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