years, I have become
    familiar with the problems faced by youth incarcerated in
    California. This is an extremely vulnerable population that
    must be treated differently than the adult population.
    Requiring use to exhaust a complicated and a neglected
    grievance process is unreasonable. In some cases, youth are
    only able to complete the grievance process if they have a
    caring adult on the outside or the attention of an attorney to
    assist them. Even then, sometimes they are unsuccessful.
        In conclusion, good prison administrators do not need the
    many excessive protections imposed by the PLRA. The PLRA must
    be changed to ensure that courts can provide much needed
    oversight of correctional facilities. H.R. 4109 includes
    necessary fixes to the PLRA that will not open the floodgates
    to frivolous lawsuits but will actually help prison officials
    to ensure that prisons operate humanely and in accordance with
    the law. It is, after all, the responsibility of government to
    protect the rights of all citizens and, more importantly, to
    protect those who are the most vulnerable. We know of too many
    instances of prison abuse to ignore the needs of prisoners and
    of incarcerated youth to have appropriate access to the courts.
    The proposed modifications to the PLRA will allow prison
    administrators to respond to complaints and will ensure prison
    grievances about constitutional violations are not ignored.
        Thank you so much.
        [The prepared statement of Ms. Woodford follows:]

                    Prepared Statement of Jeanne S. Woodford

        Mr. Scott. Thank you very much.
        I want to thank all of our witnesses for your testimony. We
    will now have questions from the panel, 5 minutes each. I will
    recognize myself for 5 minutes.
        Ms. Hart, the way our system works is that you have got a
    lot of people working independently. The legislature passes
    mandatory minimums. The police arrest. The judge sentences.
    They are all kind of independent on their own.
        Is it possible to end up with a prison that is
    unconstitutionally overcrowded and that is lacking health care
    and sanitation?
        Ms. Hart. Absolutely.
        Mr. Scott. Then what happens?
        Ms. Hart. Under the PLRA? They can sue. They can get----
        Mr. Scott. Who can sue?
        Ms. Hart. The prisoners can. I will tell you that this is
    exactly one of the things we faced in Philadelphia. The
    preliminary injunction order I talked about was something where
    the prior prison commissioner decided to control the prison by
    backing up inmates into the police districts. That judge was
    able to enter a preliminary injunction. It was a sweeping
    preliminary injunction.
        Mr. Scott. Under the PLRA?
        Ms. Hart. Under the PLRA.
        They were awarded attorneys' fees for it, well over
    $250,000 ultimately, and the practice stopped.
        The PLRA has carefully retained the power of Federal judges
    to act swiftly. In that case, for example, the judge ruled that
    the inmates did not have grievances available to them and did
    not prohibit them from filing suit.
        Mr. Scott. How would H.R. 4109 change any of that?
        Ms. Hart. How would H.R. 4109 change--4109--well, in terms
    of stopping it? It would not. It would not stop a judge from
    doing it. A judge would be able to do it.
        Now, you could have, for example, consent decrees that
    could have--the prison, for example. What has happened
    traditionally when prison officials sometimes feel they have
    too many people in their prisons is they start agreeing to
    consent decrees to ship them elsewhere.
        There was one, for example, in Texas recently where you try
    and control your budget, basically, by saying we're not going
    to accept a certain number of prisoners, and you send them off.
        Mr. Scott. Well, how would H.R. 4109 make things any worse
    than they are now?
        Ms. Hart. Because basically it would allow you to start
    doing that again. It allows certain correctional administrators
    to trump State laws and to make agreements that they are not
    permitted to and put the burden on elsewhere. It returns you
    back to the pre-PLRA time where people could make agreements
    that trumped State laws, that weren't necessary to violate
    constitutional violations----
        Mr. Scott. You're trying the case--I mean, if you have a
    legitimate case where, in fact, you have unconstitutional
    conditions, how would H.R. 4109 make things any worse than they
    are now on a legitimate case?
        Ms. Hart. The biggest problem here with H.R. 4109 is the
    fact that it covers far beyond legitimate cases. The PLRA tried
    to make sure that you protected the powers of Federal judges to
    still remedy constitutional violations quickly. What----
        Mr. Scott. Do you need a physical injury under the PLRA?
        Ms. Hart. Excuse me?
        Mr. Scott. Do you need a physical injury?
        Ms. Hart. For a physical injury for emotional damages, that
    is what it does require. It is an extension of what was the
    Federal Tort Claims Act Provision. It has not stopped the type
    of suit----
        Mr. Scott. If you do not have a physical injury, how do you
    get a constitutional violation?
        Ms. Hart. The courts have interpreted it very narrowly. The
    PLRA has not stopped lawsuits. There are a lot that still get
    filed. There are still substantial----
        Mr. Scott. For unconstitutional violations without a
    physical injury, can those cases be brought under the PLRA?
        Ms. Hart. They are. The courts are interpreting it very
    narrowly. They are basically saying it is a de minimis injury.
    Candidly, I will tell you, I think that the PLRA does--try to,
    by lifting what was out of the Federal Tort Claims Act
    Provision, something designed to try and stop what were very
    insubstantial claims. Do I think they could have done better?
        Mr. Scott. Let me ask Mr. Bright.
        Can you bring cases like that under the PLRA?
        Mr. Bright. Well, the question, Mr. Chairman, is the
    damages suit, I think your point is very well taken.
        I mentioned in my statement a woman who woke up in the
    night, and there was blood gushing from her neck because a
    mentally ill inmate had cut her throat from her ear all the way
    down to her chin. It almost killed her. It was just lucky that
    it did not.
        Now, the reason for that was the Alabama Department of
    Corrections only had one guard supervising a room full of
    bunkbeds with 350 inmates in it. Now, the Commissioner of
    Corrections would tell you he needs more guards. The warden of
    the prison would tell you she needs more guards. But the fact
    of the matter is there was not the money there to do that. So
    the jail is unconstitutional. As a result of it, this woman is
    injured. She has got no damages suit because she does not meet
    the grievance procedure of--she meets, obviously, actual
    injury, but she does not meet the grievance procedure.
        Mr. Scott. Well, you mentioned the Abu Ghraib Prison
    conditions would not be--that you would not be able to sue for
    those kinds of conditions. Ms. Hart suggested that, if you have
    unconstitutional conditions, of course they can hear those
    cases.
        Mr. Bright. Well, the point that, I think, we would have a
    disagreement about there is the extent of the relief that the
    courts can order. I mean, this bill has, basically, provisions
    none of us have really talked very much that very much limited
    what a Federal court can do in terms of the remedy that it
    orders and how long it can supervise what happens.
        In the case that I mentioned earlier, we are in the third
    year now, still trying to get compliance with an order entered
    2 years ago by a Federal court. Under the PLRA, as was pointed
    out earlier, you can spend more time now litigating whether
    there is compliance or not, whether the decree should come to
    an end, and whether or not we are complying with the provisions
    that are there. Again, that is injunctive relief that the court
    ordered.
        But, again, at times when I deal with the commissioner of
    corrections, prison lawyers, jail lawyers, who say, we'll
    agree, there is no question that we need to do A, B, C, and D
    to cure this. You cannot settle a case under the Prison
    Litigation Reform Act. You have got to have a finding by a
    judge that there is a constitutional violation, and then you
    are limited to 2 years in terms of how long the court can
    enforce that, which makes for an interesting thing; most people
    who disobey court orders and who are held in contempt of court
    pay a serious price for that. It is amazing to me that prison
    officials can do that with virtual impunity when that happens.
    I think that is part of why the act and why some of the
    amendments which would restore the power of the Federal courts
    to deal with these cases like any other cases are critically
    important.
        Mr. Scott. Judge Gohmert.
        Mr. Gohmert. Thank you, Mr. Chairman.
        Judge Gibbons, you mentioned that your law firm represents
    all inmates diagnosed with AIDS in New Jersey; is that correct?
        Mr. Gibbons. Yes.
        Mr. Gohmert. Is that pro bono?
        Mr. Gibbons. Yes.
        Mr. Gohmert. It is pro bono. You are certainly to be
    commended--your firm is--for the work that you do there.
        I guess, if this were passed, that we are talking about
    today, then this would allow your firm to receive attorneys'
    fees for that representation; is that correct?
        Mr. Gibbons. I think the significance of the HIV case is
    that the decree is ongoing because the problem of AIDS and HIV
    in the prison has not gone away.
        Mr. Gohmert. That is correct.
        Does that mean you would be able to get attorneys' fees
    under this bill?
        Mr. Gibbons. We have regular, ongoing relationships with
    the authorities in the prison over conditions.
        Mr. Gohmert. Right. So, Judge, that would mean your law
    firm would be able to receive attorneys' fees under this bill;
    is that correct?
        Mr. Gibbons. Possibly, but----
        Mr. Gohmert. I understand. I am not kidding. I think it is
    absolutely wonderful that you are doing this, that your firm
    handles these cases pro bono. That is one of the reasons why I
    think there is agreement on both sides when it comes to sexual
    assault, there should not be a need for a demonstrated physical
    injury in order to pursue a claim. Obviously, the case that was
    mentioned earlier where an individual went to the hospital
    would have been unaffected because he did go to the hospital.
    There was demonstrated physical injury. Ms. Woodford mentioned
    that good prison administrators do not need the provisions of
    the PLRA.
        Mr. Chairman, we invited Martin Horn, the Commissioner of
    the Department of Corrections and Probation of New York City to
    testify at the hearing. Unfortunately, Commissioner Horn was
    unable to join us due to conflicts, but he has 35 years of
    experience in corrections, 13 years of experience as the chief
    executive of large correctional agencies. Although he didn't--
    was unable to testify today, he took the time to write a
    significant letter that looks more like a brief to the
    Committee. I would ask unanimous consent to include this in the
    record even though, according to Ms. Woodford, he would
    apparently be an administrator who is not good because he
    indicates he needs the PLRA.
        I would ask unanimous consent to include it in the record.
    Okay. Thank you.
        [The information referred to follows:]

        Ms. Woodford. May I say that I have a great deal of respect
    for Mr. Horn, so I would not want it on the record that I think
    otherwise.
        Mr. Gohmert. But you did say that a good administrator
    would not need the PLRA. He indicates he is. Therefore, using
    deductive reasoning, he must not be a good administrator. But
    you feel like he is a decent administrator if not good?
        Ms. Woodford. Yes, I do.
        Mr. Gohmert. Okay. Thanks.
        You know, one of the things I have observed just in my few
    years here in Congress is that there is a tendency to overreact
    by both Republicans and Democrats. The PLRA, as we have heard
    from wonderful testimony in the prior hearing--I mean, and I do
    not mean ``wonderful'' as in enjoyable. It was not enjoyable at
    all, but it pointed out some real problems with the PLRA, with
    the things that we have indicated should be addressed.
        But it strikes me, it reminds me of a coach we had back in
    school that on these bus trips, he'd slam the air conditioning,
    you know, that knob--he would slam it all the way over to cold.
    People would freeze to death. He would slam it all the way to
    hot. People would get too hot. He would slam it back. And by
    the end of the trip, people were constantly getting sick.
        Now, the issue before us is immeasurably more serious than
    air conditioning, but it reminds me--you know, the PLRA went
    too far, which it appears it does need some tweaking. And
    rather than slamming it back to the other extreme and remove
    the most important provisions entirely, that maybe what it
    needs here is a little adjustment. Because what I see is, you
    know, there is potential here, as Ms. Hart pointed out, to give
    inmates more rights than our military has and than even victims
    often have. I hate to see an overreaction, because I have seen
    some good come from this bill.
        So, Mr. Chairman, I mean, it is up to you all as the
    majority party as to what happens, but I would think a little
    tweaking is more in order than going clear back to the other
    extreme. And I see my time has expired.
        Mr. Scott. Thank you.
        I would just respond by saying we are trying to work
    together to see--there appears to be significant common ground,
    and we want to take advantage of that common ground and make
    the appropriate adjustments.
        The gentleman from Michigan, Chairman Conyers.
        Mr. Conyers. Thank you, Mr. Chairman.
        This has been a good hearing. I don't think all Democrats
    and Republicans have a tendency to overreact, especially not on
    the House Judiciary Committee. Some, there are some, though.
    There are a few.
        So, what, Ms. Woodford, what do you make out of this? What
    have you heard at this hearing that you would remind us to take
    with a grain of salt? What have you heard that you would want
    us to retain in our memory banks as long as possible?
        Ms. Woodford. Well, I think what I have heard is that
    prisons--if you haven't been there and experienced them--and
    some, obviously--I worked at San Quentin 2 weeks after
    graduating from college for 27 years. I started as a
    correctional officer and left as the warden.
        If you have not been in these prisons, it is hard to
    understand the culture and how they operate, and how a
    different leader can bring--can have transparency or there
    might not be any transparency, and that the impact of these
    prisons on our society as a whole is often misunderstood. I
    used to say to people, we think we lock up people and throw
    away the key. Not so; 95 percent of them return to our
    communities much sooner than we think. They are always
    connected to their families and to their communities through
    visiting and through writing and through all of those
    connections that people have. How we treat them--how we treat
    them--is so important. It makes a statement in our society. It
    makes a statement to their families and to their children.
        We need to be much more involved in what happens. And,
    unfortunately, prisons get to be the political ball often in
    budget processes. If you try to say, we need to do this because
    it is the right thing to do and this society should treat
    people better, it gets to be you are soft on crime. Well, we
    need to remember everybody comes home, and they do. And I think
    that is really what we should remember from this.
        Mr. Conyers. What do you think, Judge? What do you make out
    of what has happened here today? Is there anything you have
    heard here that we ought to take with a grain of salt?
        Mr. Gibbons. Well, I have heard from Pennsylvania--and
    Pennsylvania has been very influential in getting the PLRA
    passed in the first place. And I have had some experience with
    Pennsylvania cases. There is a tale of two cities.
        The Philadelphia tale is that the city, after litigating
    for a while, decided on a consent decree which put a cap on a
    dungeon, Holmesburg Prison. Now, the city could have taken
    another route and said, well, if you think the conditions are
    unconstitutional, we will build more facilities, but that would
    take money. So they opted for a settlement with a cap, and the
    district attorney didn't like that. And when he became mayor,
    he was no more satisfied than before, but he did not take the
    route of raising the money to build constitutionally adequate
    facilities.
        The other city, Pittsburgh--Allegheny County--took a
    different course. They decided to litigate. And they litigated,
    and they litigated for 18 years, and they disobeyed court
    orders. And each time they disobeyed a court order, they were
    held in contempt and were fined $25,000 to the point where the
    contempt fines totalled $2 million, 700-and-some-odd thousand
    dollars. And the city finally realized it might be sounder to
    build a compliant facility, so they finally built a new jail
    after 18 years. And this terrible judge, when they built the
    facility, entered an order giving them back the $2,700,000 to
    help pay for it.
        The PLRA grows out of this Pennsylvania environment. What
    is clogging up the courts in prison litigation is resistance to
    spending money on constitutionally adequate facilities, not the
    wicked Federal judges releasing prisoners willy-nilly.
        Mr. Conyers. Thank you.
        The gentleman from California, our only Attorney General in
    Congress, referenced the intimidation factor. And Mr. Preate, I
    think, also mentioned it.
        How large an influence is that on shaping the relationship
    between inmates and guards?
        Mr. Preate. Mr. Conyers, you are addressing that to me?
        As I said, the vast majority of guards and staff at prisons
    are fine. They are professional. I have seen that. There are
    some who are rogues, who are just, you know, very difficult and
    onerous and retaliatory. That is what creates this, this
    problem. The grievances flow from that, from one's not being
    willing to listen to somebody else's point of view. Where you
    have the professional and courteous interchange, then it is not
    a problem, but I have to say that it is the subtle things. If
    you complain about a guard, even sometimes a fellow who is
    professional, you know, he would make a remark and say, you
    know, ``All right, I have had it with you.'' And the next thing
    you know that prisoner is transferred to another institution
    and loses all the accumulation of perks that he gets. They get
    their little TVs, that they have to pay for; it is not free.
    You know, they may lose their single cell. And they've got to
    go to a double cell. I mean, these cells are small. They are
    closets. I have seen them. I go into those institutions. And
    the loss of that is enormous. If that is all you have--if that
    is all you have and your life is in that cell, in that little
    cubicle that you have for a container, you have lost
    everything.
        And that is why, you know, there is a perception that
    prisoners want to get out of prison to go to Federal court, you
    know, and have a fun time. Not so. The reality is that is not
    the reality. Most of the prisoners do not want to leave their
    prisons that they have set up house in because of the
    accumulation of goodwill that they have there, the staff that
    they know, the routine that they know. These are all so
    important to them. That routine is what gets them through every
    day. You change that routine, you've changed their life. And
    that is so hard for people on the outside to understand. They
    do not want to change.
        I have a prisoner who was--I got him a new trial in
    Pennsylvania. I got him a new trial. And he was moved from
    State prison back to the county prison. As soon as he got back
    to the county prison, he went up to the judge who was sitting
    there, standing there taking a guilty plea.
        He says, ``Judge, can I go back to the State prison?''
        He says, ``No, I have not sentenced you yet.''
        He says, ``But everything I have, I own is back there.''
    Can't go back.
        So it is not the reality to say, ``Oh, I want a few days
    off.'' And besides that, now we have something called video
    conferencing where the people stay in the prison and where the
    judge sits in his chambers or in a facility where there is
    video conferencing. So there isn't this--there may have been 10
    or 15 years ago, but it doesn't exist anymore. That is the real
    world that I know, Congressman. That is the real world that I
    know.
        Mr. Scott. The gentleman's time has expired. We will have
    an additional round.
        The gentleman from California.
        Mr. Lungren. Thank you very much, Mr. Chairman.
        Your Honor, some of your comments remind me a little bit of
    what Justice Scalia once said. He said, when he was growing up,
    people would see something they did not like or that they
    thought was wrong, and they would say, ``there ought to be a
    law.'' Now people look at it and say, ``it is
    unconstitutional.''
        Some of these questions, it seems to me, are not on
    constitutional violations but are the question of where a
    governmental institution ought to put its money and are, at
    base, political decisions. We may not like it, and we may argue
    that more funds ought to be spent in one way or another, but,
    frankly, that is the basis of our system.
        And with all due respect, Judge, I don't believe, in each
    and every instance that you have cited, it is the Federal
    courts that have the only wisdom and knowledge in these areas.
        And Ms. Woodford, I congratulate you on the work that you
    have done. You have had a tremendous record in the past. Your
    citation of some of the victims--families' of victims of murder
    saying they do not want people to be fed is interesting. I have
    never heard that with all of the families of victims of murder,
    and I had to deal with a lot of them because my office handled
    the death penalty cases, and that may be the case. But most of
    the time, I heard from those people that the court system had
    become a game that was playing with their lives and that the
    uncertainty of the system and the fact that they were left out,
    they were the last ones thought of during the whole process,
    formed an impression on me that I have never lost.
        I remember the night of the execution of Robert Alton
    Harris. Well, actually, it wasn't the execution. It was the
    time that he went up four times at the U.S. Supreme Court on
    successive petitions, each one of them being the same in
    substance. The U.S. Supreme Court finally took that case away
    from all Federal courts and retained jurisdiction only to the
    Supreme Court. It had never been done in the history of the
    United States before, and it probably will never be repeated. I
    remember when one of the Federal judges had granted a stay and
    was asked whether he was aware that he was granting a stay that
    was of the same substance that the Supreme Court had just
    denied. And he said, ``Yes, I am aware of that.'' And when I
    had to report that to the mother of the 15-year--one of the two
    children killed by Robert Alton Harris 16 years before, she
    said to me, ``Oh, I get it. It is a game.''
        And I think we ought to treat prisoners humanely, but I
    think we also ought to understand there is never enough money
    to do everything we want. And it is a balancing act, and it is
    a question of, how much do we have? And I mean, we talk about
    the problems. There are problems. We increased the prison
    population during the 8 years I was Attorney General
    substantially, and I am not embarrassed about it because the
    crime rate dropped by 30 percent and homicides dropped by 50
    percent. We were averaging 3,200 homicides per year in
    California, and 8 years later, it had dropped almost 50
    percent. Now there are a lot of citizens that are walking
    around alive; a lot of families who were not impacted by that.
    So I do not think we ought to apologize for it. And if you tell
    me that Federal courts have the right to come in and to demand
    by judicial fiat that we release X number of prisoners, I
    happen to think there is something wrong with that.
        And the statements I have heard here from those who are
    talking about the PLRA restriction on consent decrees, let me
    just read to you what the law says: Prospective relief shall
    not terminate, if you go in and you request after 2 years that
    it be terminated, if the court makes written findings based on
    the record that prospective relief remains necessary to correct
    a current and ongoing violation of the Federal right, extends
    no further than necessary to correct the violation of the
    Federal right, and that the prospective relief is narrowly
    drawn in the least intrusive means to correct the violation.
        That means, if there is a continuing constitutional
    deprivation or violation, you cannot get it dismissed. There
    was a suggestion by at least one of the panelists that it is
    automatic. It is not automatic. And what we tried to do was to
    say that the Federal jurisdiction goes to the constitutional
    violation but doesn't go beyond that. And while the Federal
    courts may have a different idea of how we ought to run our
    prisons, their idea under our Constitution is no greater than
    the idea of the elected officials and the appointed officials
    at the State level.
        So let us understand exactly what the consent decree
    restriction is. It allows you to go in for 2 years to request
    it, and if the constitutional deprivation has been resolved,
    then there is no underlying jurisdiction. And that is, I
    believe, what we were talking about, Ms. Hart, with regard to
    the reasonableness of the PLRA; is it not?
        Ms. Hart. That is correct. I think the PLRA tried very hard
    to make sure that the Federal judges retained the power to
    swiftly resolve constitutional concerns and retain the power to
    remedy them. What it tried to do was limit when those court
    orders went far beyond what was the constitutional requirement
    because we had very sweeping consent decrees that were
    micromanaging prisons.
        I remember, in New York City, for example, the consent
    decree was so detailed that it even went down to the level of
    what kind of cleanser they had to use--Boraxo--to clean the
    floors and at what strength. And when they moved to terminate
    it, I remember the head of the Corrections Department saying,
    ``I do not mean to be glib here, but maybe we want to use Mr.
    Clean.''
        I think it raises a fundamental question of whether you
    want the Federal courts in the business of having the Mr. Clean
    versus Boraxo debate. They should be in the business of
    enforcing Federal constitutional rights, and that is what the
    PLRA protected.
        Mr. Bright. If I could just respond, too, Mr. Lungren,
    because I want to make it clear, I was not saying that it was
    automatic. In fact, I said we spend a lot of time litigating
    the issue of whether it should come to an end. I don't know of
    any other kind of injunctive relief where you are constantly
    litigating whether you still need it.
        And I also want to just make this point as someone who has
    done this now forever. You--if a prison--Alabama, for example,
    has got a capacity of 12,000. In its old, dilapidated prisons,
    they have got 28,000 people there. They are incredibly
    overcrowded. There is no lawsuit to be brought unless you find
    that things are so bad that people are having their throats
    slit, that they are being raped because there is no security,
    if they are being denied medical care because the whole system
    has just completely broke down. I see horrendous conditions in
    these institutions that we say there is no lawsuit to be
    brought here because, as bad as it is, it is not bad enough to
    get a Federal court to do anything about it the way the law is
    today.
        So I--we are not fighting about Mr. Clean or Boraxo. We are
    really fighting about the most basic sort of life issues of
    whether people are in jeopardy of being killed, of being
    assaulted or of being assaulted with these socks with padlocks
    in them and things like that. These are not trivial matters.
        Mr. Lungren. I wouldn't suggest they are trivial matters,
    but you ask why you don't--you see this strange situation where
    injunctive relief can be dissolved later on and you have to
    argue over it. Well, it is part of the political process. A new
    administration comes in. A new person is elected. A Governor,
    they appoint somebody. That is part of the political process.
    They ought to be able to come up with their new ideas.
        Mr. Bright. Right.
        Mr. Lungren. And my point is, there is nothing that I have
    been able to find, as much as I respect Federal judges, that
    grants them the greater wisdom than State judges, than other
    people of goodwill. And the point is that, under a
    constitutional system where most of the major decisions are
    supposed to be made in the political environment in the best
    sense of the word, I don't want to see that depreciated. And it
    is our obligation to go out and to speak and to convince the
    public that we need to spend more money and that, if we intend
    to put people in prison, they ought to be humane prisons, and
    that we need to pass laws to make sure that we protect people
    against sexual assault in prison, and that we prosecute people
    for that, and that--I mean, we have legislation we passed that
    has a Federal commission looking at that right now.
        So I agree with all of those things, but part of it is the
    question of whether these decisions are to be made and if, in
    fact, the Federal judiciary is required to come in, that
    intervention ought to be only for the purpose that is
    absolutely necessary. Otherwise, we are distorting our entire
    constitutional array of powers.
        Mr. Bright. And I must say, I think it is. There is
    tremendous deference that I see to the legislative branch in
    terms of allocation of funds, to the executive branch in terms
    of how they run these institutions, but I think we all would
    agree there is a constitutional line that can be crossed and
    that, when that line is crossed, a Federal judge has no other
    choice except, under his oath of office, to uphold the
    Constitution of the United States and to say this is just
    beyond the pale, and we do go beyond the pale from time to
    time.
        Mr. Lungren. Not beyond the pale. It is unconstitutional.
        Mr. Bright. No, I am just trying to summarize.
        I am saying, when people are getting raped and beaten up
    because there is one guard responsible for 500 prisoners; if
    there are sustained injuries as a result of that, which there
    were at the Tutwiler Prison for Women in Alabama--people
    literally could not sleep at night because they were constantly
    being terrorized because there was no protection. You could not
    go to sleep because somebody might slit your throat, somebody
    might beat you up. You are hypervigilant all the time. And I
    will tell you, Mr. Lungren, being hypervigilant 24 hours a day
    will wear you out in a few weeks, but year after year, it will
    really do serious--and being beaten by other prisoners and
    being sexually assaulted and having the male guards come in the
    shower while you are there and sexually humiliate you while you
    are there, those kinds of things are what I am talking about.
        I am not talking about a Federal judge who disagrees with
    how an institution is run. I am seeing these cases where the
    conditions in these places are absolutely beyond what this
    civilized society would tolerate.
        You have got to remember that the prisons today are in the
    condition they are in because Frank Johnson and other judges
    said, you cannot lock people in what was called a ``Draper
    doghouse'' at Draper Prison and shut the door from the outside
    and put a padlock on it where the inmates could not even stand
    up and where they are all in there in the dark together and
    where they had to use a hole in the middle of it for a toilet.
    I mean, those were the conditions. And that is where the
    Federal judges played a role, which I think, as we look back on
    this civilization, if you read David Oshinsky's ``Worse than
    Slavery'' about Parchman Farm in Mississippi, that we should
    thank God that Judge Keady and other people enforced the
    Constitution when it was clearly being neglected in our country
    in those institutions. I am sure you agree.
        Mr. Scott. Thank you.
        We are going to have another round of questions. I just
    wanted to follow through on that, Mr. Bright.
        If an injunction were necessary and were put in place and
    they actually abided by the injunction, it would fix the
    problem.
        Mr. Bright. Right.
        Mr. Scott. If you ended the injunction, there would be
    every expectation that they would drift back to where they
    were; is that not right?
        Mr. Bright. Well, let me just say this, too, on this
    question about whether or not the act is needed.
        If you are running a constitutional prison, if you are
    training your staff so that they are not abusing people, if you
    are running these places professionally, you are not going to
    have a lawsuit against you. You are not going to need any act
    because there is not going to be a constitutional violation.
        You are absolutely right, Mr. Chairman. If you bring the
    facility within constitutional standards, you can always say to
    the Federal court, ``we are doing what is required,'' and there
    is no longer any need for Federal court supervision in this
    situation. But I will tell you the cases that I see--and I want
    to make one other correction here; the courts are not ordering
    releases. And no court has done anything lately. There has not
    been a three judge court that has ordered any limit on
    population, but the orders that were being entered in some of
    these places that were at triple or at four times the capacity
    were limiting the capacity of certain facilities. If you
    don't--if you want to go above that capacity, then you can use
    another facility; you can rent a facility; you can make some
    other arrangements. Generally, that was agreed to by the people
    who did it as the solution to those problems. But we have not
    had, as I said, we have got prisons operating now at more than
    double capacity with no court orders at all.
        Ms. Woodford. Congressman Scott, may I respond to the
    comments of Congressman Lungren? Thank you so much.
        What I would like to say--I would like to go to New York
    and Marty Horn for an example. You have New York, who is
    closing a prison this year and proposes to close four more in
    12 months. They have reduced their prison population and have
    reduced their crime rate at the same time. So locking people up
    is not the only way that you can reduce crime rates. And in
    fact, many researchers say that, in States that have looked at
    this differently, they are actually having greater reductions
    in crime rates than States that continue to lock people up.
        Corrections is a science. And where people use that
    appropriately, you get appropriate outcomes. In the State of
    New York, I think, thanks to Marty Horn, he has convinced
    people that you close prisons not to save money but to put that
    money into community corrections, to bring people back to their
    communities in an appropriate way, providing mental health care
    and health care and other resources and supervision that is
    necessary to keep them in their communities. So you can do this
    responsibly.
        I have never heard a judge tell us what to do. I have heard
    judges ask us what we are going to do to remedy problems. And
    when the State has failed to come forth with a remedy, then
    judges go out to experts around the country and bring them into
    our State to tell us and help us and know what to do to resolve
    many issues.
        That is true with mental health care in our prison system
    in California. I can tell you that, when I started there in
    1978, it was unbelievable to me to see inmates sitting in their
    cells, screaming, just screaming loudly over and over again and
    getting no treatment whatsoever. It took litigation to bring
    about appropriate conditions. And when some of that litigation
    came to an end, then the State thought they did not need to do
    it anymore, and we ended up back in the same litigation. I am
    in my second round of litigation on overcrowding. I am in my
    second round of litigation on health care, my second round of
    litigation on mental health care. I have been through
    litigation on a broken appeals process.
        All that I have learned about managing a prison,
    unfortunately, I learned from the courts. And I am sad to say
    there is no book on how to be a prison administrator. I learned
    what a good appeals process was because of a court case called
    Alonso Day. I learned about how inmates should be treated
    because of the variety of court cases that came into
    California.
        I will also say, you can be an outstanding prison
    administrator and have horrible things happen in your prison. I
    ran San Quentin State Prison. It is a city. At the time that I
    was there, it had 6,200 inmates and 2,000 staff. I had a
    school. I had a college program. You have manufacturing. It is
    truly a city. You cannot know everything that is going on in
    that city as you cannot know everything that is going on in
    D.C. today at this moment as we sit here. So it does--having
    the eyes and ears of many people in our prisons helps us make
    sure that they are safe and appropriate and running within the
    law.
        So I needed to say that. Thank you.
        Mr. Scott. Thank you.
        The gentleman from Texas.
        Mr. Gohmert. Thank you. I won't be long.
        But, you know, one of the things--sometimes folks come into
    these hearings, and when they are not sworn in, they don't
    realize that it can still carry a penalty if there is a lack of
    truthfulness. And I do not think that there is any lack of
    intent to be truthful here, but the temptation is to make
    broad, sweeping statements.
        You mentioned that crime rates are actually lowering in
    States that are using other--and I am sure you have something
    in mind. But what I am seeing is, in States where they have
    begun to exceed their capacity, like in Texas, and they are
    starting to have to cut people loose earlier and make parole
    dates earlier, we are seeing crime rates go back up necessarily
    when you have high recidivism rates as we have been having in
    this country.
        Of course, from personal experience, you have groups like
    Prison Fellowship go in, and they actually make a real
    difference with the mentoring and the follow up and that kind
    of thing. But what we have been seeing lately from what has
    been presented to me are crime rates going up, and that
    includes States that are releasing people.
        Is that what you are talking about?
        Ms. Woodford. Well, I am talking about New York where they
    are doing it responsibly. They are not doing it as a cost
    savings as Texas is. I read about Texas. And Texas said they
    need to reduce the cost of incarceration. New York, on the
    other hand, is taking the money that they are saving from
    running prisons and putting it into their community
    corrections, and they are doing it safely. And I think, you
    know, New York, as I understand it, is still the safest large
    city in the country, and their crime rates continue to go down.
    Everything that I have read--and I read lots of research. I
    certainly would not have cited that if I had not read that in
    the research that I do on these issues.
        And, then, in California, in a recent case, researchers put
    forth to the Federal court judges that their study of early
    releases around the country did not show an increase in crime
    rates. I am only quoting what they said. I don't--I,
    personally, did not----
        Mr. Gohmert. Well, we would probably agree that prisons
    should include things like alcohol and drug treatment to help
    increase the chances that they can address those issues when
    they come out----
        Ms. Woodford. Well----
        Mr. Gohmert. Things like that, correct?
        Ms. Woodford. I am sorry, Congressman.
        Yes, I absolutely agree with that, but you have to look at
    the reality of the situation.
        For example, in California, six out of ten prison
    admissions are parole violators serving about 3 months. It is
    very difficult to bring about rehabilitation in 3 months. So,
    if you are truly interested in bringing about rehabilitation,
    it should drive policymakers to a different decision about how
    to handle that issue.
        Mr. Gohmert. And as a judge, I can tell you what I saw
    repeatedly is that people were able to achieve on probation--
    where I could lock people up, up to 2 years, as a condition of
    probation, they achieved a lot better rehabilitation if the
    hammer were kept over their heads while they received these
    other things.
        But Mr. Horn points out--and he is certainly quite familiar
    with New York prisons and jails. But he goes into the problems
    with like the Benjamin litigation that he cites in his letter
    as part of the record. It was filed in 1975. Even though the
    PLRA exists, it has still been ongoing.
        And I tell you, one of the things that I see across America
    as the pendulum swings back and forth is that it gets very
    close to the end of its swing when you have Federal judges that
    they appoint masters to run an entity, whether it is a school
    or a prison. They control the master. They make the rules. And
    then they review the rules to see if they think they are
    appropriate. In other words, they become the executive, the
    legislative and the judicial branch all rolled into one. And it
    makes some of us very angry because it, in cases where courts
    do all of those things, for over 30 years, they have just
    obliterated the Constitution they are sworn to uphold. That is
    not the role of courts. And yet, that is often the way it has
    been relegated. The PLRA, obviously, does not take away the
    ability to have consent decrees.
        But my one exposure to socks and locks where I was
    appointed to represent somebody who was charged with that was,
    it was completely fabricated, but the idea of a lock in a sock
    made people so upset that it got a lot of folks stirred up
    until I helped my client to the end of the case.
        Mr. Bright. Well, I will tell you, in the cases I have had,
    Congressman, I have seen the wounds and I----
        Mr. Gohmert. Have you recommended that they not give people
    locks that can be used as weapons?
        Mr. Bright. Yes. In fact, that is a classic example.
        Mr. Gohmert. Well, then, that ought to be able to be used--
    --
        Mr. Bright. I will give you two examples.
        We have this prison in Georgia, Alto Prison, which one
    young man got paroled from there and was going to go back, and
    he committed suicide rather than go back. That is how the
    prison was operated. It was known that, if you went there, you
    were going to get raped. And the saying was, ``you could either
    F or fight.'' That was pretty much the deal. And this young man
    who we represented had been beaten by other inmates with locks.
    He had been beaten so bad that he was in and out of
    consciousness. So, if he was faking it, he was doing one great
    job----
        Mr. Gohmert. It is not an issue of faking it, but----
        Mr. Bright. He had injuries all over his head. And the
    argument was that he did not file his grievance within 5 days.
    He was not conscious during much of that time.
        Mr. Gohmert. And we are wanting to see those restraints
    addressed so that it does not eliminate somebody's ability to
    make a grievance and to make a claim. We want to see that it is
    corrected. That is not the issue.
        Also, we are in a hearing where we were allowed one
    witness, but since you called the system in Atlanta ``Mickey
    Mouse'' and ``kangaroo court'' earlier, you know, the judge in
    me wants to hear, well, what do they have to say about that
    allegation?
        But, in the meantime, my time is up.
        Mr. Bright. Well, I would urge you to look at some of these
    grievance systems as a judge and to look at how complicated
    they are. As I said, some of them have five steps and a 2-day
    statute of limitations.
        Mr. Gohmert. We are looking at them, and we want to fix
    them.
        Mr. Bright. I think you should look at it.
        And I would just say, Judge, if somebody writes outside the
    margin--I doubt if, when you were a judge, you threw a pleading
    out because somebody went outside the margin. You might have
    told them to rewrite it, but you did not throw it out. So that
    tells you, I think, something about how serious we are about
    this is alerting the court system to what is going on. They
    were alerted to it. They just didn't want to deal with it.
        Mr. Gohmert. My time has expired, and we do have to go
    vote.
        Mr. Scott. The gentleman from California.
        Mr. Lungren. Well, I went to Catholic school, and so when I
    wrote outside the margin, the nun did not allow me to get
    credit for it in my particular case.
        And by the way, I think we are going to attempt to address
    the issue of intimidation or such short periods of time that it
    is unreasonable. But as I understand the law as it is
    interpreted, if someone were unconscious, that ability to avail
    themselves of the grievance would be unavailable under Federal
    law, and so that would not be held against them. That does not
    go to the point that we think, maybe, you know, 2 days or 5
    days is a little bit too short.
        Let me ask the panelists this: There has been criticism
    from four of you of the current status of the law with respect
    to the stopping or the dissolving of consent decrees.
        With the limitation in the law that I read to you--that is,
    that prospective relief shall not terminate if the court makes
    written findings based on the record that prospective relief
    remains necessary to correct a current and ongoing violation of
    Federal right, that it extends no further than necessary to
    correct the violation of the right and that prospective relief
    is narrowly drawn in the least intrusive means to correct the
    violation--what is wrong with the current law in terms of
    allowing a consent decree to be dissolved?
        I wish to start on my right and to move this way.
        Ms. Woodford. First off, I am not a lawyer, so I am not an
    expert on this area. I only brought up the consent decree in
    California because we spent so long trying to figure out
    whether the consent decree still applied as opposed to just
    fixing the few remaining items of that consent decree. And I
    believe it was well over 2 years before we had a ruling. And
    then the State is now required to fix a couple of remaining
    items in that consent decree. So it just seemed like time
    wasted, in my opinion.
        Mr. Preate. Congressman, Attorney General, I did not
    testify on the consent decree in my testimony. I did not have
    that when I was Attorney General of Pennsylvania, but you raise
    some legitimate concerns, some federalism concerns, and I think
    that it is important that those concerns be addressed in any
    revision of the PLRA.
        We're not looking for a wholesale lifting of the PLRA's
    requirement, ban on consent decrees, but there has got to be
    some way to address the problem because the prisons of America
    are growing faster than we can build them.
        Mr. Lungren. And I understand. I am just trying to find out
    whether there is any problem with the current law with respect
    to allowing parties to go in--a party to go in and to get the
    consent decree dissolved within 2 years.
        Mr. Preate. Well, you would have to address that to Judge
    Gibbons or to Steve Bright because I do not do that litigation.
        Mr. Lungren. All right.
        Judge.
        Mr. Gibbons. Well, my objection to the present law is that
    it puts the burden on the original plaintiff who had succeeded
    in getting an injunction which the court determined was
    necessary to correct a constitutional violation. And instead of
    putting the burden on the defendant to show that changed
    circumstances no longer require injunctive relief, it puts the
    burden on the original plaintiff to say, yeah, the
    constitutional violations are still a threat.
        Now, I was on the court long enough to remember that those
    kinds of arguments were made with respect to school
    desegregation decrees all the time.
        How is this different? Why should a class action that gets
    systemwide relief in a prison be anything other than a
    permanent injunction unless the defendant can show the changed
    circumstances, like, for example, building a new Allegheny
    County jail, are sufficient to modify the injunction?
        Mr. Lungren. Well, I guess it goes to the question of
    Federalism, which some of us think is important, and also
    executive versus judicial branch, which some of us think are
    important under the Constitution.
        Mr. Gibbons. I heard that same argument with respect to
    school desegregation decrees. The local elected school district
    is supposed to make these decisions about who goes to what
    school. That does not fly. You are just tilting the balance,
    shifting the burden of proof.
        Mr. Scott. Thank you.
        Ms. Woodford, you were challenged on the idea that you
    could save--do corrections a little more intelligently as you
    reduce prison sentences. Are there studies that show that drug
    courts work by giving rehabilitation rather than locking people
    up, thereby reducing the incarceration rate, save money and
    reduce crime? Are there studies that show that?
        Ms. Woodford. Yes, that is true.
        Mr. Scott. Are there studies that show that if you educate,
    spend some money in education in prison, you can reduce the
    recidivism rate?
        Ms. Woodford. Yes, that is true also.
        Mr. Scott. So there are a lot of things that you can do to
    reduce prisons if you use your money more intelligently; is
    that the point you were making?
        Ms. Woodford. Absolutely, sir.
        Mr. Scott. And there are plenty of studies that absolutely
    document that, without question?
        Ms. Woodford. Yes, that is true.
        Mr. Gohmert. As a follow-up to that, do you think the
    Federal Government ought to be the one to tell everybody how to
    run their prisons?
        Ms. Woodford. I don't know that I think the Federal
    Government ought to be the body to tell us how to run prisons,
    but I certainly think they need to be involved to be sure that
    we are running them appropriately and constitutionally. And
    without their intervention, I think that we would not have
    evolved in our prison system as we have. And without their
    intervention, I think we will regress if they are not there to
    oversee that we are operating constitutionally.
        Mr. Gohmert. Well, having now been in Washington as an
    elected official for 3 years, I can assure you all wisdom does
    not reside in this town. Thank you.
        Mr. Scott. Thank you.
        I would like to thank all of our witnesses today. This is a
    very important issue. Keith DeBlasio is in the front row. He
    was very active in the Prison Rape Elimination Act and has
    shown a great deal of interest in this issue.
        I would like to thank our witnesses for their testimony
    today. We have a number of letters and statements from various
    State organizations that we will include, without objection, as
    part of the record.
        Members may have additional written questions for our
    witnesses, which I would ask you to respond to as quickly as
    possible so that they may be part of the record. And without
    objection, the hearing record will remain open for 1 week for
    the submission of additional materials.
        Without objection, the Subcommittee stands adjourned.
        [Whereupon, at 6:47 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