and november of last year in title review of prison litigation reform act a decade decade of reform or an increase in prison in prison and abuse at that hearing began to look at some of the unintended consequences of the also in some cases made it nearly impossible for prisoners with meritorious claims to bring lawsuits in federal court and remind everyone that h r forty one and does not in any way i'm in the main aspect of the p l o the screening provisions the screening will continue to take place so that every case will be screened before it goes to federal court this will ensure that fabulous cases will not clog up the courts my bill will nominate the most egregious problems with the p the physical injury requirement which currently excludes prisoners who have had their religious liberties violated or who are living in appalling conditions in some cases it even excludes persons who have been raped if there is no process sometimes through no fault of their own and third the bill would exclude juveniles who are coming under the purview of the p l o right ari because most juveniles simply cannot be expected to navigate the tricky aspects of the complicated staff on both sides of the aisle of been working hard on this issue to see if we can find some common ground i remain hopeful that we will be able to make some progress this year drafting a manager's amendment they will have the support of all the committee members i'd like to give one example of how the unintended consequences of the act actually affect an individual prisoner at the last hearing we heard from garrett cunningham who had been raped by a prison guard in texas after the attack he was in shock and also afraid to report the attack for fear of retaliation as a result he did not exhaust all of his administrative right remedies as required by the act so he was not able to file a suit in federal court besides the exhaustion issue rape victims a in some courts because of the physical injury requirement the p l o or a requires had to be an actual physical injury and some circuits have determined that rape is not a physical injury it is absurd to think that congress intended to leave rape victims without access to federal court along with many persons in congress in a bipartisan effort worked hard to pass the prison rape elimination act that act formed a commission that is now investigating the prevalence of rape in federal court even the concern that congress expressed in passing that it is contradictory to have in place a law that forecloses the opportunity for prisoners to seek redress once they've been harmed with that said it's my pleasure to recognize the ranking member of the subcommittee  judge gohmert thank you chairman scot and i do want to thank you for opportunity here today is the second hearing we've had on the subject of prison litigation during the first hearing we had a general discussion on the subject of prison litigation however at that time neither the members of this subcommittee nor the witnesses had the opportunity to review the provisions of h r forty one o nine the prison abuse remedies act now that we've had an opportunity to examine the bill we believe that if it were passed in total it would repeal every meaningful protection of the prison litigation reform act or the l r a the proposed legislation would cause an explosion of frivolous prisoner litigation that will clog up the courts waste valuable legal resources and affect the quality of justice enjoyed by law abiding citizens in nine hundred ninety six congress took appropriate steps to limit frivolous prisoner litigation by passing a it was passed on a bipartisan basis to address legitimate concerns about excessive prisoner litigation our colleague on the subcommittee representative dan lungren of california was a leader in that effort prior to the end enactment of the p l r national association of attorneys general as to may the cost of frivolous prisoner lawsuits that more than eighty million dollars per year at that time prisoners biled a disproportionate share of the civil law suits filed in federal courts and not being honored for only two years before the p l r it was passed about twenty five percent of the lawsuits were filed by prisoners who made up less than one percent of the population most of these cases were dismissed as without merit but that in and of itself takes a tremendous amount of work for anybody who has worked in the courts around the courts or know what's involved to get to that point of dismiss without merit but this avalanche of related to the concern of the judiciary as justice robert jackson has are many years earlier this collaging of the federal courts with verbless cases quote prejudice the occasional meritorious application to be buried in a flood of warrantless ones unquote another distinguished jurist judge harvey wilkinson of the fourth circuit called on congress to address frivolous litigation and i'd say ninety four judge wilkinson noted that the contemporary legal system invites prisoners to sue and that quote the supreme court has lamented that these petitions often result in the squandering of judicial resources with little offsetting benefit to anyone congress responded to these calls for action and passed the p l r a as an act of the p l r i takes commonsense steps to reduce the number of petition filed by mit's claiming violations of their rights under the p l r right inmates are number one required to exhaust all administrative remedies before filing a case in federal court number two prohibited from receiving filing fee waivers if they have a history of filing for evillest or malicious lawsuits and three headed is  st to demonstrate physical injury to claim monetary awards for compensatory damages and in this bill each one of these commonsense provisions is basically were repealed or made ineffective these provisions are made ineffective just spot the fact that evidence shows that the p l r i worked in decreasing the amount of privet frivolous prisoner litigation and i don't use the term frivolous lightly because i know as vollmer judge and chief justice there are many times the plaintiff's bar has gotten a bad rap over what may they called frivolous lawsuits when in fact they were lawsuits that narrowly lost a jury trial and which case there was evidence to support both sides and one side lost i don't consider those frivolous what i'm talking about here truly are frivolous cases i've seen him for stand now according to the records kept by the administrative offices of the federal courts in n five the year before the p l r i passed over forty one thousand cases were filed by federal prisoners alleging violations of their civil rights since that high mark the number of cases has dropped to about twenty four thousand cases per year th inability to pursue claims however i expressed in the prior hearing and i think members are willing to make adjustments to the provisions of p r a p l r i where there appears to be an injustice being the first hearing our members a dinner five three areas where protected from retaliation by correction officials we agree on those things that is important these are commonsense fixes and should properly balance the rights of prisoners a judicial redress the saudis a legitimate concern for good management of its prisons  case where resources are taken from other places where they're needed whether it's dealing with the ill the far my senior citizens and having to be put into the courts so that they can address a massive frivolous claims thank a former state attorney general a former chief justice of the state court and a distinguished counsel from north carolina and long serving member of the committee  i think that these five witnesses will help us put into perspective the kinds of changes that are being suggested to the  prison litigation reform act one is to as for the juveniles to have access to the courts to address abuse reasonable to we want to remove the current requirement of physical injury before an inmate has a right to see judicial review of a complaint reasonable and finally the removal of procedural technicalities yes that resulted in the mandatory dismissal of meritorious claims and so i'd like see and listen carefully to the remedy of the distinguished members of congress that are on this crime committee and judicia as to how we go about that juveniles that are abused in prison have a safe way to complain and see judicial help or they ought to have a safe way this isn't provided and under current law juveniles are the most abuse of inmates when a child is raped or sexually abused by a prison guard current law requires him to follow a rather complicated set of procedures that often involves the filing of a complaint with the very guard that abused him or her frequently out of fear or lack of skill  the juvenile doesn't file proper complaint the prison abuse remedies will remove juveniles from the reach of the prison the litigation reform ac which has in some cases set up unsurmountable obstacles for juveniles the second part number two is th cases because  case in point female inmates challenge the use of strip searches by male guards one woman was so traumatized she attempted to take her life the court had no choice but to dismiss the case under existing law because there was no demonstrable physical injury prisoners who complained of sexual assaults that leave no marks confinement under inhumane conditions deprivations of religious freedom and psychological assaults are frequently denied these cases are denied access to federal court because no one can point to physical injury and so we correct the problem and of course finally the bill eliminates the high procedural bars that have stopped meritorious claims because under the existing law inmates it requires inmates to attempt to resolve their problem within the prison system before seeking judicial remedies many prison grievance procedures sho deadlines and so the inmates can't handle and navigate through this without a lawyer and their cases get dismissed so i'm happy to join my colleagues at this important hearing and look forward to hearing from our distinguished panel of witnesses thank you we're joined by the gentleman from california who understand has a statement very much mr chairman thank you for allowing me to offer a few comments on the prison litigation reform act in the suggested changes contained in your bill this is an issue which has been a real interest to me for some time as was mentioned previously in my capacity as the attorney general of the state of california i was the chair of the criminal law committee of the national association of attorney generals and my office at that time worked and i worked personally with the then governor tom ridge of pennsylvania senator spencer abraham of michigan harry reid of nevada and john kyl of arizona to write the prison litigation reform act and so it's from this vantage point as a former state official who was in charge of a department that spent i believe at the time i was attorney general eight million dollars a year just on prisoner litigation at a time when the ninth circuit did their own study of the issue of prisoner litigation and in their report i believe said that ninety nine point something percent of the cases filed in the ninth circuit were ultimately dismissed or if they went to a hearing were at that point in time found to be without merit ninety nine point something percent that sounds to me to be frivolous lawsuits so i have some concerns that any significant departure from our response to that problem could reverse the progress we have made in reducing frivolous prison or lawsuits my concern is not driven by lawsuits over broken cookies or the emotional distress caused by inmates because of the requirement that they be seated next to criminals and those are just two examples of lawsuits that we had to answer for spend time going to court on before we had relief that is been delivered by the p l r a but at the heart of the matter it seems to me is we have an obligation to victims of crime not to provide those who have harmed them with legal weapons that make a mockery of the notion of punishment you know i think it is important state the obvious those who inhabit our nation's prisoners are criminals and they are there because they have been found to have violated the rights of their fellow citizens so i hope we keep this in mind to avoid the mistake of falling into emotionally satisfying rights talk with respect to prisoners it is in my judgment a mistake of categories to confuse the rights of a convicted murderer rapist with those of a criminal defendant who is appropriately clothed with the presumption of innocence until his or her fellow citizens concluded the facts of the term and otherwise as judge easterbrook correctly pointed out in johnson vs daily it is a false notion that prisoners and free persons have similar constitutional rights however this is not to suggest that prisoners are not without the protection of the law for the subservient relationship of prisoners to the state which has no counterpart with respect to free persons it in itself gives rise to legal obligations by the state punishment for crime carries penalties contained within the law and should not entailed read tribute against inmates outside the parameters of duly enacted statutes i think that's something on which we can all agree it is for that reason that i share the sentiments expressed by pat nolan of the prison fellowship contained a statement of a member eight last year it is entirely appropriate even necessary i believe for this committee to communicate in clear and unequivocal terms that the personal injury requirement should not bar recovery in sexual assault cases with respect to mental or emotional injury claims and it's my hope that we can craft a language to address any uncertainty that may exist concerning this issue furthermore in our consideration of  seems to me that we should be able to take care of the problem mentioned by everybody the possibility of intimidation which renders it impossible for an inmate to be able to utilize the state proceedings but it seems to me in consideration of legislative changes it is also necessary for us to consider the need to address what are clear circumvention of the intent of the an issue has  arisen relating to the united states supreme court's decision in jones versus bach indicating that exhaustion must be raised as an affirmative defense the court made clear that this is something for us the congress to address it seems to me there's no reason to make exhaustion a jury question to wait until the end of the trial to resolve the issue so on the one hand it seems to me we can craft language to take care of the problem of intimidation and not have exhaustion and as an excuse which allows intimidation to be protected we also ought to deal with the issue of exhaustion as an affirmative defense the attorney's fees provisions that have been mentioned have been circumvented where former prisoners have filed lawsuits for civil rights violations even under circumstances the inmates still serving in prison sentences lawsuits under the federal law relating to prison conditions have also been held not to be subject to the existing attorney the provisions of the act it seems to me this is something we ought to take a look at where former inmates may bring one hundred count lawsuit on behalf of prisoners serving their sentence and where the plaintiff from vail on one fail on ninety nine and collect attorney fees outside the scope of the p l r a for all hundred counts under current law prospective relief means all relief other than compensatory monetary damages such perspective relief is subject to the limitations of p l r for example such relief may be narrowly drawn extend no further than necessary be the least intrusive course of action perspective relief can include things ranging from an injunction a declaratory judgment or even punitive damages in some jurisdictions the courts have not deemed nominal damages recovery of a dollar to be subject to the limitation to the limitations of the p r a and as a consequence we've had cases where there is no real injury someone was denied the use of a book for one hour that's an actual case these cases are brought where  there is no justification for the use of federal court recesses resources much less that of state officials so it just seems to me and i've seen this and i know some people don't like to realize this but sometimes some prisoners use litigation as a form of recreation there is little incumbrance to the abuse of the judicial system and as a result when it in cumbers the judicial system legitimate claims of prisoners who have been abused get overwhelmed and sometimes pushed to the end of the line so i just hope we can work together in a bipartisan spirit mr chairman to deal with those issues that i think have a legitimate seein that we can have agreement on but at the same time not under what i think the value of the prisoner litigation reform act provided us and that is ridding us of the frivolous lawsuits that were in the vast majority of cases and when it's ninety nine percent by the number by the count of the night circuit it seems to me that fits the definition of frivolous and i thank the chairman for granting me the indulgence his indulgence for this time thank you general to michigan mr mr chairman if i might just make a note i had visited me a distinguished minister from tennessee the reverend been cox who i can remember when he was a freedom rider and the religious leader he is still very active in i just wanted to know that he was  the record would show that he was in our hearing today a distinguished panel of witnesses here today to help us consider the important issues currently before us our first witness steven wright is president senior counsel for the southern center for human rights atlanta where he has been a nationally recognized leading advocate for human rights regarding prisons and jails in the south for over twenty five years he also teaches at yale law school law school and previously taught at law schools at harvard georgetown emory and other universities he received the american bar association thurgood currently works for the district attorney works for district attorney lin a broad abraham in philadelphia she has worked for almost three decades in criminal justice at the federal state and local levels from one nine hundred seventy nine to one nine five she served as a prosecutor in philadelphia during which time she testified before congress about the philadelphia prison cap and assisted congress as a draft of the p l o and its one hundred ninety seven amendments from two thousand and five to  hundred eighty nine in one thousand nine hundred nine he took office as the attorney general of pennsylvania in one nine hundred ninety five his life changed forever when he pleaded guilty to mail fraud and served a year in prison his year in prison changed his views on the criminal justice system and after returning to legal work is primarily work as a lobbyist working for enlightened public policy and is represented many public interest clients and i last witness will be miss jane woodford who began her career in corrections in one thousand nine hundred seventy eight following her graduation from sonoma state university with the criminal justice she is useless or education and experience to become a leader in the field of corrections for over thirty years she served as a warden including president california and in two thousand and four became the director of the department of course the largest correctional system in the united states she is she is the chief of the san francisco initiatives the chief of the san francisco  go to yellow when one minute is left and will go to read when the five minutes are up mr bright mr chairman members of committee thank you very much it's an honor to be here i want to start just by telling you that my problems with both the exhaustion requirement with the application of this act of juveniles can be summarized by a case of a young man steven z who was sent to a juvenile facility for theft he was initiated when he got there by being jumped and beaten by a number of inmates until he had a seizure that was one of four beatings that he had the first year that he was in this facility for now one of them was a right but the other four were not this is not just sexual assaults we're dealing with here the child was so upset about this he was put on suicide watch because he was about to take his life rather than deal with those that was all in two thousand and two the next year he was beaten with socks with padlocks in them again severely beaten now he didn't file a grievance for this reason the practice in this facility was to handcuff one inmate to another and then have other inmates be him while he was handcuffed the officials knew these things were going on i want to make that clear in terms of notice to the facility some of these wounds he had had to be surgically stitched up he was there was no secret about this his mother complained t facility wrote to two juvenile court judges one judge wrote the governor arrange to see the superintendent of the facility this mother's desperate to talk about what's happening to her child so everyone knows what's happening the grievance procedure five steps and the first step two days and i just ask you if anybody's seriously interested in knowing about grievances to do something about him when you've got a statute of limitation of two days we get a lawyer and a personal injury lawsuit two years to file a lawsuit and we expect children mentally ill people mentally retarded people illiterate people to file within two days it was five steps of a bunch of appeals and all that the justice department later said this was a completely dysfunctional system the court said despite the heroic efforts of this mother to protect her child she didn't comply with the exhaustion provisions of the prison litigation reform act they had to be filed by the child himself not by his mother they had to be filed within two days so that's the law today you can take this other cha feeling raped in the south carolina prison one so severe that he was hospitalized again everybody knew this man was raped he was hospitalized for it he begged for protective custody again everybody knows this happened he attempted suicide because of what was happening and he thought that he couldn't file a grievance for being raped first of all he was transferred from one prison to another he was also raped in the second prison his sort of commonsense understanding was when i got sent to another prison i couldn't file a grievance on what happened in the first prison secondly the grievance procedure couldn't give him damages for what happened to him so his common sense out of it was that he didn't have a grievance to file common sense has nothing to do with the system that we have created it is a system of all sorts of complicated procedures and technical requirements that exist for the purpose of tripping people up so they can't bring a lawsuit now we just got to be candid about that one case that we had the grievance was thrown out because the grievance was written outside the margins on the form one that i fi myself on behalf of a client was dismissed because it had to be filed by the inmate himself not by his lawyers we're treating these grievances terms which are set up by the people who are going to be sued as if there's some sort of  system of course there you have a year a six month statue limitation to have lawyers who lease can try to comply i represent all the inmates at the jail in atlanta we beg them to set up a grievance system to deal with things like a young man who's handcuffed behind his back and an officer shoots him with a taser while he's sitting there completely defenseless there are things like that happening in this jail we'd like people to be able to file grievances the system is that most of the time you can't find a form when you can you can't find a person to take it when you file it maybe half the time you'll get back the response saying it's been denied and the other half of the time you won't get back a response at all now what is the prisoner do file mandamus with the warden because nobody's responded to his grievance if we're going to have these sort of hyper technical requirements we need to put lawyers in these prisons because i will tell you most lawyers can't follow these and it may be that in some parts of this country there are grievance systems which work and which are not to trip people up but are to find out what's going on in the facilities but i will tell you where i practice these are mickey mouse proceedings kangaroo courts that exist for the purpose of tripping people up and i've been at meetings where p well very candidly admitted that i was begging the sheriff in this case please set up a grievance system of the county attorney said yes if you'd set up a grievance system we could defeat these lawsuits they keep filing because nobody probably complied with let me just say a quick word about physical injury i think everybody was offended by what happened at abu ghraib most people no no you  lawsuit for in the united states under the prison litigation reform act there's no physical injury we had a very similar lawsuit in a prison in georgia where the guards rampage through the prison stripped people naked in front of women people had them tap dance hold one leg in their hand step on stand and one foot and hold the other foot in their hands which back and forth as fast as they could all this sort of degradation and humiliation the eleventh circuit said that that's not a not actionable because there prison population with a very large number of mentally ill people mentally retarded people illiterate people people have nothing to do because they are no educational programs or no vocational programs people have no understanding the legal system because there's no access to anybody who can give them any legal advice and all you have to have is a legal pad and a piece of paper and you can write on it and send it to the court now that's the lawsuits about cookies breaking and peanut butter that everybody wants to make so much about and as long as you have a high population of mentally ill people and people of limited intelligence in our prisons you're going to get some of those but let me tell you what this act is doing is for the rare people most people don't have lawyers they don't have access to a lawyer you could change the attorney fees and give people all the attorney's fees in the world lawyers are not going to want to go to some remote part of the state put up with all the delay and everything to get to see a prisoner to find out there's probably no lawsuit there anyway because they didn't bother grievance on time or the person is an articulate mentally ill what are all i'm saying is these are legitimate lawsuits they're people that are grievously injured in violation of our constitution and our laws and if we want to have the constitution apply in the prisons and if we don't want to go back to an era which i think we are where people are chained to desks and chained to chairs and not allowed to even go to the bathroom those kinds of suits are being dismissed as a result of this provision thank you thank you mr wright judge given difficult challenges faced by inmates and correctional facility managers i became most informed on the scope and degree of these challenges however when i was served isco chair of the commission on safety and abuse in american prisons created by the vere institute of justice the commission heard from hundreds of experts correctional facility personnel and inmates we visited jails and prisons nation why we found that oversight and accountability are critical to ensuring safety in corrections facilities and that federal court litigation has been one of the most effective forms of that oversight and accountability the commission identified several aspects of the p l r a that inhibit access to the federal courts and thus diminished the level of productive oversight and accountability that the courts have been demanding that's that's discussed in the report at page eighty three and following the commission recommended for changes to the p l r a that would improve access to the federal courts one that congress should eliminate the physical injury requirement to that congress should eliminate the filing fee requirement and the restrictions on attorney's fees three that congress should lift the requirement that correctional agencies concede liability as a prerequisite to court supervised settlement and for the changes in the exhaustion rule should be made and require meaningful grievance procedures now this is not an exhaustive list of reforms that could be made but i'm pleased to support a jar for one zero nine because it adopts essentially all of the commission's recommendations and also makes other significant amendments to the p l that will ensure that federal courts can provide justice to individual inmates and compel reforms in institutions often riddled with abuse let me first address the important role that the judicial branch branch play is in improving the conditions in jails and prisons compared to other institutions i believe courts do a reasonably good job in resolving conflicts moreover courts are often the only means of external and sustained oversight of prisons and jails and courts have proven to be quite good at monitoring conditions of confinement it was federal intervention including intervention by my former court that led to the elimination of dangerous out of date correctional facilities in many states and that reduced hazardous overcrowding in other prisons court involvement improved treatment of prisoners addressing unnecessary and excessive force by corrections officers but a geisha also secured improvements in the appalling and sub standard medical and mental health services of prisoners for example my law firm represents all of new jersey inmates diagnosed with a job and aids under a consent decree entered into in one nine hundred ninety two before the which prohibited segregated housing and lead to improved medical treatment decrees like these are advances that should be praised and preserved not be moaned and rolled back the most obvious winners of from court involvement in jails and prisons maybe the inmates but the improvement of safety and reduction of views in prisons in america benefits everybody including corrections staff inmate family members and the greater public these benefits are all the more significant given the continued rise in the incarcerated population according to a new pew public safety forman project report one in every one hundred adults in the united states is now in jail or prison but we cannot cling to the illusory believe that what happens in prisons stays in prison inmates take what they experienced in correctional facilities and share that experience with the society at large once they're released and staff bring home the problems they confront in prisons where they work thus of the foods all of us to improve the treatment of inmates and the one method proven as through litigation resulting in judicial resolution and oversight unfortunately the passage of the p l r a produced a decline in effective judicial oversight during any congressional hearing that i'm aware of but assuming the need for attention to illegitimate claims the purported curia curative aspects of the p l r a have led to a dangerous overdose squeezing out of the gym it claims and greatly diminishing judicial oversight data may indicate that the prisoner lawsuits of almost been been almost cut in half but they do not demonstrate that frivolous claims have been properly reduced one would assume that if only frivolous suits were eliminated the percentage of successful suits would increase if we assess whether a claim is meritorious based on its success then the p l r a must be characterized as having failed because the proportion of successful suits has declined since it was regulation of the prison is increased from twelve to twenty eight states reform of the p l r a need not open up the floodgates o on meritorious prison litigation as some people fear the amendments to the p l r and h r four one zero nine reflect thoughtful modifications that would permit and facilitate meritorious claims and thus useful and effective judicial oversight without burdening the courts pre pay l r courts knew how to get rid of frivolous claims of judicial resources and they haven't forgotten pre pay l r a the chief burden on the courts was actually the fears and meritorious resistance by government organizations to meritorious claims as justice paul stevens observed in commenting on the p l r a congress has a constitutional duty to respect the big duty of all persons even those convicted of heinous crimes the amendments to h r four one zero nine go a long way toward recognizing and filling that duty the bill takes significant steps toward rectifying the overbroad and overly harsh provisions of the p l r that have denied inmates with meritorious claims their day in court the bill congress faith in the judiciary to resolve and improve conditions of abuses in our nation's teeming jails and prisons thanks for inviting me to speak to you today and i look forward to answering any of your questions thank you very much mr chairman scott ranking member gohmert members of the subcommittee greatly appreciate the opportunity to testify here today h r forty one o nine proposed a substantial amendments to the p l r a congress however passed the to address three critical problems first to address frivolous inmate lawsuits that were costing states millions of dollars wasting correctional and judicial resources second the problem of longstanding consent decree governed over thirty nine of our state correctional systems and third federally ordered prison population caps that required the mass release of dangerous prisoners in the one nine hundred seventy s and one nine hundred eighty s many prisons answered consent decrees believing that they would help improve prison conditions consent decrees permitted parties to craft sweeping injunctions that were not limited by the traditional requirements governing federal court injunction prison managers however ultimately found that these consent decrees impair their ability to manage prisons consent decree provisions seemed wise when they were entered proved to become outdated and counterproductive new political administrations were bound to the poor policy choices of prior administrations despite this consent decrees were very very difficult to change congress heard from numerous witnesses who complained about the adverse effects of longstanding injunctions and how hard they were to change many of these consent decrees had far reaching operational and financial implications texas prisons for example could not exceed ninety five percent of their design compasses this required that they keep seventy five hundred empty beds and construct new prisons and staff them these orders also had substantial public safety implications for nine years i served as the district attorney's counsel opposing a prison population cap that required the release of tens of thousands of pretrial detainees over a several year period philadelphia's prior mayor had agreed to a consent decree to settle a class action without any trial without any finding that there was a single constitutional violation he agreed to reduce the prison population to reduce the budget by agreeing to mass prisoner releases following the federal prison cap order the number of fugitives in philadelphia nearly tripled outstanding bench warrants skyrocketed from eighteen thousand to over fifty thousand that is the equivalent of a year's worth of prosecutions in philadelphia a years worth of crime victims with no justice in one eighteen month period philadelphia rearrested for new crimes nine thousand seven hundred thirty two defendants released by the federal court order their crimes included seventy nine murders nine hundred fifty nine robberies twenty two hundred drug dealing cases over seven hundred burglaries ninety rapes fourteen kidnappings over a thousand assaults and over two hundred gun crimes this also included the murder of rookie police officer daniel boyle who was shot by a prisoner release repeatedly released by the federal prison cap daniel boyle's father testified repeatedly before the congress urging that they enact the p l r a to prevent other families from facing what he had faced with the loss of a son when the new mayor came in  the first thing he did his first official act as mayor was to file a motion to terminate that prison population cap but he was unable to do that based on the law as it existed prior to the p l r a only after the p was able to stop the philadelphia prison cap h r forty one zero nine proposes to eliminate the limits on consent decrees that establish prison population caps or require the release of prisoners it also would require to limit consent decrees and injunctions quite simply if forty one zero nine was the law today the philadelphia prison cap could be reestablished as a federal court injunction without any trial showing a constitutional violation and prosecutors would be powerless to stop the entry of mass prisoner release orders or have any meaningful way to stop those releases h r forty one o nine also would permit the kinds of sweeping decrees and injunctions that the p l r a limited these include ones that are not narrowly tailored injunctions that trump state laws there are a number of very defensible requirements designed to limit the intrusiveness of federal court injunctions that would be of limited by the act h r forty one zero nine also proposes to end the current requirement that a prisoner exhausted ministre to remedy before filing a federal lawsuit a exhaustion requirement however does not stop inmates from filing state lawsuits rather it takes the sensible approach that prisoners should first raise their claims with state officials before they go to a federal court correctional fishel to rely on inmate grievances to alert them to problems arising in prisons the current system allows corrections managers to learn of serious problems in the prison tape prompt action to stop them and remedy past problems it also provides an opportunity for alternative dispute resolution under the new proposal there would be no incentive for inmates to do this forty one zero nine all sleep also would vastly increase the fees for state and local taxpayers for prisoner lawyers under the p l r a prisoner's attorneys are entitled to substantial attorney's fees already for example in philadelphia prisoners attorneys litigating just a pulmonary injunction motion received a quarter of a million dollars other states have paid out millions of dollars in fees under the p l r a prisoner's attorneys however now want state local taxpayers to pay them at prevailing market rates that means in philadelphia up to four hundred fifty dollars an hour they also want to eliminate the proportionality requirement and they will also want to reinstate getting fees for related claims even when they're unsuccessful under current  however state local prisoners already receive attorneys fees that are vastly better than what wounded iraqi veterans get if they get a medical malpractise claim they're required to pay out twenty five percent of their judgment this committee also heard recently from debbie smith over the debbie smith dna act if debbie smith filed a suit against her rapist she doesn't get dime one for attorney's fees and she doesn't get to go to federal court the bottom line here is that state and local taxpayers are already paying substantial money for attorney's fees to litigate these coins the p l o right has put on some sensible limitations to that but it should not we should not have state and local taxpayers underwrite and pay out attorney's fees that are vastly disproportionate to what other plaintiffs get thank you very much for the opportunity to speak here today  president we're on the air now ok i've heard some some several significant proposals here today from both a majority in the minority for amending the p l r and i commend the committee for taking up this task and i hope that you can come to some resolution of it as a prosecutor for twenty five years i really never understood the true on the vulnerability of prisoners and the loss of hope that permeates most prisons and prisoners until i became one and as part of my last life's work for the last ten years i've been graciously allowed by the pennsylvania department of corrections to visit inside the walls of its prisons and the talk to both men and women about their fears and their hopes last year i visited fifteen of the twenty six pennsylvania prisons including the old undaunting big houses greater for wanting to rock for you and the death row institution sci green i spoke to almost ten thousand inmates in these question and answer sessions some of the inmates i sent there myself i want to make it clear that my knowledge of the prisons i've been as for ten years most of the guards in the staff are professionals and they act that way and they do their job very well but then there are some and i've outlined some of them the instances in my written testimony where there are rogue guards that engage in beatings and that creates grievances and i'm in a unique position there for to understand the real life consequences of the legislation that you pass and that my commonwealth passes and as i say most people do not have an intimate knowledge of what goes on inside a prison most people just have pictures from television some books that they read but inside of prison it's different i can say with confidence that the p r a is deeply flawed and it's unintended consequences have done serious harm to the principle that a justice system must after all be fundamentally just a serious problem with the p r a currently as written is that it requires a prison prisoner to exhaust administrative remedies in order to file a federal lawsuit and this means that he or she must file internal grievances through possibly three or four levels before the claim can be brought in federal court this restriction applies both in county and state prisons the problem with that is that it's very difficult to get the forms it takes is a very short period of time which the important that that it is remains in the in your bill this is gotten second forty one zero six does contain that that screening vision i support that the problem with  are a is that it stifles the true complaint and it's well to remember here that what we're talking about are in may we're not talking about lawyers and the pennsylvania department of corrections which is a very good institution court in two thousand and six made it perfectly clear if you miss one of those deadlines by one day if you don't get the paper filed in time you are out of court there are no exceptions the united states supreme court has finally ruled so we're talking about people here who are inmates with less than an eighth grade education there to interpret an eighteen page document was drafted by lawyers these timelines another grievance procedure informations are simply too difficult it seems to me to say your rights are dependent upon your access to the court is dependent upon how you can manage your way through this eighteen page morass retaliation is an term terrible problem inside  prison intimidation is one of the problems that the p l r a requirements that inmates first exhaust their remedies with in make river systems as has spawned in cases involving abuse by guards against inmates requiring that the inmate first file the grievance exposes the inmate to future retaliation by the very person that perpetrate the harm against them and the inmate learns the quickest route to the paul is the complaint about the conduct of a guard if you think that retaliation is not an everyday part of prison life then you don't know the reality of prisons i just want to say one thing and that is that conferring constitutional munity for civil rights violation it's simply unsuited for the circumstances of prisons and jails where physical harm looms so large and prisoners are so ill equipped to comply with legal istic rules i've made a couple if i may mr chairman a couple of suggestions in my written testimony and one of them is that in the ninety day period that you have provided for for the prison and the prisoner to deal with these issues that are raised that you authorize the courts to use alternative dispute resolution it is it is i think important that that be permitted in the system to help reduce the costs and improve the efficiencies and secondly i have outlined a case here in my written testimony where a person who was a paraplegic suing under  the americans with disabilities act is forced to go through the p l r a in order to perfect his claim in federal court there it seems to me it's happened here is that the eighty eighty eight intent is going to be frustrated and there's a case i cite in my my notes in my testimony that says the way that the get to the to justify and uphold your your cetera has to go through the p l r and it's requirements and i don't think that was the intended consequence of the peeler again i support forty one zero six and i look forward to answering your questions thank you thank you very much ms word for thank you and good afternoon and thank you congressman scott and congressman gohmert and all members of the committee for giving me the opportunity to testify today about h r forty one o nine the prison abuse remedies act of two thousand and seven i am the form prison and the former director under secretary and for a short time acting secretary of the california department of corrections and rehabilitation i have thirty years of experience in the field of corrections i am here to testify in support of making necessary fixes to the prison litigation reform act as a prison administrator i was often unable to address deficiencies in our prisons not only due to a lack of resources but just as often due to a lack of political will i also was witness to the frustration of the attorney general's office on occasion when put in the difficult position of trying to defend a policy or practice that was clearly in conflict with the law flow soley because the executive branch of state government was more comfortable following the order of  court than correcting a deficiency itself the political ramifications that results when a government official appears to choose prisoners and prisons over other state needs continues to prevent government leaders from adopting policies and appropriating money to address grossly deficient prison conditions and a good prison administrator should not fear the involvement of the courts i have come to understand the importance of court oversight the courts have been especially crucial during recent years as california's prison population has exploded and prison officials have been faced with a daunting task of running outdated and severely overcrowded facilities right now virtually every aspect of california's prison system is under court oversight this is true for health care for mental health care for dental their prison overcrowding and conditions for youth and the list goes on and on the california department of corrections and rehabilitation also has been subject to federal court intervention to address such issues as employee investigations employee discipline and even the code of silence that was responsible for hiding the wrongdoings of some staff and their actions against prisoners all of this court intervention has been necessary because of the state's unwillingness to provide the department with the resources or to make the policy changes needed to bring about necessary reform in the prison system the p l r a allow states to move to terminate consent decrees after two years the san quentin death row consent decree which deals with conditions of confinement is one example of a case where improvements were interrupted because of the provisions of the p l r a more time was spent litigating about whether the decree was ineffective and remedying the inadequate conditions on san quentin step throw and death row prisoners are perfect example of where court intervention may be absolutely necessary some of the most difficult conversations i had as a warden were with the family members of the victims of death row inmates understandably these family members in pain beyond belief some would ask me questions like why why did i even feed the prisoners and i had to explain to them that is a prison administrator my role was to provide for the safety and security  prisoners staff and the public without court intervention i believe i would not have been able to meet this responsibility in california's prison system and normally takes up to a year or more to exhaust administrative  every level of appeal what is a prisoner to do if he or she is not receiving adequate medical treatment for a serious heart condition for example that prisoner may be forced to suffer for over a year waiting for a response to a grievance  i do not think that the p r a was intended cause this kind of harm there also exists countless reasons why prisoners baby unable to complete the grievance process for instance prisoners may be transferred from one prison to another or paroled before they're able feel each level of the appeal grievances may be rejected because the prisoner cannot clearly articulate his coat his or her complaint or for a minor problem such as using hand writing that is too small many of these prisoners are mentally ill and barely literate as others have talked about in december of last year the sacramento bee reported that to release states for nearly thirty three thousand prisoners in california were miscalculated as a result prisoners have been forced to stay in prison beyond their appropriate sentences according to some courts these prisoners however will not be able to recover compensatory damages for this violation of their rights because of over detention does not meet the physical injury requirement having served as the c d c our director under secretary and acting secretary for over two years i have become familiar with the problem faith faced by you think are separated in california this is an extremely vulnerable population that must be treated differently than the adult population requiring used to exhaust a complicated in a neglected grievance process is unreasonable in some cases youth are only able to complete the grievance process if they have a caring adult on the outside or the attention of an attorney to assist them even then sometimes they unsuccessful in conclusion good prison administrators do not need the many excessive protections imposed by the p l o are a the p l r a must be changed to ensure that courts can provide much needed oversight of correctional facilit r one four one zero nine includes necessary fixes to the p l r a that will not open the floodgates to frivolous lawsuits but will actually help prison officials to ensure that prisons operate humanely and in court and in accordance with the law it is after all the responsibility of government to protect the right yes of all citizens and more importantly to protect those who are the most vulnerable we know of too many instances of prison abuse to ignore the needs of prisoners and incarcerated use to have appropriate access to the courts to propose modifications to the p r a will allow prison administrators to respond to complaints and will ensure prison grievances about constitutional violations are not ignored thank you so much thank you very much all of our witnesses for your testimony want to have questions from the panel five minutes and i'll recognize myself for five minutes ms hart is there the way our system works you get a lot of people working independently legislature passes mandatory minimums the  police arrest the judge sentences kind of all kind of independent on their own is it possible to end up with a prison that is unconstitutionally overcrowded lacking health care  sanitation absolutely and what happens under the p l r they can get to consider the prisoners can i get i'll tell you that this is exactly one of the things we faced in philadelphia the plenary injunction order i talked about was something where the prior prison commissioner decided to control the prison by backing up inmates into the police districts that judge was able to enter a pulmonary injunction it was a sweeping pulmonary and john under the pillow under the example the judge ruled that the inmates did not have grievances available to them and did not prohibit them from filing suit how would they want to change and how would forty one zero nine change forty one in terms of stopping it it wouldn't it wouldn't stop a judge from doing it a judge would be able to do it now if you had you could have for example consent decrees that could have the prison for example what has happened traditionally when prison  sometimes feel they have too many people in their prisons as they start agreeing to consent decrees to shift them elsewhere there was one for example in texas recently where you try and control your budget basically by saying we're not going to accept certain number of prisoners and you send them off how w ould forty one make things any worse than they are now because basically it would allow you to start doing that again it allows for certain correctional administrator to trump state laws and agree to make agreements that they're not permitted to and put the burden on elsewhere were turned you back to the pre pillar a time where people could make agreements that trumped state laws that weren't necessary to violate constitutional or trying the case i mean if you have a legitimate case where in is the fact that it covers far beyond legitimate cases the p l r a try to make sure that you protected the powers of federal judges to still remedy constitutional violations quickly what do you need anyone to need a physical injury und excuse me you need a physical injury or physical injury for emotional damages that's what it does require it's an extension of what was the federal tort claims act provision it hasn't stopped the type of suit in how to hide if you don't have a physical injury how do you get a  constitutional violation the courts have interpreted it very narrowly the p l r it has not stopped lawsuits there are a lot that still get filed they're still substantial unconstitutional violate without a physical injury is the damages suit i think your point is very well taken let me mention in my statement a woman who woke up in the night and there's blood gushing from her neck because a mentally ill and might scuse me had cut her throat from her ear all the way down to a chin almost killed or just lucky that it did now the reason for that was the alabama department corrections only had one guard supervising a room full of bunk beds with three hundred fifty inmates in it now the commissioner corrections would tell you he needs more guards the warden of the prison would tell you she needs more guards but the fact of the matter is there wasn't the money there to do that so the jail is unconstitutional as a result of that this woman is injured she's got no damages suit because she doesn't meet the grievance procedure of the she meets obviously actual injury but she doesn't meet the where you mentioned a break prison conditions would not be would not be you would not be able to sue for those kinds of has basically provisions none of us are really talk very much a very little much limited what a federal court can do in terms of the remedy that it orders and how long it can supervise what happens in the case that i mention and earlier we're in the third year now still trying to get compliance with an order entered two years ago by a federal court that is as was pointed out earlier you can spend more time now litigating whether there's compliance or not whether the decree should come to an end and whether or not we're complying with the provisions that are there that's injunctive relief that the court ordered but again there at times when i deal with the pres commissioner of corrections t prison lawyers jail lawyers who say we'll agree there's no question we need to do a b c and d to cure this you can't settle the case of the prison litigation reform and you've got to have a finding by a judge that there's a constitutional violation and then you're limited to years in terms of how long the court can kind of force that which makes for an interesting thing most people who disobey court orders and are held in contempt of court pay a serious price for that it's amazing to me that prison officials can do that virtually impunity when that happens and i think that's part of what the act and why some of the amendments which would restore the power of the federal courts to deal with these cases is that pro bono it is pro bono you're certainly to be commended your firm is for the work that you do there i guess if this were passed that we are talking about today then this would allow your farm to receive attorney's fees for that representation is that correct prison hasn't gone away that's correct and there is that man you would be able to get attorney's fees under this under this bill we have regular i'm going relationship with the and i understand and i'm not kidding i think it is absolutely wonderful that you're doing this your firm handles these cases pro bono and that's one of the reasons why i think there's agreement on both sides when it comes to sexual assault there should not be a need for a demonstrated physical injury in order to pursue a claim obviously the case that was mentioned earlier where  individual went to the hospital would have been affected because he did go to the hospital there was demonstrated physical injury but as would for mention that good barisan administrators don't need the provisions of the five years of experience in corrections thirteen years experience as a chief executive of a large correctional agencies and although he didn't but was unable to testify today he took the time to write a significant letter that a he indicates a year is therefore using deductive reasoning he must not be a good administrator but you feel like he is a decent administrator of no good idea ok thanks  you know one of the things i've observed just in my few years here in congress is there is a tendency to overreact by both republicans and democrats p l r a as we've heard from wonderful testimony in the prior hearing i mean and i don't mean wonderful as it was enjoyable it was enjoyable at all but it pointed out some real problems with the p l r i with the things that we've over to cold and people would freeze to death each slam and all the way to high people get too hot slammed by and by the end of the trip people constantly get sick now this is the issue before us is immeasurably more serious than air conditioning but it reminds me you know p l r i went to for which it does need some tweaking then rather than slam it back to the other extreme and remove the most important provisions entirely in my bill what is  needs here is a little adjustment because what i say is you know there's there's potential here as as ms hart pointed out to give inmates more rights than our military has and even  victims often have i just see an overreaction because i've seen some good come from this bill and so mr chairman i mean it's it's all as majority party as to what happens  but i would think a little tweaking is more in order then going clear back to the other extreme and i see my time's expired thank you and just respond by saying we're trying to work together to see to be significant common ground and w want to take advantage of that common ground and make the appropriate adjustments gentleman from michigan thank you mr chairman this is been a good  hearing i don't think all democrats and republicans have a tendency to overreact especially not on the house judiciary committee some there are some though do you make out of this what what has have you heard at this hearing that you would remind us to take with a grain of salt you haven't been there and experienced them and some obviously i worked at san quentin two weeks after graduating from college for twenty seven years and i started to correctional officer and left as the warden if you haven't been in these prisons it's hard to understand the culture and how they operate and how a different leader can bring different trends can have transparency or there might not be any transparency and that the impact of these prisons on our society is as a whole is often misunderstood or used to say to people we think we lock up people and throw away the key not so ninety five percent of them return to our communities much sooner than we think they're always connected to their families and their communities through visiting and writing and and all those connections that people have how we treat them how we treat them is so important and makes a statement in our society it makes a statement to their families and to their children and we need to be much more involved in what happens and unfortunately prisons get to be the political ball often in budget processes is if you try to say we need to do this because it's the right thing to do as as this society should treat people better it gets to be your soft on crime well we need to remember everybody comes home and they do and i think that's really what we should remember from this what do you think judge  what do you make of what's happened here today is there any thing you say you've heard here that we ought to take with a grain  cases there's a tale of two cities the philadelphia tale is that the city after litigating for awhile decided on a consent decree which put a cap on as a dungeon home for prison now the city could have taken another route and said well if you think that the conditions are unconstitutional we'll build more facilities but that so they opted for a settlement with put a cap and the district attorney didn't like that and when he became mayor he was no more satisfied than before but he didn't take the route of raising the money to build a constitutionally adequate facilities the other city pittsburgh allegheny and each time they dissipate a court order they were held in contempt and fined twenty five thousand dollars to the point where the contempt fines total two million seven hundred some odd thousand dollars and the city finally realized it might be sounder to build a compliant facility so they finally built a new jail after eighteen years and this terrible judge when they built the facility and in order giving them back the two million seven hundred thousand dollars to help pay for it l r a grows out of this pennsylvania environment what's clogging up the courts in prison litigation is resistance to spending money on constitutionally adequate facilities not wicked federal judges releasing prisoners inmates and guards hundreds addressing that to make it as i said there are the vast majority of guards and staff that prisoners are fine they're professional i grievances flow from that from not willing to listen to somebody else's point of view but where you have the professional and courteous interchange then it is not a problem but i have to say that it's the subtle things if you complain about a card even sometimes of some of it's professional you know we make a remark and said you know all right i've had it with you and the next thing you know that prisoners transferred to another institution and loses all the accumulation of of perks that they they get they get their little t v that they have to pay for it's not free you know they may lose their single cell they got to go of a if that's all you have in your life it's in that cell and that little cubicle that you have for container you lost everything and that's why you know there's a there's a perception that prisoners want to get out of prison to go to federal court you know and have a fun time not so the reality is not that is not the reality most of the prisoners do not want to leave their prisons that they've said that they've set up house in because of the accumulation of of goodwill that they have there the staff that they know the routine that they know these are all so important to them that routine is what gets them through every day you change that routine you've changed their life and that is so hard for people on the outside understand they don't want to go to they don't want to change i have a prisoner that was i got him a new trial in pennsylvania i got him a new trial can't go back so it is not the reality to say oh i want a few days off and besides that now we have something called video conferencing in which that people stay in the prison and the judge states in up people would see something they didn't like or thought was wrong and they'd say there ought to be a law now people look at it and say it's unconstitutional some of these questions it seems to me not unconstitutional violations but the question of where a governmental institution ought to put its money are based political decisions and we may not like it and we may argue  that certain more funds ought to be spent in one way or another but frankly that's the basis of our system and with all due respect judge i don't believe that in each and every instance you cited it is the federal courts that have the only wisdom and knowledge in these areas  and miss woodford i i congratulate you on the work that you've done you have a tremendous record in the past your citation of some of the victims families of victims of murder saying they don't want people to be fed is interesting i never heard that with all of the families of victims of murder and i had to deal with a lot of them because my office handled the death penalty cases and that may be the case but most of the time i heard from those people that the court system had become a game that was playing with their lives and that the uncertainty of the system and the fact that they were left out they were the last ones thought during the whole process  formed an impression on me that i've never lost i remember the night of the execution of robert allen harris well actually it wasn't the execution it was the time that he went up four times the u s supreme court on successive petitions each one of them being the same in substance and  the u s supreme court finally took that case away from all federal courts and retained jurisdiction only to the supreme court never been done in the history united states before and probably never will be repeated and i remember when one of the federal judges had granted a stay and was asked why he was whether he was aware that he was granting a stay that was of the same substance that the supreme court had just denied and he said yes i'm aware of that and when i had to report that to the mother of the fifteen one of the two children killed by robert and harris sixteen years before she said to me oh i get it it's a game and i think we ought to treat prisoners humanely but i think we also understand there is never enough money to do everything we want and it's a balancing act and it's a question of how much do we do we have and i mean we talk about the problem there are problems we increase the prison population in the years i was attorney general substantially and i'm not embarrassed about it because the crime rate dropped by thirty percent and homicides dropped by fifty percent were averaging thirty two hundred homicides per year in california and eight years later it had dropped almost fifty percent now there are a lot of citizens that are walking around alive a lot of families who are not impacted by that and so i don't think we ought to ought to apologize for it and if you tell me that federal courts have the right to come in and demand by by judicial fiat that we release x number of prisoners i am think there's something wrong with that and the statements i've heard here from from those who are talking about the the p l r a restriction on consent decrees let me let me just read you what the law says perspective relief shall not terminate you go in your request after two years that it be terminated if the court makes written findings based on the record that perspective relief remains necessary to correct a current an ongoing violation of the federal right extends no further than necessary to correct the violation of the federal right and that the prospective relief is narrowly drawn in the least intrusive means to correct a violation that means if there is a continuing constitutional deprivation or violation you cannot get it dismissed and there was a suggestion by at least one of the panelists that it's automatic it's not automatic and what we tried to do is to say that the federal jurisdiction goes to the constitutional violation but doesn't go beyond that and while federal courts may have a different idea of how we ought to run our prisons they're right under our constitution is no greater than the idea of the elected officials and the appointed officials at the state level so let's understand exactly what the consent decree restriction is it allows you to go in for two years to request it and if the constitutional deprivation has been resolved then there's no underlying jurisdiction and that's i believe what we were talking about in this heart about the reasonableness of the p r i is it not that's correct i think the p r i tried very hard to make sure that the federal judges retain the power to swiftly resolve constitutional concerns and retain the power to remedy them what it tried to do was limit when those court orders went far beyond what was the constitutional requirement because we had very sweeping consent decrees that were micromanaging presence i remember in new york city for example to consent decree was so detailed study even went down to the level of what kind of cleanser they had to use to clean the floors and it what strength and when they moved to terminated i remember that the head of the corrections department saying i don't mean to be glib here but maybe we want to use mr clean i think it raises a fundamental question of whether you want the federal courts in the business of having the mr clean versus brax of debate they should be in the business of enforcing federal constitutional rights and that's what the p l o right protected if i could just respond to because i want to make it clear i was not saying that it was automatic in fact i said we spent a lot of time litigating the issue of whether it should come to an end i don't know of any other kind of injunctive relief where constantly litigating whether you still need it and i also want to just make this point as someone who's done this now forever if a prison alabama for example is got a capacity of twelve thousand and it's old dilapidated prisons they've got twenty thousand people there they're incredibly overcrowded there's no lawsuit to be brought unless you find that things are so bad that people are having their throats slit that they are being raped because there's no security if they are being denied medical care because the whole system is just completely broke down i see how rendell conditions in these institutions that we say there's no lawsuit to be brought here because as bad as it is it's not bad enough to get a  federal court to do anything about it the way the law is today so i we're not fighting about mr clean a barrage so we're really fighting about the most basic sort of life issues of whether people are in jeopardy of being killed  being assaulted or being assaulted with these socks with padlocks and things like that these are not trivial matters i wouldn't suggest they're trivial matters but you ask why don't you see this strange situation where injunctive relief can be dissolved later on you have to argue over well it's part of the political process a new administration comes in a new person is elected governor they appoint somebody that's that's part of the political process they ought to be able to come up their new ideas and my point is there is nothing that i've been able to find as much as i respect federal judges that grants them the greater wisdom than state judges than other people of goodwill and the point is that under a constitutional system where most of the major decisions are supposed to be made in the political environment in the best sense of the word i don't want to see that depreciated and it is our obligation to go out and speak and convince the public that we need to spend more money that we that if we intend to put people in prison they ought to be humane prisons that we need to pass laws to make sure that we protect people against against sexual assault in prison and that we prosecute people for that and that we have legislation we've passed that has a federal commission looking at that right now so i agree with all those things but part of it is the question of whether these decisions are to be made and if in fact the federal judiciary is required to come in that intervention ought to be only for the purpose that is absolutely necessary otherwise we distorting our entire constitutional array of powers and i must say i think it is there is tremendous difference that i see to the legislative branch in terms allocation of funds to the executive branch in terms of how they run these institutions but i think we all would agree there is a constitutional line that can be crossed and that when that line is crossed a federal judge has no other choice except under his oath of office topple the constitution and states to say this is just beyond the pale and we do go beyond the pale from time to time and not beyond the pale it is unconstitutional no i'm just trying to summarize the i'm saying when people are getting raped beat up because there's one guard responsible for five hundred prisoners if there are sustained injuries as a result of that which there were at the top while or prison for women in alabama people were literally could not sleep at night because they were constantly being terrorized because there was no protection you couldn't go to sleep because somebody might slip your throat somebody might beat you up you were hyper vigilant all the time and i'll tell you mr loughner being hyper vigilant twenty four hours a day it will wear you out in a few weeks but year after year it will really do serious and being beaten by other prisoners and being sexually assaulted and having the male guards come in the shower while  you're there and sexually humiliate you while you're there those kinds of things are what i'm talking about i'm not talking about a federal judge who disagrees with down institutions run i'm seeing these cases where the conditions in these places are absolutely beyond what this civilized society would tolerate and you got to remember the prisons today are in the conditions they're in because frank johnson and other judges said you can't lock people in what was called the drape dog house a draper prison and shut the door from the outside and put a padlock on where the inmates couldn't even stand up and they're all in there in the dark together and they had to use a hole in the middle of it for a toilet i mean those are the conditions and that's where the federal judges played a role which i think as we look back on this civilization if you read david oshinsky is worse than slavery about parchment farm in mississippi that we should thank god that judge k d and other people in forced the constitution when it was when it was clearly being neglected in our country in those institutions and i'm sure you agree thank you we're going have another round of questions i just want to follow through on that mr bright if if an injunction were necessary and put in place and they would drift back to where they were not right well let me just say this too on this question about whether or not the act is needed if you're running a constitutional prison if you're training your staff so that they're not abusing people if you're running these places professionally you're not going to have the last again you're not going to need any act because there's not going to be a constitutional violation and you're absolutely right mr chairman if you bring the facility within constitutional standards you can always anything lately has not been a three judge court has ordered any limit on population but the orders that were being entered in some of these places that were triple or four times capacity were limiting the capacity of certain facilities if you don't know if you want to go above that capacity you can use another facility you could rent a facility you can make some other arrangements generally that was agreed to by the people who did it as the solution to those problems but we've not had as i said we've got prisons operating  and marty horn for an example you have new york who is closing that prison this year and proposes to close for more in twelve months they reduce their prison population and reduce their crime rate at the same time so locking people up isn't the only way that you can reduce crime rates and in fact many researchers say that in states that have looked at this differently they're actually having greater reductions in crime rates in states that continue to lock people up corrections is a science and where people use that appropriately you get appropriate outcomes in the state of new york i think thanks to marty horn he's convince people that you close prisons not to save money but to put that money into community corrections to bring people back to their communities in appropriate way providing mental health care and health care and other resources and supervision that is necessary to keep them in their communities can do this responsibly i've never heard a judge tell us what to do i've heard judges ask us what we are going to do right to remedy problems and when the state has failed to come forth with a remedy then  judges go out to experts around the country and bring them into our state to to tell us and help us and know what to do to resolve many issues that's true with mental health care in our prison system in california i can tell you that when i started there in one thousand nine hundred seventy eight it was unbelievable to me to see inmates sitting in their cell screaming just screaming loudly over and over again and get no treatment whatsoever it took litigation to bring about appropriate conditions and when some of that litigation came to an end then the state thought they didn't need to do it anymore and we ended up back in the same litigation i'm in my second round of litigation on overcrowding and in my second round of litigation on health care my second round of litigation on mental health care i've been through litigation on a broken appeals process all of that i've learned about managing a prison unfortunately i learned from the courts and it's sad to say there is no book on how to be a prison administrator i learned what a good appeals process was because of a court case called alonzo day i learned about how inmate should be treated because the variety of court cases that came in to california i will also say you can be an outstanding prison administrator and have horrible things happen in your prison i ran standpoint in state prison it is a city at the time that i was there it had sixty two hundred inmates and two thousand staff i had a school i had a college program you have manufacturing it is truly a city you cannot know everything that is going on in that city as you cannot know everything that's going on in d c today at this moment as we said here so it does having the eyes and ears of many people in our prisons help us make sure that they're long but you know one of the things sometimes folks coming to these hearings and when they're not sworn in don't realize that can still carry a penalty there's a lack of truthfulness and i don't think there's any lack of intent to be truthful here but the temptation is to make broad sweeping statements you mention the crime rates are actually lowering in states that are using and i'm sure you have something in mind but what i'm saying is in states where they've begun to exceed their capacity like in texas and they're starting to have to cut people loose earlier make parole dates earlier we're seeing crime rates go back up necessarily when when you have high recidivism rates as we've been having in this country course from personal experience where you have groups like prison fellowship go in there actually make a real difference with the mentoring and the follow up and that kind of thing but but what we've been seeing lately from what's been presented to mayor crime rates going up and that includes states that are releasing people is that what you're talking about well i'm talking about new york where they're doing it responsibly they're not doing it's a cost savings as texas's i read about taxes sometimes the said they need to reduce the cost of incarceration new york in the other hand is taking the money that they're saving from running prisons and putting it into their community corrections and they're doing is safely and i think you know new york as i understand it is still the safest large city in the country and their crime rates continue to go down everything that i've read and i read lots of research i certainly wouldn't have cited that if i had not read that  in the research that i do on these issues and then in california in a recent case researchers put forth to the federal court judges that their study of early releases around the country did not show an increase in crime rates i'm only quoting what they said i don't know we would probably agree that prison should include things like alcohol and drug treatment to help increase the chances that they can address those issues when they come out well i'm sorry congressman yes we ought to i absolutely agree with that but you have to look at the reality of the situation for example in california six out of ten prison admissions or parole violators save serving about three months it's very difficult to bring about rehabilitation in three months so if you're truly interested in bringing about rehabilitation it should dri policymakers to a different decision about how to handle that issue and as a judge i can tell you what i saw repeatedly is that people were able to achieve probation where i could lock people up to two years as a condition of probation they achieved a lot better rehabilitation if the hammer were kept over their heads while they receive these things but mr horn points out  nineteen seventy five and even though the it's still been ongoing and i'd say one of the things see across america as the pendulum swings back and forth the as it gets very close to the end of its swing when you have federal judges that they appoint masters to run and in a day whether it's a school or a prison they control the master they make the rules and then they review the rules to see if they think they're appropriate in other words they become the executive legislative and judicial branch all rolled into one and it makes some of us very angry because in cases where courts do all of those things for over thirty years they've just obliterated the constitution they're swarmed polled that's not the role of courts and yet that's often the way it's been relegated and  not take away the ability to have consent decrees but my one exposure to stocks in the locks where i was appointed to represent somebody who was charged with that was it was completely fabricated but the idea of  and he committed suicide rather than go back that says prison was operated but it was known that if you went there you were going to get raped and the saying was you could either have or fight that was that was pretty much the deal and this young man that we represented had been beaten by other inmates with locks he had been beaten so bad that he was in and out of consciousness so if he was faking it he was doing great job in not in all over but and the argument was that he didn't file as grievance within five days he wasn't conscious during much of that time and we're wanting to see those those restraints address so that it doesn't eliminate somebody ability to make a grievance and make a claim and say that it's corrected that's not the issue but anyway also we're in a hearing where we were allowed one witness but since you called  the system in atlanta mickey mouse and kangaroo court earlier you know the judge in me wants to hear where they got to say about that allegation but meantime my time's up well i would urge you to look at some of these grievances terms as a judge and look at how complicated there are as i said some of them at five steps today statute of limitations and where we want to and i think you should look at it and i would just say judge if somebody writes outside the  margin i doubt if when you were a judge you threw a pleading up because somebody went outside the margin you might own rewrite it but you didn't throw it out so that tells you i think something about how serious we are about this is alerting the court system to what's case and by the way i think we are going to attempt to address the issue of of intimidation or such short periods of time that's unreasonable but as i understand the laws it's interpreted if someone were unconscious that ability to veil themselves of the grievance would be unavailable under a lot and so that wouldn't be held against them but that doesn't go to the point that we think maybe you know two days or five days a little bit too short let me ask the panelists this there has been criticism from four of you of the current status of the law with respect to  stopping or dissolving consent decrees with the limitation in the law that i read to you that is that perspective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current an ongoing violation of federal right extends no further than necessary to correct a violation of the right and that perspective relief is nar drawn at least intrusive means to correct a violation what's wrong with the current law in terms of allowing a consent decree to be dissolved which start on the my right and move this  y first off i'm not a lawyer so i'm not an expert on this area i only brought up the consent decree in california because we spent so long trying to figure out whether the consent decree still applied as opposed to just fixing the few consent decree and i believe it was well over two years before we had a ruling and then the state was the state is now required to fix a couple of remaining items in that consent decree so it just seemed like time wasted in my opinion because the prisons of america are growing faster than we can build them and i understand i'm just trying to find out whether there's any problem with the current law with respect to allowing parties to go in a the burden on the original a plaintive who had succeeded in getting an injunction which the court determined was necessary to correct a constitutional violation and instead of putting the burden on the defendant to show that changed circumstances no longer require and junk the relief it puts the burden on the original plaintive to say the constitutional violations are still a threat now i was on the court long enough to remember that those kinds of arguments were made with respect to a school desegregation decrees all the time defendant can show that changed circumstances like for example building a new allegheny county jail are sufficient to modify the injunction well i guess it was a question of federalism which some of us think is important and also the proper responsibilities of executive versus judicial branch which some of us think are important under the constitution i heard that same argument with respect to school desegregation decrees some local elected school district is supposed to make these decisions about who goes to what school that does not fly  e just chills thing the balance shifting the burden of proof  drug courts work by giving rehabilitation rather than locking people up by reducing the incarceration rate save money and reduce crime studies that show that yes that's true so the studies that show that if you educate spent the money in education in prison you can reduce the receipt of his i'm right yes that's true and so there are a lot of things that you can do to reduce prisons if you use your money more intelligently is that the point you are making absolutely and there are plenty of studies that absolutely document that without question yes that's true ok well as a follow up to that do you think the federal government ought to be the one to tell everybody how to run the i don't know that i think the federal government ought to be the body to tell us how to run prisons but i certainly think they need to be involved to be sure that we're running them appropriately and constitutionally and without their intervention i think that we would not have evolved in our prison system as we have and without their intervention i think we will regret they're not there to oversee that we're operating constitutionally well having now been in the submission of additional materials without objection the subcommittee stan