[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
PRISON ABUSE REMEDIES ACT OF 2007
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
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
PRISON ABUSE REMEDIES ACT OF 2007
PRISON ABUSE REMEDIES ACT OF 2007
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
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
41-903 PDF WASHINGTON DC: 2008
For Sale by the Superintendent of Documents, 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
H.R. 4109, the ``Prison Abuse Remedies Act of 2007''............. 3
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
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
Mr. Stephen B. Bright, Southern Center for Human Rights, Atlanta,
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
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
2. The removal of the current requirement of a physical injury
before an inmate has a right to seek judicial review of a
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
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
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
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
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
And I thank the Chairman for granting me his indulgence for
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.
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
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
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
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
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
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
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
\10\ Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc).
Other courts have found the physical injury requirement was not
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
\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
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.
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
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
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
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
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
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
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
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
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
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
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-
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
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
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
Thank you very much for the opportunity to speak here
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
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
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
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.
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
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
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
\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
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
\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
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
\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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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