[Congressional Record Volume 141, Number 151 (Tuesday, September 26, 1995)]
[Senate]
[Pages S14316-S14318]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ABRAHAM (for himself, Mr. Hatch, Mr. Specter, Mr. Kyl, and 
        Mrs. Hutchison):
  S. 1275. A bill to provide for appropriate remedies for prison 
condition lawsuits, to discourage frivolous and abusive prison 
lawsuits, and for other purposes; to the Committee on the Judiciary.


              the prison conditions litigation reform act

 Mr. ABRAHAM. Mr. President, I introduce legislation that I 
believe is essential if we are to restore public confidence in 
government's ability to protect the public safety. Moreover, it will 
accomplish this purpose not by spending more taxpayer money but by 
saving it.
  This legislation removes enormous obstacles the Federal Government 
has placed in the path of States' and localities' ability to protect 
their residents. I would like to highlight three of these obstacles and 
explain what we are going to do to remove them.
  First, in many jurisdictions including my own State of Michigan, 
judicial orders entered under Federal law raise the costs of running 
prisons far beyond what is necessary. These orders also thereby 
undermine the legitimacy and punitive and deterrent effect of prison 
sentences.
  Second, in other jurisdictions, judicial orders entered under Federal 
law actually result in the release of dangerous criminals from prisons.
  Third, these orders are complemented by a veritable torrent of 
prisoner lawsuits. Although these suits are found non-meritorious the 
vast majority of the time (over 99 percent, for example, in the ninth 
circuit), they occupy an enormous amount of State and local time and 
resources; time and resources that would be better spent incarcerating 
more dangerous offenders.
  Let me start with the problems in my own State of Michigan.
  Under a series of judicial decrees resulting from Justice Department 
suits against the Michigan Department of Corrections, the Federal 
courts now monitor our State prisons to determine:
  1. How warm the food is.
  2. How bright the lights are.
  3. Whether there are electrical outlets in each cell.
  4. Whether windows are inspected and up to code.
  5. Whether prisoners' hair is cut only by licensed barbers.
  6. And whether air and water temperatures are comfortable.
  Elsewhere, American citizens are put at risk every day by court 
decrees. I have in mind particularly decrees that cure prison crowding 
by declaring that we must free dangerous criminals before they have 
served their time, or not incarcerate certain criminals at all because 
prisons are too crowded.
  The most egregious example is the city of Philadelphia. For the past 
8 years, a Federal judge has been overseeing what has become a program 
of wholesale releases of up to 600 criminal defendants per week to keep 
the prison population down to what she considers an appropriate level.
  Under this order, there are no individualized bail hearings on a 
defendant's criminal history before deciding whether to release the 
defendant before trial. Instead, the only consideration is what the 
defendant is charged with the day of his or her arrest.
  No matter what the defendant has done before, even, for example, if 
he or she was previously convicted of murder, if the charge giving rise 
to the arrest is a non-violent crime, the defendant may not be held 
pretrial. Moreover, the so-called non-violent crimes include stalking, 
carjacking, robbery with a baseball bat, burglary, drug dealing, 
vehicular homicide, manslaughter, terroristic threats, and gun charges.
  As a result Philadelphia, which before the cap had about 18,000 
outstanding bench warrants, now has almost 50,000. In reality, though, 
no one is out looking for these fugitives. Why look? If they were 
found, they would just be released back onto the streets under the 
prison cap.
  In the meantime thousands of defendants who were out on the streets 
because of the cap have been rearrested for new crimes, including 79 
murders, 959 robberies, 2,215 drug dealing charges, 701 burglaries, 
2,748 thefts, 90 rapes, and 1113 assaults.
  Looking at the same material from another vantage point: In 1993 and 
1994, over 27,000 new bench warrants for misdemeanor and felony charges 
were issued for defendants released under the cap. That's 63 percent of 
all new bench warrants in 1993 and 74 percent of all new bench warrants 
for the first 6 months of 1994.
  Failure to appear rates for crimes covered by the cap are all around 
70 percent, as opposed to, for example, non-covered crimes like 
aggravated assault, where the rate is just 3 percent. The Philadelphia 
fugitive rate for defendants charged with drug dealing is 76 percent, 
three times the national rate.
  Over 100 persons in Philadelphia have been killed by criminals set 
free under the prison cap. Moreover, the citizenry has understandably 
lost confidence in the criminal justice system's ability to protect 
them. And the criminals, on the other hand, have every reason to 
believe that the system can't do anything about them.

  All of this would be bad enough if it were the result of a court 
order to correct serious constitutional violations committed by the 
Philadelphia corrections system. But it is not.
  Indeed, a different Federal judge recently found that conditions in 
Philadelphia's oldest and most decrepit facility--Holmesburg Prison--
met constitutional standards.
  These murderous early releases are the result of a consent decree 
entered into by the prior mayoral administration from which the current 
administration has been unable to extricate itself.
  Finally, in addition to massive judicial interventions in State 
prison systems, we also have frivolous inmate litigation brought under 
Federal law; this litigation also ties up enormous resources. Thirty-
three States have estimated that Federal inmate suits cost them at 
least $54.5 million annually. The National Association of Attorneys 
General have extrapolated that number to conclude that nationwide the 
costs are at least $81.3 million. Since, according to their 
information, more than 95 percent of these suits are dismissed without 
the inmate receiving anything, the vast majority of the $81.3 million 
being spent is attributable to non-meritorious cases.
  Mr. President, in my opinion this is all wrong. People deserve to 
keep their tax dollars or have them spent on projects they approve. 
They deserve better than to have their money spent, on keeping 
prisoners in conditions some Federal judge feels are desirable 
(although not required by any provision of the Constitution or any 
law). And they certainly don't need it spent on defending against 
frivolous prisoner lawsuits.
  And convicted criminals, while they must be accorded their 
constitution rights, deserve to be punished. I think virtually 
everybody believes that while these people are in jail they should not 
be tortured, but they also should not have all the rights and 
privileges the rest of us enjoy, and that their lives should, on the 
whole, be describable by the old concept known as hard time.
  The legislation I am introducing today will return sanity and State 
control to our prison systems. It will do so by limiting judicial 
remedies in prison cases and by limiting frivolous prisoner litigation.
  First, we must curtail interference by the Federal courts themselves 
in the orderly administration of our prisons. This is not to say that 
we will have no court relief available for prisoner suits, only that we 
will try to retain it for cases where it is needed while curtailing its 
destructive use.

[[Page S 14317]]

  Most fundamentally, the proposed bill forbids courts from entering 
orders for prospective relief (such as regulating food temperatures) 
unless the order is necessary to correct violations of individual 
plaintiffs' Federal rights.
  It also requires that the relief be narrowly drawn and be the least 
intrusive means of protecting the federal rights. And it directs courts 
to give substantial weight to any adverse impact on public safety or 
the operation of the criminal justice system caused by the relief.
  No longer will prison administration be turned over to Federal judges 
for the slightest reason. Instead, the States will be able to run 
prisons as they see fit unless there is a constitutional violation, in 
which case a narrowly tailored order to correct the violation may be 
entered.
  The bill also will make it more difficult for judges to release 
dangerous criminals back into the population, or to prevent the 
authorities from incarcerating them in the first place.
  To accomplish this, the legislation forbids courts from entering 
release orders except under very limited circumstances. The court first 
must have entered an order for less intrusive relief, which must be 
shown to have failed to cure the violation of Federal rights. If a 
Federal court reaches this conclusion, it must refer the question of 
whether or not to issue a release order to a three judge district 
court.
  This court must find by clear and convincing evidence that crowding 
is the primary cause of the violation of a Federal right and that no 
other relief will remedy the violation of the Federal right. Then the 
court must find, by a preponderance of the evidence, that the crowding 
had deprived particular plaintiffs of at least one essential, 
identifiable human need, and that prison officials have either 
deliberately subjected the plaintiffs to this deprivation or have been 
deliberately indifferent to it.
  As important, this legislation provides that any prospective relief 
order may be terminated on the motion of either party 2 years after the 
later of the grant of relief or the enactment of the bill. The court 
shall grant the termination unless it finds that the original 
prerequisites for granting it are present at that time.

  No longer, then, will we have consent decrees, such as those in 
Michigan under which judges control the prisons literally for decades.
  Finally, the bill contains several measures to reduce frivolous 
inmate litigation. The bill limits attorney's fee awards. In addition, 
prisoners no longer will be reimbursed for attorney's fees unless they 
prove an actual statutory violation.
  No longer will courts award attorney's fees simply because the prison 
has changed pre-existing conditions. Only if those conditions violated 
a prisoner's rights will fees be awarded.
  Prisoners who succeed in proving a statutory violation will be 
reimbursed only for fees directly and reasonably incurred in proving 
that violation.
  In addition, attorney's fees must be proportionally related to the 
court ordered relief. No longer will attorneys be allowed to charge 
massive amounts to the State for the service of correcting minimal 
violations.
  And no longer will attorneys be allowed to charge very high fees for 
their time. The fee must be calculated at an hourly rate no higher than 
that set for court appointed counsel. And up to 25 percent of any 
monetary award the court orders the plaintiff wins will go toward 
payment of the prisoner's attorney's fees.
  The bill also prohibits prisoners who have filed three frivolous or 
obviously nonmeritorious in forma pauperis civil actions from filing 
any more unless they are in imminent danger of severe bodily harm.
  Also, to keep prisoners from using lawsuits as an excuse to get out 
of jail for a time, pretrial hearings generally will be conducted by 
telephone, so that the prisoner stays in prison.
  Mr. President, these reforms will decrease the number of frivolous 
claims filed by prisoners. They will decrease prisoners' incentives to 
file suits over how bright their lights are. At the same time, they 
will discourage judges from seeking to take control over our prison 
systems, and to micromanage them, right down to the brightness of their 
lights.
  This is a far-reaching bill, Mr. President. One aimed at solving a 
complex, costly, and dangerous problem. Its several provisions will 
discourage frivolous lawsuits and promote State control over State 
prison systems. At the same time, this legislation will help protect 
convicted criminals' constitutional rights without releasing them to 
prey on an innocent public or keeping them in conditions so comfortable 
that they lose their deterrent effect.
  I urge my colleagues to support this legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1275

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Prison Conditions Litigation 
     Reform Act''.

     SEC. 2. APPROPRIATE REMEDIES FOR PRISON CONDITIONS.

       (a) In General.--Section 3626 of title 18, United States 
     Code, is amended to read as follows:

     ``Sec. 3626. Appropriate remedies with respect to prison 
       conditions

       ``(a) Requirements for Relief.--
       ``(1) Prospective relief.--Prospective relief in any civil 
     action with respect to prison conditions shall extend no 
     further than necessary to correct the violation of the 
     Federal right of a particular plaintiff or plaintiffs. The 
     court shall not grant or approve any prospective relief 
     unless the court finds that such relief is narrowly drawn, 
     extends no further than necessary to correct the violation of 
     the Federal right, and is the least intrusive means necessary 
     to correct the violation. In determining the intrusiveness of 
     the relief, the court shall give substantial weight to any 
     adverse impact on public safety or the operation of a 
     criminal justice system caused by the relief.
       ``(2) Preliminary injunctive relief.--In any civil action 
     with respect to prison conditions, to the extent otherwise 
     authorized by law, the court may enter a temporary 
     restraining order or an order for preliminary injunctive 
     relief. Preliminary injunctive relief shall automatically 
     expire on the date that is 90 days after its entry, unless 
     the court makes the order final before the expiration of the 
     90-day period.
       ``(3) Prisoner release order.--(A) In any civil action with 
     respect to prison conditions, no prisoner release order shall 
     be entered unless--
       ``(i) a court has previously entered an order for less 
     intrusive relief that has failed to remedy the deprivation of 
     the Federal right sought to be remedied through the prisoner 
     release order; and
       ``(ii) the defendant has had a reasonable amount of time to 
     comply with the previous court orders.
       ``(B) In any civil action in Federal court with respect to 
     prison conditions, a prisoner release order shall be entered 
     only by a three-judge court in accordance with section 2284 
     of title 28, if the requirements of subparagraph (E) have 
     been met.
       ``(C) A party seeking a prisoner release order in Federal 
     court shall file with any request for such relief, a request 
     for a three-judge court and materials sufficient to 
     demonstrate that the requirements of subparagraph (A) have 
     been met.
       ``(D) If the requirements under subparagraph (A) have been 
     met, a Federal judge before whom a civil action with respect 
     to prison conditions is pending who believes that a prison 
     release order should be considered may sua sponte request the 
     convening of a three-judge court to determine whether a 
     prisoner release order should be entered.
       ``(E) The court shall enter a prisoner release order only 
     if the court finds--
       ``(i) by clear and convincing evidence--
       ``(I) that crowding is the primary cause of the violation 
     of a Federal right; and
       ``(II) that no other relief will remedy the violation of 
     the Federal right; and
       ``(ii) by a preponderance of the evidence--
       ``(I) that crowding has deprived a particular plaintiff or 
     plaintiffs of at least one essential, identifiable human 
     need; and
       ``(II) that prison officials have acted with obduracy and 
     wantonness in depriving a particular plaintiff or plaintiffs 
     of at least one essential, identifiable human need.
       ``(F) Any State or local official or unit of government 
     whose jurisdiction or function includes the prosecution or 
     custody of persons who may be released from, or not admitted 
     to, a prison as a result of a prisoner release order shall 
     have standing to oppose the imposition or continuation in 
     effect of such relief, and shall have the right to intervene 
     in any proceeding relating to such relief.
       ``(b) Termination of Relief.--
       ``(1) Termination of prospective relief.--(A) In any civil 
     action with respect to prison conditions in which prospective 
     relief is ordered, such relief shall be terminable upon the 
     motion of any party--
       ``(i) 2 years after the date the court granted or approved 
     the prospective relief;
       ``(ii) 1 year after the date the court has entered an order 
     denying termination of prospective relief under this 
     paragraph; or

[[Page S 14318]]

       ``(iii) in the case of an order issued on or before the 
     date of enactment of the Prison Litigation Reform Act, 2 
     years after such date of enactment.
       ``(B) Nothing in this section shall prevent the parties 
     from agreeing to terminate or modify relief before the relief 
     is terminated under subparagraph (A).
       ``(2) Immediate termination of prospective relief.--In any 
     civil action with respect to prison conditions, a defendant 
     or intervener shall be entitled to the immediate termination 
     of any prospective relief if the relief was approved or 
     granted in the absence of a finding by the court that the 
     relief is narrowly drawn, extends no further than necessary 
     to correct the violation of the Federal right, and is the 
     least intrusive means necessary to correct the violation.
       ``(3) Limitation.--Prospective relief shall not terminate 
     if the court makes written findings based on the record that 
     prospective relief remains necessary to correct the violation 
     of the Federal right, extends no further than necessary to 
     correct the violation of the Federal right, and that the 
     prospective relief is the least intrusive means to correct 
     the violation.
       ``(4) Termination or modification.--Nothing in this section 
     shall prevent any party from seeking modification or 
     termination before the relief is terminable under paragraph 
     (1) or (2), to the extent that modification or termination 
     would otherwise be legally permissible.
       ``(c) Settlements.--
       ``(1) Consent decrees.--In any civil action with respect to 
     prison conditions, the court shall not enter or approve a 
     consent decree unless it complies with the limitations on 
     relief set forth in subsection (a).
       ``(2) Private settlement agreements.--(A) Nothing in this 
     section shall preclude parties from entering into a private 
     settlement agreement that does not comply with the 
     limitations on relief set forth in subsection (a), if the 
     terms of that agreement are not subject to court enforcement 
     other than the reinstatement of the civil proceeding that the 
     agreement settled.
       ``(B) Nothing in this section shall preclude any party 
     claiming that a private settlement agreement has been 
     breached from seeking in State court any remedy for breach of 
     contract available under State law.
       ``(d) State Law Remedies.--The limitations on remedies in 
     this section shall not apply to relief entered by a State 
     court based solely upon claims arising under State law.
       ``(e) Procedure for Motions Affecting Prospective Relief.--
       ``(1) Generally.--The court shall promptly rule on any 
     motion to modify or terminate prospective relief in a civil 
     action with respect to prison conditions.
       ``(2) Automatic stay.--Any prospective relief subject to a 
     pending motion shall be automatically stayed during the 
     period--
       ``(A)(i) beginning on the 30th day after such motion is 
     filed, in the case of a motion made under paragraph (1) or 
     (2) of subsection (b); or
       ``(ii) beginning on the 180th day after such motion is 
     filed, in the case of a motion made under subsection (b)(3); 
     and
       ``(B) ending on the date the court enters a final order 
     ruling on the motion.
       ``(f) Definitions.--As used in this section--
       ``(1) the term `consent decree' means any relief entered by 
     the court that is based in whole or in part upon the consent 
     or acquiescence of the parties;
       ``(2) the term `civil action with respect to prison 
     conditions' means any civil proceeding arising under Federal 
     law with respect to the conditions of confinement or the 
     effects of actions by government officials on the lives of 
     persons confined in prison, but does not include habeas 
     corpus proceedings challenging the fact or duration of 
     confinement in prison;
       ``(3) the term `prisoner' means any person incarcerated or 
     detained in any facility who is accused of, convicted of, 
     sentenced for, or adjudicated delinquent for, violations of 
     criminal law or the terms and conditions of parole, 
     probation, pretrial release, or diversionary program;
       ``(4) the term `prisoner release order' includes any order, 
     including a temporary restraining order or preliminary 
     injunctive relief, that has the purpose or effect of reducing 
     or limiting the prison population, or that directs the 
     release from or nonadmission of prisoners to a prison;
       ``(5) the term `prison' means any Federal, State, or local 
     facility that incarcerates or detains juveniles or adults 
     accused of, convicted of, sentenced for, or adjudicated 
     delinquent for, violations of criminal law;
       ``(6) the term `prospective relief' means all relief other 
     than monetary damages; and
       ``(7) the term `relief' means all relief in any form that 
     may be granted or approved by the court, and includes consent 
     decrees and settlement agreements (except a settlement 
     agreement the breach of which is not subject to any court 
     enforcement other than reinstatement of the civil proceeding 
     that such agreement settled).''.
       (b) Application of Amendment.--
       (1) In general.--Section 3626 of title 18, United States 
     Code, as amended by this section, shall apply with respect to 
     all relief (as defined in such section) whether such relief 
     was originally granted or approved before, on, or after the 
     date of the enactment of this Act.
       (2) Technical amendment.--Subsections (b) and (d) of 
     section 20409 of the Violent Crime Control and Law 
     Enforcement Act of 1994 are repealed.
       (c) Clerical Amendment.--The table of sections at the 
     beginning of subchapter C of chapter 229 of title 18, United 
     States Code, is amended to read as follows:

``3626. Appropriate remedies with respect to prison conditions.''.

     SEC. 3. AMENDMENTS TO CIVIL RIGHTS OF INSTITUTIONALIZED 
                   PERSONS ACT.

       Section 7 of the Civil Rights of Institutionalized Persons 
     Act (42 U.S.C. 1997e) is amended by adding at the end the 
     following new subsections:
       ``(f) Attorney's Fees.--(1) In any action brought by a 
     prisoner who is confined to any jail, prison, or other 
     correctional facility, in which attorney's fees are 
     authorized under section 2 of the Revised Statutes of the 
     United States (42 U.S.C. 1988), such fees shall be awarded 
     only if--
       ``(A) the fee was directly and reasonably incurred in 
     proving an actual violation of the plaintiff's rights 
     protected by a statute pursuant to which a fee may be awarded 
     under section 2 of the Revised Statutes; and
       ``(B) the amount of the fee is proportionately related to 
     the court ordered relief for the violation.
       ``(2) Whenever a monetary judgment is awarded in an action 
     described in paragraph (1), a portion of the judgment (not to 
     exceed 25 percent) shall be applied to satisfy the amount of 
     attorney's fees awarded against the defendant. If the award 
     of attorney's fees is greater than 25 percent of the 
     judgment, the excess shall be paid by the defendant.
       ``(3) No award of attorney's fees in an action described in 
     paragraph (1) shall be based on an hourly rate greater than 
     the hourly rate established under section 3006A of title 18, 
     United States Code, for payment of court-appointed counsel.
       ``(4) Nothing in this subsection shall prohibit a prisoner 
     from entering into an agreement to pay an attorney's fee in 
     an amount greater than the amount authorized under this 
     subsection, if the fee is paid by the individual rather than 
     by the defendant pursuant to section 2 of the Revised 
     Statutes of the United States (42 U.S.C. 1988).
       ``(g) Telephone Hearings.--To the extent practicable, in 
     any action brought in Federal court pursuant to section 1979 
     of the Revised Statutes of the United States (42 U.S.C. 1983) 
     by a prisoner crime confined in any jail, prison, or other 
     correctional facility, pretrial proceedings in which the 
     prisoner's participation is required or permitted shall be 
     conducted by telephone without removing the prisoner from the 
     facility in which the prisoner is confined. Any State may 
     adopt a similar requirement regarding hearings in such 
     actions in that State's courts.
       ``(h) Definition.--As used in this section, the term 
     `prisoner' means any person incarcerated or detained in any 
     facility who is accused of, convicted of, sentenced for, or 
     adjudicated delinquent for, violations of criminal law or the 
     terms and conditions of parole, probation, pretrial release, 
     or diversionary program.''.

     SEC. 4. SUCCESSIVE CLAIMS IN PROCEEDINGS IN FORMA PAUPERIS.

       Section 1915 of title 28, United States Code, is amended by 
     adding at the end the following new subsection:
       ``(f)(1) In no event shall a prisoner in any prison bring a 
     civil action or appeal a judgment in a civil action or 
     proceeding under this section if the prisoner has, on 3 or 
     more prior occasions, brought an action or appeal in a court 
     of the United States that was dismissed on the grounds that 
     it is frivolous, malicious, or fails to state a claim upon 
     which relief may be granted, unless the prisoner is under 
     imminent danger of serious bodily harm.
       ``(2) As used in this subsection, the term `prisoner' means 
     any person incarcerated or detained in any facility who is 
     accused of, convicted of, sentenced for, or adjudicated 
     delinquent for, violations of criminal law or the terms and 
     conditions of parole, probation, pretrial release, or 
     diversionary program.''.

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