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PRIVATE PRISON INFORMATION ACT OF 2007,

AND REVIEW OF THE PRISON LITIGATION

REFORM ACT: A DECADE OF REFORM OR

AN INCREASE IN PRISON AND ABUSES?

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 1889

NOVEMBER 8, 2007

Serial No. 110–62

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

BETTY SUTTON, Ohio 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California

BOBBY VASSAR, Chief Counsel 

MICHAEL VOLKOV, Minority Counsel 

(III)

C O N T E N T S 

NOVEMBER 8, 2007

Page 

THE BILL 

H.R. 1889, the ‘‘Private Prison Information Act of 2007’’ .................................... 2

OPENING STATEMENT 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1

WITNESSES 

The Honorable Tim Holden, a Representative in Congress from the State 

of Pennsylvania 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 7

Ms. Margo Schlanger, Professor of Law, Washington University in St. Louis, 

on behalf of the American Bar Association, Washington, DC 

Oral Testimony ..................................................................................................... 13

Prepared Statement ............................................................................................. 15

Mr. David A. Keene, Chairman, American Conservative Union, Alexandria, 

VA 

Oral Testimony ..................................................................................................... 29

Prepared Statement ............................................................................................. 30

Mr. Pat Nolan, Vice President, Prison Fellowship Ministries, Lansdown, VA 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 33

Mr. Garrett Cunningham, former Prisoner in the Texas Department of Criminal Justice, Luther Unit, Navasota, TX 

Oral Testimony ..................................................................................................... 36

Prepared Statement ............................................................................................. 39

Mr. Ryan W. Bounds, Deputy Assistant Attorney General and Chief of Staff, 

Office of Legal Policy, U.S. Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 41

Prepared Statement ............................................................................................. 43

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable J. Randy Forbes, a Representative 

in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 5

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 73

(1)

PRIVATE PRISON INFORMATION ACT OF 2007, 

AND REVIEW OF THE PRISON LITIGATION 

REFORM ACT: A DECADE OF REFORM OR 

AN INCREASE IN PRISON AND ABUSES? 

THURSDAY, NOVEMBER 8, 2007

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 1:50 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Johnson, Jackson Lee, Forbes, 

Gohmert, Coble, and Chabot. 

Staff present: Bobby Vassar, Subcommittee Chief Counsel; Gregory Barnes, Majority Counsel; Rachel King, Majority Counsel; 

Mario Dispenza, BATFE (Fellow); Veronica Eligan, Professional 

Staff Member; Michael Volkov, Minority Counsel, Carolyn Lynch, 

Minority Counsel, Kelsey Whitlock, Staff Assistant. 

Mr. SCOTT. The Subcommittee will now come to order. I am 

pleased to welcome you today to a hearing before the Subcommittee 

on Crime, Terrorism, and Homeland Security on H.R. 1889, the 

‘‘Prison Information Act of 2007,’’ and H.R. 4109, the ‘‘Prison Abuse 

Remedies Act of 2007.’’ Witnesses on the second panel on that bill 

may also testify generally on the issue or reforming the Prison Litigation Reform Act. 

We will first take up H.R. 1889. This is a simple piece of legislation that would do one thing. It would require prisons and other 

correctional facilities holding Federal prisoners under a contract 

with the Federal Government to comply with the Freedom of Information Act. 

There have been incidents where members of the press and public have attempted unsuccessfully to gain information from private 

prisons, even in situations as serious as prison escapes or incidents 

of assaults in prisons. There is simply no reason why these institutions, which are serving a governmental function, should not be 

subject to the Freedom of Information Act. This is a good Government bill, and I hope my colleagues will support it. 

I will recognize my good friend, the Ranking Member of the Subcommittee, Mr. Forbes, at this point on H.R. 1889. 

[The bill, H.R. 1889, follows:]

2


1889-1.eps
3


1889-2.eps
4


1889-3.eps
5

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Chairman, in the interest of time, I will just submit my 

statement for the record and we can proceed with Mr. Holden’s testimony. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Forbes follows:]

PREPARED STATEMENT OF THE HONORABLE J. RANDY FORBES, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Chairman Scott. 

I want to thank you for scheduling this hearing. 

While I share my colleague’s commitment to prison reform, I was hoping that our 

first hearing on this subject would focus on efforts to ensure and improve rehabilitation of prisoners. Unfortunately, the focus of today’s hearing is misguided. Instead 

of addressing the real and significant needs of prisoners, we are considering changes 

to the Prison Litigation Reform Act, which will only re-open the floodgates of frivolous litigation. 

The proposed legislation will 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. I am further concerned that the time and 

money spent defending these cases could be better spent providing job training, 

drug treatment, education and other valuable programs to prisoners to make sure 

they can become productive members of society. 

In 1996, Congress took appropriate steps to limit frivolous prisoner litigation by 

passing the Prison Litigation Reform Act or PLRA. The PLRA took common-sense 

steps to reduce the number of petitions filed by inmates claiming violations of their 

rights. Under the PLRA, inmates are 1) required to exhaust all administrative remedies before filing a case in federal court, 2) prohibited from receiving filing fee 

waivers if they have a history of filing frivolous or malicious lawsuits, and 3) had 

to demonstrate physical injury to claim monetary awards for compensatory damages. 

In this bill, each one of these common-sense provisions is repealed or removed. 

These provisions are removed despite the fact that evidence shows that the PLRA 

worked in decreasing the amount of frivolous prisoner litigation. According to 

records kept by the Administrative Offices of the federal courts, in 1995, the year 

before the PLRA was passed, over 41,000 cases were filed by federal prisoners alleging violations of their civil rights. Since that high mark, the number of cases has 

dropped to about 24,000 cases filed per year. This marked decrease occurred because 

the PLRA kept the frivolous cases off the court dockets. 

Let me give you some examples of those frivolous cases. One inmate claimed $1 

million in damages because the ice cream he was served melted. An inmate alleged 

that being forced to listen to his unit manager’s country and western music constituted cruel and unusual punishment. Yet another claimed that his rights were 

violated because he was forced to send packages via UPS rather than U.S. mail. In 

perhaps the most frivolous lawsuit of them all, one inmate sued because he was 

served chunky instead of smooth peanut butter. 

The changes called for in this bill will lead to the filing of cases just like the ones 

I just described. This bill is cynically aimed at pleasing an important constituency 

of my colleagues on the other side of the aisle—the trial lawyers. If enacted, thousands of trial lawyers will churn out frivolous case after frivolous case in the hope 

of securing a big payday. And that will be a payday that will come at the expense 

of prisoners who have legitimate claims and whose rights have actually been 

harmed during their incarceration. Those legitimate claims will never be heard because they will be buried under all of the paperwork generated by all of the new 

lawsuits. 

I look forward to working with Chairman Scott on finding a way to ensure that 

we do not return to a time when the wheels of justice can’t turn because court dockets are too clogged with frivolous lawsuits. 

I also look forward to hearing from Representative Holden and learning more 

about his bill which would require private prisons to comply with the Freedom of 

Information Act requirements. 

I yield back the balance of my time.

6

Mr. SCOTT. Without objection, all the Members may include 

opening statements in the record at this point. 

We only have one witness on this panel. Congressman Tim 

Holden from Pennsylvania’s 17th District. He is the chief sponsor 

of the bill. He is familiar with the prison system from his 7 years 

serving as chair of Schuylkill County for 7 years, and the time he 

served as a probation officer. He also serves as a member of the 

Congressional Correctional Officers Caucus. He is now in his 

eighth term in Congress and is Chairman of the Subcommittee on 

Conservation, Credit, Energy and Research on the Agriculture 

Committee. 

He and his wife Gwen live in St. Clair, which is in Schuylkill 

County. Congressman, your written statement is already entered 

into the record in its entirety. You are familiar with the timing device, so we will recognize you at this time for your comments. 

TESTIMONY OF THE HONORABLE TIM HOLDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA 

Mr. HOLDEN. Thank you, Chairman Scott and Ranking Member 

Forbes and Members of the Subcommittee for allowing me to testify today in support of H.R. 1889, the ‘‘Private Prison Information 

Act.’’ H.R. 1889 simply seeks to require private prisons and other 

correction facilities holding Federal prisoners under contract with 

the Federal Government to make the same information available 

that public institutions are required by law under the Freedom of 

Information Act. 

As the Federal Government increases its use of private for-profit 

facilities for incarceration of Federal prisoners, it is imperative that 

we ensure that information about the operation of these prisons is 

readily available. Roughly 25,000 Federal criminal prisoners are 

jailed in private facilities at any given time, yet private prisons are 

not required to publicly disclose information about daily operations 

of their correctional facilities. The veil of secrecy surrounding private facilities needs to be lifted, and H.R. 1889 will hold these institutions accountable to the American public. 

Earlier this year, an inmate at the Northeast Ohio Correctional 

Center, a private Federal prison in Youngstown, Ohio escaped by 

overpowering a prison guard. The Ohio Correctional Institution Inspection Committee, comprised of members of the Ohio General Assembly, held a surprise inspection at the prison less than a year 

prior and reported that 44 inmate-on-inmate assaults were recorded between June, 2005 and May, 2006. Inspectors thought the 

number high considering that a total of 305 assaults were recorded 

in 2005 for Ohio’s 32 other correctional facilities. However, a lack 

of additional information and accountability to lawmakers prevented any further action. 

The facility did not respond to the media when asked if any of 

the assaults were severe, how they were handled or prosecuted, or 

how many assaults occurred from May, 2006 to the present. NOCC, 

like many other private Federal facilities, do not submit reports to 

the Federal Government. 

Mr. Chairman, the problem here is quite straightforward. There 

was a clear lack of accountability on behalf of private prisons. 

7

Without accountability, we have no knowledge of how taxpayer 

money is being spent at the facility. We do not know how many 

correctional officers are employed, at what levels they are staffed, 

and how much training they have received. We also do not know 

if overstaffed members are being asked to perform the dual role of 

correctional officers as well. 

Most daunting of all, private prisons are not required to provide 

incident reports detailing health care oversight, rape or assault, 

weapons attacks, deaths, or escapes at the facility. Prior to being 

elected to Congress, I served 7 years as sheriff of Schuylkill County, Pennsylvania. In that capacity, I also served on the Schuylkill 

County Prison Board. 

Based on my experience as both the sheriff and a member of the 

Prison Board, I strongly believe that running a corrections facility 

is inherently governmental, although that is not why I am here 

today to talk about it. I strongly believe that H.R. 1889 will put 

private prisons on the same playing field with the rules and regulations by which Federal prisons must abide. 

Mr. Chairman, if we do not address this critical situation, we 

risk the safety and security of not only the prison employees, but 

also that of our family and friends who live in our communities. 

This legislation simply ensures the public’s right to have access to 

information concerning conditions within private prisons. 

Thank you, Mr. Chairman, for consideration of this bill. 

[The prepared statement of Mr. Holden follows:]

PREPARED STATEMENT OF THE HONORABLE TIM HOLDEN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF PENNSYLVANIA

Chairman Scott, Ranking Member Forbes and members of the Subcommittee, I 

want to thank you for the opportunity to testify before you today in support of H.R. 

1889, the Private Prison Information Act. 

H.R. 1889 simply seeks to require private prisons and other correctional facilities 

holding federal prisoners under a contract with the federal government to make the 

same information available that public institutions are required to by law under the 

Freedom of Information Act (FOIA). 

As the federal government increases its use of private, for-profit facilities for incarceration of federal prisoners, it is imperative that we ensure that information 

about the operation of these prisons is readily available. Roughly 25,000 federal 

criminal prisoners are jailed in private facilities at any given time. Yet private prisons are not required to publicly disclose information about daily operations of their 

correctional facilities. The veil of secrecy surrounding private facilities needs to be 

lifted and H.R. 1889 will hold these institutions accountable to the American public. 

Earlier this year, an inmate at the Northeast Ohio Correctional Center (NOCC), 

a private federal prison in Youngstown, Ohio, escaped by overpowering a prison 

guard. The Ohio Correctional Institution Inspection Committee, comprised of members of the Ohio General Assembly, held a surprise inspection at the prison less 

than a year prior and reported that 44 inmate-on-inmate assaults were recorded between June 2005 and May 2006. Inspectors thought the number high, considering 

a total of 305 assaults were recorded in 2005 for Ohio’s 32 correctional facilities; 

however lack of additional information and accountability to lawmakers prevented 

further action. 

The facility did not respond to the media when asked if any of the assaults were 

severe, how they were handled or prosecuted and how many assaults occurred from 

May 2006 to the present. NOCC, like many other private federal facilities, does not 

send annual reports, leaving the collection of this information to inspections financed by the city and the state. 

Mr. Chairman, the problem here is quite straightforward; there is a clear lack of 

accountability on behalf of private prisons. Without accountability we have no 

knowledge of how taxpayer money is being spent at the facility. We do not know 

how many correctional officers are employed, at what levels they are staffed, and 

how much training they have received. We also do not know if other staff members 

8

are being asked to perform the dual role of correctional officers as well. Most 

daunting of all, private prisons are not required to provide incident reports detailing 

healthcare oversight, rape or assault, weapons attacks, death, or escape at the facility. 

Prior to being elected to Congress, I served seven years as Sheriff of Schuylkill 

County, Pennsylvania. In that capacity, I also served on the Schuylkill County Prison Board. Based on my experiences as both sheriff and a member of the board, I 

strongly believe that running correctional facilities is inherently governmental. Although that is not what I am hear to talk about today, I also strongly believe that 

H.R. 1889 will put private prisons on the same playing field with the rules and regulations by which federal prisons must abide. 

Mr. Chairman, if we do not address this critical situation, we risk the safety and 

security of not only the prison employees, but also that of our family and friends 

who live in our communities. This legislation simply ensures the public’s right to 

have access to information concerning the conditions within private prisons. I thank 

the Subcommittee for considering this bill and urge you to report it favorably.

Mr. SCOTT. Thank you. And thank you for bringing the bill to our 

attention. I think you have answered any questions I have. I will 

ask the gentleman, the Ranking Member, Mr. Forbes, if he has any 

questions. 

Mr. FORBES. Mr. Chairman, I don’t have any questions for Congressman Holden. 

Mr. SCOTT. The gentleman from Georgia? 

Mr. DAVIS. I have none, Mr. Chairman. 

Mr. SCOTT. Thank you. 

The gentleman from Texas? Questions? Any questions of the witness? 

Mr. JOHNSON. I have none. 

Mr. SCOTT. The gentleman from North Carolina? 

Mr. COBLE. Mr. Chairman, if I may just very briefly. Tim, Congressman, are there no requirements now that public prisons make 

public reports about their staffing, training or operational procedures? 

Mr. HOLDEN. Mr. Coble, it is my understanding that private prisons have no reporting requirements. Of course, the public prison 

system has numerous rules and regulations that they must follow 

at our direction. 

Mr. COBLE. Thank you. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Thank you, Mr. Holden, for your testimony. We will be taking up 

the bill in regular order, and I appreciate you bringing it to our attention. 

Mr. HOLDEN. Thank you, Mr. Chairman, and Members of the 

Subcommittee. 

Mr. SCOTT. The hearing on this bill is now concluded. 

The witnesses on the next panel will take your seats please. The 

next part of the hearing will focus on problems that have resulted 

from passage of the Prison Litigation Reform Act, the PLRA. While 

the act has succeeded in its stated goal of reducing the number of 

frivolous lawsuits in Federal court, some provisions of the PLRA 

have had the unintended consequences of preventing many legitimate cases from being brought. 

Chairman Conyers and I introduced a bill last evening, H.R. 

4109, the ‘‘Prison Abuse Remedies Act of 2007.’’ Witnesses may testify on that bill or may testify generally about the Prison Litigation 

Reform Act and suggestions for reforms. Congress passed the 

9

PLRA in 1996 as part of an emergency appropriations bill. At the 

time, Congress stated two main reasons for the act: first, to reduce 

frivolous lawsuits by prisoners; and second, to decrease the amount 

of intrusive consent decrees governing our prison conditions. 

Although the PLRA effected major changes in the law and litigation, it was the subject of only one congressional hearing and only 

limited debate. The hastily written provisions have been the subject of six Supreme Court decisions deciding competing interpretations by the Federal courts of appeals. According to the administration Office of the U.S. Courts, the Bureau of Justice statistics, the 

number of lawsuits in Federal court has dramatically decreased 

since the passage of the PLRA from 36 cases per 1,000 prisoners 

prior to its passage, down to 19 cases per 1,000 prisoners 5 years 

after its passage. 

Court monitoring has also decreased from 1995 to 2000. Court 

monitoring of prisons diminished significantly. The number of 

states with little or no court-ordered regulation of their prisons, 

that is those having no more than 10 percent of prisoners living in 

a facility under court supervision, more than doubled from 12 

states to 28 states. The nearly impossible obstacles established by 

the PLRA and the diminished oversight by Federal administrative 

agencies and the judiciary, with that going on, some experts have 

gone so far to say that the ‘‘PLRA is undermining the rule of law 

in America’s prisons.’’

A coalition called SAVE, Stop Abuse and Violence Everywhere, 

composed of dozens of organizations and individuals, has come together to study the impact of the PLRA and to recommend modest 

changes to the law. Some of the changes they perceive as most necessary are the exhaustion requirement, which bars access to Federal court unless a prisoner successfully completes the prison administrative remedies; the elimination of the physical injury requirement which forbids access to the courts for serious constitutional violations where there is no physical injury; and removing 

juveniles from the purview of the PLRA. Although juveniles have 

never been a major source of litigation in Federal courts, Congress 

still included them in the 1996 law. 

The Commission on Safety and Abuse in America’s Prisons also 

recommends several reforms: eliminating the physical injury requirement; eliminating the filing fee for indigent prisoners; elimination of the restrictions on attorneys’ fees; lifting the requirement 

that correctional agencies concede liability as a prerequisite to 

court-supervised settlement; and a change in the exhaustion requirement. 

Additionally, the American Bar Association passed a resolution 

urging Congress to reform aspects of the PLRA, including elimination of the physical injury requirement; amending the exhaustion requirement; repealing restrictions on Federal courts in conditions of confinement cases; restoring attorneys’ fees; elimination of 

juveniles from the purview of the PLRA; and repealing fee provisions that treat prisoners filing claims under the PLRA differently 

than prisoners filing other informal claims. 

It is now my privilege to recognize the Ranking Member of the 

Subcommittee, my colleague from Virginia, Mr. Forbes. 

10

Mr. FORBES. Thank you, Chairman Scott. Thank you for holding 

this hearing. 

At the outset, I would like to state that, as you mentioned Mr. 

Chairman, you filed this legislation last night. Much of the testimony that we have gotten we have only received recently. I am a 

little bit disappointed because one of the experts in this area is 

Congressman Lungren, who could not be here today. He helped 

write this legislation initially, and his input would be invaluable to 

us. 

Mr. SCOTT. Will the gentleman yield? 

Mr. FORBES. Yes. 

Mr. SCOTT. We will certainly have other hearings on it. 

Mr. FORBES. Well, the other thing I was going to ask the Chairman is if we can make sure this record can be held open for at 

least a week to allow Congressman Lungren to put his comments 

and information in the record. 

Mr. SCOTT. I would make that commitment, plus if another hearing is requested, it would certainly be granted. 

Mr. FORBES. Thank you, Mr. Chairman. I appreciate your graciousness on that. 

While I share my colleagues’ commitment to prison reform, I was 

hoping that our first hearing on this subject would focus on efforts 

to ensure and improve rehabilitation of prisoners. Unfortunately, 

the focus of today’s hearing I believe is misguided. Instead of addressing the real and significant needs of prisoners, we are considering changes to the Prison Litigation Reform Act which will reopen the floodgates of frivolous litigation. 

We had hoped to reach some bipartisan solutions to real abuses 

that we know unfortunately exist in our prisons. However, instead 

of offering our inmates today new hope, this legislation offers them 

new lawyers, dollars that we could be putting toward rehabilitation 

or prison security. We sin like we have in so much legislation in 

this Congress has done already to the trial lawyers. 

I want to tell all of you who are testifying today, we appreciate 

what you do. We appreciate you being here. We know that there 

are abuses in our prisons. I have talked to many of you about our 

concerns. But our concerns are how we roll up our sleeves and go 

in and change those abuses and not go back to where we were 

when we are flooded with litigation that we believe many times is 

frivolous and has a boomerang effect that instead of getting real reforms done, creates just a political pendulum that keeps swinging 

back and forth, and the people lost in it are the inmates because 

we don’t ever go in there and say, ‘‘How do we really make these 

changes that need to be made, instead of just opening up the doors 

to the courts?′′ The proposed legislation will 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. I am further concerned that the time and money spent defending these cases could be better spent providing job training, 

drug treatment, education and other valuable programs to prisoners to make sure they can become productive members of society. 

In 1996, Congress took appropriate steps to limit frivolous prisoner litigation by passing the Prison Litigation Reform Act, or 

11

PLRA. The PLRA took common sense steps to reduce the number 

of petitions filed by inmates claiming violation of their rights. 

Under the PLRA, inmates are, one, required to exhaust all administrative remedies before filing a case in Federal court; two, prohibited from receiving filing fee waivers if they have a history of filing 

frivolous or malicious lawsuits; and three, you had to demonstrate 

physical injury to claim monetary awards for compensatory damages. 

In this bill, each one of these common sense provisions is repealed or removed. These are not exactly modest changes, as the 

Chairman suggested. These provisions are removed despite the fact 

that evidence shows that the PLRA worked in decreasing the 

amount of frivolous prisoner litigation. 

According to records kept by the Administrative Office of the 

Federal Courts, in 1995, the year before the PLRA was passed, 

over 41,000 cases were filed—41,000 cases—by Federal prisoners 

alleging violation of their civil rights. Since that high mark, the 

number of cases have dropped to about 24,000 cases filed per year. 

This marked decrease occurred because the PLRA kept the frivolous cases off the court dockets. 

Let me give you some examples of those frivolous cases. One in- mate claimed $1 million in damages because the ice cream he was 

served melted. An inmate alleged that being forced to listen to his 

unit manager’s country and western music constituted cruel and 

unusual punishment. Some of you might agree with that, but it 

was no place to be in our courts and no reason to give attorneys’ 

fees. Another claimed that his rights were violated because he was 

forced to send packages via UPS rather than U.S. mail. And perhaps the most frivolous lawsuit of them all, one inmate sued because he was served chunky instead of smooth peanut butter. 

The changes called for in this bill will lead to the filing of cases 

just like the ones I just described. This bill is cynically aimed at 

pleasing important constituencies of my colleagues on the other 

side of the aisle, the trial lawyers. If enacted, thousands of trial 

lawyers will churn out frivolous case after frivolous case in the 

hope of securing a big payday, and that will be a payday that will 

come at the expense of prisoners who have legitimate claims and 

whose rights have actually been harmed during their incarceration. 

Those legitimate claims will never be heard because they will be 

buried under all the paperwork generated by all the new lawsuits. 

But worst of all, as I mentioned earlier, all the legislation like this 

will have that boomerang effect that will actually keep the pendulum swinging and prevent those like me and others on this Committee who want to effectuate real change from ever being able to 

do that because all of us continues to be held captive by various 

political constituencies. 

I look forward to working with Chairman Scott on finding a way 

to ensure that we do not return to a time when the wheels of justice can’t turn because court dockets are too clogged with frivolous 

lawsuits. 

Mr. Chairman, I yield back the balance of my time. 

Mr. SCOTT. Thank you, Mr. Forbes. 

We have assembled a panel of experts, both academic experts 

and experts whose expertise has been gained through personal exVerDate 0ct 09 2002 11:48 Mar 25, 2008 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\110807\38767.000 HJUD1 PsN: 38767
12

perience. Our first witness on this panel will be Margo Schlanger, 

professor of law at Washington University in St. Louis. She is testifying not only for herself, but also on behalf of the American Bar 

Association, where she is currently the reporter for the Task Force 

on Standards Relating to the Legal Status of Prisoners. She also 

serves on the Commission on Safety and Abuse in America’s Prisons and is a member of the expert Advisory Committee on Data 

Collection and Confidential Reporting for the Prison Rape Elimination Commission. 

Our next witness will be David Keene, who is a distinguished attorney and chairman of the American Conservative Union. However, the experience that brings him to testify today is the he is 

the father of a young boy who is serving time in Federal prison. 

He has seen the impact of the PLRA as it operates in the real 

world, and we are grateful that he is willing to come and share his 

personal experiences today. 

The next witness will be Mr. Pat Nolan, vice president of the 

Prison Fellowship. He is also an attorney and was a member of the 

California State Assembly for 15 years, four of those as the Assembly Republican Leader. During his time in office, he was prosecuted 

based on a campaign contribution and spent 29 months in Federal 

custody. There, he became very familiar with the aspects of the 

PLRA, and again we are fortunate that he is willing to share his 

personal experiences with us. 

Our fourth witness will be Garrett Cunningham, a former prisoner in the Texas Department of Criminal Justice. In 2000, he was 

housed at the Luther Unit in Navasota, Texas. While working in 

the prison laundry, he was sexually harassed by a supervisor. 

When he told people at the prison about what was happening, he 

was given no assistance. After the situation, he was terrified to report the crime, so he did not comply with the PLRA’s technical exhaustion requirement, which left him no remedies to sue the prison 

or its employees. 

Our last witness is Ryan Bounds, deputy assistant attorney general for the Office of Legal Policy. He assists in the development 

and coordination of policies relating to civil justice reform, immigration, drugs and other subjects. Before joining the Department of 

Justice, he was a clerk at the U.S. Court of Appeals in the Ninth 

Circuit and practiced as a litigation associate at a law firm in Portland, Oregon. He is a graduate of Stanford University and Yale 

Law School. 

Each of our witnesses’ written statements will be entered into 

the record in its entirety. I would ask each of the witnesses to summarize his or her testimony in 5 minutes or less. To help you stay 

within that time period, there is a lighting device at the table. 

When the light switches from green to yellow, you will have 1 

minute to conclude your testimony. When it turns red, we would 

ask you to complete your testimony as quickly as possible. 

Professor? 

13

TESTIMONY OF MARGO SCHLANGER, PROFESSOR OF LAW, 

WASHINGTON UNIVERSITY IN ST. LOUIS, ON BEHALF OF THE 

AMERICAN BAR ASSOCIATION, WASHINGTON, DC 

Ms. SCHLANGER. Thank you for this invitation to testify today 

about the urgent problems created by the Prison Litigation Reform 

Act. I am Margo Schlanger, professor of law at Washington University in St. Louis. I appear today both to share my own expertise 

in this area and also as the representative of the American Bar Association. 

I want to mention as well two groups whose recommendations in 

this are very helpful. Both have submitted written statements: the 

Vera Institute’s Commission on Safety and Abuse in America’s 

Prisons and the SAVE Coalition that the Chairman already mentioned. 

I have been working with the PLRA since 1996, the year of its 

enactment, first as a trial attorney in the U.S. Department of Justice Civil Rights Division assisting with interpretation and implementation of the then-new statute, and then as a law professor 

studying and writing about its provisions and effects. Over the 10 

years, the PLRA’s flaws have grown ever more evident. 

But before I talk about those flaws, I want to agree with some 

things that have already been said about the salutary effects of the 

PLRA, which is to say its lightening of the burdens imposed on 

jails and prisons by frivolous litigation. Prisoner lawsuits in Federal court are numerous and often frivolous, and they do pose real 

management challenges for courts and correctional authorities. The 

PLRA has ameliorated this problem in two different ways. 

First, it has drastically shrunk the number of cases filed by 

about 60 percent as a rate per prisoner. And second, the screening 

provisions which have not been mentioned yet, under which courts 

dispose of legally insufficient prisoner civil rights cases, without 

even notifying the sued officials that they have ever been sued or 

requiring any response from those officials. No longer under the 

PLRA need prison or jail officials investigate or answer complaints 

that are frivolous or fail to state a claim under Federal law. 

These are important provisions and these are important results, 

and nothing in the bill that Chairman Scott has proposed would 

change those. I think that is very important to notice. 

In addition to filing frivolous or legally insufficient lawsuits, prisoners do file serious cases, cases about sexual abuse, about religious discrimination, about physical abuse and the like. When the 

PLRA was passed, its supporters emphasized over and over that 

they did not want to prevent inmates from raising legitimate 

claims, and they pledged that the PLRA didn’t do that. But the 

PLRA has failed to live up to that pledge. 

If that were not true, the dramatic decline in filings should have 

been accompanied by an increase in success rates in cases that 

were filed. There are fewer cases, but more of them would be good 

cases and so we would see an increase in success rates. But what 

we have seen instead over the past 10 years is a decline in success 

rates. Fewer cases settle. More cases are dismissed. Fewer cases 

win. 

The point is that there are new obstacles to successful adjudication of even constitutional meritorious cases. This is a problem beVerDate 0ct 09 2002 11:48 Mar 25, 2008 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\110807\38767.000 HJUD1 PsN: 38767
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cause as a Nation we are committed to constitutional regulation of 

governmental treatment of even those who have broken society’s 

rules. The erection of hurdles to accountability doesn’t reduce the 

burden of litigation. It reduces accountability. It weakens the rule 

of law behind bars, and that is what the PLRA has done. 

So I urge the Committee’s Members to support Chairman Scott’s 

bill, the Prison Abuse Remedies Act of 2007. Let me talk in my 1 

minute and 30 seconds remaining about the provisions that I think 

are most important. I should say also that I have been able to read 

through very quickly the deputy assistant attorney general’s testimony. I think that it gets some of the legal environment in which 

this bill is placed incorrect, and I would be happy to talk about 

that if there are any questions. 

So there seem to me to be four very important things that Chairman Scott proposes to do. The others are good as well, but four are 

the most important. First, the PLRA’s ban on awards of compensatory damages for mental or emotional injury without physical injury is a major obstacle to compensation and remediation for constitutional violations. 

It does not only apply to negligent infliction of emotional distress 

kinds of cases. It applies to constitutional violations—violations of 

religious rights, violations of all kinds, where there is no physical 

injury. It has been held by many courts to apply to coerced sex as 

well, where there is not forcible rape. Occasionally, it has even 

been held to apply to rape itself. So it is a huge obstacle. 

Second—I am not gong to get to all four—second the PLRA’s provision banning Federal lawsuits by prisoners who have failed to 

comply with internal grievance procedures obstructs, rather than 

incentivizes, constitutional oversight of conditions of confinement. 

It encourages prison and jail authorities to come up with ever-higher procedural hurdles through their grievance procedures to immunize themselves from subsequent suits, and that is really a problem. 

Third, the application of the PLRA to juveniles is just unjustified 

and has a really perverse effect as well. 

And finally, the provision of the PLRA that many courts have 

read to ban enforceable injunctive settlements unless defendants 

confess liability for violations of Federal law undermines both the 

availability and effectiveness of court oversight. 

So I think my time is up, and so I had better stop. Thank you 

very much. 

[The prepared statement of Ms. Schlanger follows:]

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PREPARED STATEMENT OF MARGO SCHLANGER


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Mr. SCOTT. Thank you, professor. 

Mr. Keene? 

TESTIMONY OF DAVID A. KEENE, CHAIRMAN,

AMERICAN CONSERVATIVE UNION, ALEXANDRIA, VA 

Mr. KEENE. Thank you, Mr. Chairman, and I thank the rest of 

you for the opportunity to appear before you this afternoon. 

My name is David Keene, and as Chairman Scott indicated earlier, while I am chairman of the American Conservative Union, I 

am here today not in that capacity, but because as the father of 

a young man serving in Federal prison, I have had an opportunity 

to see the impact of the Prison Litigation Reform Act as it operates 

in the real world. 

As Mr. Forbes indicated in his remarks, the PLRA was enacted 

for the best of reasons: to prevent abuse of the legal system by prisoners with a tendency to bring frivolous lawsuits and thereby tie 

up the courts and the prison system itself in time-consuming, expensive and ultimately meaningless legal controversies that have 

little to do with furthering either the cause of justice or improving 

the real-world operations of the prison system. 

This hearing and the attempt by the Chairman and others to 

come up with fixes for the PLRA is Congress’ duty as it examines 

the way legislation invariably has some unintended consequences, 

and to perfect legislation and to perfect policy in a way to eliminate 

as many of those consequences as possible is the ongoing responsibility of those who enact our laws. 

It has been a long time since I have been to law school, but from 

my administrative law courses, as I remember them, I understood 

that if a Government agency promulgates regulations and rules by 

which it is supposed to operate, that it is required to follow those 

rules. In the prison system, that is not the case. 

We talk about whether or not prisoners can in all cases meet all 

of the requirements set by the internal rules and regulations established by one institution or another, but the fact of the matter is 

that in those institutions, prisoners are constantly told that those 

rules don’t matter and don’t count; that the rules are what the 

guards and the institution administrators say they are from day to 

day, often capriciously or for the convenience of those running the 

institution. 

By the same token, we run into a problem under this act that 

we find in any institution and in any Government agency, and that 

is when the people who oversee the operations are the same people 

who are being overseen, problems can always come up. This isn’t 

a condemnation of the people within the institution. It isn’t a condemnation of the guards in our prison system or the administrators 

of the prison system. It is a fact of human nature. 

What has happened in advertently is in attempting to restrict 

and in attempting to eliminate frivolous lawsuits, we have adopted 

policies which have in fact isolated these institutions and allowed 

them to operate without any effective oversight. A citizen dealing 

with any other agency who follows the rules promulgated by that 

agency ultimately has recourse to the courts. But as a practical 

matter, this often isn’t the case in the prisons. 

30

A Federal prisoner has to meet what Professor Schlanger referred to as an ever-higher standard to try and get to the courts. 

This has created problems for legitimate cases. It has also created 

problems for almost any prisoner who has a difficulty and who has 

a grievance because it doesn’t take long for someone incarcerated 

in one of our prisons to learn the lesson that the prison wants to 

teach them, and that is that nothing matters except what those in 

charge say, and that there is no real value nor any reward nor any 

purpose for filing grievances. 

In fact, one of the problems is not only that because of the technical requirements do you never get to the end that is sought, but 

that retaliation is the answer and is what comes to those who do 

file grievances. The result of that is the lesson is learned and fewer 

and fewer people are even willing to complain when they have legitimate reasons for doing so. 

As I indicated at the outset, my son is currently incarcerated and 

has run into these problems first-hand. Prisoners who cite the rules 

and regulations inside prisons in which they are housed are told 

that they don’t mean a thing and learn quickly that they don’t 

mean a thing. He ultimately had to go to court. A Federal district 

judge ruled that he did have the right to sue. His lawyers were not 

allowed to visit with him by prison administrators, and eventually 

the attorneys for the prison indicated that even his attorneys and 

the judge himself had missed a technicality and sought the case to 

be dismissed. 

The judge did dismiss it, saying he should come back and re-file 

it, but said he had no choice under this act, even though there were 

grievous violations of his constitutional rights. That is the kind of 

thing that has to be protected, has to be corrected, without at the 

same time opening the floodgates of frivolous litigation that Mr. 

Forbes, for example, is so concerned about. 

Thank you. 

[The prepared statement of Mr. Keene follows:]

PREPARED STATEMENT OF DAVID A. KEENE

My name is David Keene and while I am Chairman of the American Conservative 

Union, I am here today not in that capacity but because as the father of a young 

man serving time in a federal prison, I have had an opportunity to see the impact 

of the Prison Litigation Reform Act or PLRA as it operates in the real rater than 

conceptual world. 

The PLRA was enacted for the best of reasons . . . to prevent abuse of the legal 

system by prisoners with a tendency to bring frivolous lawsuits and thereby tie up 

the courts and the prison system itself in time consuming, expensive and ultimately 

meaningless legal controversies that had little to do with furthering either the cause 

of justice or improving the real world operations of the prison system. 

It’s been a long time since I attended law school, but from what I remember of 

the Administrative Law course to which I was subjected some decades ago, an agency of the government that promulgates rules and regulations is required to follow 

those rules and regulations. 

This simple rule is adhered to by most if not all federal agencies, but it turns out 

that within the various prisons administered by the Bureau of Prisons, the regulations can be and are enforced capriciously, selectively or not at all based more on 

the convenience of those who are supposedly required to follow them than anything 

else. 

If a citizen dealing with any other agency of our government followed published 

rules and regulations only to be told that the agency isn’t itself required to abide 

by them has recourse to the courts. A federal prisoner does not have that right 

under most circumstances at least until such time as he exhausts administrative 

remedies which require him to complain to the very same people he alleges have 

31

wronged him and submitted to their judgment on whether or not the actions they 

took or failed to take were in compliance with their own rules and regulations. 

In virtually every case, their judgment is final. The result is that few prisoners 

file grievance for the simple reason that they know it is useless to do so and, just 

as importantly, because they know they are likely to face retaliatory punishment 

if they do. 

As I indicated at the outset, my son is currently incarcerated and has run into 

these problems first hand. Prisoners who cite the rules and regulations inside the 

prison in which he is housed are told that the rules as written don’t mean a thing 

because the rules at any given time are what the guards declare them to be and 

anyone who asks that they comply with written guidelines is forced to simply shut 

up. 

When a prisoner decides to complain, he must do so on approved forms which are 

often ‘‘unavailable’’ and he quickly learns that a complaint that is not properly executed on the appropriate form will be summarily dismissed. 

In one instance, my son was given what turned out to be the inappropriate form, 

filed it and after more than a month received notice that his complaint had been 

dismissed and that if he wanted to appeal the dismissal or renew the complaint he 

had twenty days from the date of the dismissal to do so. Unfortunately, he didn’t 

receive this information until 28 days after the date of dismissal and was, as a consequence, told that his time for appeal had run out. 

In another instance, the correspondence between him and his attorney was held 

and opened by prison officials though it was clearly designated as ‘‘Legal Mail’’ from 

the attorney’s offices. When this was raised in court, the charge against prison officials for violating their own rules and my son’s constitutional rights was dismissed 

because he could show no ‘‘physical damage.’’

This is apparently typical as was the fact that when we pressed forward seeking 

a remedy at law, he was roughed up by prison guards who told him they were tired 

of prisoners hiring lawyers when al they had to do was follow ‘‘procedures.’’

As he put it in a letter to me after one such incident, ‘‘these delays sprinkled 

throughout and the additional hurdles conspire to deprive inmates’ access to an administrative remedy process . . . and that, therefore, the process is broken.’’ He concluded by writing, ‘‘It feels like I’m playing poker in a rigged game because in here 

the law is never your friend. The safeguards and rules are constantly flouted by the 

government. If laws are openly flouted by those whose duty it is to uphold them, 

what good are they?’’

One doesn’t have to believe that prison guards or those running our prisons are 

either corrupt or inhumane to realize that it is a bad idea in practice to allow those 

whose activities are being overseen to be their own overseers. 

Those we incarcerate should not come away from their incarceration with the lessons they are learning in our prisons today. They are there because they didn’t follow the law and are being told by the government that those in charge of our prisons don’t have to do so unless they want to and that there is nothing they or anyone 

else can do about it. 

The PLRA was passed for legitimate reasons, but as is often the case when laws 

written by men and women in rooms like this are put into practice under real world 

circumstances, it has had unintended consequences. 

Those consequences are real and they need to be fixed. I urge the members of this 

subcommittee to make the adjustments in the law required to alleviate those consequences so that those we incarcerate can at least rely on the rules set for them 

and that those who abuse them or deprive them of the limited rights they have as 

prisoners can be brought to account. 

The SAVE Coalition in testimony here today has proposed just the sorts of 

changes that are needed and I hope you will give their recommendations the serious 

consideration they deserve.

Mr. SCOTT. Thank you. 

Mr. Nolan? 

TESTIMONY OF PAT NOLAN, VICE PRESIDENT,

PRISON FELLOWSHIP MINISTRIES, LANSDOWN, VA 

Mr. NOLAN. I am Pat Nolan. As the Chairman mentioned, I was 

a member of the legislature for 15 years and very strongly supported efforts to curb frivolous litigation. Prior to my service in the 

legislature, I was an attorney with a law firm in Los Angeles—

Kinkle, Rodiger and Spriggs—and we represented the counties of 

32

Orange, San Bernardino and Riverside, and virtually every city 

and special district within them. I saw the ridiculous claims 

brought by the vexatious litigants, and saw the frustration and the 

wasted resources that went into defending those. 

However, also as a prisoner I saw the other side of the coin, of 

routine interference with my ability to practice my faith, and because of the PLRA there were significant barriers to anyone getting 

redress from that interference. As a member of the legislature, I 

just assumed that prison officials would encourage religious activities. There are so many studies that show that religious inmates 

are less likely to be involved in disciplinary proceedings; that their 

behavior on the yard is better; they do better upon returning home 

to the community, a greater success rate. 

It was a shock to me to see that prison officials often interfered 

with religious practices. I have cited in written testimony some of 

the examples—denial of kosher meals to Jews; cancellation of 

Christmas mass for the women’s jail in Los Angeles, saying, well, 

we don’t have the staff to handle programming, as if mass on 

Christmas, the day our Savior came to earth to save us, was the 

same as a ping-pong tournament. To see those people trying to protect their ability to practice their faith, prevented from having access to the courts is frustrating. 

We just went through a significant battle with the Bureau of 

Prisons on the chapel library project. I think some of you are aware 

of the difficulties there were with their policy. Fortunately, they 

have a strong leader in Director Lapin and he changed that policy. 

But if he hadn’t, do we really want the inmates that were denied 

access to books such as St. Augustine’s works, the City of God, or 

access to Rick Warren’s books? Would we like to deny them access 

to the courts? The PLRA does that. 

For holy days, it is especially a problem because of the timeliness. The exhaustion of remedies provision, and this is a case in 

California. A fellow said he was told on Monday that he had to 

work on Easter Sunday. Now, the Muslims had gotten Ramadan 

off, but he was forced to work on Easter Sunday. When he filed his 

complaint, they hadn’t gotten to it to even consider it by the time 

Easter had come and gone. The exhaustion requirement basically 

bars him from getting any redress of that. And that goes not just 

for Christians. It goes for any of the faiths that have holy days to 

observe. 

The second class of people that I am familiar with, I am on the 

Prison Rape Elimination Commission and I am also on the Commission on Safety and Abuse in America’s Prisons. It is heartbreaking the stories of men and women who have been raped in 

prison, raped either by corrections officers or by other inmates. The 

PLRA ends up keeping them from getting any compensation. You 

will hear more about it from Garrett. 

But the number of inmates that have been frustrated, not only 

victimized first by being raped, but secondly then denied any access 

to any recompense in the system is truly astounding. The physical 

injury requirement has been interpreted by some courts as saying 

oral sex is no physical injury, and even that forced rape, unless 

there is tearing, is not a physical injury. Now, I know that isn’t 

33

what you all intended, but it is the way the courts are interpreting 

it, so we need to address this. 

The core of the PLRA is the elimination of frivolous litigation, 

and that is still there. The screening that occurs at the district 

court level, where literally they can round-file a frivolous case. 

They don’t need to respond to it. They don’t need to serve it on anybody. It is over. You have given them authority to do that. 

That has resulted in the reduction of the number of cases, but 

sadly we have set the screen too fine, so we are screening out people that want to protect their ability to practice their faith, and it 

is screening out those that have been victimized while in the custody and care of our Government. 

And so we are just saying, please address these mistakes. None 

of us can write anything perfect, but please address these things 

that were unintended, but are the consequences of this, and allow 

access to the court for people trying to practice their faith, and people that have been victims of rape while they are inside prison. 

Thank you. 

[The prepared statement of Mr. Nolan follows:]

PREPARED STATEMENT OF PAT NOLAN

Mr. Chairman and members, I am grateful for this opportunity to discuss the impact of the Prison Litigation Reform Act, now that we have had a decade of experience with it. My name is Pat Nolan. I am a Vice President of Prison Fellowship, 

and lead their criminal justice reform arm, Justice Fellowship. I also serve as a 

member of the Prison Rape Elimination Commission and the Commission on Safety 

and Abuse in America’s Prisons. 

I bring a unique background to this work. I served for 15 years as a member of 

the California State Assembly, four of those as the Assembly Republican Leader. I 

was a leader on crime issues, particularly on behalf of victims’ rights. I was one of 

the original sponsors of the Victims’ Bill of Rights (Proposition 15) and was awarded 

the ‘‘Victims Advocate Award’’ by Parents of Murdered Children. I was prosecuted 

for a campaign contribution I accepted, which turned out to be part of an FBI sting. 

I pleaded guilty to one count of racketeering, and served 29 months in federal custody. 

Prior to serving in the legislature, I was an attorney with Kinkle, Rodiger and 

Spriggs. We represented Orange, San Bernardino and Riverside counties, as well as 

virtually every city and special district within them. So, I am very familiar with the 

burden and frustration that accompanies nuisance suits against government entities. 

Congress passed the Prison Litigation Reform Act to restrict the ability of prisoners with too much time on their hands from clogging the courts with ridiculous 

claims. And it has largely worked well to reduce the number of vexatious prison litigants. However, in the years since the PLRA became law it has become clear that 

two classes of prisoners are affected by PLRA that were never intended by Congress 

to be prevented from accessing the courts: inmates who have been prevented from 

practicing their religion and victims of prison rape. 

First, we would assume that prison officials, even atheists would encourage prisoners to become involved in religion. An increasing number of academic studies have 

demonstrated, that offenders who actively practice their faith inside prison are less 

likely to cause trouble, and more likely to become law-abiding citizens after their 

release. If you were a corrections officer at work in a prison, and six inmates were 

walking toward you across the yard, would it make a difference if they were coming 

from choir practice? You bet it would. 

You don’t have to be a believer to acknowledge what the scientific research has 

shown—religion reduces recidivism, and that costs taxpayers less and makes our 

communities safer. 

And while many prison officials encourage religious participation, there are also 

many who routinely interfere with religious programs in prison. This hindrance of 

religion is motivated not because they are against religion. Instead, it results from 

a more basic instinct—lethargy. Volunteers coming into the prison causes more 

work for the staff. If all you care about is having less work, then you would natuVerDate 0ct 09 2002 11:48 Mar 25, 2008 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\110807\38767.000 HJUD1 PsN: 38767
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rally discourage the volunteers from coming into the prison and you would discourage inmates from participating in religious activities. However, if you care about the 

safety of the public after the inmates are released, you would do all you could to 

encourage volunteers who can mentor inmates and help them live law-abiding lives 

after they return home. This is the situation that religious volunteers find: there 

are many prison officials who are open to our work, but there are also many others 

who discourage it. 

For instance, in some cases prison officials have denied Bibles to inmates, refused 

kosher meals to orthodox inmates, and rejected requests from Muslim inmates to 

have their Ramadan meals after sundown. In my own case, the chaplain of the California Legislature sent me an NIV Study Bible. He complied with federal regulations in every way—the Bible was sent from the publisher, shrink-wrapped and sent 

through the US postal service. But it was rejected and returned with a form that 

said it ‘‘does not comply with BOP regulations’’, with no explanation of how it had 

not met the regulations. This happened not once, but three times! Why would the 

mail room prevent an inmate from having a Bible? In prison, the inmates say, ‘‘Why 

do they do it? Because they can.’’

If inmates who were denied Bibles, kosher meals or Ramadan meals after dark 

seek help from the courts, they would be prevented from doing so, because none of 

these actions by the prison officials resulted in a ‘‘physical injury’’, a requirement 

of the PLRA. Prison Fellowship believes that inmates’ ability to practice their faith 

should not hinge on being able to show that they have sustained a physical injury. 

And my hunch is that Congress didn’t think of this when they put that requirement 

in the PLRA. 

When a specific religious holy day is involved, another requirement of the PLRA 

prevents relief in the courts: the ‘‘exhaustion’’ of administrative remedies. If a prisoner is prevented from attending Christmas Mass, or is forced to work on Yom 

Kippur, it usually only a day or two ahead of time that they find out. Even if they 

file the grievance immediately, the holy day has come and gone before they even 

get a hearing n their grievance. 

When the LA County Women’s Jail announced that they were canceling Christmas Mass (but allowing it for the men’s jail), Sister Susanne Jabro asked the Lieutenant why women’s Mass had been canceled it. He told her that most of the staff 

wanted the day off, and therefore they would be ‘‘short-staffed’’ and were canceling 

all inmate activities in the women’s jail. The jail’s actions are problematic in a couple of aspects. First, the Lieutenant equated sacred Mass with other ‘‘inmate activities’’ such as a ping pong tournament and Toastmasters. And to accommodate the 

convenience of the staff, Catholic inmates were being prevented from celebrating a 

holy day of obligation, a day of great joy in honor of the day God sent his Son to 

save us. Fortunately, when Sister Susanne appealed to Sheriff Block, he reinstated 

Christmas Mass immediately, and reassigned the Lieutenant. However, had Sheriff 

Block not intervened, the administrative process would have dragged on long past 

Christmas and into the New Year. 

In another case a California inmate was told he had to work on Easter, even 

though the Muslims were allowed days off of work for Ramadan. He found out on 

Monday that he would have to work the next Sunday, Easter. The administrative 

process hadn’t even addressed his complaint by the time Easter arrived. So, the inmate was forced to work, and was prevented from attending Easter services. I don’t 

think Congress intended that result when it passed the PLRA. 

Of course, there is another important reason why inmates should be free to practice their faiths. The Constitution requires it, and Congress has reinforced prisoners’ 

religious freedom by passing the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act. 

However, the PLRA has served to neuter RFRA and RLUIPA by denying access 

to the courts for inmates who have been prevented from practicing their faith. The 

physical injury and exhaustion requirements have resulted in dismissal of otherwise 

valid claims such as:

1. Prison officials confiscated two Bibles from an inmate. The inmate properly 

filed grievances complaining that the bibles were missing and in one letter 

to the Warden, mentioned that the officials were ‘‘bordering’’ on a free exercise of religion violation. When the Bibles were not returned, he filed a pro 

se suit alleging that officials had unlawfully withheld religious materials. 

The court dismissed the suit, finding that he had failed to exhaust administrative remedies only because his grievances did not explicitly state that the 

deprivation of his bibles impeded his ability to practice his religion. Dye v. 

Kingston, 2005 WL 1006292 (7th Cir. Apr. 27, 2005) (Nonprecedential Disposition) (42 U.S.C. 1997e(a)).

35

2. A man was denied the kosher diet required by his Jewish beliefs. After a 

trial, the jury awarded the man damages for the denial of his right to practice his religion. But the appellate court threw out the award because forcing 

a man to violate his religious beliefs does not meet the PLRA’s ‘‘physical injury’’ requirement. Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001) (42 

U.S.C. 1997e(e)).

3. A Christian prisoner alleged that a prison rule prohibiting outgoing funds of 

more than $30 impeded him from practicing his religious belief in tithing. 

The court dismissed his pro se suit for injunctive relief because he had pursued administrative remedies, but had not submitted a specific Religious Accommodation Request Form. Timly v. Nelson, 2001 WL 309120 (D. Kansas 

Feb. 16, 2001) (42 U.S.C. 1997e(a)).

4. A Jewish inmate who had been prohibited from participating in Jewish services won his suit before a jury in the district court. The court found that nonexhaustion was excusable because prison officials had effectively prevented 

the inmate from pursuing the grievance process. Prison officials had repeatedly told him that special ‘‘Jewish consultants’’ were responsible for deciding 

who could participate in Jewish services and holidays, not the officials who 

adjudicated the grievance process. Nevertheless, the court of appeals threw 

out the award, finding that the inmate had failed to exhaust his administrative remedies as required by the PLRA. Lyon v. Vande Krol, 305 F.3d 806 

(8th Cir. 2002) (42 U.S.C. 1997e(a))

5. An Orthodox Jew alleged in a pro se complaint that prison officials refused 

to allow him to attend Jewish services and celebrate Passover because he 

was, ‘‘not Jewish enough.’’ He had properly filed a special religious accommodation form, which subsequently went missing from his file. The court held 

that he had not exhausted his administrative remedies only because he did 

not re-file the special form that he had correctly filed in the first place. Wallace v. Burbury, 305 F.Supp.2d 801 (N.D. Ohio 2003). (42 U.S.C.A. 1997e(a)).

There is another type of prisoner the PLRA has inadvertently effectively blocked 

from access to the courts: victims of prison rape. As I mentioned earlier, I am a 

member of both the Prison Rape Elimination Commission and the Commission on 

Safety and Abuse in America’s Prisons. Both commissions heard heart-rending testimony from inmates who have been savagely raped and beaten. Most were too traumatized and terrified to report it while they were in prison. 

If their assailant were a correctional officer, they were at risk of retaliation. If 

they were attacked by another inmate, their life would be at risk for being a 

‘‘snitch.’’ Yet, the PLRA prevents them from going to court unless they have exhausted their administrative remedies. In most prisons, that means reporting the 

rape within 15 days; in some, it’s as few as two days. Despite the physical and mental trauma of being raped, the inmate must file a report in a very narrow window 

of time. 

The Prison Rape Elimination Commission recently heard testimony that children 

in the custody of the Texas Youth Commission (TYC) were repeatedly raped and molested by high TYC officials. How did they get away with it? One of the officials 

had a key to the complaint box and simply threw away complaints that incriminated 

him and his friends. The children had no chance to ‘‘exhaust’’ their administrative 

remedies because their rapist was the administrative remedy. Under the PLRA, 

these children would have no recourse in federal courts. 

Through my work on the commissions, I have met many victims of prison rape. 

I’d like to tell you a little about them so you can understand how the PLRA has 

victimized them a second time. Keith was a securities dealer, Marilyn owned a carrepair shop with her husband, TJ was in high school, and Garrett and Hope were 

college students. Keith and TJ were violently raped by fellow prisoners. Marilyn, 

Hope and Garrett were violently raped by correctional officers. Yet, federal law prevents them from filing suit to be compensated for the trauma they endured. Why? 

Because they were in prison when they were raped, and they ran didn’t meet either 

or both the physical injury or the exhaustion prerequisite. 

Keith testified to the Prison Rape Elimination Commission about the practical 

reasons that the exhaustion requirement of the PLRA effectively barred him from 

court. Keith had informed his counselor that he felt threatened by another inmate. 

Incredibly, the counselor placed that inmate in Keith’s cell, and Keith was beaten 

and raped by the inmate, as he had predicted. Keith told the commission why he 

hadn’t filed a grievance:

‘‘. . . in many institutions that informal complaint is going to go to the individual 

you’re complaining of, whether it be—in my case it was the counselor who moved the 

36

assailant into my cubicle, knowing that I was already reporting that I felt threatened 

by him. But, that’s the procedure that allows you to be able to even go into court 

for civil action.

The Prison Litigation Reform Act requires you to have exhausted your administrative 

remedies, which that informal complaint by policy becomes the first step. I’m not 

going to go to a person that I’ve already been threatened by to hand him an informal 

complaint and say, you know, I’m about to start a process against you and you’re 

the person who’s supposed to protect me now as I go through this process. It is not 

going to happen.’’

Marilyn was brutally raped at the hands of prison guard. Afterward he taunted 

her, ‘‘Don’t even think of telling, because it’s your word against mine, and you will 

lose.’’ The authorities simply sloughed off her claims at the time. But Marilyn had 

hidden her sweatpants—with DNA evidence of the officer’s attack—and took them 

to the FBI after her release. Even then, for three years nothing happened. Finally 

the case went to trial, and a jury convicted the officer of several counts of sexual 

assault. He is now in prison. The justice system cannot wipe away the degradation 

and abuse Marilyn suffered, but it at last held the contemptible guard accountable. 

However, the state of Texas refuses to pay for Marilyn’s medical and mental health 

treatment, and the PLRA prevents her from going to federal court to seek justice 

because she didn’t exhaust her remedies. 

Then, we come to the requirement of physical injury. As incredible as it seems, 

some courts have held that forced oral sex does not meet the physical injury requirement of the PLRA, and other courts have held that sexual activity without tearing 

is not a physical injury. These applications of the PLRA are within the plain meaning of the statute, but they clearly deny justice to these prisoners. 

I have given you just a few examples of where the PLRA has denied justice to 

victims of prison rape and inmates denied their religious practices. Congress never 

intended that such inmates be barred from court. The reforms suggested by Congressman Scott address these horrible injustices while leaving intact the screening 

provision of PLRA, which allows the courts to dismiss frivolous cases before the case 

is served on defendants or entered into the docket. The Scott amendments to PLRA 

will allow the to dispense with the chunky peanut butter cases without also barring 

the serious cases of religious interference and prison rape. 

When the opponents of these reforms offer up the old chestnuts about peanut butter and cold food, please remember the children in Texas, the Christian, Jewish and 

Muslim inmates denied access to practice their faith, and Marilyn, Garrett, Keith, 

TJ, Hope and thousands of others raped in prison and denied the ability to practice 

their faith. The least Congress can do is give them access to justice. Thank you.

Mr. SCOTT. Thank you. 

We have a vote coming up. I think, Mr. Cunningham, we can receive your testimony, and then we will have to break for a vote. 

We have one 15-minute vote and two subsequent votes after that, 

so it may be 20 minutes before we can get back. So Mr. 

Cunningham, we will hear from you. 

TESTIMONY OF GARRETT CUNNINGHAM, FORMER PRISONER 

IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, LUTHER UNIT, NAVASOTA, TX 

Mr. CUNNINGHAM. Good morning, ladies and gentlemen. I would 

like to thank Chairman Scott and Representative Forbes for holding this hearing about the harmful impact of the Prison Litigation 

Reform Act. 

My name is Garrett Cunningham. As a former prisoner within 

the Texas Department of Criminal Justice and a victim of prison 

violence and abuse, I have first-hand experience with the harmful 

effects of the PLRA. In 2000, I was housed at the Luther Unit in 

Navasota, Texas. While at the Luther Unit, I worked in the prison 

laundry under the supervision of Corrections Officer Michael Cheney. 

37

After just a few weeks of working with Officer Cheney, he began 

to touch me in a sexual manner during pat searches. At first, I 

thought it was an accident, but as it continued every day, I soon 

realized his inappropriate touching was intentional. He also stared 

at me when I showered and made sexual comments. 

I was afraid to tell anyone about my problems with Officer Cheney, but in March, 2000 I finally went to the unit psychologist and 

told him about the touching and crude comments. He asked me if 

I thought it was an accident, and I told him that it could not be 

because it happened all the time. He advised me to stay away from 

Officer Cheney. The prison psychologist’s advice did nothing to prevent the continuing sexual harassment, so a month later I decided 

to go to the prison administration for help. 

I approached the assistant warden and the second-in-command 

officer and told him about Cheney’s sexual comments and sexual 

touching during pat searches. They told me that I was exaggerating and Cheney was just doing his job. I eventually confronted 

Cheney and told him to stop touching me. He only got angry and 

continued to harass me. I tried again to get help from prison administrators, but I was told to keep my mouth shut. 

Officer Cheney eventually raped me in September 2000. On that 

day, I had just finished my job at the prison’s laundry and began 

walking to the back of the room in order to take a shower. Suddenly, Cheney shoved me, knocking me off-balance. I screamed and 

struggled to get him off me, but he was too big. Officer Cheney 

weighed about 300 pounds. I am 5’ 6’’ and weigh about 145 pounds. 

While I struggled, Cheney handcuffed both my hands. He then 

pulled down my boxers and forcibly penetrated me. 

When I screamed from the terrible pain, Cheney told me to shut 

up. I tried to get away, but I could barely move under his weight. 

After it was over, I was dazed. He took me to the showers in handcuffs, turned the water on, put me under it. I was crying in the 

shower and I saw blood running down my legs. 

When he took the handcuffs off me, he threatened me. He said 

if I ever reported him, he would have other officers write false assault cases against me, and I would be forced to serve my entire 

sentence or be shipped to a rougher unit where I would be raped 

all the time by prison gang members. He also warned me not to 

say anything to the officials I had complained to before because 

they were his friends and they would always help him out. 

At first, I didn’t dare tell anyone about the rape. Under the 

PLRA, however, I would have had to file a first prison grievance 

within 15 days of being raped. I had no idea at that point that I 

was even required to file a grievance and wanted to bring a lawsuit. Even if I had known, during those first 15 days my only 

thoughts were about suicide and how to get myself into a safe place 

like protective custody so I would not be raped again. 

In October of 2000, I was so afraid of being raped again that I 

told the unit psychologist that Cheney had raped me. He moved me 

to another job with a different supervisor and told me that if anyone asked why my job was changed, I should say I wanted a 

change of scenery. A few days later, I was given a new position in 

the laundry right next door to where Cheney worked. I continued 

38

to see him regularly, and he continued to touch me in appropriately. 

I wrote the internal affairs department two times about Cheney’s 

inappropriate touching. They never addressed my concerns and 

failed to take precautions to protect me. I was too scared to file a 

written complaint against Cheney because I feared retaliation from 

prison officials. Instead, I requested a private meeting with an internal affairs investigator. Internal affairs failed to take my concerns seriously until I contacted the ACLU, and even then Cheney 

was never punished for assaulting me. 

Officer Cheney went on to sexually harass and assault other prisoners. A year later, Nathan Essery began working under Cheney’s 

supervision in the same laundry where I had previously been assigned. On several occasions, Nathan was forced to perform sexual 

acts on Cheney. 

Fortunately for Nathan, he was able to collect Cheney’s semen 

during two of the attacks and the DNA positively linked the samples to Cheney. Cheney finally resigned from the Luther Unit in 

January of 2002 when he was indicted for his crimes against Nathan Essery. He was later convicted of inappropriate contact with 

an incarcerated person, but he was never required to serve any 

time. 

For me, I found no justice. When I was in prison, the fear of retaliation by staff or other prisoners haunted me and prevented me 

from reporting the rape right away. My fear led to suicide just to 

escape the pain of my situation, because my previous complaints to 

prison officials resulted in sharp rebukes and the prison psychologist’s assistance was limited. I felt hopeless. 

I will sum it up. My time is up. My hope is that Congress will 

acknowledge the realities of prison life, which makes exhausting 

administrative remedies under the PLRA impossible at times. It is 

time to fix the PLRA so that prisoners can bring their constitutional claims to Federal court. Chairman Scott’s bill, which he just 

introduced, would do that, and I support it. 

I thank you for your time and attention and look forward to your 

questions. 

[The prepared statement of Mr. Cunningham follows:]

39

PREPARED STATEMENT OF GARRETT CUNNINGHAM


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Mr. SCOTT. Thank you. 

We just have a few minutes to get to the floor, so we will come 

back as soon as we can, but will probably be at least 10 or 15 minutes. 

[Recess.] 

Mr. SCOTT. The Subcommittee will come to order. 

Mr. Bounds? 

TESTIMONY OF RYAN W. BOUNDS, DEPUTY ASSISTANT ATTORNEY GENERAL AND CHIEF OF STAFF, OFFICE OF LEGAL 

POLICY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. BOUNDS. Thank you, Mr. Chairman, Mr. Ranking Member, 

and Members of the Subcommittee for including the department in 

this hearing on proposals to address denials of prisoners’ constitutional and Federal rights. This is a critical subject and the Administration and the Department of Justice are dedicated to working 

with the Congress on these and other proposals. 

I want to note at the outset that the Department of Justice obviously comes at this issue in particular, prison litigation, from both 

sides because not only do we defend cases that are brought against 

the Bureau of Prisons, which are under the Department of Justice, 

but also the Civil Rights Division seeks to vindicate the Federal 

and constitutional rights of prisoners both in state prisons as well 

as in other institutions through the Civil Rights Division. So the 

Department of Justice takes this issue very seriously. It is obviously critical to our mission, and I appreciate being allowed to testify before the Committee today. 

I also want to say at the outset that we just reviewed recently 

a draft text of the Prison Abuse Remedies Act, which is the formal 

subject of this particular hearing. We haven’t had a chance yet to 

review it in detail. The department is looking forward to doing so, 

however, but hasn’t taken a position on the bill. That said, we look 

forward to reviewing the bill and we look forward to working with 

the Subcommittee on that proposal and other proposals as they 

come before the Subcommittee. 

The Chairman and the Ranking minority Member and several 

members of this panel have fairly characterized the motivation to 

reduce the filing of frivolous lawsuits that motivated the enactment 

of the Prison Litigation Reform Act in 1996. I won’t rehearse the 

particular characterization of the provisions of the act that work to 

reduce the filing of frivolous claims here. 

I did want to take just a moment, however, to reflect on the ways 

that the act works to advance the cause of expediting the effective 

remediation of meritorious claims that are brought by prisoners. 

For instance, it is not just the case of the exhaustion requirement 

works to screen out claims, it also works to make sure that prisoners, to the extent that they are able, bring their claims to the 

attention of the proper prison authorities so that those prison authorities who are on the frontlines can effectively remedy the violations that are afoot in their facilities. 

If it works, it is the most expeditious way to address denials of 

rights that prisoners are experiencing in facilities. So that exhaustion requirement does bear an important role in ensuring in the 

first instance that prisoners’ rights are restored to them. 

42

The other aspect of the exhaustion requirement that is important 

for ultimately vindicating the rights of prisoners in both state and 

Federal institutions is that it narrows the dispute to a more readily 

adjudicable issue and allows the creation of a more confident record 

for the ultimate adjudication of the case if it is filed and proceeds 

to trial. So the exhaustion requirement does screen out cases, but 

it also facilitates the adjudication of meritorious claims that may 

get to the courts, or the more ready resolution of claims by the prison officials themselves. 

Another provision of the act that enhances the resolution of meritorious claims is the frequent filer provision that bars the filing of 

lawsuits in Federal courts by prisoners without paying the filing 

fees if they have already filed three nonmeritorious claims that 

have been dismissed from the courts, either because they are frivolous or malicious or fail to state a claim. That provision allows the 

courts to focus on cases that are brought by people who do not have 

a history of being overly litigious and bringing nonmeritorious 

claims in the courts. 

As I am sure that many Members of the Committee and many 

people in this room can imagine, some people are just more prone 

to filling lawsuits than others, and oftentimes those sorts of people 

may bring less meritorious cases on average than the typical filer. 

So to the extent that this provision allows those people to proceed 

with their meritorious claims, it requires them to pay their fees up 

front, you will deter unnecessary litigation or at least unjustified 

litigation and allow the courts to focus on the more meritorious litigation. 

Another provision that I wanted to highlight are the deadlines 

for reconsidering and the tailoring requirements that apply to consent decrees and other prospective litigation that the courts impose 

as a result of civil rights litigation on behalf of prisoners. First, it 

is important to note that the Civil Rights Division, which brings a 

lot of cases for prospective relief on behalf of state and local inmates, believes that this provision does not meaningfully deter the 

effective relief that the department often seeks not only through 

consent decrees, but also through settlements and memoranda of 

understanding. 

But also it is important to note that these deadlines and the tailoring requirements that apply to prospective relief deter the courts 

from continuing consent decrees long past the effective remediation 

of a violation of a Federal right and allows prison officials to know 

there is an end game, the opportunity to get out from under an onerous consent decree by actually remedying the violation that was 

the subject of the decree. 

So it restores the positive incentives to actually come into compliance with the constitutional obligations of the administration of the 

facility, and as a result expedites the effective redress of the prisoner’s claims. 

Overall, reducing nonmeritorious claims through these and other 

mechanisms allow courts to focus on the well-founded claims that 

prisoners no doubt have and that is the objective of the bill. I 

would like to close with an observation that the chief justice made 

just earlier this year in a case that was interpreting the Prison 

Litigation Reform Act. He said, quite rightly I think, ‘‘The chalVerDate 0ct 09 2002 11:48 Mar 25, 2008 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\110807\38767.000 HJUD1 PsN: 38767
43

lenge lies in ensuring that the flood of nonmeritorious claims does 

not submerge and effectively preclude consideration of the allegations with merit.’’

With that, I will conclude. Thank you very much. 

[The prepared statement of Mr. Bounds follows:]

PREPARED STATEMENT OF RYAN W. BOUNDS


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Mr. SCOTT. Thank you very much. 

I want to thank all of our witnesses for their testimony. I will 

now have questions for the panel. I recognize myself first for 5 minutes. 

Mr. Bounds, it is presently a requirement that there be a physical injury, and it appears to be interpreted that physical injury 

means an injury with documented medical expenses. Is it true that 

some courts have ruled that a rape without medical expenses is not 

a physical injury? 

Mr. BOUNDS. Thank you, Mr. Chairman. I have to admit, I am 

not familiar with the medical expense rule. Obviously, the statute 

on its face does not require that. 

Mr. SCOTT. Well, have some courts ruled that a rape does not 

constitute a physical injury? 

Mr. BOUNDS. I have seen representations to that effect. I know 

that courts have held the opposite. My belief is that no circuit court 

of appeals, which generally will finally resolve these legal issues, 

has held that sexual abuse alone is not physical injury for purposes 

of the act. I don’t believe that that is the Department of Justice’s——

Mr. SCOTT. Say that again? 

Mr. BOUNDS. I don’t believe that a United States Court of Appeals has held that sexual abuse does not rise to the level of physical injury itself for purposes of the act. And I don’t believe that 

the department has taken that position. 

Mr. SCOTT. Professor, what is the highest court that has ruled 

that a rape is not a physical injury? Thank you. 

Ms. SCHLANGER. I believe that the adjudication of this issue has 

all been in the district courts. So no court of appeals that I am 

aware of has opined either way on the issue. These cases tend to 

be pro se. They tend not to be appealed. So the action is in the district courts in large part, and the district courts have been split on 

that question. But there are a number of district courts that have 

held that rape without more, and particularly coerced sex without 

more, sex under threat, does not constitute a physical injury. 

Mr. SCOTT. Can you say a word about why the exhaustion of administrative remedies is a problem in these cases? 

Ms. SCHLANGER. The basic problem—and there are a number of 

reasons that exhaustion is particularly hard—I would say that the 

basic problem is several-fold. One is that there are a number of 

kinds of problems that occur in prisons, like the ones that Mr. 

Cunningham was talking about, where people are not in a position 

to exhaust in the way that the prison has set as timely. So they 

are not yet in a safe space from which they can complain. 

And yet, prison remedies don’t make exceptions like that. So 

some of it is that they are not in a mental space from which they 

can complain. Sometimes, you will actually have cases in which a 

prisoner is in the hospital because of an assault, and the prison administrative remedies won’t exempt that prisoner from the filing 

timelines. So that is one reason. It has to do with timing and the 

way that people——

Mr. SCOTT. And then the exhaustion now denies you any remedy 

at all, if you haven’t gone through the steps. Is that right? 

Ms. SCHLANGER. That is correct. 

53

Mr. SCOTT. Mr. Bounds, what is wrong with allowing the case to 

go forward and stayed while some administrative process, some administrative review goes forward? 

Mr. BOUNDS. As I say, I cannot speak to any provisions of the 

bill. I understand there is a presentment requirement that tweaks 

the exhaustion requirement in the current law. I can’t speak to the 

merits of that proposal because the department hasn’t reviewed it 

in detail. 

As far as a general limitation on the exhaustion requirement, I 

would note that it is usually the case when you sue a Government 

agency that you have an opportunity to make your claim against 

in the first instance that you have to exhaust that. Usually, it is 

a jurisdictional bar. The difficulty with exhausting in certain circumstances does not go unnoticed, obviously, but it is just a normal 

standard requirement where you have an opportunity to raise your 

claim. 

Mr. SCOTT. But you will acknowledge that in these cases, it presents in some cases an unreasonable barrier, in some cases? 

Mr. BOUNDS. I certainly can’t deny that there could be cases in 

which it would be an unreasonable barrier. I do think that prisons 

and other incarcerating facilities should have systems where you 

can make a claim to someone who is not immediately involved with 

the person who may be the subject of the claim. 

Mr. SCOTT. You mean the perpetrator of the violation? 

Mr. BOUNDS. Right. So for instance, the Bureau of Prisons regulations make it very clear that you can circumvent the people with 

whom you interact and about whom you have been making a claim 

in order to get redress from the agency before you go to court. 

Mr. SCOTT. Okay. On the injunctions, if I understand the present 

law, if you have an injunction after 2 years you either have to retry 

it or the injunction is automatically dissolved. 

Mr. BOUNDS. Effectively, that has to be on the notion that in 

some way it is sua sponte from the court, but that is the standard. 

The court has to find once the motion for termination of the prospective relief has been filed, that there is still a federally constitutionally cognizable basis for continuing that prospective relief. 

Mr. SCOTT. And who has the burden of showing that? 

Mr. BOUNDS. The plaintiff, the petitioner. 

Mr. SCOTT. And you can imagine that if the violation were ongoing and you had the injunction to stop the violation filed by a prisoner who is no longer in that prison, there is no one to carry that 

burden. 

Mr. BOUNDS. Well, I think that the expectation is that once a 

state or local facility, if they are the ones who are subject to this 

prospective relief, this injunction, or this consent decree, has been 

found to have violated the constitutional obligations, that they are 

going to be somewhat more careful in future about doing it. 

To the extent that they revert right back to the violations that 

they were previously committing before that consent decree or injunction was entered, it seems fairly clear that you would have to 

prove that they are doing it, but that is what you have to do in 

any legal context. If someone is violating a right, you have to prove 

they are doing it. Even if there is a consent decree, you have to go 

54

back to court and say they are violating the terms of the consent 

decree and that requires producing evidence that they are doing so. 

Mr. SCOTT. Mr. Forbes? 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Bounds, first of all, we must apologize. We know this legislation was just filed last night and you haven’t had time to really 

analyze it. We look forward to your comments as you have been 

able to do that. 

Mr. Keene, I can sympathize with you having a son in there. I 

do not have a son in the prison system, but I have a lot people I 

care about and love in there. The incidents that we hear are not 

exceptional incidents. We know they are going on through the prison system and we have to do something to try to remedy them. I 

just don’t think this is the right course to do that, but I understand 

we need to do it. 

Professor, I thank you for your work on this and for coming in. 

You only have 5 minutes here. It is a short period of time, but I 

know you have written a law review article on this. 

Mr. Chairman, I would just like to ask unanimous consent to put 

in the record a law review article from your alumni, Harvard Law 

Review, that deals with Mrs. Schlanger’s research. Let me just 

quote a couple of the things that it says. It says, ‘‘The manifest 

strength of Professor Schlanger’s article is its unprecedented empirical foundation. The wealth of data that she assembled seems to 

lend apolitical credibility to her criticisms of the PLRA. 

‘‘But a closer examination of the data reveals that many of Professor Schlanger’s major conclusions cannot stand without the support of controversial political assumptions that the proponents of 

the PLRA would be unlikely to accept. To political allies of Professor Schlanger, this criticism may do nothing to diminish the persuasiveness of her analysis. To readers with less faith in Professor 

Schlanger’s political assumptions, however, it is important to disentangle the empirical from the political. Thus, with great respect 

for Professor Schlanger’s extensive research, this note attempts to 

show that from an empirical perspective, her data proved neither 

the failure nor the success of the PLRA.’’

In turn, can I just ask that that be submitted for the record? 

Mr. SCOTT. I would not object. I would point out that I graduated 

from Boston College Law School. 

Mr. FORBES. Oh, I am sorry. Okay. [Laughter.] 

Your undergraduate was Harvard. That is what I was thinking. 

[Laughter.] 

But I think you would still understand this is a fairly good law 

school, so we will put it in. 

Mr. SCOTT. Without objection, so ordered. 

Mr. FORBES. Mr. Cunningham, again we just really sympathize 

with your situation. It is not a rarity. We have guards that are terrible guards. We have some guards that are good guards. We understand that situation. The question I ask for you, though, is this. 

The act that was committed against you was a criminal act. What 

makes you feel, because the PLRA only deals with civil situation, 

that from an evidentiary point of view, you would have been able 

to prove in a civil action what apparently hasn’t happened in a 

criminal action that you brought forward? 

55

Mr. CUNNINGHAM. That is a good question. I think it would be 

kind of hard to answer. A lot of it would be a strong focus on one’s 

behavior patterns while he was in there. My complaints could have 

been brought up in court. There is documentation in my file, in my 

psychological file when I was complaining against this officer. 

Mr. FORBES. I don’t want to cut you off, but I want to just point 

out this. I understand the evidence you would use, but how would 

that be different in a criminal action which you could have brought, 

that the PLRA had nothing to do with, and between a civil action? 

In reality, it would be very little difference. 

The real essence of your problem is that we put guards in positions where they are able to do these kinds of things with very little ability for us to hold them accountable because of evidentiary 

problems. That is something we have to get at the heart of or we 

are never going to correct this problem because you have a right 

to bring a criminal action, and apparently you didn’t bring that 

criminal action. 

I am trying to find the answer. I don’t have a predisposition on 

that. What is your take on that? Why do think you would have 

been more successful with the PLRA than you would have with a 

criminal action against this guard? 

Mr. CUNNINGHAM. I don’t really have an answer for that one. 

Mr. FORBES. Okay. 

Pat, I want to ask you another question. I understand the religious freedom issues. And you know, I support everything you guys 

do. I think you do wonderful work. I want you to continue to do 

that. But why does pulling the caps off of attorneys’ fees going to 

help with this? 

Mr. NOLAN. Yes, I haven’t addressed that. 

Mr. FORBES. But that is part of this. The devil is in the details 

for us, and conceptually when you come in here, we agree. I mean, 

we know these problems are going, but why pull the caps off of attorneys’ fees? Because what it is going to do is drive attorneys to 

be looking for frivolous cases and it is going to clog the system 

down for the legitimate ones like Mr. Cunningham’s, which are 

never going to get heard. 

Mr. NOLAN. I came in here really to address the religious freedom and the prison rights, because I am on the Prison Rape Commission. I would say, though, that attorneys won’t chase frivolous 

cases because to get fees you have to win. If it really is frivolous——

Mr. FORBES. Let me tell you, then you haven’t ever watched the 

ambulance chasers that I have watched because they would rather 

put 20 of them out there. The more hooks they have in the water, 

the more opportunity they have for——

Mr. NOLAN. But one of them has to win. One of them has to 

not——

Mr. FORBES. But they have a better chance with 20 of them out 

there than they do with one or two. 

Mr. NOLAN. I am really not an expert on what people have—I 

would like to address your question to Mr. Cunningham, because 

number one, I don’t think an individual can pursue a criminal case. 

Much of the testimony we have had before the Prison Rape Elimination Committee is the refusal of local prosecutors to bring cases 

56

even when the prison has asked that they be prosecuted. They say, 

well, you know, they are in prison; what do you expect. I mean, 

there are lots of excuses, but one of the main focuses of the Prison 

Rape Elimination Commission is to address the lack of prosecution 

of proven cases. 

Secondly, the standard of proof Mr. Cunningham would have to 

have had in a civil case is much less than the criminal. 

Mr. FORBES. I understand that. The evidentiary problem is the 

tough one that he would have. 

My time is up, Pat, but let me just tell you this. I understand. 

I agree with the problems that you are raising. I just hope that we 

can roll up our sleeves and get real fixes to those problems instead 

of just having this pendulum swing back and forth where we really 

never get at the point. 

And the only thing I will tell Mr. Cunningham, the toughest 

thing you have is you are put in a position where there is no evidence that you can bring against these situations, whether it is a 

civil case or a criminal case. That is an unfair position to be in. We 

have to find a way to break through that in some way. 

Mr. NOLAN. Mr. Forbes, can I bring up the case of a lady in 

Texas? Marilyn Shirley was in prison, was raped by a guard who, 

as he was raping her said, ‘‘and don’t bother to report this because 

who are they going to believe—a criminal like you or a fine upstanding officer of the law?′′

She saved her sweat pants. It was evidence. She hid it. They 

shook down her cell repeatedly, trying to find the evidence. They 

didn’t find it. On the day she was released, she went to the prison 

officials and said, ‘‘Here are the sweatpants with his semen in it.’’ 

And they proved it. That man is in prison, but she is barred from 

getting any medical or mental health coverage. Here she is a victim 

of a brutal rape and she is barred? That is the problem. She had 

the evidence and she still can’t get any help financially for what 

she endured and continues to endure with the nightmares. 

Mr. SCOTT. Mr. Johnson? 

Mr. JOHNSON. Thank you. 

One of the things that has held us in great stead as a Nation 

throughout our history has been our adherence to the constitutional principles upon which the country was founded. One of the 

bedrock processes was the judicial process. It was part of the 

‘‘equal branches of Government.’’ You had the executive branch, the 

legislative branch, and then you had the judicial branch. 

One of the things that the judicial branch has always been held 

in high esteem for is affording individuals their rights to take their 

disputes to trial. The judge or the jury, whoever the fact-finder 

might be, would be the one to make the ultimate decision, if you 

get to that point. You may not get to the point based on the procedural rules that have to be adhered to. 

But the bottom line is that whole process is what makes us a civilized Nation, an ability to go to court to have your issues addressed. And so the Prison Litigation Reform Act was a way of cutting down or eliminating the ability of a certain class of individuals 

to go to court and have their claims heard. It was prisoners, and 

prisoners are not thought of as human beings with rights, apparently, by some of those of us in the legislative branch. We don’t reVerDate 0ct 09 2002 11:48 Mar 25, 2008 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\110807\38767.000 HJUD1 PsN: 38767
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spect the ability of judges to be able to procedurally deal with frivolous claims. 

So what we did was we, under the guise of trying to eliminate 

frivolous claims, we eliminated a whole lot of opportunities for prisoners to go to court and sue for damages. Now, you have that 

criminal process and you have that civil process. The civil process 

is where the person who has been aggrieved can go to court and 

force changes and receive compensation for the harm that has been 

done to them. 

It is very important that we preserve that right and protect that 

right. I believe that the Prison Litigation Reform Act was an affront to our Constitution and it has set us up to where we have 

a lot of things happening in places that we will never know about. 

Mr. Cunningham, things that you have experienced, and I really 

appreciate you coming to this hearing today. You displayed a lot of 

courage in telling us about your experience. That is real and this 

is something that is not isolated. It happens more than we would 

like to think it does. The only way to keep it from happening more 

is the ability to bring it to court, for litigants to be able to bring 

it to court, sue, establish what happened by the rules of evidence, 

and then penalize those who would tolerate such conditions that 

lead to that kind of problem, punish them by getting in their pocketbooks. 

That is what the civil process is all about, so people don’t pay attention until you get in their pocketbook. That is what lawyers do, 

trial lawyers. They serve as a powerful deterrent to wrongdoing by 

corporations and institutions such as Government. If we don’t have 

lawyers watching out for what governments do, government runs 

amok. You are a prime example of being a victim of Government 

that has run amok. 

So I appreciate the attempt here by Chairman Scott with this 

legislation to mitigate some of the harsh impact of the hastily approved Prison Litigation Reform Act, and bring some balance back 

into the system so that we can once again be proud of the fact that 

all people have rights in this country, including those who have 

been convicted, sentenced and are serving their time, but they are 

still human beings. 

Thank you. 

Mr. SCOTT. Thank you, Mr. Johnson. 

Let me just make a comment on the fact that the bill was introduced last night. There was no intention to run this through and 

count this as the hearing on that bill. It is just one example of how 

it could be dealt with. We will be having a hearing on the bill so 

that people will have a fair opportunity to comment. 

The gentleman from Texas? 

Mr. GOHMERT. Thank you, and I do appreciate everybody being 

here today. I appreciate everybody’s perspective. Is my time up already? Okay. All right. [Laughter.] 

Mr. GOHMERT. I know you wanted to cut me off, but gee. [Laughter.] 

But I do appreciate your being here. I understand everyone’s perspective. 

Mr. Keene, I know here you are with the American Conservative 

Union and yet, as a father, all our hearts would go out, I would 

58

hope as yours has. And Pat, with what you have been through. 

There is nobody up here who would want anybody to be raped. Although, I tell you, I am tempted to say it ought to be a possible 

punishment for guards that do that to people entrusted to their 

care. I mean, that is how strongly I feel about it. 

But the other side also is, and we don’t have any wardens here 

and we don’t have any guards of the thousands and thousands who 

do a good job, and who are sued all the time. Judges, guards, wardens—all the time. And I know, Pat, in your statement you mentioned, you know, don’t come back at me about peanut butter and 

stuff. 

Well, one of the cases I dealt with involved a lawsuit because an 

inmate felt it was his constitutional right when he is standing in 

the mail room waiting, hoping desperately that maybe he has a 

message from home, to have to endure the smell of flatulence from 

all the other inmates standing around him, and that he ought to 

have a right not to have to endure that. 

Now, I recognize that is a problem none of us would want to endure, but those are lawsuits that have been filed. That is one of 

the things that PLRA tried to deal with. I am a conservative Republican, but I am often bothered when other conservatives throw 

out the term ‘‘frivolous’’ to describe a lawsuit that they barely won, 

the jury was out for hours, and it was not frivolous. It just happened they won, because I don’t consider that frivolous. I call that 

a close case. 

But I am telling you, there are thousands and thousands and 

thousands of good, honest, honorable people trying to do a job, and 

then to be held up in court. And I can also tell you my personal 

experience from seeing lawsuits involving our state institutions 

being sued in Federal court on what really were frivolous claims. 

It took around an average of about a year to get out from under 

a truly frivolous claim in Federal court, and that is when you have 

a legitimate motion to dismiss for summary judgment. 

So what happens if these good, honest, honorable, decent people 

are allowed by our own doing here in this Committee to be held 

up for a year while they are trying to buy a house or do things? 

Oh, you are involved in this lawsuit. It comes up on the claims. 

You are allowing inmates who have committed crimes to hold up 

good, honorable, decent people to this kind of harassment and that 

was the direction of the PLRA. 

Now, to the end of the religious violations—and I am doing more 

talking than asking questions, obviously because I don’t think this 

has adequately been heard by witnesses, and I am really more of 

a witness in this thing as a former judge—but when good, honest, 

honorable, decent people are allowed to be subjected to this kind 

of harassment by people who are true criminals—you know, maybe 

they did or didn’t take a check and put it in a different account or 

something—then we have failed. 

The remedy it seems to me is fix the administrative remedies. 

Don’t allow a complaint box that can be opened by guards or by 

anybody. Allow them to file electronically with someone outside of 

that institution. Because Mr. Chairman, if you allow a stay for a 

year or 2 years or whatever how long the administrative procedure 

takes, there are going to be many, many more thousands of people 

59

who are unjustly held up in court when they shouldn’t be than 

those who are actually approached. 

So when Mr. Johnson—and I respect your position—but when 

you said some of us don’t respect the ability of judges to deal with 

frivolous claims, that is not my position. My position is we need to 

protect the judges from having to deal with those frivolous claims. 

As a judge who often worked into the wee hours—and I finished 

reviewing all of your testimony about two or three this morning—

most people don’t work that late. As a judge, I never made a jury 

or anybody work past 2:30 a.m. myself, and that was only a rare 

occasion. Most judges can’t physically work like I did to deal with 

the caseload. We owe the judges better than to open the floodgate 

to litigation. 

Let’s fix the administrative remedies so we can directly hold people accountable when they are raped. Get them to the health facility where we gather evidence when somebody is raped so they can 

prove civil and criminal. And then on the religious violations, let 

them get outside that, exhaust the remedies, and so they can go 

to court if the administrative remedy fails. But I would say the administrative remedy is the key. Get that remedy outside the prison 

where the abuse occurred, to people that can respond and actually 

build legitimate cases. 

Thank you. 

Mr. SCOTT. Will the gentleman yield? 

Mr. GOHMERT. Well, my time is up. I am glad to. You are the 

Chairman. 

Mr. SCOTT. One of the problems we have in frivolous cases is you 

don’t know it is frivolous until you have had some sort of screening. 

Mr. GOHMERT. Exactly. And that is my point. Let us do this with 

your administrative remedy first instead of allowing them to go to 

court, file a claim, stay it, and send it back to the administrative 

remedy. The guy’s name is in there in the pleading, and all that 

time you are going back and staying it. Dismiss it. If you want to 

do something, at least——

Mr. SCOTT. If the gentleman would yield again? 

Mr. GOHMERT. Sure. 

Mr. SCOTT. The problem with some of the administrative processes is that you would have to complain to the person who is the 

subject of your complaint. 

Mr. GOHMERT. That is my point. We fix that to where you will 

file electronic complaints that go outside the prison so that guard 

you are complaining against, like Mr. Cunningham, he never sees 

it until it goes to the head over the prison that is not even in the 

prison. That is what I am suggesting. That is definitely a problem. 

You are right. 

Mr. SCOTT. Until you have such a process, you are barred from 

bringing a bona fide claim because you didn’t exhaust the remedies 

that are there now. If we can fix the process where you can actually have a reasonable opportunity to file a complaint administratively, that would be different, but that is not where we are right 

now. 

Mr. GOHMERT. Could I offer one other observation from Mr. 

Nolan’s statement? That is, Pat, you mentioned that it has become 

clear there are two classes of prisoners affected by PLRA that were 

60

never intended by Congress to be prevented, and that is inmates 

with religious violations and victims of prison rape. 

I would submit fix those two areas, then, because those are legitimate points. Make it more easy so that we don’t have the circuit 

court saying that a sexual abuse claim is not a physical injury. I 

agree. I have never seen a circuit case that said that, but we could 

eliminate that and allow religious complaints and address those 

without opening the flatulence claims that just don’t pass the smell 

test, so to speak. 

Thank you. [Laughter.] 

Mr. SCOTT. The gentlelady from Texas? 

Ms. JACKSON LEE. Let me thank the Chairman for this hearing, 

and at least give credit to a Committee that is willing to oversee 

and investigate unpopular issues, frankly. Certainly, it is unpopular to talk about enhanced, or what might be perceived to be enhanced rights for prisoners. But I am delighted of the witnesses, 

and forgive me for being delayed at another meeting, but particularly Mr. Nolan, I believe, who spoke about the religious concerns 

and some others. 

So let me lay just a premise to say that in my own state of 

Texas, Harris County Jail, for example, has seen the loss of life, 

which probably started with some physical injury, of about 101 

prisoners. Of course, some died for health reasons, so I am not categorizing all of them in the category of violence, but certainly 

health reasons or mishandling generated really a very high census 

on death. 

So what I perceive of this reform underlying bill, which I have 

not had a chance to completely study, is to really be preventive in 

nature. I think it is valuable to have some constraints on what one 

would call ‘‘frivolous.’’ Citing materials that we have here, since the 

passage of the PLRA we have seen some 37 cases per 1,000 prisoners generate into 19 cases per 1,000 prisoners. But my concern 

is that among that decline are serious issues. 

For example, in the state of Texas we have a food problem, a soy 

food problem that I was getting hundreds—let me says tens of 

tens—of calls from families about their inmates getting sick. I 

might imagine that a number of those cases being filed under the 

underlying legislation would be categorized as frivolous. But yet 

people were getting sick and we ultimately found now a scandal of 

the quality of the food, the wrong direction to have gone. 

I take the Jena Six case. I use that widely, but it has some relevance to it, because as we discovered, some of the treatment of 

Michael Bell, the youngster that is sort of the eye of the case, a 

great degree of intimidation, name-calling, and other 

uncomfortableness because he was a teenager in an adult jail. 

The underlying bill excludes juveniles from the PLRA. And then, 

of course, the question of physical injury. That is so harsh a definition, and the reason, of course, is because any medical treatment 

is within, I assume, the prison system, if any. And of course, how 

can you account for medical expenses, though I think if we tried 

hard we could. 

So professor, let me raise this question with you, and I am going 

to get to Mr. Bounds as well, and I understand that you have not 

studied the legislation, but we appreciate your presence here. 

61

Respond to those examples, and in particular respond to the examples of men raped and sodomized; a child prisoner raped and repeatedly assaulted with the knowledge of a corrections officer; a 

man whose confidential HIV status was announced to other prisoners by corrections officers who illegally opened his sealed medical 

records; a female prisoner strip-searched by male corrections officers who attempted suicide allegedly as a result of the trauma of 

the search; and the definition of ‘‘physical injury,’’ which is presently underlying the current law and the need to change that in 

order to give nonfrivolous suits a chance to be heard. 

Ms. SCHLANGER. The thing about both the bill and other proposals for reform is that none of them would open up the floodgates 

to frivolous cases because every reform proposal preserves the idea 

that the first thing that happens when a case comes in is that a 

judge will say, ‘‘If this is frivolous, it is out of here.’’ Not it is stayed 

or it might be out of here, but it is out of here. So I don’t think 

there is any fear of opening up any floodgates. 

So I think the answer to your question is that the statute, which 

was very hastily written, did not define ‘‘physical injury’’ in any 

way whatsoever except in contrast to mental or emotional injury. 

What that has meant is that constitutional injuries and mental injuries both have been deemed to not be physical injuries, and have 

been excluded. And so the obvious fix, it seems to me, if there is 

a concern about frivolous kinds of emotional claims, is to say something like ‘‘no negligent infliction of emotional distress claims in 

prison,’’ something along those lines. But not to have this idea that 

constitutional claims and claims that are founded in the very, I 

have to say, very onerous burdens of constitutional law. It is not 

as if a prisoner raises a claim so easily. If a prisoner actually 

makes out a claim, then it is going to be serious. So all of those 

claims, regardless of whether they affected the prisoner’s mental 

health or whether they affected the prisoner’s property or whether 

they affected the prisoner’s physical well being, all those claims, if 

they raise a constitutional claim ought to be compensable in court, 

it seems to me. And we don’t have to worry about frivolous cases 

because of the screening provision. 

Ms. JACKSON LEE. You make a good point. I would like Mr. 

Bounds to be able to answer the question that I would just lead in, 

Mr. Bounds. In essence, the professor says that we are demonizing 

these other cases because of the present current law. Can you not 

see the need to define what I have just listed, if you were listening, 

as physical injury? Or to reform the legislation? 

Mr. BOUNDS. It seemed that several of the examples at least that 

you listed related to sexual violence. As we were discussing earlier, 

it is an open question, at least at the circuit court level, whether 

as a matter of law those cases would not involve physical injury for 

purposes of bringing suit for money damages under the act. I think 

it is certainly easily arguable that those sorts of sexual abuse cases 

would be compensable under the act. It has not been resolved at 

the circuit court level. 

Ms. JACKSON LEE. Under the underlying law, you are saying? 

Mr. BOUNDS. Yes. Because the statute on its face does require 

physical injury, but it does not purport to speak to sexual abuse 

per se. 

62

Ms. JACKSON LEE. But I think there is confusion on the district 

courts. Wouldn’t you be happier if you had clarification so that people who are violated violently like this in a prison would be able 

to have an address of their grievances or religious violations in the 

court? The professor has already said the judges would be able to 

distinguish if it was a frivolous case. 

Mr. BOUNDS. What I would say—without speaking to any specific 

proposals, although the department obviously would be happy to 

work with the Committee on specific proposals or fashion language 

that would get at the sort of cases you are talking about—is that 

it is an open question whether the act, without any amendment, 

would be correctly construed to prevent money damage cases for 

the sexual abuse cases that you are talking about. 

Now, it appears to be true that some district courts have read 

it to exclude it. Other district courts have read it not to exclude 

such claims. Usually, before Congress acts, it waits just by the dint 

of delay in legislation for courts of appeals to resolve these legal 

issues. 

For religious claims in particular, the point was made I think by 

Mr. Nolan that one of the problems with exhaustion in the religious claims, and it goes also to the lack of money damages, is that 

you have already missed your holiday celebration or whatever the 

immediate deprivation of religious rights may be, under certain 

provisions of the act. But that doesn’t mean that you can’t remedy 

ongoing violations of your first amendment rights by seeking prospective relief in the courts. There is no provision of this bill that 

prevents seeking injunctions for ongoing violations of religious liberties. None. 

Ms. JACKSON LEE. Let me just conclude, Mr. Chairman, by saying I beg to differ. It is a difficult place to be in a prison. Anything 

complex that doesn’t go to the heart of the issue and is not immediate is going to be very difficult to pursue. I think the witnesses 

are talking about the ability to immediately pursue an injury that 

is prevented by the underlying law. 

I thank you and yield back. 

Mr. SCOTT. Thank you. 

The gentleman from North Carolina? 

Mr. COBLE. Thank you, Mr. Chairman. 

I have been here, there and yonder. I missed a good portion of 

the hearing. I apologize for that. 

Thank you all for being with us. 

Mr. Keene, do you feel that your son’s experiences were resolved, 

of the let-down of the legal system or the failure of the prison officials to respond as they should, or both? 

Mr. KEENE. I think, Mr. Coble, that the problems that he experienced were the same kinds of problems that anyone would experience in a closed situation where the people who are responsible for 

enforcing the laws or the rules in this case are the same people 

who might be charged for breaking them. I think that is the real 

difficulty. 

The judge indicated earlier that it would be better if this could 

be handled administratively. I agree with that. The problem is that 

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ple bringing charges is the difficulty. The fact is that there are a 

whole series of technical things. 

If you are a prisoner and you want to file a grievance and they 

can’t find the right form, then it is dismissed because you didn’t 

use the right form. In his case, it comes back and you have 15 days 

to appeal, but they date it 20 days before it comes back so that 

your appeal right is gone, and it is gone forever. 

So those kinds of things is the way it works. The question is, and 

I think that this Committee and I think Mr. Forbes and Mr. Scott 

both acknowledge the problem, and what the Chairman has done 

has put this on the table. I don’t know what the solution is, necessarily, but the problem is a serious one that needs to be solved. 

In Mr. Forbes’s opening comments, he talked about how we 

should be rehabilitating prisoners. My son makes the point to me 

that here we lock people up because they break our rules, our laws, 

and then when they get there the lesson they learn is that none 

of the rules matter because the rules change on a daily basis. He 

says, ‘‘What kind of a lesson is that to the people once they are released?′′ Mr. COBLE. And that is where hypocrisy comes into play. 

Mr. KEENE. Let me add one other thing. There are the bars of 

the technicalities and the not turning over the forms and doing all 

that. There is also the fear of retaliation on the part of prisoners 

who bring these grievances. In Mr. Bounds’ prepared testimony, he 

said, ‘‘Prisoners need not fear retaliation from prison officials for 

bringing grievances.’’ That is easy to say for someone who has not 

been there or doesn’t have any experience with people who have 

been. 

This doesn’t mean they drag the prisoner off and beat him. In my 

son’s case, they have denied him access to prescription medicine. 

They will hold up his mail for weeks. They will transfer cells, do 

searches. There are all kinds of things in any environment, in any 

work environment where you can harass people who do things you 

don’t like. And in a prison, it is very, very serious because they 

have control, obviously, of everything that the prisoner does and 

the way he lives. 

So I think the question is how do you solve that? I don’t claim 

to have the answer, but I think it is a serious problem. 

Mr. COBLE. Well, it is my belief that probably two of the most 

pressing problems are corruption within the system, A, and prison 

overcrowding. Do you agree with that, Mr. Cunningham? 

Mr. CUNNINGHAM. Yes, sir. 

Mr. COBLE. Mr. Nolan? 

Mr. NOLAN. Absolutely. 

Mr. COBLE. Mr. Bounds, let me put this question to you. With 

respect to the Prison Litigation Reform Act, concerns have been 

raised about whether Federal contracts with private detention companies are subject to adequate transparency and accountability. 

Could you explain what kind of oversight the Justice Department 

performs on these contracts? You may not be able to do that today. 

If you can, I would like to hear from you. If not, we would appreciate hearing from you subsequently. 

Mr. BOUNDS. It is an interesting question. I am sorry that I don’t 

have any background information on that, but I would be happy to 

64

take the question back to the department and get an answer from 

the Bureau of Prisons. 

Mr. COBLE. I thank you for that. 

Finally, Mr. Chairman, let me ask a very general question. Is 

legal counsel available to prisoners as a practical matter? I think 

your smile, Mr. Nolan, has answered my question. 

Mr. NOLAN. In fact, I have a specific example. My attorney arranged—my legal mail was always opened even though that is flatly illegal. It was always opened. I had a phone call with my attorney scheduled. You had to be in the counselor’s office. My counselor 

said, ‘‘I am too doggone busy doing my work. I am not going to 

leave. If you want to call, you call, but I am going to sit right here.’’ 

So I had no ability to have a private conversation with my attorney. 

Mr. COBLE. My time has expired, but if the Chairman will permit 

you to respond, Mr. Keene. 

Mr. KEENE. I would like to comment on that also, if I may. Most 

prisoners obviously can’t afford a lawyer and don’t have access to 

one. In our case, and in any prison there are good employees and 

bad employees. My son got a lawyer, had me get him one, because 

one of the guards took him aside and said you are going to have 

to do this. We got an attorney because a guard actually advised us. 

But his legal mail was opened. That was found not to be something 

that caused any real injury by the court, so he couldn’t do it. That 

is a violation of their rules, as well as constitutional rights. 

You would have—and here I am paying for the lawyer. The lawyers would be scheduled to meet with him. They would arrive at 

the prison for an appointment. The prison would refuse to let him 

see them. At one point where he had the right to amend the complaint with a deadline obviously imposed by the court, they 

wouldn’t let the lawyers in to let him sign it. At that point, the 

Federal judge said they had gone too far. 

But the fact is, as he made the point to me, most prisoners don’t 

have access to a lawyer and couldn’t afford one. He is lucky, and 

I am not, but he is lucky that I was able to pay for one. 

Mr. COBLE. Was this a private facility, Mr. Keene? 

Mr. KEENE. No, no. He is in a Federal facility. 

Mr. COBLE. Okay. Thank you all for being here. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Mr. Bounds, I just had one other quick question. Is there any 

reason to have juveniles covered by the PLRA? 

Mr. BOUNDS. I believe that the reasoning that applies to juvenile 

litigants is the same that applies to adult litigants. There are obviously large numbers of juveniles in state and local facilities across 

the country. I don’t know the extent to which—I know it has been 

represented that they weren’t the source of a great deal of Federal 

filings before the PLRA. I don’t know the extent to which that 

would obtain if they were excluded from the PLRA now. I know 

that is something that is considered in this proposal. As I mentioned, the department would be happy to comment on the proposal, but I haven’t——

Mr. SCOTT. And if you could get information on that, whether or 

not they have been filing any cases, whether or not there is any 

65

reason to believe that they would start filing frivolous cases, and 

whether or not they ought to be precluded, if a juvenile doesn’t get 

through the administrative process, whether or not even a clear 

constitutional violation ought to be precluded from court review because the juvenile didn’t go through the administrative process just 

right. 

Mr. BOUNDS. I will be happy to take those questions back. But 

predicting what the behavior of potential litigants who are juveniles and incarcerated around the country would be is going to be 

very difficult. They are overwhelmingly not in Federal facilities, so 

that is another level of complexity. They are not going to be in our 

custody. But I will look into that. 

Mr. SCOTT. The PLRA covers people in state facilities, too. 

Mr. BOUNDS. Of course, but since they are not in Federal custody, the Bureau of Prisons wouldn’t have any information about 

what they have been filing against Bureau of Prisons, so we only 

know it in so far as we saw it. Our relationship to juvenile inmates 

is vindicated in the rights of the plaintiff on their behalf against 

state facilities. 

Mr. SCOTT. Okay. 

Other questions? The gentleman from Texas. 

Mr. GOHMERT. Thanks. I don’t need 5 minutes. 

But something that nobody has mentioned so far, and it is in this 

bill, like most bills, claims by prisoners cost nothing to file. They 

file a pauper’s oath. They have lots of time. They have a free law 

library, and that is why you get so many frivolous claims is because there are then no consequences. And there still is nothing 

that I find, and Mr. Keene I understand your position, and each 

of you. But I see nothing in this bill that will prevent retaliation 

or allow a prisoner to gather evidence to make the case. What I see 

is the floodgates opening up. 

And when I hear people say, you know, ‘‘look, let the judge decide,’’ it tells me that people have no respect for the kind of time 

that the judges I know spend—and there are some exceptions that 

don’t work hard at all—but the vast majority don’t have time. And 

the clerical staff, and they are overworked, and there are not 

enough of them. And all that is involved in frivolous claims. 

And I am telling you, I don’t use that word lightly, but there 

have got to be consequences for those people, and the PLRA has 

the three strikes. You file three——

Mr. SCOTT. Would the gentleman yield? 

Mr. GOHMERT. Sure. 

Mr. SCOTT. Mr. Bounds, can you tell me what the present law 

has for filing fees for prisoners? 

Mr. BOUNDS. I would defer to Professor Schlanger. I don’t actually know. 

Mr. SCOTT. Okay. Professor? 

Ms. SCHLANGER. The current law is $350, either up front or over 

time, depending on how much money the prisoner has. 

Mr. SCOTT. Can that be waived? 

Ms. SCHLANGER. No. No, it cannot. It is $450 for appeals, $350 

for district court filings. 

Mr. GOHMERT. I know in Texas, they can’t get away with that 

without allowing a pauper’s oath if you just don’t have the money. 

66

Mr. SCOTT. Wait a minute. 

Ms. SCHLANGER. The PLRA amended the Federal in forma 

pauperis statute to require that all prisoners pay the fees regardless of indigence. So prisoners are not similarly situated to other 

indigent litigants. They have to pay the fee. 

Mr. GOHMERT. So you support no financial consequences? 

Ms. SCHLANGER. No, no, no. Not at all. The proposal that Chairman Scott has put forward is to retain that provision when the filings are frivolous. So if you file a case that does not make it past 

pre-screening, which is a screening for frivolousness, then you still 

have to pay the fee. Only if your case is deemed to have some initial merit would the fee be waived, and in that case only if you are 

also indigent. 

So the point is that the PLRA imposed—let me just say that 

when the PLRA was passed, when it was considered, the fee was 

$75. When it was passed, it was $95. In recent years, it has gone 

up to $350, which in prison is a lot of money. So the fees are quite 

significant for indigent prisoners, and this bill would not change 

that except for those people who actually file cases that make it 

past the equivalent of a 12(b)(6) motion, a motion for failure to 

state a claim. 

Mr. GOHMERT. I still go back to my point. I don’t see anything 

remedied here that allows an inmate to secure evidence or to prevent retaliation during that long process. I think that is where we 

could really help if we worked together on some administrative 

remedies. And for goodness sake, if you are raped, then you ought 

to have the ability to go to a health clinic there in the hospital. Evidence could be gathered, that kind of thing, and you would know 

right away. 

Anyway, there are things that can be done without clogging the 

courts back up so the truly legitimate claims get lost in the shuffle. 

So thank you for your indulgence. 

Ms. JACKSON LEE. Mr. Chairman? 

Mr. SCOTT. Mr. Cunningham, do you want to respond? 

Mr. CUNNINGHAM. Yes. I just wanted to make a quick comment 

about the procedure. There is that 15-day time limit from the day 

of the incident. That is unrealistic. I mean, even out here, 15 days 

in society is unrealistic for anybody to file a claim. When you are 

in a controlled environment like that, and you have 15 days to file 

a step-one grievance, and to say that retaliation is not a big factor 

in there. 

Mr. GOHMERT. I didn’t say it wasn’t a big factor. Retaliation is 

a huge factor. So I didn’t want you to misquote me. I am not saying 

it is not a big factor. I am saying it is a problem that this doesn’t 

address. And you are right. You mentioned the 15 days in your 

statement that I read earlier this morning. 

Mr. CUNNINGHAM. Yes. I mean not just from my standpoint, but 

I have heard people that worked with—and the DLC testified also. 

They also agreed that retaliation is a factor for prisoners when 

they are filing grievances. 

Mr. GOHMERT. And normally the way we deal with that in most 

sexual abuse cases, most laws, that is what is called, as you may 

be aware, evidence of outcry. Most laws would allow evidence of 

outcry, and then the fact-finder would determine whether or not 

67

there was a good excuse for not doing it timely, rather than making 

it, as you are suggesting, lets not make it a prohibition to bringing 

the claim later because you could be under the guy’s thumb for 15 

days, and that wouldn’t be appropriate. 

So you make a good point, and that is something we could and 

should address, and I appreciate you bringing it forward. 

Mr. CUNNINGHAM. Thank you. 

Mr. SCOTT. Let me ask, Mr. Cunningham, you said 15 days. That 

is at the facility you were at. Is that right? 

Mr. CUNNINGHAM. Yes, that is statewide in Texas. 

Mr. SCOTT. Mr. Nolan, you wanted to make a comment. Could 

you comment on whether or not 15 days is——

Mr. NOLAN. In some states, it is as few as 2 days. If you haven’t 

filed within 2 days, you are cut off. I might say the lady Marilyn 

Shirley who kept her sweatpants didn’t report it at all, and that 

is why she is barred from claims because this guy laughed at her 

and said, ‘‘don’t bother to report it; who are they going to believe?’’ 

So they ignored her. 

But Mr. Gohmert, so many things you have brought up are very 

important. The Prison Rape Elimination Commission is working on 

the standards to deal with them systemically. Do you have an 800 

number? Who is there to follow through? Who will watch the 

watchers? These are all serious things that we are trying to address through standards. 

But in addition to that, the personal—Marilyn Shirley was injured personally. It is not enough for her to say, ‘‘Gee, we are going 

to try to fix it in the future so this doesn’t happen.’’ What does she 

do to get her medical bills paid? That is the situation. 

Mr. GOHMERT. You understand, I am agreeing that the arbitrary 

short time limit is a problem, and normally the way the law outside of prison deals with it is that it can be evidence that maybe 

it is a fabricated claim. 

Mr. NOLAN. I really like that idea of——

Mr. GOHMERT. Well, that is the way we normally handle it. 

Mr. NOLAN. Yes. 

Mr. GOHMERT. Thank you. 

Mr. SCOTT. The gentlelady from Texas? 

Ms. JACKSON LEE. I would like to thank you, Mr. Chairman. I 

would like to clear up first of all, Mr. Nolan, that is a horrific case. 

It is just an abomination. So I think we should emphasize the 

point, and I hear my good friend, the former judge in Texas, Judge 

Gohmert, talk about clogging the courts. But I think the point is 

well taken that the courts now are sensitized to frivolous cases. 

I think that if that case, of that violation of that woman, and she 

had been able to file a case, there certainly would have been no 

confusion about her having to be addressed. Just from the facts 

that you know, do you think that that would be caught up in a frivolous definition? 

Mr. NOLAN. No. I think if she could have gotten into court, her 

claim would have been taken seriously and there would have been 

damages. Instead, she is just barred. She is out in the cold. 

Ms. JACKSON LEE. And let me tell you what else the underlying 

bill does. 

68

Mr. NOLAN. I should say, in there, it is the exhaustion requirement, not the physical injury. It is the exhaustion requirement. 

Ms. JACKSON LEE. All remedies. But let me tell you what else it 

does, and there are wonderful, committed, dedicated public servants that work in our prison system, but anytime someone gets information can misconstrue it. That can be a chilling effect against 

the prisoners by those prison guards who make the point there is 

no use to doing anything anyhow, they won’t take frivolous cases. 

Is there something to that, Mr. Nolan and professor—the chilling 

effect? 

If you would answer that question and the question of my concern for two things: one, the mental and emotional injury is not attended to, and that can be as dangerous as a physical injury; and 

the other one is, can you point out why juveniles absolutely should 

not be under this particular underlying bill? Mr. Nolan, is there 

some chilling effect when you caretakers are making the point that 

everything is frivolous, based on their understanding of the law? 

Mr. NOLAN. Not just frivolous, but who is anybody going to believe. Also, you know, inside prison, you don’t want it known that 

you have been raped because you are punked or you are turned 

out. That, in the perverse prison culture, says you are subject to 

more rapes by everybody because you have already been turned 

out. That is the sad thing inside prison. So you don’t want it 

known. You don’t want your medical records made public and 

known to everybody for any tests you have or anything. And all 

this happens frequently. 

So yes, there is the chilling effect. The Prison Rape Elimination 

Commission is trying to deal with that. How do we get medical 

help for these people? How do we get the crime scene set up for 

evidence to take place? A crime has occurred. Why isn’t there a 

rape kit? Why isn’t there the collection of evidence at the time, contemporaneous with it? 

And then oftentimes, the victim gets put in solitary confinement, 

not the attacker. They are cut off from visitation from their family, 

from phone calls. So we have turned the system on its head, and 

the Prison Rape Elimination Commission is trying to deal with 

that. 

But just the intimidation—in Texas, for instance, the guy that 

had the key to the complaint box was the guy who was doing the 

raping. And he had buddies in the central office at the Texas Youth 

Commission that were, if any complaint got through, his buddies 

in the state office were round-filing them. The Texas Rangers did 

a great job of investigating, and that was sidetracked until the parent of a child spoke out. 

Ms. JACKSON LEE. I am glad you put that on the record. It was 

sidetracked. 

If I could have the professor answer the question about the juveniles. I would like to work with you because the TYC is the poster 

child for this question. 

Ms. SCHLANGER. I would like that, Congresswoman. I think the 

first point about retaliation is that the basic approach for making 

retaliation less of a problem in prison is to allow prisoners a longer 

period of time before they have to bring their problem to the attenVerDate 0ct 09 2002 11:48 Mar 25, 2008 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\110807\38767.000 HJUD1 PsN: 38767
69

tion of the authorities, because that allows them to reach a safe 

space before they have to complain. 

So there is a reason why this Congress has made the statute of 

limitations in most kinds of complaints a year or 2 years, rather 

than 10 days. That reason is because what that means is that people who have problems can get to a place from which it is safe for 

them to raise those issues. So getting rid of administrative exhaustion as a pre-filing component of litigation deals with retaliation in 

that way. It allows people to have enough time that they can get 

to a place from which it is safe to complain. 

The point about juveniles, juveniles hardly ever litigate. Juveniles also hardly ever file grievances. What happens to kids who 

are being mistreated in prison is that their parents complain for 

them where their parents are in a situation that they can do that. 

Most juvenile systems deem complaints by parents not to be sufficient to exhaust remedies and so those complaints by parents—I 

say ‘‘most′′—I don’t actually know that. 

Mr. GOHMERT. I was going to say, my experience is juveniles 

complain a lot. 

Ms. SCHLANGER. But they don’t complain filing forms labeled, 

you know, ‘‘T-376.’’ I mean, I have kids. They complain a lot, too, 

but they don’t write it down. They don’t file administrative grievances. So I think that there are two issues. One, juveniles don’t sue 

very often. And two, they are not very able to exhaust administrative remedies. 

The third point that you asked me to address was: Aren’t mental 

and emotional injuries serious? I think the answer to that is if the 

underlying cause of action is a constitutional cause of action, then 

as a matter of constitutional law those injuries are serious. If the 

underlying cause of action is that somebody is complaining about 

having to smell flatulence in the mail room, then it is not serious. 

Right? But that case doesn’t raise a constitutional complaint. 

Mr. GOHMERT. It depends on the flatulence, of course, but——

Ms. SCHLANGER. Fair enough. So I think the point is that of 

course, before there can be a remedy, there has to be a good cause 

of action in Federal court. That means a constitutional cause of action. So if what you experience when you are deprived of the ability 

to practice your religion is deemed mental or emotional harm, yes, 

it is very serious. 

I don’t mean to malign the good corrections professionals in our 

country, of whom I have met hundreds and hundreds, but if somebody does in fact do some act of mental abuse, then if it rises to 

a constitutional level, then by definition it is serious. The Constitution does not acknowledge trivial injuries. So yes, it is quite serious. 

There was one other point that you asked me to address. No, 

that was retaliation, and I already did it. I am sorry. I don’t mean 

to filibuster. I just forgot. Excuse me. 

Ms. JACKSON LEE. Thank you. Some of these are demonized, and 

I think this bill opens our eyes about how we stop demonizing people who have real issues in the prisons. 

Thank you. 

Mr. SCOTT. The gentlelady yields back. 

The gentleman from Texas? 

70

Mr. GOHMERT. Yes, one issue raised by the professor. I don’t recall where you went to law school. 

Ms. SCHLANGER. At Yale. 

Mr. GOHMERT. Yale. I think even at Yale, they talk about exhaustion of administrative remedies as being kind of the gatekeeper function for getting to Federal court. I want the record to 

reflect for those who have not been trained at Yale, to know this 

is not a new doctrine. It is not a new concept. This has traditionally been the gatekeeper for getting into Federal court. You exhaust your administrative remedies before you are allowed to come 

to Federal court. Correct? 

Ms. SCHLANGER. Not in constitutional law, congressman. It is an 

innovation. The law was very clear prior to the PLRA. 

Mr. GOHMERT. You made the point with that regard, but here 

again, I think people that have never been to law school, they are 

hearing you talk about this, and heard all the talk about the unfairness. 

Ms. SCHLANGER. Right. 

Mr. GOHMERT. But the fact is, anybody watching C-SPAN, those 

that didn’t go to law school, need to know, and by your reaction I 

am afraid they will still get the wrong impression, this is a regular 

concept for how you go about getting into Federal court. Isn’t that 

correct? 

Ms. SCHLANGER. Well, I know you want me to say ‘‘yes,’’ but I 

want to——

Mr. GOHMERT. Okay. Well, then if you can’t say yes, then let me 

say ‘‘yes’’ for you. Yes, this is a common way that we get to Federal 

court. 

Now, on constitutional issues, we have an exception, but the doctrine is there—exhaustion of administrative remedies. It is taught, 

and if I had to go back and get a Yale law book, I am sure it would 

approach it from here is the doctrine, this is the principal doctrine. 

Now, there are exceptions like constitutional. Could you agree with 

that even? 

Ms. SCHLANGER. Well, let me say that in administrative law exhaustion, there are a bunch of acknowledged exemptions as well, 

for futility and for various kinds of issues that cannot be remedied 

before the administrative agencies, and those are acknowledged. 

Mr. GOHMERT. If I were a judge, I would still want you to answer 

the question. 

Ms. SCHLANGER. I am trying, Congressman. 

Mr. GOHMERT. Isn’t that the basic concept, that first you normally have to exhaust your administrative——

Ms. SCHLANGER. Those exceptions do not apply under the PLRA. 

It is not ordinary administrative law exhaustion. 

Mr. GOHMERT. I understand that. 

Ms. SCHLANGER. The courts have been very clear about that. 

Mr. GOHMERT. But I am going back to my original question. Isn’t 

that normally the basic doctrine toward getting into Federal court 

that you must first exhaust your administrative remedy? 

Ms. SCHLANGER. Only when you are suing Federal agencies 

under the Administrative Procedures Act. 

Mr. GOHMERT. Okay. Well, I don’t have time to go into the exceptions to show that that is not entirely accurate. I wish you would 

71

have answered the question. You go into a court saying Federal 

courts, it is not normally the requirement that you exhaust administrative remedies—I just think we have issues. I wish you would 

answer the question, and then we could have agreed on the different exceptions. But thank you. 

Mr. KEENE. Congressman, could I say something about that? 

Mr. SCOTT. Very briefly. 

Mr. KEENE. I would answer that ‘‘yes.’’ The problem with the exhaustion of administrative procedures in the prison context is that 

often your ability to exhaust those procedures is dependent upon 

the very people that have control, that they won’t give you the 

form. And that is a problem. Okay. 

Mr. SCOTT. Thank you. 

I would like to thank the witnesses for their testimony today. 

Members may have additional questions which we will forward to 

you and ask that you answer as quickly as possible so that the answers can be made part of the record. We have received numerous 

written statements on this issue, approximately a dozen, which 

without objection will become part of this hearing record. 

Without objection, the hearing record will remain open for 1 

week for the submission of additional materials. 

Without objection, the Committee stands adjourned. 

[Whereupon, at 4:20 p.m., the Subcommittee was adjourned.] 

(73)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

The Prison Litigation Reform Act, enacted effective April 1996, changed the landscape of prisoners rights litigation. While proponents of the legislation pitched their 

rhetoric toward the reduction of frivolous litigation by jailhouse lawyers, the PLRA 

swept beyond litigation by individual prisoners and into the authority of the federal 

courts and U.S. Department of Justice to fashion remedies in broad based prison 

litigation. 

The Act made major procedural and substantive changes in prison conditions of 

confinement cases and in the federal rights of both state and federal prisoners to 

litigate about prison conditions. The Act also curtailed the authority of the federal 

courts to remedy prison conditions and requires that any prospective relief be limited in duration and drawn as narrowly as possible to accomplish its purpose. 

Evidence produced by advocacy groups in the decade since its enactment indicate 

that some of the so-called reforms under the Act may have worsened prison condition by narrowing the scope of federal review. 

Dating back to 1996, advocacy groups like Human Rights Watch documented pervasive sexual harassment, sexual assault and privacy violations by guards and other 

corrections department employees in several large states, including the state of 

Michigan. The reports exposed the twofold failure of the states to conduct impartial 

investigation and to protect complainants from retaliation. In a 1998 follow-up report, the prison abuse issues in Michigan were found illustrative of corrections departments across the nation. 

After gaining access to state women’s prisons facilities, a 1995 Justice Department investigation in Michigan detailed pervasive sexual abuse and found that 

nearly every woman interviewed reported sexually aggressive acts by prison guards. 

The DOJ investigations also found that women at the Scott and Crane facilities 

had been raped, sexually assaulted, subjected to groping and fondling during patfrisks and subjected to improper visual surveillance by guards (male) when they had 

a reasonable expectation of privacy. 

While DOJ negotiated a consent decree with the Michigan Department of Corrections concerning the violations detailed in their 1995 report, the agreement was 

roundly criticized by the advocacy community in my district as too narrow in scope 

and limited in duration to correct what had been deemed systemic problems. There 

was wide agreement between the witnesses at my district hearing on the issue that 

PLRA’s limitations on the federal court’s authority to grant relief and DOJ’s ability 

to litigate under CRIPA were the cause of the weak consent decree. 

The Prison condition and reform issue represents an important opportunity to elevate the humanity of the disproportionately incarcerated minority community. 

Against the backdrop of my experience with the Michigan prison cases, I believe 

that it is appropriate that we hold this hearing to explore the kinds of reforms necessary to eliminate limitations on federal authority to remedy abusive conditions. 

Almost from the beginning it was clear that the pendulum had swung too far 

against prisoner advocacy. I look forward to the testimony of the witnesses.

74

PREPARED STATEMENT OF THE HONORABLE DANIEL E. LUNGREN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA, AND MEMBER, SUBCOMMITTEE ON

CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you Mr. Chairman for this opportunity to present my views to the Crime 

Subcommittee of the House Judiciary Committee on ‘‘Review of the Prison Litigation 

Reform Act (PLRA). A Decade of Reform or an increase in Prison Abuses.’’ In my 

capacity as the former Attorney General of the State of California and the Chair 

of the Criminal Law Committee of the National Association of Attorneys General, 

my office worked with the Office of then Governor Tom Ridge of Pennsylvania, and 

Senators Spencer Abraham of Michigan , Harry Reid of Nevada, and Jon Kyl of Arizona in crafting the PLRA. I appreciate this opportunity to discuss the circumstances surrounding the enactment of this important legislation. It is from this 

vantage point as a former state official, I have concerns that any significant departure from the PLRA could reverse the progress we have made in reducing frivolous 

prisoner lawsuits. 

THE BURDEN OF FRIVOLOUS INMATE LITIGATION

The issue of prisoner lawsuits presented the California Department of Justice 

with a burdensome challenge. In order to be able to respond to this litigation we 

staffed our correctional law section with 57 attorneys, 23 paralegals, and 5 graduate 

legal assistants. The cost to California taxpayers in fiscal year 1995–96 reached 

$10.3 million. However, the burden imposed by this devotion of resources to prisoner 

lawsuits could not be measured solely in terms of the costs incurred by the Correctional Law Section itself. Equally important were the opportunity costs related to 

attorneys and support staff not available for criminal cases, environmental cases, 

anti-trust cases and the like. 

While I was, and remain, committed to the interests of fairness in each prisoner 

litigation case, seldom was that the issue. In fact, a study by the Ninth Circuit 

Court of Appeals found that 99 percent of these cases filed by prisoners were ultimately won by the state. Allowing the Federal courts to be used for recreational 

purposes by prisoners with little else to do served to undermine both the purpose 

of incarceration and the larger public interest. I will take this opportunity to share 

the facts in a small sampling of these inmate lawsuits to illustrate this very point:

1. Lawrence Bittaker filed over three dozen suits against my state. In one 

such case he complained because his meal was allegedly in poor condition. 

He claimed his sandwich was soggy and his cookie was broken.

2. Kevin Howard alleged that prison officials implanted an electronic device 

in his brain which controlled his thoughts. Those thoughts were then allegedly broadcast over the prison P.A. system. I should add that the Department of Corrections in its defense had to prove that it did not perform surgery on Mr. Howard. A Sergeant with the D.O.C. drafted a declaration stating that the prison did not have the technological capability to transmit 

thoughts through a P.A. system.

3. Ronald Adams claimed he suffered cruel and unusual punishment when, 

during a lockdown, he was served two cold sack lunches and one hot meal, 

rather than the usual two hot meals and one cold meal.

4. Rodney Alcala claimed that his rights were violated because he had to send 

packages using UPS rather than the U.S. Mail. He also sued for the inability 

to make ‘‘800’’ calls.

5. Carlos Garcia claimed that his constitutional rights were violated because 

he did not get five free stamped envelopes from prison officials. The judge 

appointed a private legal firm to represent the case which went to a jury 

trial. The state won the case.

6. Lee Max Barnett claimed his rights were violated because his mail was 

stamped with a notation that it was sent from prison. This death row inmate 

previously sent harassing and offensive mail to the parents of a witness who 

testified against him. The card he mailed stated how happy Barnett was that 

the witness had recently died in an accident.

7. Russell Newman claimed his photocopy costs were illegally raised by 5 

cents per copy and filed suit for $1.45 refund and thousands of dollars in 

general damages.

8. Ronald Golden claimed that his constitutional rights were violated because 

he believed a correctional officer had placed a cricket in his cup.

75

It goes without saying that such abuses of the civil justice system were no longer 

tolerable. A bipartisan group of Members in this and the other Body sought to put 

an end to the notion of prisoner litigation as sport through the adoption of the 

PLRA. An article penned by Senator Reid captured well the reaction to similar 

abuses in other states. Senator Reid painted the following picture:

Life can be tough. Mom brought home creamy peanut butter when you asked 

for extra chunky? You didn’t get that fancy weight machine you wanted for 

Christmas? Don’t like the type of music they play over the stereo system at 

work?

Well, heck. Why not file a lawsuit?

OK, I know what you’re thinking: ‘‘I can’t afford a lawyer.’’

Suppose though, I told you about a plan that provides you with an up-to-date 

library and a legal assistant to help in your suit. This plan not only provides 

legal research, it also gives you, absolutely free, three square meals a day. And 

friends, if you get tired of legal research, you can watch cable TV in the rec 

room or lift weights in a modern gym.

‘‘OK, OK.’’ You’re saying. ‘‘What’s the catch? How much do I have to pay to sign 

up for this program.?

Well, folks, that’s the best part. This assistance plan is absolutely free. All you 

have to do to qualify is to commit a crime, get caught and go to the pen. 

While as Attorney General of California, I had to frame the issue somewhat differently in our legal proceedings. However, Senator Reid’s comments reflected a 

common sense understanding that those who have been sentenced to serve time in 

our penal institutions are there to pay their debt to society. The idea that a prisoner 

could use their status as a basis for their own entertainment at the expense of the 

People of California or the People of the State of Nevada defies the moral logic of 

punishment. Those who have lost their liberty because of the harm that they have 

inflicted on others must not be empowered by the laws of our nation to use that 

status as a vehicle of retribution against those institutions entrusted with the responsibility carrying out justice on behalf of the people. 

THE DELICATE BALANCE OF FEDERALISM

There is another underlying aspect of the PLRA which, in my estimation, deserves 

our attention. The actions of the Congress in crafting the parameters of prisoner 

civil litigation have a direct impact on the states and the operation of their prison 

systems. This relationship of dual sovereigns entailed by our nation’s system of federalism should be reflected in legislation affecting state run penal institutions. Such 

deference is of particular importance in light of the fact that about 95 percent of 

criminal prosecutions occur at the state and local levels of government. The punishment of those convicted of committing crimes within the jurisdiction of the states 

is an integral aspect of the exercise of the responsibility borne by them to protect 

the safety of their citizens. A proper understanding of federalism entails a respect 

for this aspect of the exercise of the police power. 

In the period prior to the enactment of the PLRA, Congressional acquiescence to 

the use of the federal courts by prisoners as a means of disrupting the operation 

of their prison systems reflected a disregard for the constitutional role of state governance. 

Deputy Assistant Attorney General Ryan Bounds provides one such example in 

his testimony relating to consent decrees. He points out that ‘‘It is one thing for the 

federal courts to maintain a supervisory role over prisons when established civil 

rights have been violated. It is another matter entirely when federal courts impose 

administrative requirements on prisons that are not based on any actual violation 

of federal law.’’ It was for that reason that the PLRA provided that judicially enforceable prospective relief in prison condition cases must involve the violation of 

a federal right. In another example, the statute makes explicit reference to a ‘‘respect for the principles of comity’’ in relationship to preliminary injunctive relief, 

and the need for prospective relief to extend ‘‘no further than necessary to correct 

the violation of the Federal right, and that prospective relief is narrowly drawn and 

the least intrusive means to correct the violation.’’ The PLRA thus embodies an appropriate balance between the need to protect the civil rights of prisoners and an 

appropriate respect for the role of the states in a system of government based upon 

the principle of federalism. 

76

THE PLRA AND THE INTERESTS OF JUSTICE

In the end the interests of justice are also ill served by a prison litigation system 

which lacks adequate parameters to constrain frivolous and malicious prisoner litigation. The magnitude of the quantity of cases brought before the federal courts can 

adversely impact the quality and the depth of the scrutiny each of these cases receives. The PLRA has successfully accomplished its objective of reducing inmate litigation. According to the Bureau of Justice Statistics, in 1995 there were 41,679 prisoner lawsuits filed. This inundation of the federal docket threatened to diminish the 

integrity of the review process—most notably as it related to the review of meritorious claims which might be filed. In Brown v Allen, Justice Jackson’s concurring 

opinion in the context of habeas corpus litigation has relevance here. He noted that 

‘‘[i]t must prejudice the occasional meritorious application to be buried in a flood of 

worthless ones. He who must search a haystack for a needle is likely to end up with 

the attitude that the needle is not worth the search.’’

In this regard, the success of the PLRA should perhaps not be viewed exclusively 

through a quantitative prism concerning the decline in the number of inmate lawsuits to 24,614 petitions within ten years It is perhaps arguable that the Act has 

improved the quality of the adjudication process as well as its efficiency through 

mechanisms such as:

• The screening provisions of the Act which serve to filter out frivolous cases.

• The requirement of a physical injury in cases involving claims of mental or 

emotional injury.

• The exhaustion requirement requiring that prisoners use the prison grievance 

procedure process before entering the courthouse door.

• The filing fee requirement to ensure a level of seriousness as evidenced by 

a financial commitment—which may be spread out over a period of time.

• A limit on frivolous and abusive filers.

These and other provisions of the PLRA have played an important role in reigning 

in frivolous and abusive inmate lawsuits. Over the last twelve years of its application, the Act has played a vital role in restoring the penal function of incarceration, 

the integrity of the judicial process and the proper functioning of federalism. As the 

former Attorney General of my State and as a Member of Congress, it is my view 

that any departure from the PLRA which would undermine the underlying purpose 

and function of the Act would be a serious error that threatens to return us to the 

widely documented failures of the pre-PLRA era. 

This is not to suggest that issues raised during our hearing such as sexual assaults within our nation’s prisons or any misinterpretation of the Act relating to the 

exercise of religion within correctional facilities should not be addressed. Rather, it 

is my belief that any effort to do so can be done so with a specificity which preserves 

the intent of the Prison Litigation Reform Act. 

Mr. Chairman, I would once again like to thank you again for this opportunity 

to share my views with you and the subcommittee. I look forward to working with 

you and our colleagues on this issue which is of such great importance to our criminal justice system. 

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PREPARED STATEMENT OF ANGUS LOVE, ESQ., EXECUTIVE DIRECTOR,

PENNSYLVANIA INSTITUTIONAL LAW PROJECT

REGARDING THE NEED TO AMEND THE PRISONER LITIGATION REFORM ACT

The Pennsylvania Institutional Law Project [PILP] provides free civil legal assistance to over 100,000 institutionalized persons in the Commonwealth of Pennsylvania. We have been providing this service for 25 years. Accordingly we have considerable experience litigating civil rights cases on behalf of incarcerated persons before and after the passage of the Prisoner Litigation Reform Act [PLRA] in 1996. 

While we agree and respect the goal of reducing frivolous litigation in these and 

any other area of the law, the PLRA has had some unintended consequences that 

need be addressed by Congress. With the passage of time, we now have a better 

grasp of the PLRA’s impact and can correct the flaws in this important legislation. 

The PILP concurs with the American Bar Association’s Resolution calling for 

amendments to the physical injury requirement and the exhaustion provisions. The 

Report of the Commission on Safety and Abuse in America’s Prisons,’Confronting 

Confinement’ also argues for amendments to these two key sections of the PLRA. 

The exhaustion of grievances section, 42 U.S.C. 1997e[a] looks to the regulations 

of the prison in which the incident that gave rise to the litigation for guidance and 

interputation. This is a wise course of action as the local prison administrators are 

the best source of information about their regulations. The problems lie in the often 

tight deadlines for registering a grievance after an incident. In Pennsylvania, the 

Department of Corrections gives inmates 15 days to file a grievance. Strict adherence to this provision as suggested by Justice Alito in Woodford v.Ngo decision reduces the statute of limitations which is normally two years to 15 days. Inmates, 

untrained in law and often illiterate, face major barriers trying to comply with this 

provision. I have seen several meritorious claims fall because of the failure to comply with the exhaustion requirement as currently written. In my opinion, this allows 

an often meaningless technicality to prevent a review on the merits on an individual’s claim. Cases should succeed or fail or the merits and not on overly stringent 

procedural barriers. 

The requirement of a physical injury at first glance seems like a reasonable way 

to reduce frivolous litigation but fails in its application as the section was poorly 

written and left the courts with an impossible task of putting a round peg in a 

square hole. Much of prison litigation and the rights still retained by prisoners are 

not about excessive use of force. Religious rights, unreasonable searches and seizures, equal treatment under the law, inhumane physical conditions, various forms 

of torture, sexual humiliation and abuse will not produce a physical injury but are 

violations on inmate’s civil rights. The courts have wrestled with these provisions 

and adopted various legal fictions to try and comply with this seemingly impossible 

requirement. The best course of action is an amendment. When the Abu Ghraib 

scandal broke, I was struck by the thought that many of the degrading practices 

at that facility would not be actionable because of this provision of the PLRA. I have 

also read that Supreme Court interputations of the PLRA were used by former Attorney General Gonzales in crafting his much disputed analysis of the legal definition of torture. 

The efforts to require inmates to pay the filing fee is another well meaning provision that should be revisited in light of significant increase in the filing fees for 

docketing a complaint and for taking an appeal. Currently the fee of $350 for a district court filing and $450 for an appeal impose a significant financial hardship to 

inmate who are lucky if the make more than 20 cents per hour in Pennsylvania’s 

system. As is often the case, in practice these theoretical ideas hurt the most vulnerable and fragile persons while violation of rights are not so discriminating. For these 

reasons, I urge Congress to reexamine the PLRA. 

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