[Congressional Record Volume 144, Number 88 (Tuesday, July 7, 1998)]
[Senate]
[Pages S7574-S7577]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THURMOND (for himself and Mr. Helms):
  S. 2266. A bill to amend the Americans with Disabilities Act of 1990 
and the Rehabilitation Act of 1973 to exempt State and local agencies 
operating prisons from the provisions relating to public services; to 
the Committee on Labor and Human Resources.


                   state and local prison relief act

  Mr. THURMOND. Mr. President, I rise today to introduce legislation to 
address an undue burden that has arisen out of the Americans with 
Disabilities Act.
  The purpose of the ADA to give disabled Americans the opportunity to 
fully participate in society and contribute to it. This was a worthy 
goal. But even legislation with the best of intentions often has 
unintended consequences. I submit that one of those is the application 
of the ADA to state and local prisons throughout America.
  Last month, the Supreme Court ruled in Pennsylvania Department of 
Corrections versus Yeskey that the ADA applies to every state prison 
and local jail in this country. The circuit courts were split on the 
issue. The Fourth Circuit Court of Appeals, my home circuit, forcefully 
concluded that the ADA, as well as its predecessor and companion law, 
the Rehabilitation Act, did not apply to state prisoners, focusing on 
federalism concerns and the fact that the Congress did not make clear 
that it intended to involve itself to this degree in an activity 
traditionally reserved to the states.
  However, the Supreme Court did not agree, holding that the language 
of the

[[Page S7576]]

Act is broad enough to clearly cover state prisons. It is not an issue 
on the Federal level because the Federal Bureau of Prisons voluntarily 
complies with the Act. The Supreme Court did not say whether applying 
the ADA to state prisons exceeded the Congress' powers under the 
Commerce Clause or the Fourteenth Amendment, but we should not wait on 
the outcome of this argument to act. Although it was rational for the 
Supreme Court to read the broad language of the ADA the way it did, it 
is far from clear that we in the Congress considered the application of 
this sweeping new social legislation in the prison environment.
  The Seventh Circuit recognized that the ``failure to exclude 
prisoners may well have been an oversight.'' The findings and purpose 
of the law seem to support this. The introductory language of the ADA 
states, ``The Nation's proper goals regarding individuals with 
disabilities are to assure quality of opportunity, full participation, 
independent living, and economic self-sufficiency'' to allow ``people 
with disabilities * * * to compete on an equal basis and to pursue 
those opportunities for which our free society is justifiably famous.'' 
Of course, a prison is not a free society, as the findings and purpose 
of the Act envisioned. Indeed, it is quite the opposite. In short, as 
the Ninth Circuit explained, ``The Act was not designed to deal 
specifically with the prison environment; it was intended for general 
societal application.''
  In any event, now that the Supreme Court has spoken, it is time for 
the Congress to confront this issue. The Congress should act now to 
exempt state and local prisons from the ADA. If we do not, this law 
will have broad adverse implications for the management of these 
institutions. Prisoners will file an endless number of lawsuits 
demanding special privileges, which will involve Federal judges in the 
intricate details of running our state and local prisons.
  Mr. President, we should continuously remind ourselves that the 
Constitution created a Federal government of limited, enumerated 
powers. Those powers not delegated to the Federal government were 
reserved to the states or the people. As James Madison wrote in 
Federalist No. 45, ``the powers delegated to the Federal government are 
few and definite. * * * [The powers] which are to remain in the State 
governments are numerous and indefinite.'' The Federal government 
should avoid intrusion into matters traditionally reserved for the 
states. We must respect this delicate balance of power. Unfortunately, 
federalism is more often spoken about than respected.
  Although the entire ADA raises federalism concerns, the problem is 
especially acute in the prison context. There are few powers more 
traditionally reserved for the states than crime. The crime laws have 
always been the province of the states, and the vast majority of 
prisoners have always been housed in state prisons. The First Congress 
enacted a law asking the states to house Federal prisoners in their 
jails for fifty cents per month. The first Federal prison was not built 
until over 100 years later, and only three existed before 1925.
  Even today, as the size and scope of Federal government has grown 
immensely, only about 6% of prisoners are housed in 
Federal institutions. Managing that other 94% is a core state function. 
As the Supreme Court has stated,

       Maintenance of penal institutions is an essential part of 
     one of government's primary functions--the preservation of 
     societal order through enforcement of the criminal law. It is 
     difficult to imagine an activity in which a State has a 
     stronger interest, or one that is more intricately bound up 
     with state laws, regulations, and procedures.

  The primary function of prisons is to house criminals. Safety and 
security are the overriding concerns of prison administration. The 
rules and regulations, the daily schedules, the living and working 
arrangements--these all revolve around protecting prison employees, 
inmates, and the public. But the goal of the ADA is to take away any 
barrier to anyone with any disability. It requires the authorities to 
provide ``reasonable accommodation'' for essentially any disability 
unless doing so would impose an ``undue burden'' or ``a direct threat 
to the health or safety of others,'' as broadly defined by the courts. 
Accommodating inmates will interfere with the ability of prison 
administrators to keep safety and security their overriding concern.
  The practical effect of the ADA will be that prison officials will 
have to grant special privileges to certain inmates and to excuse 
others from complying with generally-applicable prison rules.
  The ADA presents a perfect opportunity for prisoners to try to beat 
the system, and use the courts to do it. There are over 1.6 million 
inmates in state prisons and local jails, and the numbers are rising 
every year. Indeed, the total prison population has grown about 6.5% 
per year since 1990. Prisons have a substantially greater percentage of 
persons with disabilities that are covered by the ADA than the general 
population, including AIDS, mental retardation, psychological 
disorders, learning disabilities, drug addiction, and alcoholism. 
Further, administrators control every aspect of prisoners' lives, such 
as assigning educational and vocational training, recreation, and jobs 
in prison industries. Combine these facts, and the opportunities for 
lawsuits are endless.
  For example, in most state prison systems, inmates are classified and 
assigned based in part on their disabilities. This helps administrators 
meet the disabled inmates' needs in a cost-effective manner. However, 
under the ADA, prisoners probably will be able to claim that they must 
be assigned to a prison without regard to their disability. Were it not 
for their disability, they may have been assigned to the prison closest 
to their home, and in that case, every prison would have to be able to 
accommodate every disability. That could mean every prison having, for 
example, mental health treatment centers, services for hearing-impaired 
inmates, and dialysis treatment. The cost is potentially enormous.
  Adequate funding is hard for prisons to achieve, especially in state 
and local communities where all government funds are scarce. The public 
is angry about how much money they have to spend to house prisoners. 
Even with prison populations rising, they do not want more of their 
money spent on prisoners. Often, there is simply not enough money to 
make the changes in challenged programs to accommodate the disabled. If 
prison administrators do not have the money to change a program, they 
will probably have to eliminate it. Thus, accommodation could mean the 
elimination of worthwhile educational, recreational, and rehabilitative 
programs, making all inmates worse off.
  Apart from money, accommodation may mean modifying the program in 
such a way as to take away its beneficial purpose. A good example is 
the Supreme Court's Yeskey case itself. Yeskey was declared medically 
ineligible to participate in a boot camp program because he had high 
blood pressure. So, he sued under the ADA. The boot camp required 
rigorous physical activity, such as work projects. If the program has 
to be changed to accommodate his physical abilities, it may not meet 
its basic goals, and the authorities may eliminate it. Thus, the result 
could be that everyone loses the benefit of an otherwise effective 
correctional tool.
  Another impact of the ADA may be to make an already volatile prison 
environment even more difficult to control. Many inmates are very 
sensitive to the privileges and benefits that others get in a world 
where privileges are relatively few. Some have irrational suspicions 
and phobias. An inmate who is not disabled may be angry if he believes 
a disabled prisoner is getting special treatment, without rationally 
accepting that the law requires it, and could take out his anger on 
others around him, including the disabled prisoner.

  We must keep in mind that it is judges who will be making these 
policy decisions. To determine what vague phrases like ``reasonable 
accommodation'' and ``undue burden'' mean, judges must get involved in 
intricate, fact-intensive issues, Essentially, the ADA requires judges 
to micromanage prisons. Judges are not qualified to second-guess prison 
administrators and make these complex, difficult decisions. Prisons 
cannot be run by judicial decree.
  The Supreme Court in recent years has recognized this. In apply 
Constitutional rights to prisoners, the Court

[[Page S7577]]

has tried to get away from micromanagement and has viewed prisoner 
claims deferentially in favor of the expertise of prison officials. It 
has stated that we will not ``substitute our judgment on difficult and 
sensitive matters of institutional administration for the 
determinations of those charged with the formidable task of running a 
prison. This approach ensures the ability of corrections officials to 
anticipate security problems and to adopt innovative solutions to the 
intractable problems of prison administration, and avoid unnecessary 
intrusion of the judiciary into problems particularly ill suited to 
resolution by decree.''
  Take for example a case from the Fourth Circuit, my home circuit, 
from 1995. The Court explained that a morbidly obese inmate presented 
corrections officials ``with a lengthy and ever-increasing list of 
modifications which he insisted were necessary to accommodate his obese 
condition. Thus, he demanded a larger cell, a cell closer to support 
facilities, handrails to assist him in using the toilet, wider 
entrances to his cell and the showers, non-skid matting in the lobby 
area, and alternative outdoor recreational activities to accommodate 
his inability to stand or walk for long periods.'' It is not workable 
for judges to resolve all of these questions.
  It is noteworthy that a primary purpose of the Prison Litigation 
Reform Act was to stop judges from micromanaging prisons and to reduce 
the burdens of prison litigation. As the Chief Justice of the Supreme 
Court recently recognized, the PLRA is having some success. However, 
this most recent Supreme Court decision will hamper that progress.
  Moreover, the ADA delegated to Federal agencies the authority to 
create regulations to implement the law. State and local correction 
authorities must fall in line behind these regulations. In yet another 
way, we will have the Justice Department exercising regulatory 
oversight over our state and local communities.
  Prisons are fundamentally different from other places in society. 
Prisoners are not entitled to all of the rights and privileges of law-
abiding citizens, but they often get them. They have cable television. 
They have access to better gyms and libraries than most Americans. The 
public is tired of special privileges for prisoners. Applying the ADA 
to prisons is a giant step in the wrong direction. Prisoners will abuse 
the ADA to get privileges they were previously denied, and the reason 
will be the overreaching hand of the Federal government. We should not 
let this happen.
  Mr. President, the National Government has gone full circle. We have 
gone from asking the states to house Federal prisoners to dictating to 
the states how they must house their own prisoners. There must be some 
end to the powers of the Federal government, and to the privileges it 
grants the inmates of this Nation. I propose that we start by passing 
this important legislation.
  Mr. President, 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. 2266

       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 ``State and Local Prison 
     Relief Act''.

     SEC. 2. EXEMPTIONS FOR STATE AND LOCAL AGENCIES OPERATING 
                   PRISONS.

       (a) Americans with Disabilities Act of 1990.--Section 
     201(1) of the Americans with Disabilities Act of 1990 (42 
     U.S.C. 12131(1)) is amended by adding at the end the 
     following: ``The term `public entity' does not include any 
     department, agency, district, or instrumentality of a State 
     or local government that operates a prison, as defined in 
     section 3626(g) of title 18, United States Code, with respect 
     to the services, programs, or activities relating to the 
     prison.''.
       (b) Rehabilitation Act of 1973.--Section 504(b) of the 
     Rehabilitation Act of 1973 (29 U.S.C. 794(b)) is amended by 
     adding at the end of the following: ``Notwithstanding the 
     preceding sentence, for the purposes of this section, the 
     term `program or activity' does not include any operations 
     relating to a prison, as defined in section 3626(g) of title 
     18, United States Code, by any entity described in any of 
     paragraphs (1) through (4).''.
                                 ______