[Congressional Record Volume 147, Number 7 (Monday, January 22, 2001)]
[Senate]
[Pages S309-S311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THURMOND (for himself and Mr. Helms):
  S. 33. A bill to amend title II of the Americans with Disabilities 
Act of 1990 and section 504 of the Rehabilitation Act of 1973 to 
exclude prisoners from the requirements of that title and section; to 
the Committee on Health, Education, Labor, and Pensions.
  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 was 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 prisoners throughout America.
  In 1998, the Supreme Court ruled in Pennsylvania Department of 
Corrections v. Yeskey [118 S.Ct. 1952 (1998)] that the

[[Page S310]]

ADA applies to every state prison and local jail in this country. To no 
avail, the Attorneys General of most states, as well as numerous state 
and local organizations, had joined with Pennsylvania in court filings 
to oppose the ADA applying to prisoners.
  Prior to the Supreme Court ruling, the circuit courts were split on 
the issue. The Fourth Circuit Court of Appeals, my home circuit, had 
forcefully concluded that the ADA, as well as its predecessor and 
companion law, the Rehabilitation Act, did not apply to state 
prisoners. The decision focused 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 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's 
powers under the Commerce Clause or the Fourteenth Amendment, but we 
should not wait on the Supreme Court to consider this argument before 
acting. 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 has 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 equality 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. That is why I am again 
introducing the State and Local Prison Relief Act, as I did soon after 
the Supreme Court decided the Yeskey case in 1998.
  The State and Local Prison Relief Act would exempt prisons from the 
requirements of the ADA and the Rehabilitation Act for prisoners. More 
specifically, it exempts any services, accommodations, programs, 
activities or treatment of any kind regarding prisoners that may 
otherwise be required by the Acts. Through this language, I wish to 
make entirely clear that the bill is not intended to exempt prisons 
from having to accommodate disabled legal counsel, visitors, or others 
who are not inmates. Also, the fact that the bill applies to Title II 
of the ADA should make clear that it is not intended to exempt prison 
hiring practices for non-inmate employees. The bill is intended only to 
apply to prisoners.

  I firmly believe that if we do not act, the ADA will have broad 
adverse implications for the management of penal 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 criminal 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 the 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 essentially is to take 
away any barrier to anyone with any disability. Accommodating inmates 
in the manner required by the ADA will interfere with the ability of 
prison administrators to keep safety and security their overriding 
concern.
  For example, a federal court in Pennsylvania ruled that a prisoner 
who disobeyed a direct order could not be punished because of the ADA. 
The judge said it was okay for a prisoner to return to his cell after 
he was told not to by a guard, saying the prisoner was justified in 
refusing to comply because he was doing so to relieve stress built up 
due to his Tourette's Syndrome.
  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. For 
example, a federal judge ordered an Iowa prison to install cable 
television in a disabled inmate's cell because the man had difficulty 
going to the common areas to watch TV. After much public protest, the 
ruling was eventually reversed.
  The ADA presents a perfect opportunity for prisoners to try to beat 
the system, and use the courts to do it. There are over 1.7 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 opportunities, recreation, and jobs in prison 
industries. Combine these facts, and the possibilities 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.

  A related expense is attorney's fees. The ADA has incentives to 
encourage private litigants to vindicate their rights in court. Any 
plaintiff, including an inmate, who is only partially successful can 
get generous attorney's fees and monetary damages, possibly including 
even punitive damages. In one

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ADA class action lawsuit in California, the state has paid the 
prisoners' attorneys over $2 million, with hourly fees as high as $300.
  Applying the ADA to prisons is the latest unfunded Federal mandate 
that we are imposing on the states.
  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 must be spent to house prisoners. Even 
with prison populations rising, the people 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 apply the Act and determine what phrases like 
``qualified individual with a disability'' mean, judges must involved 
themselves 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.
  In applying Constitutional rights to prisoners, the Supreme Court 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 avoids 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 recognized last year, 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. In response, the Federal 
bureaucracy has created extremely specific and detailed mandates. 
Regarding facilities, they dictate everything from the number of water 
fountains to the flash rates of visual alarms. State and local 
correctional authorities must fall in line behind these regulations. In 
yet another way, we 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 
list goes on.
  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 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.
  I ask unanimous consent that following my remarks a copy 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. 33

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

     SECTION 1. EXCLUSION OF PRISONERS.

       (a) Americans With Disabilities Act of 1990.--Section 
     201(2) of the Americans with Disabilities Act of 1990 (42 
     U.S.C. 12131(2)) is amended by adding at the end the 
     following: ``The term shall not include a prisoner in a 
     prison, as such terms are defined in section 3626(g) of title 
     18, United States Code, with respect to services, programs, 
     activities, and treatment (including accommodations) relating 
     to the prison.''.
       (b) Rehabilitation Act of 1973.--Section 7(20) of the 
     Rehabilitation Act of 1973 (29 U.S.C. 705(20)) is amended--
       (1) by redesignating subparagraph (G) as subparagraph (H); 
     and
       (2) by inserting after subparagraph (F) the following:
       ``(G) Prison programs and activities; exclusion of 
     prisoners.--For purposes of section 504, the term `individual 
     with a disability' shall not include a prisoner in a prison, 
     as such terms are defined in section 3626(g) of title 18, 
     United States Code, with respect to programs and activities 
     (including accommodations) relating to the prison.''.
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