Exempting prisoners from the ADA

Marta Russell ap888 at lafn.org
Mon Jan 25 18:56:38 PST 1999


Two of my favorite southerners want to exempt states from the expense of providing our ever increasing number of prisoners with rights under the ADA. People like Leonard Peltier and Gramsci became disabled while in prison, and so do many others aside from those already disabled before a jail sentence. Sorry it is so long but I thought some of you might want to read the whole thing.

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.".

---------- End of Document



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