Marta Russell
Congressional Record dated Tuesday, January 19, 1999
Senate Section
----------------------------------------
---------------------------------------- Remarks by THURMOND (R-SC) on S. 33
Americans with Disabilities Act of 1990, Amendment
[CR page S-434, 228 lines]
Attributed to THURMOND (R-SC)
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.
THE 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 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.
Last year, the Supreme Court ruled in Pennsylvania Department of
Corrections v. Yeskey [118 S.Ct. 1952 (1998)] that the ADA applied 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' 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 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 introducing the State and
Local Prison Relief Act, as I did soon after the Supreme Court decided the
Yeskey case last year.
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, which I have slightly revised since
introducing the bill last year, 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 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 TV 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 an ongoing 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 require
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 involve 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 privilege 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.
I ask unanimous consent that 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:
---------------------------------------- Text of Measure -- S. 33
Americans with Disabilities Act of 1990, Amendment
[CR page S-436, 28 lines]
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.--Paragraph (20) of section 7 of the
Rehabilitation Act of 1973 (as redesignated in section 402(a)(1) of the
Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act, 1999) 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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