PRISON ABUSE REMEDIES ACT OF 2007 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON

H.R. 4109 

APRIL 22, 2008 

Serial No. 110–149 

Printed for the use of the Committee on the Judiciary 

( 

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

PRISON ABUSE REMEDIES ACT OF 2007 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

41–903 PDF 2009

PRISON ABUSE REMEDIES ACT OF 2007 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON

H.R. 4109 

APRIL 22, 2008 

Serial No. 110–149 

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 

SEAN MCLAUGHLIN, Minority Chief of Staff and General 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 

LOUIE GOHMERT, Texas 

J. RANDY FORBES, Virginia 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

APRIL 22, 2008 

Page 

THE BILL 

H.R. 4109, the ‘‘Prison Abuse Remedies Act of 2007’’ .......................................... 3 

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 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 10 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 11 

The Honorable Daniel E. Lungren, a Representative in Congress from the 

State of California, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 13 

WITNESSES 

Mr. Stephen B. Bright, Southern Center for Human Rights, Atlanta, GA 

Oral Testimony ..................................................................................................... 17 

Prepared Statement ............................................................................................. 19 

Mr. John J. Gibbons, Newark, NJ 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 27 

Ms. Sarah V. Hart, Assistant District Attorney, Philadelphia District Attorney’s Office, Philadelphia, PA 

Oral Testimony ..................................................................................................... 30 

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

Mr. Ernest D. Preate, Jr., JD, Scranton, PA 

Oral Testimony ..................................................................................................... 71 

Prepared Statement ............................................................................................. 73 

Ms. Jeanne S. Woodford 

Oral Testimony ..................................................................................................... 77 

Prepared Statement ............................................................................................. 80 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 12 

Letter from Martin Horn, Commissioner of the Department of Corrections 

and Probation of New York City, submitted by Jeanne S. Woodford .............. 91 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 109 

(1) 

PRISON ABUSE REMEDIES ACT OF 2007 

TUESDAY, APRIL 22, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 4:43 p.m., in room 

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

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

Present: Representatives Scott, Conyers, Gohmert and Lungren. 

Staff Present: Bobby Vassar, Subcommittee Chief Counsel; Rachel King, Majority Counsel; Mario Dispenza, (Fellow) ATF 

Detailee; Karen Wilkinson (Fellow) Federal Public Defender Office 

Detailee; Veronica Eligan, Professional Staff Member; Kimani Little, Minority Counsel; and Kelsey Whitlock, Minority Staff Assistant. 

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

pleased to welcome you to today’s hearing before the Subcommittee 

on Crime, Terrorism, and Homeland Security on H.R. 4109, the 

‘‘Prison Abuse Remedies Act.’’ 

This is a follow-up of our hearing we held in November of last 

year entitled ‘‘Review of Prison Litigation Reform Act: A Decade of 

Reform Or an Increase in Prison Abuse?’’ That hearing began to 

look at some of the unintended consequences of the 1996 Prison 

Litigation Reform Act. The purpose of this hearing is to begin looking at how to address those problems. 

While the PLRA has helped to decrease frivolous lawsuits, it has 

also in some cases made it nearly impossible for prisoners with 

meritorious claims to bring lawsuits in Federal court. 

I will remind everyone that H.R. 4109 does not in any way 

amend the main aspect of the PLRA, the screening provision. The 

screening will continue to take place so that every case will be 

screened before it goes to Federal court. This will ensure that frivolous cases will not clog up the courts. 

My bill will eliminate the most egregious problems with the 

PLRA. First, it will eliminate the physical injury requirement 

which currently excludes prisoners who have had their religious 

liberties violated or who are living in appalling conditions. In some 

cases it even excludes persons who have been raped if there is no 

technical, quote, physical injury from the assault. 

Second, the bill will modify the exhaustion requirement, allowing 

prisoners and prison administration 90 days to work through the 

2 

administrative process instead of cutting off those prisoners who 

are unable to complete the administrative process, sometimes 

through no fault of their own. 

Third, the bill will exclude juveniles from coming under the purview of the PLRA, because most juveniles simply cannot be expected to navigate the tricky aspects of the complicated statute. 

Finally, the bill restores the attorneys’ fees provision and the filing fees provision so that indigent prisoners filing under the act 

will be treated the same way as any other indigent person filing 

a lawsuit in Federal court. 

I know that both sides of the aisle have been working hard on 

this issue to see if we can find some common ground. I remain 

hopeful that we will be able to make some progress this year at 

drafting a manager’s amendment that will have the support of all 

the Committee Members. 

I would like to give one example of how the unintended consequences of the act actually affect an individual prisoner. At the 

last hearing we heard from Garrett Cunningham, who had been 

raped by a prison guard in Texas. After the attack he was in shock 

and also afraid to report the attack for fear of retaliation. As a result, he did not exhaust all of his administrative remedies as required by the act, so he was not able to file a suit in Federal court. 

Besides the exhaustion issue, rape victims are also barred in 

some courts because of the physical injury requirement. The PLRA 

requires that there be an actual physical injury, and some circuits 

have determined that rape is not a physical injury. 

It is absurd to think that Congress intended to leave rape victims 

without access to Federal court, and along with many persons in 

Congress and in a bipartisan effort worked hard to pass the Prison 

Rape Elimination Act. That act formed a commission that is now 

investigating the prevalence of rape in Federal court. Given the 

concern that Congress expressed in passing that bill, it is contradictory to have in place a law that forecloses the opportunity for 

prisoners to seek redress once they have been harmed. 

With that said, it is my pleasure to recognize the Ranking Member of the Subcommittee, Judge Gohmert. 

[The bill, H.R. 4109, follows:] 

3 


HR4109-1.eps
4 


HR4109-2.eps
5 


HR4109-3.eps
6 


HR4109-4.eps
7 


HR4109-5.eps
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HR4109-6.eps
9 


HR4109-7.eps
10 

Mr. GOHMERT. Thank you, Chairman Scott. And I do want to 

thank you for the opportunity here today. This is the second hearing we have had on the subject of prison litigation. During the first 

hearing we had a general discussion on the subject of prison litigation; however, at that time neither the Members of this Subcommittee nor the witnesses had the opportunity to review the provisions of H.R. 4109, the ‘‘Prison Abuse Remedies Act.’’ 

Now that we have had an opportunity to examine the bill, we believe that if it were passed in total, it would repeal every meaningful protection of the Prison Litigation Reform Act, or the PLRA. 

The proposed legislation would cause an explosion of frivolous prisoner litigation that would clog up the courts, waste valuable legal 

resources, and affect the quality of justice enjoyed by law-abiding 

citizens. 

In 1996, Congress took appropriate steps to limit frivolous prisoner litigation by passing the PLRA. It was passed on a bipartisan 

basis to address legitimate concerns about excessive prisoner litigation. Our colleague on the Subcommittee, Representative Dan Lungren of California, was a leader in that effort. 

Prior to the enactment of the PLRA, the National Association of 

Attorneys General estimated the cost of frivolous prisoner lawsuits 

at more than $80 million per year. At that time prisoners filed a 

disproportionate share of the civil lawsuits filed in Federal courts. 

In 1994, only 2 years before the PLRA was passed, about 25 percent of the lawsuits were filed by prisoners, who made up less than 

1 percent of the population. Most of these cases were dismissed 

without merit, but that in and of itself takes a tremendous amount 

of work, for anybody who has worked in the courts, around the 

courts, or know what is involved to get to that point of dismissal 

without merit. 

But this avalanche of litigation drew the concern of the judiciary. 

As Justice Robert Jackson observed many years earlier, this clogging of the Federal courts with frivolous cases, quote, prejudiced 

the occasional meritorious application to be buried in a flood of 

worthless ones, unquote. 

Another distinguished jurist, Judge Harvey Wilkinson of the 

Fourth Circuit, called on Congress to address frivolous litigation in 

1994. Judge Wilkinson noted that the contemporary legal system 

invites prisoners to sue, and that, quote, that the Supreme Court 

has lamented that these petitions often result in the squandering 

of judicial resources with little offsetting benefit to anyone. 

Congress responded to these calls for action and passed the 

PLRA. As enacted, the PLRA takes commonsense steps to reduce 

the number of petitions filed by inmates claiming violations of their 

rights. Under the PLRA, inmates are, number one, required to exhaust all administrative remedies before filing a case in Federal 

court; number two, prohibited from receiving filing fee waivers if 

they have a history of filing frivolous or malicious lawsuits; and 

three, had to demonstrate physical injury to claim monetary 

awards for compensatory damages. Now, in this bill, each one of 

these commonsense provisions is basically repealed or made ineffective. These provisions are made ineffective despite the fact that 

evidence shows that the PLRA worked in decreasing the amount of 

frivolous prisoner litigation. And I don’t use the term ‘‘frivolous’’ 

11 

lightly, because I know, as a former judge and chief justice, there 

were many times the plaintiff’s bar has gotten a bad rap over what 

many call frivolous lawsuits when, in fact, they were lawsuits that 

narrowly lost at a jury trial, in which case there was evidence to 

support both sides, and one side lost. I don’t consider those frivolous. 

What I am talking about here truly are frivolous cases. I have 

seen them firsthand. Now, according to the records kept by the administrative offices of the Federal courts, in 1995, the year before 

the PLRA 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 per year. This 

marked decrease occurred because the PLRA kept the frivolous 

cases off the court dockets. 

Supporters of the H.R. 4109 state the PLRA needs to be amended 

because it has prevented inmates by vindicating their rights by 

raising legitimate claims. More than 24,000 lawsuits filed per year 

is hardly evidence of an inability to pursue claims. However, I expressed at the prior hearing and I think Members are willing to 

make adjustments to the provisions of PLRA where there appears 

to have been injustice. 

During the first hearing our Members identified three areas 

where some limited amendments to the PLRA may be appropriate; 

one where prisoners who were victims of sexual assault, including 

forced oral sex, should be allowed to pursue nonetheless a lawsuit, 

and that some Federal circuit courts already allow these suits. We 

want to see that they do. Second, prisoners who allege violations 

of their rights to free exercise of religion should also be allowed to 

pursue suits. Third, prisoners who filed administrative complaints 

at correction facilities should be protected from retaliation by correction officials. 

We agree on those things. That is important. These are commonsense fixes that should properly balance the rights of prisoners 

seeking judicial redress, the society’s legitimate concern for good 

management of its prisons, and efficient operations of the court. 

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 came to a crawl because court dockets were clogged with these 

kinds of frivolous suits. And we don’t want to ever see a case where 

resources are taken from other places where they are needed, 

where they are dealing with the ill, the infirm, our senior citizens, 

and having to be put into the courts so that they can address a 

mass of frivolous claims. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

We are joined by the Chairman of the full Committee, the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Scott. I am pleased to join 

a distinguished panel here of Members, a former State attorney 

general, a former chief justice of the State courts, and a distinguished counsel from North Carolina, long-serving Member of the 

Committee. I think that these five witnesses will help us put into 

perspective the kinds of changes that are being suggested to the 

Prison Litigation Reform Act. One is for the juveniles to have acVerDate Aug 31 2005 16:38 Jan 08, 2009 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\042208\41903.000 HJUD1 PsN: 41903
12 

cess to the courts to address abuse. Reasonable. Two, we want to 

remove the current requirement of a physical injury before an inmate has a right to seek judicial review of a complaint. Reasonable. 

And finally, the removal of procedural technicalities that result in 

the mandatory dismissal of meritorious claims. 

And so I would like to see and listen carefully to the remedy of 

the distinguished Members of Congress that are on this Crime Subcommittee in the Judiciary as to how we go about that. 

Juveniles that are abused in prison have a safe way to complain 

and seek judicial help, or they ought to have a safe way. This isn’t 

provided under current law. Juveniles are the most abused of inmates. When a child is raped or sexually abused by a prison guard, 

current law requires him to follow a rather complicated set of procedures that often involves the filing of a complaint with the very 

guard that abused him or her. Frequently out of fear or lack of 

skill, the juvenile doesn’t file a proper complaint. The Prison Abuse 

Remedies Act will remove juveniles from the reach of the Prison 

Litigation Reform Act, which has in some cases set up unsurmountable obstacles for juveniles. 

The second part, number two, this reform act eliminates the need 

to show physical injury in order to sue for compensatory damages. 

In the last few years, courts have had to dismiss meritorious cases 

because there has been no physical injury. 

A case in point, female inmates challenged the use of strip 

searches by male guards. One woman was so traumatized, she attempted to take her life. The court had no choice but to dismiss the 

case under existing law because there was no demonstrable physical injury. 

Prisoners who complain of sexual assaults that leave no marks, 

confinements under inhumane conditions, deprivations of religious 

freedom, and psychological assaults are frequently denied; these 

cases are denied access to Federal court because no one can point 

to physical injury. And so we correct the problem. 

And, finally, the bill eliminates the high procedural bars that 

have stopped meritorious claims because under the existing law, it 

requires inmates to attempt to resolve their problem within the 

prison system before seeking judicial remedies. Many prison grievance procedures, however, have short deadlines, and so the inmates 

can’t handle and navigate through all this without a lawyer, and 

their cases get dismissed. 

So I am happy to join my colleagues at this important hearing. 

I look forward to hearing from our distinguished panel of witnesses. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Conyers follows:] 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

I want to talk about three parts of the Prison Abuse Remedies Act that I consider 

critical. 

1. The ability for juveniles to have access to the courts to address abuse; 

2. The removal of the current requirement of a physical injury before an inmate 

has a right to seek judicial review of a complaint; and 

13 

3. The removal of procedural technicalities that result in the mandatory dismissal of meritorious claims. 

First, I want to make sure that juveniles who are abused in prison have a safe 

way to complain and seek judicial help. Current law does not provide this. Juveniles, children, are the most abused inmates. When a child is raped or sexually 

abused by a prison guard, current law requires him to follow a complicated set of 

procedures that often involves filing a complaint with the very guard that abused 

him. Out of fear or lack of skills, or both, the juvenile does not file a complaint. 

The Prison Abuse Remedies Act will remove juveniles from the reach of the Prison 

Litigation Reform Act, which has set up these unsurmountable obstacles for juveniles. 

Second, the Prison Abuse Reform Act eliminates 

the need to show physical injury in order to sue for compensatory damages. In 

the law few years, courts have had to dismiss meritorious cases because there has 

been no physical injury. In one case, female inmates challenged the use of stripsearches by male guards. One woman was so traumatized she attempted suicide. 

The court had no choice but to dismiss the case under existing law because there 

was no physical injury. 

Prisoners who complain of sexual assaults that leave no marks, confinement 

under inhumane conditions, and deprivations of religious freedom currently are denied access to federal court because they can point to no physical injury. This bill 

corrects this problem. 

Third, the bill eliminates the high procedural bars that have stopped meritorious 

claims. Existing law requires inmates to attempt to resolve their problem within the 

prison system before seeking judicial remedies. Many prison grievance procedures, 

however, have short deadlines, unclear rules, and complicated procedures. Most inmates cannot navigate these complicated rules without the help of a lawyer. 

Instead of dismissing a case on technical grounds, the Prison Abuse Remedies allows the Court to stay a case for 90 days so that an an inmate can present his problem to prison officials. 

Allowing these lawsuits in appropriate circumstances will not open the floodgates 

to frivolous litigation, but rather will send the message that our prisons, whether 

run by public or private institutions, must respect fundamental constitutional rights 

consistent with the protection of inmates and prison personnel and the maintenance 

of prison security. I look forward to hearing our witnesses discuss these and other 

issues. 

Mr. SCOTT. We are joined by the gentleman from California, who 

I understand has a statement. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. Thank you 

for allowing me to offer a few comments on the Prison Litigation 

Reform Act and the suggested changes contained in your bill. 

This is an issue which has been a real interest to me for some 

time. As was mentioned previously, in my capacity as the attorney 

general of the State of California, I was the Chair of the Criminal 

Law Committee of the National Association of Attorneys General, 

and my office at that time worked, and I worked personally, with 

then-Governor Tom Ridge of Pennsylvania, Senator Spencer Abraham of Michigan, Harry Reid of Nevada and Jon Kyl of Arizona to 

write the Prison Litigation Reform Act. 

And so it is from this vantage point as a former State official 

who was in charge of a department that spent, I believe, at the 

time I was attorney general, $8 million a year just on prisoner litigation, at a time when the ninth circuit did their own study of the 

issue of prisoner litigation, and in their report I believe said that 

99 point something percent of the cases filed in the ninth circuit 

were ultimately dismissed, or, if they went to a hearing, were at 

that point in time found to be without merit; 99 point something 

percent. That sounds to me to be frivolous lawsuits. So I have some 

concerns that any significant departure from our response to that 

14 

problem could reverse the progress we have made in reducing frivolous prisoner lawsuits. 

My concern is not driven by lawsuits over broken cookies or the 

emotional distress caused by inmates because of the requirement 

that they be seated next to criminals. Those are just two examples 

of the lawsuits that we had to answer for, spend time going to 

court on before we had relief that has been delivered by the PLRA. 

But at the heart of the matter, it seems to me, is we have an obligation to victims of crime not to provide those who have harmed 

them with legal weapons that make a mockery of the notion of 

punishment. 

You know, I think it is important to state the obvious. Those who 

inhabit our Nation’s prisons are criminals, and they are there because they have been found to have violated the rights of their fellow citizens. So I hope we keep this in mind to avoid the mistake 

of following into emotionally satisfying rights talk with respect to 

prisoners. 

It is, in my judgment, a mistake of categories to confuse the 

rights of a convicted murderer or rapist with those of a criminal 

defendant who is appropriately clothed with the presumption of innocence until his or her fellow citizens conclude that the facts will 

determine otherwise. 

As Judge Easterbrook pointed out in Johnson v. Daley, it is a 

false notion that prisoners and free persons have similar constitutional rights; however, this is not to suggest that the prisoners are 

not without the protection of the law. For the subservient relationship of prisoners to the State, which has no counterpart with respect to free persons, it, in itself, gives rise to legal obligations by 

the State. Punishment for a crime carries penalties contained within the law and should not entail retribution against inmates outside the parameters of duly enacted statutes. I think that is something on which we can all agree. 

It is for that reason that I share the sentiments expressed by Pat 

Nolan of the Prison Fellowship, contained in a statement of November 8 of last year. It is entirely appropriate and even necessary, 

I believe, for this Committee to communicate in clear and unequivocal terms that the personal injury requirement should not 

bar recovery in sexual assault cases with respect to mental or emotional injury claims. And it is my hope that we can craft language 

to address any uncertainty that may exist concerning this issue. 

Furthermore, in our consideration of exhaustion, it seems to me 

that we should be able to take care of the problem mentioned by 

everybody of the possibility of intimidation, which renders it impossible for an inmate to be able to utilize the State proceedings. But 

it seems to me in consideration of legislative changes, it is also necessary for us to consider the need to address what are clear circumventions of the intent of the act. 

An issue has arisen relating to the United States Supreme 

Court’s decision in Jones v. Bock, indicating that exhaustion must 

be raised as an affirmative defense. The Court made clear that this 

is something for us, the Congress, to address. It seems to me there 

is no reason to make exhaustion a jury question and wait until the 

end of the trial to resolve the issue. So on the one hand, it seems 

to me we can craft language to take care of the problem of intimiVerDate Aug 31 2005 16:38 Jan 08, 2009 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\042208\41903.000 HJUD1 PsN: 41903
15 

dation and not have exhaustion as an excuse which allows intimidation to be protected. We also ought to deal with the issue of exhaustion as an affirmative defense. 

The attorneys’ fees provisions that have been mentioned have 

been circumvented where former prisoners have filed lawsuits for 

civil rights violations even under circumstances where they have 

filed on behalf of inmates still serving prison sentences. Lawsuits 

under the Federal law relating to prison conditions have also been 

held not to be subject to the existing attorney fee provisions of the 

act. 

It seems to me this is something we ought to take a look at 

where former inmates may bring a 100-count lawsuit on behalf of 

prisoners serving their sentence, and where the plaintiffs prevail 

on 1, fail on 99, and collect attorneys’ fees outside of the scope of 

the PLRA for all 100 counts. 

Under current law, prospective relief means all relief other than 

compensatory monetary damages. Such prospective relief is subject 

to the limitations of PLRA. For example, such relief may be narrowly drawn, extend no further than necessary, and be the least intrusive course of action. Prospective relief can include things ranging from injunction, a declaratory judgment, or even punitive damages. In some jurisdictions the courts have not deemed nominal 

damages, recovery of a dollar, to be subject to the limitations of the 

PLRA, and as a consequence, we have had cases where there is no 

real injury. Someone was denied the use of a book for 1 hour. That 

is an actual case. These cases are brought where there is no justification for the use of Federal court resources, much less that of 

State officials. 

So it just seems to me—and I have seen this, and I know some 

people don’t like to realize this, but sometimes some prisoners use 

litigation as a form of recreation. There is little encumbrance to the 

abuse of the judicial system, and as a result, when it encumbers 

the judicial system, legitimate claims of prisoners who have been 

abused get overwhelmed and sometimes pushed to the end of the 

line. 

So I just hope we can work together in a bipartisan spirit, Mr. 

Chairman, to deal with those issues that I think have legitimacy 

and that we can have agreement on, but at the same time not undercut what I think the value of the Prisoner Litigation Reform Act 

provided us, and that is ridding us of the frivolous lawsuits that 

were in the vast majority of cases. And when it is 99 percent by 

the number—by the count of the ninth circuit, it seems to me that 

fits the definition of frivolous. 

And I thank the Chairman for granting me his indulgence for 

this time. 

Mr. SCOTT. Thank you. 

The gentleman from Michigan. 

Mr. CONYERS. Mr. Chairman, if I might just make a note. I had 

visiting me a distinguished minister from Tennessee, the Reverend 

Ben Cox, who I can remember when he was a Freedom Rider and 

a religious leader. He is still very active, and I just wanted to know 

that he was—that the record would show that he was in our hearing today. 

Mr. SCOTT. Thank you very much. It is good to see you. 

16 

We have a distinguished panel of witnesses here today to help 

us consider the important issues currently before us. Our first witness is Stephen Bright, who is the president and senior counsel for 

the Southern Center for Human Rights in Atlanta, where he has 

been a nationally recognized leading advocate for human rights regarding prisons and jails in the South for over 25 years. He also 

teaches at Yale Law School and previously taught at law schools 

at Harvard, Georgetown, Emory and other universities. He received 

the American Bar Association’s Thurgood Marshall Award in 1998. 

Our second witness will be Judge John J. Gibbons, founder of the 

Gibbons Firm’s John J. Gibbons Fellowship in Public Interest and 

Constitutional Law. He is a former chief judge in the United States 

Court of Appeals for the Third Circuit where he served from 1970 

to 1990. He is the past president of the New Jersey State Bar Association, life member of the American Law Institute, and fellow of 

the American Bar Foundation. 

Next witness will be Sarah V. Hart; currently works for District 

Attorney Lynne Abraham in Philadelphia. She has worked for almost three decades in criminal justice at the Federal, State and 

local levels. From 1979 to 1995, she served as a prosecutor in 

Philadelphia, during which time she testified before Congress 

about the Philadelphia prison cap case and assisted Congress as a 

drafter of the PLRA and its 1997 amendments. From 1995 to 2001, 

she served as chief counsel for the Pennsylvania Department of 

Corrections, where she successfully defended the PLRA in Federal 

court. After her stint as a visiting professor at Rutgers, she returned to the Philadelphia DA’s office. 

Our next witness will be Ernie Preate; began his legal career as 

a district attorney in Lackawanna County in 1977 until 1989. In 

1989, he took office as the Attorney General of Pennsylvania. In 

1995, his life changed forever when he pleaded guilty to mail fraud 

and served a year in prison. His year in prison changed his views 

on the criminal justice system, and after returning to legal work, 

he has primarily worked as a lobbyist working for Enlightened 

Public Policy and has represented many public interest clients. 

And our last witness will be Ms. Jeanne Woodford, who began 

her career in corrections in 1978 following her graduation from 

Sonoma State University with a B.A. in criminal justice. She has 

utilized her education and experience to become a leader in the 

field of corrections for over 30 years. She served as warden at San 

Quentin prison in California, and in 2004 became the director of 

the Department of Corrections, the largest correctional system in 

the United States. Currently she is the chief of the San Francisco 

Adult Probation Department. 

Our witnesses will begin. I would appreciate it if you would confine your testimony to 5 minutes. Your complete statement will be 

made part of the record in its entirety, and there is a lighting device which will start on green, go to yellow when 1 minute is left, 

and will go to red when the 5 minutes are up. 

Mr. Bright. 

17 

TESTIMONY OF STEPHEN B. BRIGHT, SOUTHERN CENTER FOR 

HUMAN RIGHTS, ATLANTA, GA 

Mr. BRIGHT. Mr. Chairman, Members of the Committee, thank 

you very much. It is an honor to be here. 

I want to start just by telling you that my problems with both 

the exhaustion requirement and with the application of this act of 

juveniles can be summarized by a case of a young man, Stephen 

Z., who was sent to a juvenile facility for theft. He was initiated 

when he got there by being jumped and beaten by a number of inmates until he had a seizure. That was one of four beatings that 

he had the first year that he was in this facility, four. Now, one 

of them was a rape, but the other three were not. This is not just 

sexual assaults we are dealing with here. The child was so upset 

about this he was put on suicide watch because he was about to 

take his life rather than deal with this. That was all in 2002. The 

next year he was beaten with socks, but with padlocks in them; 

again, severely beaten. 

Now, he didn’t file a grievance for this reason: The practice in 

this facility was to handcuff one inmate to another and then have 

other inmates beat him while he was handcuffed. The officials 

knew these things were going on. I want to make that clear in 

terms of notice to the facility. Some of these wounds he had had 

to be surgically stitched up. There was no secret about this. 

His mother complained to the facility, wrote to two juvenile court 

judges. One judge wrote the Governor. She arranged to see the superintendent of the facility. This mother is desperate to talk about 

what is happening to her child. So everyone knows what is happening. The grievance procedure, five steps; and the first step, 2 

days. And I just ask you, if anybody is seriously interested in 

knowing about grievances, to do something about them when you 

have got a statute of limitation of 2 days. We give a lawyer in a 

personal injury lawsuit 2 years to file a lawsuit, and we expect 

children, mentally ill people, mentally retarded people, illiterate 

people to file within 2 days. It was five steps of a bunch of appeals 

and all that. 

The Justice Department later said this was a completely dysfunctional system. The court said despite the heroic efforts of this 

mother to protect her child, she didn’t comply with the exhaustion 

provisions of the Prison Litigation Reform Act. They had to be filed 

by the child himself, not by his mother. They had to be filed within 

2 days. So that is the law today. 

You can take this other, Chad Benfield, raped in the South Carolina prison, once so severe that he was hospitalized. Again, everybody knew this man was raped. He was hospitalized for it. He 

begged for protective custody. Again, everybody knows this happened. He attempted suicide because of what was happening. And 

he thought that he couldn’t file a grievance for being raped. First 

of all, he was transferred from one prison to another. He was also 

raped in the second prison. His sort of common sense understanding was, when I got sent to another prison, I couldn’t file a 

grievance on what happened in the first prison. 

Secondly, the grievance procedure couldn’t give him damages for 

what happened to him. So his commonsense thought of it was that 

he didn’t have a grievance to file. 

18 

Common sense has nothing to do with the system that we have 

created. It is a system of all sorts of complicated procedures and 

technical requirements that exist for the purpose of tripping people 

up so they can’t bring a lawsuit. Now, we have just got to be candid 

about that. One case that we had, the grievance was thrown out 

because the grievance was written outside the margins on the 

form. One that I filed myself on behalf of a client was dismissed 

because it had to be filed by the inmate himself, not by his lawyer. 

We are treating these grievance systems, which are set up by the 

people who are going to be sued, as if they are some sort of habeas 

corpus system. Of course there you have a year, a 6-month statute 

of limitations, you have lawyers who at least can try to comply. 

I represent all the inmates at the jail in Atlanta. We have begged 

them to set up a grievance system to deal with things like a young 

man who is handcuffed behind his back and an officer shoots him 

with a taser while he is sitting there completely defenseless. There 

are things like that happening in this jail, and we would like for 

people to be able to file grievances. The system is that most of the 

time you can’t find a form. When you can, you can’t find a person 

to take it. When you file it, maybe half the time you will get back 

a response saying it has been denied, and the other half of the time 

you won’t get back a response at all. Now what does the prisoner 

do, file a mandamus with the warden because nobody has responded to his grievance? 

If we are going to have these sort of hypertechnical requirements, we need to put lawyers in these prisons because I will tell 

you, most lawyers can’t follow these. And it may be that in some 

parts of this country, there are grievance systems which work and 

which are not to trip people up, but are to find out what is going 

on in the facilities, but I will tell you, where I practice, these are 

Mickey Mouse proceedings, kangaroo courts that exist for the purpose of tripping people up. And I have been at meetings where people very candidly admitted that. 

I was begging the sheriff in this case, please set up a grievance 

system. And the county attorney said, yes, if you would set up a 

grievance system, we could defeat these lawsuits they keep filing 

because nobody would probably comply with them. 

Let me just say a quick word about physical injury. I think everybody was offended by what happened in Abu Ghraib. Most people don’t know you couldn’t file a lawsuit for it in the United States 

under the Prison Litigation Reform Act. There is no physical injury. We had a very similar lawsuit in the prison in Georgia where 

the guards rampaged through the prison, stripped people naked in 

front of women people, had them tap dance, hold one leg in their 

hand, and stand on one foot, hold the other foot in their hand, 

switch back and forth as fast as they could, all this sort of degradation and humiliation. The tenth circuit said that that is not actionable because there was no physical injury for what happened there. 

You know, cases where people have been sodomized, they said 

there was no physical injury in this particular case. 

I just want to say this real quickly. You have a prison population 

with a very large number of mentally ill people, mentally retarded 

people, illiterate people, people have nothing to do because there 

are no educational programs, no vocational programs, people have 

19 

no understanding of the legal system because there is no access to 

anybody who can give them any legal advice, and all you have to 

have is a legal pad and piece of paper, and you can write on it and 

send it to the court. Now, that is the lawsuits about cookies breaking and peanut butter that everybody wants to make so much 

about, and as long as you have a high population of mentally ill 

people and people of limited intelligence in our prisons, you are 

going to get some of those. But let me tell you, what this act is 

doing is for the rare people—and most people don’t have lawyers. 

They don’t have access to a lawyer. You could change the attorneys’ 

fees and give people all the attorneys’ fees in the world; lawyers 

are not going to want to go to some remote part of the State, put 

up with all the delay and everything to get to see a prisoner to find 

out there is probably no lawsuit there anyway because they didn’t 

file their grievance on time or the person is inarticulate or mentally ill, whatever. 

All I am saying is, these are legitimate lawsuits. They are people 

that are grievously injured in violation of our Constitution and our 

laws. And if we want to have the Constitution apply in the prisons, 

and if we don’t want to go back to an era which I think we are 

where people are chained to desks and chained to chairs and not 

allowed to even go to the bathroom, those kinds of suits are being 

dismissed as a result of this provision. Thank you. 

Mr. SCOTT. Thank you, Mr. Bright. 

[The prepared statement of Mr. Bright follows:] 

PREPARED STATEMENT OF STEPHEN B. BRIGHT

I appreciate the opportunity to address the Subcommittee on insuring that the 

Constitution and the rule of law apply in the prisons and jails in this country. 

I have been concerned about this issue since bringing suit in 1976 on behalf of 

people confined in deplorable conditions in a small county jail in Kentucky. More 

recently I have been counsel in two cases, both involving the same large metropolitan jail, the Fulton County Jail in Atlanta, regarding failure to provide people being 

held there with life-sustaining medical care and failure to protect them from lifethreatening assaults, as well as other issues, such as the jail’s failure to release people when there was no longer legal bases for holding them. One of those cases is 

ongoing. 

In the last 25 years as an attorney at the Southern Center for Human Rights, 

I am and have been involved in many other cases concerned with patently unconstitutional conditions and practices in prisons and jails throughout the South. The 

Center is a non-profit public interest program, which receives no government funds 

and is thus not prohibited from responding to some of the most urgent and compelling violations of the Constitution of the United States in this country. 

Unfortunately, we are able to respond to only a very small percentage of the pleas 

we receive each day from people in prisons and jails and their families. We are concerned about some provisions of the Prison Litigation Reform Act—such as the exhaustion requirement, the physical injury requirement, the Act’s application to children, and the limits on the power of the federal courts—because these provisions 

often result in denying justice to people who deserve it. 

Much of the support for the PLRA was based on arguments that demonized prisoners and trivialized their concerns. However, the men, women and children who 

are incarcerated in this country are not members of a faceless, undifferentiated 

mass unworthy of protection of the law. They are individuals, who vary considerably 

in the crimes they have committed, the lives they have led, their potential to be productive members of society, and their commitment to lead useful and productive 

lives. Most of them will return to society. They have families and friends who care 

about their safety. A significant number are mentally ill, have limited intellectual 

functioning, are addicted to substances or have a combination of these features. 

In this very large population, there are some who, without educational or vocational programs or access to legal advice, attempt to file their own lawsuits, some 

of them quite misguided. But the issues that we address on their behalf are of funVerDate Aug 31 2005 16:38 Jan 08, 2009 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\042208\41903.000 HJUD1 PsN: 41903
20 

1See, e.g., Hancock v. Payne, 2006 WL 21751 at *3 (S.D. Miss. 2006) (concluding that ‘‘bare 

allegation of sexual assault’’ does not satisfy physical injury requirement); Liner v. Goord, 196 

F.3d 132, 135 (2d Cir. 1999) (concluding that ‘‘the alleged sexual assaults qualify as physical 

injuries as a matter of common sense’’); Pool v. Sebastian County, 418 F.3d 934, 943 n.2 (8th 

Cir. 2005) (noting assertion that no physical injury resulted from failure to care for pregnant 

woman leading to delivery of stillborn baby); Clifton v. Eubanks, 418 F. Supp.2d 1243 (D. Colo. 

2006) (concluding that improper medical care leading to stillbirth constituted physical injury). 2 42 U.S.C. § 1997e(a)(2008) provides: ‘‘No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any 

jail, prison, or other correctional facility until such administrative remedies as are available are 

exhausted.’’ 3Woodford v. Ngo, 126 S.Ct. 2378 (2006). 

damental importance to their lives, safety, and dignity. For example, we have 

brought cases on behalf of— 

• HIV-positive men housed in a warehouse. Some suffered from pneumonia, 

which went untreated until they drowned in their own respiratory fluids. Others stood in long lines in the middle of the night to get pills they took on 

empty stomachs. When they took the pills, they vomited. Some died from 

starvation despite begging for food. 

• Children convicted as adults who were raped when housed with older prisoners. One youth, Wayne Boatwright, who was just 18, was choked to death 

by three other inmates as they raped him. The prison failed to protect him 

despite pleas to the prison officials by the young man, his mother and grandmother to protect him from being raped. Other inmates at the same prison 

were bashed in the face and head with steel padlocks inside socks, broomsticks, trash cans, metal door plates and handmade knives. 

• A woman who woke up with blood spurting from her neck because a mentally 

ill inmate slashed her from ear to chin with a razor as she slept. A single 

correctional officer had been assigned to supervise 116 women sleeping in 

bunk beds crowded into one huge room. Sometimes a single officer was responsible for the safety of 325 women in four dorms. 

• A man put in four-point restraints and left there for days without being allowed to go to the bathroom. 

• Men forced to sort through garbage on a conveyer belt containing hepatitisand AIDS-infected needles and other medical waste without protective clothing at a ‘‘recycling’’ plant within a prison. One of many resulting injuries was 

permanent injury to a man’s eye after a piece of glass flew into it. 

These are not trivial matters. But the exhaustion requirement of the PLRA bars 

access to the federal courts for even the most egregious violations of the Constitution if people held in prisons and jails do not comply with the hyper-technical requirements of complicated grievance systems—some of them procedural mazes 

which would challenge many lawyers. People who are mentally ill, mentally retarded, or illiterate may be unaware of the two or three deadlines that may apply 

at various stages of the process, unable to find the right form to fill out or the right 

person to give it to, and unaware of what to do if no action is taken on the grievance 

for weeks or months. 

Recovery for even the most degrading treatment—even the universally condemned 

practices at Abu Ghraib—is barred if there is no physical injury. A federal court 

threw out a suit we brought for such conduct. 

Beyond that, we waste a lot of time and precious judicial resources litigating questions of whether inmates have complied with every last stage of grievance processes, 

were capable of doing so, were prevented from doing so by prison officials and other 

collateral issues, as well as questions such as whether a sexual assault or lack of 

care leading to a stillbirth constitutes a ‘‘physical injury’’ under the PLRA.1

I would like to address the exhaustion requirement, the physical injury requirement and the application of the PLRA to juveniles. 

I. THE PLRA EXHAUSTION REQUIREMENT SHOULD BE MODIFIED SO THAT TECHNICAL

PROBLEMS WITH PRISONERS’ GRIEVANCES DO NOT FOREVER BAR JUDICIAL REVIEW. 

The exhaustion requirement of the Prison Litigation Reform Act 2 has been interpreted not only to require prisoners to present their claims to prison officials before 

filing suit, but also to bar claims if inmates fail to comply with all of the technical 

requirements of the prison or jail grievance systems.3 Grievance systems usually 

have two or three levels of review—for example, an inmate may be required to seek 

an informal resolution by a certain deadline, file a formal grievance within a specified deadline if the problem cannot be resolved informally, and file an appeal within 

21 

4See Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America’s Prisons: 

The Case for Amending the Prison Litigation Reform Act, http://www.acslaw.org/files/ 

Schlanger%20Shay%20PLRA%20Paper%203-28-07.pdf at 8 (March 2007). 5Latham v. Pate, 2007 WL 171792 (W.D. Mich. 2007). 6 Benfield v. Rushton, 2007 WL 30287 (D.S.C. 2007). 7Washington v. Texas Department of Criminal Justice, 2006 WL 3245741 (S.D. Tex. 2006). 8For other cases dismissed for failure to exhaust, see Giovanna Shay & Johanna Kalb, More 

Stories of Jurisdiction—Stripping and Executive Power: Interpreting the Prison Litigation Reform Act (PLRA), 29 CARDOZO L. REV. 291, 321 (2007). 

yet another deadline if the formal grievance is denied. The deadlines in some systems are as short as three to five days. 

Thus, while an attorney who has been trained in the law may have two years 

under the applicable statute of limitations to file an lawsuit in an automobile negligence case, a prison system may give people who are mentally ill, illiterate or of 

limited intelligence just five days to file their grievances or be forever barred from 

seeking vindication of their rights in court. 

The exhaustion provision of the PLRA puts the potential civil rights defendants 

in charge of defining the procedural hurdles that a prisoner must clear in order to 

sue them. This produces a perverse incentive for prison officials to implement complicated grievance systems and require hyper-technical compliance with them in 

order to shield themselves from prisoners’ lawsuits. That has become the main purpose of many grievance systems. 

I once helped a client complete a grievance form and dropped it off with a deputy 

warden on my way out of the prison to be sure it was filed within the five-day deadline. Nevertheless, it was denied because a rule required that the inmate file the 

grievance. As I said previously, the hyper-technical requirements of the grievance 

systems pose a challenge even to attorneys. 

In another case, an inmate was beaten with a sock full of combination locks. Filing a grievance was not the first thing on his mind during the five days he had to 

file one—he was in and out of consciousness during that time. Nevertheless, it was 

argued that he could not file suit because of his failure to comply with the deadline. 

Other trivial technical defects like using the wrong form, directing a grievance to 

the wrong person, or filing the wrong number of copies all could bar prisoners’ 

claims from court.4 Inmates may not be able to obtain the required forms—or even 

pencils with which to fill complete them. They may not be able to give grievances 

to the designated persons or may be afraid to do so for fear of retaliation. Even 

when an inmate files within the deadline, in some situations no action is taken on 

the grievance. 

A prisoner who learns upon filing suit that she has failed to comply with prison 

rules cannot simply return to court after filing the appropriate forms and comply 

with the rules. By the time a court determines that a claim is procedurally defaulted under the PLRA exhaustion provision, the deadline for using the prison 

grievance system will be long past. 

Gravely serious claims are dismissed for failure to comply with grievance procedures. For example, a prisoner’s suit alleging that he had been beaten and seriously 

injured by guards was dismissed for failure to comply with a grievance procedure 

that required an attempt at informal exhaustion within two days and the filing of 

a grievance within five days.5 The prisoner said that he had been placed in segregation after the beating, and that the officers had not given him grievance forms. Another suit alleging repeated rapes by other inmates was dismissed for failure to 

timely exhaust; the inmate who sought to file the suit said that he ‘‘didn’t think 

rape was a grievable issue.’’ 6 A prisoner who had been beaten by other inmates 

maintained that he had failed to file a grievance within the 15 days required because he had been hospitalized; the magistrate judge recommended staying the case 

for 90 days to allow him to exhaust (as the amendment in the Prison Abuse Remedies Act would permit), but the district court dismissed the case instead.7

These are not isolated examples.8 And they do not begin to tell how many cases 

are not brought because it is clear that they will be dismissed for failure to comply 

with grievance procedures. 

The Prison Abuse Remedies Act would correct this problem by allowing federal 

courts to stay proceedings for up to 90 days to permit prisoners to exhaust administrative remedies. Prison officials would have had an opportunity to resolve such 

complaints, but they would not be able to dodge accountability by asserting inmates’ 

failure to comply with complex and technical requirements. 

The argument that the PLRA need not be amended because courts can simply 

conclude that administrative remedies are not ‘‘available’’ within the meaning of the 

statute simply ignores reality. Grievance procedures may be ‘‘available’’ in a legal, 

22 

9 42 U.S.C. § 1997e(e) (2008) provides that ‘‘no federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.’’ 10 Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc). 11 Hancock v. Payne, 2006 WL 21751 at *3 (S.D. Miss. 2006). 12 Harper v. Showers, 174 F.3d 716, 719–20 (5th Cir. 1999). 13Jarriett v. Wilson, 162 Fed. Appx. 394, 399 (6th Cir. 2005). 14 Brown v. Simmons, 2007 WL 654920 at *6 (S.D. Tex. 2007). 

technical sense, but they are too complicated for most prisoners to comply and they 

are strictly enforced to avoid justice rather than obtain it. 

It is reasonable to require a prisoner to inform the authorities of a violation of 

rights so that officials may promptly deal with it. But that can be accomplished by 

requiring a statement to a warden within a reasonable time. The officials in charge 

of the system should be responsible for forwarding complaints to the various levels 

of review if they want to have such a system. But they should not be encouraged 

to impose upon prisoners procedural requirements more complex and demanding 

than the legal system requires of attorneys. That is what the PLRA does now and 

why the exhaustion requirement should be repealed. 

II. THE PLRA’S PHYSICAL INJURY REQUIREMENT BARS RECOVERY FOR DEGRADING AND

DEHUMANIZING ABUSE OF PRISONERS, AND IT SHOULD BE REPEALED. 

People in this country and around the world were horrified by images of Abu 

Ghraib, as undoubtedly were all the members of this Subcommittee. What few people know is that if such conduct occurs in a prison or jail in this country, those subject to it would have no redress in the federal courts due to the ‘‘physical injury’’ 

requirement of the PLRA.9

We had such a case. Officers who hid their identity by not wearing or by covering 

their badges rampaged through a prison—swearing at inmates, calling some of them 

‘‘faggots’’; destroying their property; hitting, pushing and kicking them; choking 

some with batons; and slamming some to the ground. The male inmates were ordered to strip and subjected to full body cavity searches in view of female staff. 

Some were left standing naked for 20 minutes or more outside their cells, while 

women staff members pointed and laughed at them. Some were ordered to ‘‘tap 

dance’’ while naked—to stand on one foot and hold the other in their hands, then 

switch, and rapidly go from standing on one foot to the other. The Court of Appeals 

for the Eleventh Circuit held that this conduct did not satisfy the physical injury 

requirement of the PLRA.10

Other courts have found the physical injury requirement was not satisfied by 

• a ‘‘bare allegation of sexual assault’’ even where male prisoners alleged that 

a corrections officer had sexually assaulted them repeatedly over a span of 

hours,11

• prisoners being housed in cells soiled by human waste and subjected to the 

screams of psychiatric patients,12

• a prisoner being forced to stand in a 21⁄2 foot wide cage for 13 hours, naked 

for the first 10 hours, in acute pain, with clear, visible swelling in leg that 

had been previously injured in car accident,13

• a prisoner who complained of suffering second-degree burns to the face.14

There are far more cases that are never brought or promptly dismissed because 

of the physical injury requirement. Prior to enactment of the PLRA, we brought suit 

on behalf of women who were constantly splattered with bodily waste as a result 

of being housed with severely mentally ill women. Our clients could not sleep at 

night because the mentally ill women shrieked and carried on loud conversations, 

often with themselves. We would not bring that suit today. Our clients were degraded, they were deprived of sleep, but they suffered no physical injury. 

Recently, we have concluded that suits could not be brought by men who complained of being chained to a bed in one case and a grate in the floor in another, 

each left for several days without breaks and so they had to defecate and urinate 

on themselves repeatedly, or by women who complained that officers barged into 

their shower and toilet areas without announcing themselves, opened the shower 

curtains and made sexual comments to them. 

Denying money damages is significant for several reasons. Damages awards create incentives for prison administrators to improve policies and training and not retain officers who abuse prisoners. Beyond that, the physical injury requirement 

changes the framework of the debate because it provides incentives for officials to 

23 

15See Anna Rapa, Comment: One Brick Too Many: The Prison Litigation Reform Act as a Barrier to Legitimate Juvenile Lawsuits, 23 T.M. COOLEY L. REV. 263, 279 (2006). 16 Ralph Blumenthal, Texas, Addressing Sexual Abuse Scandal, May Free Thousands of Its 

Jailed Youth, N.Y. TIMES, March 24, 2007. 17Staci Semrad, Texas Ranger Tells of Prosecutor’s ‘‘Lack of Interest,’’ N.Y. TIMES, March 9, 

2007, at A20. 18 2005 WL 1799538 (N.D. Ind. 2005). 19Letter from Bradley J. Schlozman, Acting Assistant Attorney General, to Mitch Daniels, 

Governor of the State of Indiana (Sept. 9, 2005), available at http://www.usdoj.gov/crt/split/documents/splitlindianalsouthbendljuvlfindletl9-9-05.pdf (quotes appear on pages 2, 3, and 7). 

argue that truly reprehensible and degrading conduct was acceptable because it did 

not produce a ‘‘physical injury.’’ 

The ‘‘physical injury’’ provision of the PLRA should be repealed. 

III. JUVENILES SHOULD BE EXEMPTED FROM THE PROVISIONS OF THE

PRISON LITIGATION REFORM ACT. 

The PLRA is applied to juveniles.15 All of its problems are magnified when it is 

applied to children. Incarcerated minors account for very little prison litigation, and 

are even less equipped to navigate technical areas like exhaustion. At the same 

time, incarcerated juveniles are at-risk for abuse and may be particularly in need 

of court intervention. 

It was revealed last year that some officials of the Texas Youth Commission had 

extended the sentences of youths in their custody if they refused to have sex with 

a supervisor.16 A Texas Ranger who investigated abuse at the West Texas State 

School in Pyote told a legislative committee, that he had seen ‘‘kids with fear in 

their eyes—kids who knew they were trapped in an institution that would never respond to their cries for help.’’ 17 Even worse, this Texas law enforcement officer was 

unable to interest local prosecutors in the case. 

Another example is provided by a case from Indiana, Minix v. Pazera.18 While incarcerated as a juvenile on a theft charge in various Indiana facilities, S.Z. was repeatedly beaten by other detainees—once with padlock-covered socks. He was also 

raped. S.Z. suffered visible injuries and symptoms, including bruising, a split lip, 

a seizure-like reaction, and a bloody nose, yet staff failed to take adequate measures 

to protect him. S.Z. was afraid to report this abuse, because some of the staff actually instigated fights among juvenile detainees, even handcuffing some of the youths 

so that others could beat them. S.Z.’s mother, Cathy Minix, however, reported these 

assaults and threats both to staff at the facility and to state judges (who relayed 

the complaints to the Governor). She attempted to meet with the superintendent of 

one of the facilities, but staff members prevented the meeting. Ultimately, S.Z. was 

‘‘unexpectedly released on order from the Governor’s office.’’ 

Despite all of Mrs. Minix’s efforts to notify state officials of the abuse, when she 

and S.Z. filed suit, it was dismissed for failure to comply with the PLRA grievance 

requirement. The grievance policy then in effect in Indiana juvenile facilities had 

numerous steps, the first one requiring that grievances be filed within two business 

days. The Court noted that although Mrs. Minix had made ‘‘heroic efforts’’ to help 

her son, it could not replace the requirement that he personally file a grievance. 

Among other things, it noted, ‘‘[h]er communications didn’t comply with the general 

time constraints built into the grievance process.’’ 

After the Minix family suit was dismissed from federal court, the Department of 

Justice investigated the Indiana juvenile facilities in which S.Z. had been held. It 

concluded that these facilities failed ‘‘to adequately protect the juveniles in its care 

from harm,’’ in violation of the Constitution. The Department specifically noted that 

the grievance system in the Indiana juvenile facilities—the same grievance system 

that resulted in the dismissal of S.Z.’s suit—was ‘‘dysfunctional’’ and contributed to 

the constitutional violations in the Indiana system.19

These cases illustrate why it is critically important to keep courthouse doors open 

to civil rights actions on behalf of incarcerated children. The Prison Abuse Reform 

Act would accomplish this by exempting people under 18 from the provisions of the 

PLRA. 

CONCLUSION

To put the amendments proposed in the Prison Abuse Remedies Act in perspective, I would like to point out that even if they are adopted, most of the men, women 

and children in prisons and jails will not be filing lawsuits because the overwhelming majority of them have no access to lawyers and are incapable of filing 

suits themselves. 

24 

At one time people in Georgia’s prisons had access to lawyers from federal legal 

services programs as well as lawyers and law students from a program operated by 

the law school at the University of Georgia. These programs not only helped prisoners bring meritorious suits regarding truly egregious practices and conditions, 

they also advised prisoners when there was no basis for bringing a suit. This is the 

most effective way to prevent frivolous suits. But all that is long gone. Since 1996, 

legal services programs which receive federal funding have been prohibited from 

representing prisoners. Many states stopped providing legal assistance to prisoners 

at some time after that. 

Today, a few states like California, Massachusetts and New York, have small programs that provide legal services to a small percentage of the many prisoners who 

seek their help. A few national and regional programs, like the National Prison 

Project and our program, are able to take cases in a few states. But in some states 

there is not a single program or lawyer who provides legal representation to prisoners. In the part of the country where I practice, private lawyers were never very 

interested in responding to prisoner complaints even before the PLRA’s restriction 

on attorney fees. Responding to prisoners’ pleas for legal representation because of 

beatings, rapes, sexual harassment, denial of medical care or other egregious, even 

life threatening denial of rights is not attractive to lawyers in private practice. 

For a lawyer in private practice, just seeing the potential client for an initial 

interview may involve a long drive to a remote part of the state where many prisons 

are located, submitting to a search, hearing heavy doors slam as he or she is led 

to a place in the prison for the interview, waiting—sometimes for hours—for the potential client to be brought up for the interview, and conducting a semi-private 

interview in a dingy room. The potential client may be mentally ill, mentally retarded, illiterate, or inarticulate. The lawyer will not know until he or she gets 

there. Investigation of the case is immensely difficult because most, if not all, of the 

witnesses are other prisoners or corrections officers. It is easier to get information 

from the Kremlin than from many departments of corrections. The lawyer may discover that no suit can be filed because the prisoner did not file a grievance or suffered no physical injury. And then there is the long drive back. This is not the way 

to develop a law practice that pays the bills and supports a family. 

The exhaustion requirement, the physical injury requirement, the limits on the 

power of the federal courts and other aspects of the PLRA before you today discourage lawyers from making these trips, interviewing inmates, and bringing lawsuits 

on their behalf. But even if Congress were to correct every one of those barriers to 

obtaining remedies for constitutional violations, most lawyers are not going to make 

those trips. They can make better and more secure livings doing real estate closings, 

handling personal injury cases, or a whole range of legal work that involves less 

stress and produces more income. 

It is too bad and it should concern us. We believe in the rule of law, protection 

of constitutional rights, and equal justice. But these larger issues are not before you 

today. Instead, the Prison Abuse Remedies Act contains a few modest amendments 

that would eliminate the incentive for prisons and jails to adopt complicated grievance systems to avoid being sued and would prevent meritorious claims from being 

barred on hyper-technical grounds or because there was no physical injury. These 

amendments are in the interest of justice and they should be adopted. 

Mr. SCOTT. Judge Gibbons. 

TESTIMONY OF JOHN J. GIBBONS, NEWARK, NJ 

Mr. GIBBONS. Mr. Chairman and Members of the Committee, 

thank you for inviting me to speak on H.R. 4109, the ‘‘Prison Abuse 

Remedies Act of 2007.’’ 

Over many years as both a judge on the United States Court of 

Appeals—— 

Mr. SCOTT. Could you check your mic? Can you bring it a little 

closer to you? 

Mr. GIBBONS. Can you hear me now? Okay. 

Over many years as both a judge on the United States Court of 

Appeals for the Third Circuit and as an attorney, I have become 

familiar with the difficult challenges faced by inmates and correctional facility managers. 

25 

I became most informed on the scope and degree of these challenges, however, when I served as co-chair of the Commission on 

Safety and Abuse in American Prisons, created by the Vera Institute of Justice. The Commission heard from hundreds of experts, 

correctional facility personnel and inmates. We visited jails and 

prisons nationwide. We found that oversight and accountability are 

critical to ensuring safety in corrections facilities, and that Federal 

court litigation has been one of the most effective forms of that 

oversight and accountability. 

The Commission identified several aspects of the PLRA that inhibit access to the Federal courts and thus diminished the level of 

productive oversight and accountability that the courts have been 

demanding. That is discussed in the report at page 83 and following. 

The Commission recommended four changes to the PLRA that 

would improve access to the Federal courts: One, that Congress 

should eliminate the physical injury requirement; two, that Congress should eliminate the filing fee requirement and the restrictions on attorneys’ fees; three, that Congress should lift the requirement that correctional agencies concede liability as a prerequisite to court-supervised settlement; and four, that changes in 

the exhaustion rule should be made and require meaningful grievance procedures. 

Now, this is not an exhaustive list of reforms that could be made, 

but I am pleased to support H.R. 4109 because it adopts essentially 

all of the Commission’s recommendations and also makes other significant amendments to the PLRA that will ensure that Federal 

courts can provide justice to individual inmates and compel reforms 

in institutions often riddled with abuse. 

Let me first address the important role that the judicial branch 

plays in improving the conditions in jails and prisons. Compared to 

other institutions, I believe courts do a reasonably good job in resolving conflicts. Moreover, courts are often the only means of external and sustained oversight of prisons and jails, and courts have 

proven to be quite good at monitoring conditions of confinement. 

It was Federal intervention, including intervention by my former 

court, that led to the elimination of dangerous, out-of-date correctional facilities in many States and that reduced hazardous overcrowding in other prisons. Court involvement improved treatment 

of prisoners, addressing unnecessary and excessive force by corrections officers. Litigation also secured improvement in the appalling 

and substandard medical and mental health services of prisoners. 

For example, my law firm represents all of New Jersey inmates diagnosed with HIV and AIDS under a consent decree entered into 

in 1992, before the enactment of the PLRA, which prohibited segregated housing and led to improved medical treatment. Decrees 

like these are advances that should be praised and preserved, not 

bemoaned and rolled back. 

The most obvious winners from court involvement in jails and 

prisons may be the inmates, but the improvement of safety and reduction of abuses in prisons in America benefits everybody, including corrections staff, inmate family members and the greater public. These benefits are all the more significant given the continued 

rise in the incarcerated population. According to a new Pew Public 

26 

Safety Performance Project report, 1 in every 100 adults in the 

United States is now in jail or imprisoned. 

But we cannot cling to the illusory belief that what happens in 

prisons stays in prisons. Inmates take what they experienced in 

correctional facilities and share that experience with the society at 

large once they are released, and staff bring home the problems 

they confront in prisons where they work. Thus, it behooves all of 

us to improve the treatment of inmates, and the one method that 

has been proven is through litigation resulting in judicial resolution and oversight. 

Unfortunately, the passage of the PLRA produced a decline in effective judicial oversight. The PLRA unnecessarily constrains the 

judge’s role, limiting oversight and accountability, and ignoring the 

judiciary’s demonstrated capacity and ability to handle what are 

generally basic civil rights cases. 

There may have been a need to reduce illegitimate claims, although there was never any demonstration of that need during any 

congressional hearing that I am aware of. But assuming the need 

for attention to illegitimate claims, the purported curative aspects 

of the PLRA have led to a dangerous overdose, squeezing out legitimate claims and greatly diminishing judicial oversight. Data may 

indicate that the prisoner lawsuits have been almost cut in half, 

but they do not demonstrate that frivolous claims have been properly reduced. 

One would assume that if only frivolous suits were eliminated, 

the percentage of successful suits would increase. If we assess 

whether a claim is meritorious based on its success, then the PLRA 

must be characterized as having failed, because the proportion of 

successful suits has declined since it was passed, and with that decline we have also seen an erosion of judicial oversight. Between 

1995 and 2000, States with little or no court-ordered regulation of 

the prisons increased from 12 to 28 States. 

Reform of the PLRA need not open up the floodgates of unmeritorious prison litigation, as some people fear. The amendments to 

the PLRA in H.R. 4109 reflect thoughtful modifications that would 

permit and facilitate meritorious claims and thus useful and effective judicial oversight without burdening the courts. 

Pre-PLRA courts knew how to get rid of frivolous claims without 

waste of judicial resources, and they haven’t forgotten. Pre-PLRA, 

the chief burden on the courts was actually the fierce and unmeritorious resistance by government organizations to meritorious 

claims. 

As Justice John Paul Stevens observed in commenting on the 

PLRA, Congress has a constitutional duty to respect the dignity of 

all persons, even those convicted of heinous crimes. The amendments to H.R. 4109 go a long way toward recognizing and fulfilling 

that duty. The bill takes significant steps toward rectifying the 

overbroad and overly harsh provisions of the PLRA that have denied inmates with meritorious claims their day in court. The bill 

reaffirms Congress’s faith in the judiciary to resolve and improve 

conditions of abuses in our Nation’s teeming jails and prisons. 

Thanks for inviting me to speak to you today. And I look forward 

to answering any of your questions. 

Mr. SCOTT. Thank you. 

27 

[The prepared statement of Judge Gibbons follows:] 

PREPARED STATEMENT OF THE JOHN J. GIBBONS

Mr. Chairman and members of the Committee, thank you for inviting me to speak 

on H.R. 4109, the ‘‘Prison Abuse Remedies Act of 2007.’’ My name is John Gibbons. 

Over many years as both a Judge on the U.S. Court of Appeals for the Third Circuit 

and as an attorney I have become familiar with the difficult challenges faced by inmates and correctional facilities. I became most informed on the scope and degree 

of these challenges, however, serving with former U.S. Attorney General Nicholas 

de B. Katzenbach as Co-Chairs of the Commission on Safety and Abuse in America’s 

Prisons. 

Created by the Vera Institute of Justice, the Commission—composed of a group 

of twenty distinguished pubic servants—undertook a 15-month public examination 

of the most pressing safety and abuse issues in correctional facilities for prisoners, 

staff, and the public. The Commission heard from hundreds of experts, correctional 

facility personnel, and inmates. We visited jails and prisons nationwide. The Commission issued a report in June 2006, including thirty recommendations; among 

these were four recommendations concerning reform of the Prison Litigation Reform 

Act (PLRA). 

In its report, Confronting Confinement, and recommendations, the Commission 

stressed the importance of oversight and accountability in addressing safety and 

abuse in corrections facilities. We found that federal court litigation has been one 

of the most effective forms of that oversight and accountability. The Commission 

identified several aspects of the PLRA that inhibit access to the federal courts and 

thus diminish the level of productive oversight and accountability the courts have 

demanded. The Commission recommended four changes to the PLRA that would improve access to the federal courts: (1) eliminate the physical injury requirement; (2) 

eliminate the filing fee requirement and restrictions on attorney fees; (3) lift the requirement that correctional agencies concede liability as a prerequisite to court-supervised settlement; and (4) change the exhaustion rule and require meaningful 

grievance procedures. THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRIS- ONS, CONFRONTING CONFINEMENT, at 86–87 (June 2006). This is not, as the report 

stressed, an exhaustive list of reforms that can be made. Indeed, I am pleased to 

support H.R. 4109, which adopts essentially all of the Commission’s recommendations, and also makes other significant amendments to the PLRA that will ensure 

that federal courts can provide justice to individual inmates and compel reform of 

institutions riddled with abuse. 

Let me first address the important role the judicial branch plays in improving the 

conditions in jails and prisons. I may have a certain bias, but I tend to think judges 

can do a reasonably good job of resolving conflicts. Moreover, courts have often been 

the only means of external and sustained oversight of prisons and jails. And courts 

have proven to be quite good at monitoring conditions of confinement. 

In discussing prison and jail conditions and prisoner abuse it is important not to 

lose historical perspective. Notwithstanding the problems we confront today, thirty 

to forty years ago prisons were in a far more deplorable state. 

It was judicial intervention that led to the elimination of dangerous out-of-date 

correctional facilities in many states and reduced hazardous overcrowding in other 

prisons. See, e.g., Guthrie v. Evans, 93 F.R.D. 390 (S.D. Ga. 1981); Duran v. Anaya, 

642 F. Supp. 510 (D.N.M. 1986). Court involvement improved treatment of prisoners, addressing unnecessary and excessive force by corrections officers. See, e.g., 

Sheppard v. Phoenix, 210 F. Supp. 2d 450 (S.D.N.Y. 1991); Madrid v. Gomez, 889 

F. Supp. 1146 (N.D. Cal. 1995). Litigation also secured improvement in appalling 

and substandard medical and mental health services for prisoners. For example, my 

law firm represents all of New Jersey’s inmates diagnosed with HIV and AIDS 

under a consent decree entered into in 1992, before the PLRA, which prohibited segregated housing and led to improved medical treatment. Roe v. Fauver, C.A. No. 88– 

1225 (AET) (D.N.J. March 3, 1992). Decrees like these are advances that should be 

praised and preserved, not bemoaned and rolled back. 

The most obvious winners from court involvement in jails and prisons may be inmates. But as the Commission Report makes clear, the improvement of safety and 

reduction of abuse in prisons in America benefits everyone, including corrections 

staff, inmates’ family members, and the greater public. Confronting Confinement, at 

11. This fact is all the more significant given the continuing rise in the incarcerated 

population. According to a new report by the Pew Public Safety Performance Project, 

one in every one hundred adults in the United States is now in jail or in prison. 

THE PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008 (Feb 

28, 2008), available at http://www.pewcenteronthestates.org/uploadedFiles/ 

28 

One%20in%20100(3).pdf. But we cannot cling to the illusory belief that what happens in prison stays in prison. Inmates take what they experienced in correctional 

facilities and share that with society at large once they are released, and staff bring 

home the problems they confront in there. Thus it behooves us all to improve the 

treatment of inmates and the one proven method has been through litigation and 

judicial resolution and oversight. 

As scholars of prison litigation have observed, court have generally not sought out 

radical solutions divorced from the realities confronting prison officials. On the contrary, ‘‘the litigators and the judges in these cases sought out and relied on the best 

and the brightest among the acknowledged leaders in American corrections,’’ relying 

on their testimony as expert witnesses and their judgment as special masters and 

monitors. See Malcolm M. Feeley & Van Swearingen, The Prison Conditions Cases 

and the Bureaucratization of American Corrections: Influences, Impacts, and Implications, 24 PACE L. REV. 433, at 437–38 (2004). 

In the Commission’s study of prisons, we found that litigation was often welcomed, even invited, by prison administrators who sought improvement in their facilities. Indeed, criminology professor and researcher Barbara Owen told the Commission that corrections officials have asked her, ‘‘why don’t you call up some of 

your friends and have them sue me?’’ Confronting Confinement, at 85. James 

Gondles, the executive director of the American Correctional Association, explained 

that litigation has led to increases in budgets and improvement in programs in correctional facilities, preventing the need for additional lawsuits. Ibid. 

Unfortunately, the passage of the PLRA marked a decline in effective judicial 

oversight. The PLRA unnecessarily constrains the judge’s role, limiting oversight 

and accountability, and ignoring the judiciary’s demonstrated capacity and ability 

to handle what are generally basic civil rights cases. While there may have been 

a need to reduce illegitimate claims, the purported curative aspects of the PLRA 

have led to a dangerous overdose, squeezing out legitimate claims and greatly diminishing judicial oversight. Data may indicate that prisoner lawsuits have been almost cut in half, but they do not demonstrate that frivolous claims have been properly vetted. If we assess whether a claim is meritorious based on its success then 

the PLRA must be characterized as having failed because the proportion of successful suits has declined since the PLRA was passed. Ibid. And with that we have also 

seen an erosion of judicial oversight. The Commission found that between 1995 and 

2000, states with little or no court-ordered regulation of prisons increased more than 

130 percent, from 12 to 28 states. Ibid. 

Reform of the PLRA need not open up the floodgates of prisoner litigation as some 

fear. The amendments to the PLRA in H.R. 4109 reflect thoughtful modifications 

that would permit and facilitate meritorious claims, and thus useful and effective 

judicial oversight, without overburdening the courts. In addressing the PLRA last 

year, the Supreme Court aptly characterized the task before you: ‘‘Our legal system 

. . . remains committed to guaranteeing that prisoner claims of illegal conduct by 

their custodians are fairly handled according to the law. The challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit.’’ Jones v. Bock, 127 S. Ct. 910, 915 

(2007). I now turn to how H.R. 4109 meets this challenge and improves upon the 

efforts of the PLRA. 

Section 2 of H.R. 4109 eliminates the physical injury claim requirement for seeking compensatory damages under the PLRA. Without this critical change to the law, 

the PLRA bars an inmate from filing a federal civil rights action ‘‘for mental or emotional injury suffered while in custody without a prior showing of physical injury.’’ 

42 U.S.C. § 1997(e). Serious abuse, of course, need not leave indelible physical 

traces. Sexual assault is one of the most insidious examples that may not leave visible marks or scars, but assuredly causes harm and trauma. Other abuses also may 

not cause physical injuries but do rise to the level of constitutional violations and 

merit legal redress. These include denial of due process, horrific conditions of confinement, and denial of religious freedom and free speech rights. 

Sections 7 and 8 of H.R. 4109 restore attorney fees for PLRA claims and eliminate 

the filing fees for indigent prisoners. The PLRA is currently replete with provisions 

creating disincentives and economic burdens, discouraging inmates from filing 

claims, and deterring lawyers from representing inmates, even in meritorious cases. 

It makes little sense to discourage lawyers’ involvement in prisoner cases if the purported goal of the PLRA is in part to improve the quality of claims. Indeed, counsel 

may serve as a screening mechanism, vetting some claims raised by an inmate and 

often presenting them more clearly than might the inmate. 

Section 6 of H.R. 4109 removes provisions in the PLRA that permit federal courts 

to issue consent decrees only if the correctional agencies acknowledge they had committed constitutional violations. 18 U.S.C. § 3626 (a)(i)(A), (c)(1). These provisions 

29 

have undermined the settlement of cases because they struck at the very appeal of 

settlement, which is avoidance of concession of liability. In my experience as both 

a judge and as an arbitrator it strikes me as particularly odd to close off the options 

of opposing parties. Keeping all alternatives on the table is the surest way to 

achieve resolution of the conflict to the satisfaction of both sides. With the elimination of these requirements, federal courts will be more likely able to issue consent 

decrees and undertake their agreed upon critical oversight function. Section 6 also 

returns to the courts greater flexibility in managing their cases by providing them 

the authority to extend time periods before parties may move for termination of prospective relief. Currently defendant parties may move to terminate relief two years 

after an order and then every year thereafter. This amendment will reduce premature re-litigation and economize judicial resources, trusting in the courts to oversee their cases. 

Section 3 of H.R. 4109 makes some much needed modification to the exhaustion 

requirement. At present, and as interpreted by the Supreme Court as recently as 

2006 in Woodford v. Ngo, 126 S. Ct. 2378 (2006), the PLRA bars a prisoner from 

filing a claim in federal court unless the inmate has exhausted all administrative 

remedies and grievance procedures provided by the correctional facility. Failure to 

exhaust, which includes any procedural default such as failing to meet a two day 

grievance deadline, results in the automatic dismissal of the case. Section 3 amends 

the PLRA, providing that while an inmate must first present her claim for consideration to prison officials, if a prisoner fails to so present and the federal court does 

not find the claim to be frivolous or malicious, then the court shall stay the action 

for up to 90 days and direct the prison officials to consider the claims through the 

relevant procedures. 

The amendment goes a long way toward curing the inequities that occur when 

an otherwise valid claim is dismissed on the basis of technical violations, technical 

processes that are often unfair and unclear to prisoners. 

Consider, for example, the scenario Justice Stevens discusses in his dissent in 

Woodford v. Ngo. An inmate who is raped by prison guards and suffers a serious 

violation of his Eighth Amendment rights may be barred by the PLRA from bringing 

such a claim if he fails to file a grievance within the narrow time requirements that 

are often fifteen days, but in nine states span only two to five days. 126 S. Ct. 2401– 

02. 

Or consider the case of Balorck v. Reece, in which a prisoner was hospitalized during the five-day period he had to file a grievance for failing to treat his heart conditions. Discharged back to prison thirty days later, he was not permitted to file a 

grievance by the Grievance Aide, and because he then failed to ask for an extension 

of time to file as per prison policy, his claim was dismissed for non-exhaustion. 2007 

WL 3120110 (W.D. Ky. Oct. 23, 2007). 

Precluding an inmate who has suffered sexual assault from raising a legitimate 

claim in federal court—who may have failed to meet the parsimonious time requirements of the state’s grievance system owing to a reasonable fear of retaliation or 

immediate trauma—does not comport with the legislative intent of the PLRA. Nor 

should hyper-technical adherence to unfair grievance procedures that are 

mischaracterized by prison staff prevent an injured inmate from filing his claim in 

federal court. As Senator Orrin Hatch explained in introducing the legislation, ‘‘I do 

not want to prevent inmates from raising legitimate claims.’’ 141 Cong. Rec. 27042 

(Sept. 29, 1995) (quoted in Woodford, 126 S. Ct. 2401). Added co-sponsor Senator 

Strom Thurmond, ‘‘[The PLRA] will allow meritorious claims to be filed, but gives 

the judge broader discretion to prevent frivolous and malicious lawsuits filed by 

prison inmates.’’ 141 Cong. Rec. 27044 (Sept. 29, 1995) (quoted in Woodford, 126 S. 

Ct. 2401). The amendments in H.R. 4109 help realize that laudable goal of the sponsors of the PLRA. Some critics suggests that alleviating the exhaustion requirements will reward lazy inmates who fail to file timely grievances and will result in 

stale claims. However, in my experience in both adjudicating and litigating prisoner 

complaints, I rarely encountered an inmate who was loathe to complain and file a 

grievance, barring fear of retaliation. 

It deserves mentioning that the grievance procedures themselves must be improved. It is neither sensible nor just to require that inmates exhaust procedures 

that do not afford them legitimate means to remedy their complaints. The Woodford 

v. Ngo decision left unaddressed ‘‘whether a prisoner’s failure to comply properly 

with procedural requirements that do not provide a ‘meaningful opportunity for prisoners to raise meritorious grievances’ would bar the later filing of a suit in federal 

court.’’ 126 S. Ct. at 2403 (Stevens, J., dissenting (quoting majority opinion)). At 

least three justices made clear that they would likely consider such preclusion unconstitutional. Id. at 2403–04. (Stevens was joined in dissent by Justices Souter and 

Ginsburg). The PLRA should be amended to fulfill the constitutional requirement 

30 

‘‘that prisoners, like all citizens, have a reasonably adequate opportunity to raise 

constitutional claims before impartial judges.’’ Id. at 2404 (citing Lewis v. Casey, 518 

U.S. 343, 351 (1996)). 

At a minimum, Congress should not apply the exhaustion requirement in instances where the grievance procedures do not provide a meaningful opportunity to 

raise meritorious grievances. Congress previously tethered exhaustion to fulfillment 

of federal standards for grievance procedures. The predecessor to the PLRA, the 

Civil Rights of Institutionalized Persons Act (CRIPA), limited application of the exhaustion rule to the existence of grievance procedures that met the standards set 

by the Department of Justice. 42 U.S.C. § 1997e(a)(2) (1994), amended by Prison 

Litigation Reform Act of 1995 § 803(d); 28 C.F.R. §§ 40.1–40.22. Our Commission 

recommended a return to this link and a return to encouraging meaningful grievance procedures. 

The DOJ standards include simple but essential features such as written grievance procedures available to all employees and inmates, 28 C.F.R. § 40.3; assurance 

of invoking grievance procedures regardless of discipline or classification to which 

inmates may be subject, 28 C.F.R. § 40.4; applicability to a broad range of complaints, 28 C.F.R. § 40.4; affording a reasonable range of remedies, 28 C.F.R. § 40.6; 

and a simple standard form for initiating grievances. States or subdivisions of the 

states may apply to the Attorney General for certification of grievance procedures. 

28 C.F.R. § 40.11. An application for certification shall be denied in the event the 

Attorney General finds the procedures do not comply with these standards or are 

‘‘no longer fair and effective.’’ 28 C.F.R. § 40.16. These regulations also require the 

Attorney General to notify the federal appellate and district courts of the certification status of the grievance procedures. 28 C.F.R. § 40.21. The legislative history 

indicates the very purpose behind exhaustion under CRIPA was to ‘‘stimulate the 

development and implementation of effective administrative mechanisms for the resolution of grievances in correctional . . . facilities.’’ H.R. Conf. Rep. No. 897, 96th 

Cong. 2d Sess. 9 (1980). The PLRA turned that laudable goal on its head, making 

exhaustion a blunt instrument barring even meritorious claims regardless of the inadequacy of the grievance procedures. 

Also improperly included in the overbroad sweep of the PLRA are juvenile inmates. Happily, section 4 of H.R. 4109 seeks to rectify this morally unsound application and exempts juveniles from the PLRA. Especially vulnerable to abuse in jails 

and prisons, yet less mentally equipped than adults to maneuver administrative and 

legal processes, it is especially galling to burden juveniles with the stringent time 

and filing requirements of the PLRA. Moreover, I have not seen statistical evidence 

that juveniles have filed excessive, frivolous lawsuits. 

In conclusion, I unhesitatingly express my support for H.R. 4109. The bill takes 

significant steps toward rectifying the overbroad and overly harsh provisions of the 

PLRA that have denied inmates with meritorious claims their day in court. In addition, the bill reaffirms Congress’s faith in the Judiciary to resolve and improve conditions and abuses in our Nation’s teeming jails and prisons. 

As Justice Stevens observed in commenting on the PLRA, Congress has a ‘‘constitutional duty ‘to respect the dignity of all persons,’ even ‘those convicted of heinous crimes.’’’ Woodford v. Ngo, 126 S. Ct. at 2404 (Stevens, J., dissenting) (quoting 

Roper v. Simmons, 543 U.S. 551, 560 (2005)). These amendments in H.R. 4109 go 

a long way toward recognizing and fulfilling that duty. I thank the Chairman and 

the members of the Committee for the opportunity to present this information to 

you. 

Mr. SCOTT. Ms. Hart. 

TESTIMONY OF SARAH V. HART, ASSISTANT DISTRICT ATTORNEY, PHILADELPHIA DISTRICT ATTORNEY’S OFFICE, PHILADELPHIA, PA 

Ms. HART. Thank you very much, Mr. Chairman Scott, Ranking 

Member Gohmert and Members of the Subcommittee. I greatly appreciate the opportunity to testify here today. 

H.R. 4109 proposes substantial amendments to the PLRA. Congress, however, passed the PLRA to address three critical problems: First, to address frivolous inmate lawsuits that were costing 

States millions of dollars, wasting correctional and judicial resources; second, the problem of long-standing consent decrees that 

governed over 39 of our State correctional systems; and third, fedVerDate Aug 31 2005 16:38 Jan 08, 2009 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\042208\41903.000 HJUD1 PsN: 41903
31 

erally ordered prison population caps that required the mass release of dangerous prisoners. 

In the 1970’s and 1980’s, many prisons entered consent decrees, 

believing that they could help improve prison conditions. Consent 

decrees permitted parties to craft sweeping injunctions that were 

not limited by the traditional requirements governing Federal court 

injunctions. Prison managers, however, ultimately found that these 

consent decrees impaired their ability to manage prisons. Consent 

decrees provisions that seemed wise when they were entered 

proved to become outdated and counterproductive. New political 

administrations were bound to the poor policy choices of prior administrations. 

Despite this, consent decrees were very, very difficult to change. 

Congress heard from numerous witnesses who complained about 

the adverse effects of long-standing injunctions and how hard they 

were to change. Many of these consent decrees had far-reaching 

operational and financial implications. Texas prisons, for example, 

could not exceed 95 percent of their designed capacity. This required that they keep 7,500 empty beds and construct new prisons 

and staff them. 

These orders also had substantial public safety implications. For 

9 years I served as the district attorney’s counsel opposing a prison 

population cap that required the release of tens of thousands of 

pretrial detainees over a several-year period. Philadelphia’s prior 

mayor had agreed to a consent decree to settle a class action without any trial, without any finding that there was a single constitutional violation. He agreed to reduce the prison population, to reduce the budget by agreeing to mass prisoner releases. 

Following the Federal prison cap order, the number of fugitives 

in Philadelphia nearly tripled. Outstanding bench warrants skyrocketed from 18,000 to over 50,000. That is the equivalent of a 

year’s worth of prosecutions in Philadelphia, a year’s worth of 

crime victims with no justice. In one 18-month period, Philadelphia 

rearrested for new crimes 9,732 defendants released by the Federal 

court order. Their crimes included 79 murders, 959 robberies, over 

2,200 drug-dealing cases, over 700 burglaries, 90 rapes, 14 

kidnappings, over 1,000 assaults, and over 200 gun crimes. 

This also included the murder of rookie police officer Daniel 

Boyle, who was shot by a prisoner repeatedly released by the Federal prison cap. Daniel Boyle’s father testified repeatedly before 

Congress, urging that they enact the PLRA to prevent other families from facing what he had faced with the loss of his son. When 

the new mayor came in, Ed Rendell, the first thing he did, his first 

official act as mayor, was to file a motion to terminate that prison 

population cap, but he was unable to do that based on the law as 

it existed prior to the PLRA. Only after the PLRA passed was he 

able to stop the Philadelphia prison cap. 

H.R. 4109 proposes to eliminate the limits on consent decrees 

that establish prison population caps or require the release of prisoners. It also would require limit consent decrees and injunctions. 

Quite simply, if H.R. 4109 was the law today, the Philadelphia 

prison cap could be reestablished as a Federal court injunction 

without any trial showing a constitutional violation, and prosecuVerDate Aug 31 2005 16:38 Jan 08, 2009 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\042208\41903.000 HJUD1 PsN: 41903
32 

tors would be powerless to stop the entry of mass prisoner release 

orders or have any meaningful way to stop those releases. 

H.R. 4109 also would permit the kinds of sweeping decrees and 

injunctions that the PLRA limited. These include ones that are not 

narrowly tailored, injunctions that trump State laws. There are a 

number of very essential requirements designed to limit the intrusiveness of Federal court injunctions that would be eliminated by 

this act. 

H.R. 4109 also proposes to end the current requirement that a 

prisoner exhaust administrative remedies before filing a Federal 

lawsuit. The PLRA exhaustion requirement, however, does not stop 

inmates from filing State lawsuits; rather, it takes the sensible approach that prisoners should first raise the claims with State officials before they go to a Federal court. 

Correctional officials rely on inmate grievances to alert them to 

problems arising in prisons. The current system allows corrections 

managers to learn of serious problems in the prison, take prompt 

action to stop them and remedy past problems. It also provides an 

opportunity for alternative dispute resolution. Under the new proposal, there would be no incentive for inmates to do this. 

H.R. 4109 also would vastly increase the fees for State and local 

taxpayers for prisoner lawyers. Under the PLRA, prisoners’ attorneys are entitled to substantial attorneys’ fees already. For example, in Philadelphia, prisoners’ attorneys litigating just a preliminary injunction motion received $250,000. Other States have paid 

out millions of dollars in fees under the PLRA. Prisoners’ attorneys, however, now want State and local taxpayers to pay them at 

prevailing market rates. That means, in Philadelphia, up to $450 

an hour. They also want to eliminate the proportionality requirement, and they also want to reinstate getting fees for related 

claims, even when they are unsuccessful. Under current law, however, State and local prisoners already receive attorneys’ fees that 

are vastly better than what wounded Iraq veterans get if they get 

a medical malpractice claim. They are required to pay out 25 percent of their judgment. 

This Committee also heard recently from Debbie Smith over the 

Debbie Smith DNA Act. If Debbie Smith filed a suit against her 

rapist, she doesn’t get dime one for attorneys’ fees, and she doesn’t 

get to go to Federal court. 

The bottom line here is that State and local taxpayers are already paying substantial money for attorneys’ fees to litigate these 

claims. The PLRA has put on some sensible limitations to that, but 

it should not—we should not have State and local taxpayers underwrite and pay out attorneys’ fees that are vastly disproportionate 

to what other plaintiffs get. 

Thank you very much for the opportunity to speak here today. 

Mr. SCOTT. Thank you. 

[The prepared statement of Ms. Hart follows:] 

33 

PREPARED STATEMENT OF SARAH V. HART


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71 

Mr. SCOTT. Mr. Preate. 

TESTIMONY OF ERNEST D. PREATE, JR., JD, SCRANTON, PA 

Mr. PREATE. My name is Ernie Preate. I am a lawyer up in 

Scranton, Pennsylvania, and, as you know, I am a former attorney. 

I have heard several significant proposals here today from both 

the Minority and Majority for amending the PLRA, and I commend 

the Committee for taking up this task, and I hope that you can 

come to some resolution of it. 

As a prosecutor for 25 years, I really never understood the true 

vulnerability of prisoners and the loss of hope that permeates most 

prisons and prisoners until I became one. And as part of my last 

life’s work for the last 10 years, I have been graciously allowed by 

the Pennsylvania Department of Corrections to visit inside the 

walls of its prisons and to talk to both the men and the women 

about their fears and their hopes. Last year I visited 15 of the 26 

Pennsylvania prisons, including the old and daunting big houses, 

Graterford, Huntingdon, Rockview, and the death row institution 

SCI-Greene. I spoke to almost 10,000 inmates in these questionand-answer sessions. Some of the inmates I sent there myself. 

I want to make it clear that my knowledge of the prisons—and 

I have been doing this for 10 years—most of the guards and the 

staff are professionals, and they act that way, and they do their job 

very well. But then there are some, and I have outlined some of 

them, the instances in my written testimony, where there are 

rogue guards that engage in beatings, and that creates grievances. 

Now, I am in a unique position there to understand the real-life 

consequences of the legislation that you pass and that my Commonwealth passes. As I say, most people do not have an intimate 

knowledge of what goes on inside a prison. Most people just have 

pictures from television, some books that they have read. But inside a prison it is different. 

I can say with confidence, Mr. Chairman, that the PLRA is deeply flawed, and its unintended consequences have done serious harm 

to the principle that a justice system must, after all, be fundamentally just. 

A serious problem with the PLRA currently as written is that it 

requires a prisoner to exhaust administrative remedies in order to 

file a Federal lawsuit. This means that he or she must file internal 

grievances through possibly three or four levels before the claim 

can be brought in Federal court. This restriction applies both in 

county and State prisons. The problem with that is it is very difficult to get the forms. It takes a very short period of time in which 

to file. And then, in fact, most of these claims are frivolous and are 

weeded out, however, through the provisions of the current PLRA. 

And I support that provision, and I think it is important that it remains in your bill, Mr. Scott. And H.R. 4109 does contain that 

screening provision, and I support that. 

The problem with the PLRA is that it stifles the true complaints, 

and it is well to remember here that what we are talking about are 

inmates. We are not talking about lawyers. The Pennsylvania Department of Corrections, which is a very good institution, has an 

18-page inmate grievance procedure that you must follow. And it 

says, you must do this, you must do that, you must file the pink 

72 

copy with so and so, you must file the golden copy with so and so; 

it must be clear, understandable, legible, et cetera, et cetera. And 

if you mess up, you are out. If you miss the deadlines, you are out. 

The Woodford v. NGO case, which Jeanne Woodford was one of 

the petitioners in that case, that made it clear, the United States 

Supreme Court in 2006 made it perfectly clear, if you miss one of 

those deadlines by 1 day, if you don’t get the paper filed in time, 

you are out of court. There are no exceptions. The United States 

Supreme Court’s finding rules. 

So we are talking about people here who are inmates with less 

than an eighth-grade education. They are to interpret an 18-page 

document that was drafted by lawyers. These timelines and other 

grievance procedure information are simply too difficult, it seems 

to me, to say, your rights are dependent upon, your access to the 

courts are dependent upon how you can manage your way through 

this 18-page morass. 

Retaliation. That is a terrible problem inside of prisons. Intimidation is one of the problems that the PLRA requirements that inmates first exhaust their remedies with inmate grievance systems 

has spawned. In cases involving abuse by guards against inmates, 

requiring that the inmate first file the grievance exposes the inmate to future retaliation by the very person that perpetrated the 

harm against him. An inmate learns the quickest route to the hole 

is to complain about the conduct of a guard. If you think that retaliation is not an everyday part of prison life, then you don’t know 

the reality of prisons. 

I just want to say one thing. That is this, that the PLRA, as 

Margo Schlanger once said and has written, the exhaustion requirement is a rule requiring administrative exhaustion and punishing fate—cross every ‘‘T’’ and dot every ‘‘I’’—by conferring constitutional immunity for civil rights violations. It is simply unsuited for the circumstances of prisons and jails where physical 

harm looms so large and where prisoners are so ill-equipped to 

comply with legalistic rules. 

I made, if I may, Mr. Chairman, a couple of suggestions in my 

written testimony. One of them is that, in the 90-day period that 

you have provided for, for the prison and the prisoner to deal with 

these issues that are raised, that you authorize the courts to use 

alternative dispute resolution. It is, I think, important that that be 

permitted in the system to help reduce the costs and to improve 

the efficiencies. 

Secondly, I have outlined a case here in my written testimony 

where a person who is a paraplegic, suing under the Americans 

with Disabilities Act, is forced to go through the PLRA in order to 

perfect his claim in Federal court. It seems to me what has happened here is that the ADA’s intent is going to be frustrated. There 

is a case I cite in my notes, in my testimony, that says the way 

that you get to justify and to uphold your Federal ADA claim has 

to go through the PLRA and its requirements. I do not think that 

was the intended consequence of the PLRA. 

Again, I support H.R. 4109, and I look forward to answering your 

questions. Thank you. 

[The prepared statement of Mr. Preate follows:] 

73 

1The Department and I have mutually agreed that I would not discuss individual cases, grievances or prison policies during these question and answer sessions. To be clear, I proposed some 

of these restrictions myself. 

PREPARED STATEMENT OF ERNEST D. PREATE, JR. 

Good Afternoon. My name is Ernie Preate, Jr. I’m an attorney licensed to practice 

law in the Commonwealth of Pennsylvania and the federal District Courts in Pennsylvania and the Third Circuit Court of Appeals. 

I would like to thank Chairman Scott, Ranking Member Gohmert, and the rest 

of the Committee for inviting me to speak to you today about the ‘‘Prison Abuse 

Remedies Act of 2007.’’ I rise in support of H.R. 4109. 

I’d like to give you a brief background of my life experiences that brings me before 

you today. I am a former District Attorney in Scranton, Pennsylvania, and a former 

Attorney General of Pennsylvania. I’m also an attorney in private practice who defends accused criminals in state and federal courts; I also litigate Civil Rights 

claims on behalf of inmates and former inmates. But perhaps my most important 

experience for purposes of this testimony is that I was once a prisoner. I pled guilty 

to Mail Fraud in 1995 in connection with improperly gathering less than $20,000 

in campaign contributions nearly 20 years ago. It was a violation of our state election law to take cash contributions in excess of $100. At some of my fundraisers, 

some people paid in cash, most paid by check. It was wrong for me to accept the 

cash contributions, and I am deeply sorry to the people of Pennsylvania for my actions. As punishment, I spent nearly twelve months in federal prison. 

On one hand, I thus understand the importance of a strong criminal justice system. Criminal offenders need to be held accountable for their actions, but this punishment must be imposed in accordance with Constitutional standards. From my 

unique perspective, the proposed bill, H.R. 4109, provides the proper balance between weeding out the numerous frivolous civil lawsuits filed by prisoners and ensuring that meritorious ones receive their day in Court. 

Enforcement of the law is central to our system of justice and to the protection 

of our communities. As a prosecutor, I focused on criminal law enforcement, but it 

is equally important that constitutional standards and civil laws be obeyed. The rule 

of law applies to everyone in this country, including prisoners and officials. Therefore, to the extent that the PLRA interferes with the rule of law and undermines 

the protection of constitutional rights that all Americans, including prisoners, share, 

it should—and must—be amended. 

As a prosecutor for nearly 25 years, I never fully understood the true vulnerability 

of prisoners, and the loss of hope that permeates most prisons and prisoners. Then 

I became one. And, as part of my life’s work, for the last 10 years I have been graciously allowed by the Pennsylvania Department of Corrections to visit inside the 

walls of its prisons and to talk to both men and women about their fears and their 

hopes.1 Last year I visited 15 of the 26 Pennsylvania Prisons, including the old and 

daunting ‘‘big houses’’—Graterford, Huntington, Rockview and the death row institution, SCI-Greene. I spoke to almost 10,000 inmates, some of them I sent there myself. Thousands have written to me, not just about their individual cases or issues, 

but about whether laws will be changed, such as the PLRA, and the Pennsylvania 

Post-Conviction Relief Act, which, along with the Anti-Terrorism Effective Death 

Penalty Law (ATEDP), effectively obliterates the great Writ of Habeas Corpus. They 

talk to me about whether ill and aged lifers have any chance of pardon or parole, 

and, whether those who are truly innocent can ever be freed. 

I am in a unique position to understand the real life consequences of legislation 

that is passed, by you and my Commonwealth. I know that most individuals, including those who crafted the PLRA, have a limited knowledge about realities of prison 

life, and, therefore, could not have predicted the stifling consequences of this law. 

It was only when I was a prisoner that I understood the critical importance of the 

federal courts’ oversight of prisons. Based upon ALL my experiences, I can say with 

confidence that the PLRA is deeply flawed and its unintended consequences have 

done serious harm to the principle that a justice system must, after all, be fundamentally just. 

A serious problem with the PLRA as currently written is that it requires a prisoner to exhaust administrative remedies in order to file a lawsuit in federal court. 

This means that he or she must file internal grievances through possibly 3 or 4 levels before the claim can be brought in federal court. This restriction applies in both 

county and state prisons. 

I can tell you from my own experiences, both as an inmate and as a civil rights 

attorney that inmates can be very intimidated in bringing grievances. I litigated one 

civil rights lawsuit against the Lackawanna County Prison where a few rogue 

74 

2Mincy v. Klem, Slip Copy, 2007 WL 1576444, M.D.Pa., May 30, 2007, Mincy v. Chemielewski, 

2006 WL 3042968, M.D.Pa., October 25, 2006. Appeal of grant of summary judgment is now before the Third Circuit. 3Woodford v. NGO, 546 U.S. 81 (2006). 4Spruill v. Gillis, 372 F.3d 218 (C.A.3 (Pa.) 2004) 

guards, after midnight, routinely, without provocation, beat and terrorized inmates, 

and even other guards. There was no question about the one guard’s inmate beating. The stomping boot print was clearly visible on his back. The next day, the prisoner verbally complained to the day shift officer. So did his father, a well-known 

businessman. The result: that night the rogue guard retaliated with a second brutal 

assault. With the father complaining and the assaults public and out of control, a 

criminal investigation and a newspaper investigation ensued. Eventually, the family 

hired me to pursue a lawsuit. I can’t tell you the amount of my client’s settlement, 

but I can tell you that two of the guards ultimately pled guilty and their punishment was—probation! Probation. Think of what kind of message this sends to inmates not just in Lackawanna County but to inmates everywhere. 

Intimidation of inmates is one of the problems with the PLRA’s requirements that 

the inmate first exhaust his remedies with the inmate grievance system. In cases 

involving abuse by guards against inmates, requiring that the inmate first file a 

grievance exposes the inmate to future retaliation by the very people he is vulnerable to and are harming him. An inmate learns that the quickest route to the isolation of the ‘‘hole’’ is to complain about the conduct of a guard. If you think that retaliation is not a part of every day prison life, then you don’t know the reality of 

prisons. 

In the above lawsuit, we learned in depositions of other assaults. In one, the inmate was handcuffed to a pole and beaten by this rogue guard, and the beating did 

not stop until the warden’s long time secretary, hearing of the beating, ran down 

two flights of stairs to the guard and put a stop to it. This inmate was so intimidated and fearful, he didn’t file a grievance or even a federal lawsuit. 

Moreover, in the vast amount of cases, the guard will deny having done anything 

wrong, and the institutional review officers will simply deny, deny, deny (at each 

level) finding that the guard has denied and the guard is credible. Of course, this 

inmate may now find himself subject to retaliatory discipline with concocted violation of prison rules, such as failing to stand for a count, cursing at or threatening 

a guard, or constant random searches of his person and his cell. 

I know of one case litigated by a colleague of mine where the inmate filed a grievance that the guards were retaliating against him for filing a prior grievance. The 

inmate complained that the guards were putting pebbles in his soup. What did the 

prison officials do in response to this grievance? The first ‘‘investigative’’ act was to 

search the inmate’s own cell and ‘‘find’’ pills not prescribed to him.2

The United States Supreme Court has recently made it perfectly clear: the exhaustion requirement is non-discretionary.3 This means that if a grievance is dismissed due to procedural defects, such as the inmate filing his appeal of the grievance one day late, his case is dismissed for failure to exhaust. 

In my view, the exhaustion requirement runs afoul of basic due process requirements under the U.S. Constitution for notice. Let me give you an example. In Pennsylvania, the grievance procedures, according to the Third Circuit, encompass an initial grievance and two levels of appeal, all of which have timelines.4 Nowhere on 

the state forms does it say what the timelines are for filing the initial grievance and 

for appealing the decision of the grievance officer to the Superintendent and the Superintendent’s decision to review in Harrisburg. However, when the Superintendent 

is given the inmate’s Appeal, at least in one of the state prisons where I have a 

client, it stated right on the form used for recommended action to the Superintendent: ‘‘your answer is due by (specific) date.’’ Clearly the staff are notified of 

the time dates, but not inmates. This should change. 

It is helpful to compare the prison grievance processes required by the PLRA to 

that of other legislation. In virtually every phase of administrative review, both 

state and federal, when decisions are made, such as Social Security denials, Workers’ Compensation denials, Unemployment Compensation denials, Equal Employment Opportunity findings, it clearly states on the official finding or denial that 

there is a right to an appeal and the timeline for appeal of that decision. However, 

from what I have observed, nowhere on correctional complaint forms does it inform 

the inmate of his or her right to file a complaint or appeal, to whom the appeal 

should be directed, and, the timeline for submission of the appeal. 

It is important to remember here that the education level for most inmates in 

Pennsylvania prisons is less than an eighth grade education. These timelines, and 

other grievance process information, are contained in an 18 page ‘‘policy statement’’ 

75 

5 42 Pa.C.S.A. § 8522, 42 Pa.C.S.A. § 8542. 

6 Booth v. Churner, 532 U.S. 731 (2001), affirming Booth v. Churner, 206 F.3d 289 (Ca.3(Pa.) 

2000). 7 Hancock v. Payne, 2006 WL 21751 (S.D. Miss.). Copeland v. Nunan, 205 F.3d 743 (CA 5(Tex) 

2001) 8 42 U.S.C.A. § 12131 et seq. 

ADM-804 that is given to inmates along with 26 other official policies that the inmate must be aware of. Though it is carefully crafted by lawyers, even inmates who 

can barely read are expected to understand their rights and responsibilities. Again, 

even if an inmate has a legitimate and meritorious complaint, if it is one day late, 

it is never going to be redressed 

I would also note that Pennsylvania has no comparable PLRA, because of its sovereign immunity statutes for state and local governments.5 Inmates therefore, have 

no ability to sue in Pennsylvania State Courts, the state or local governments for 

assaults by guards or other prisoners, for monetary compensation, as such events 

do not fall within the exceptions enumerated under the Pennsylvania sovereign immunity statutes. Therefore all such lawsuits are filed in the federal courts. 

Another hazard of the grievance process is that the grievance process may be futile in terms of providing any relief or redress. What good would it do to complain, 

through the grievance process, a single beating by a guard? The grievance process 

will not provide him monetary recompense for his physical injuries. The Supreme 

Court in upholding a 3rd Circuit case held that a complaint of excessive force (beating by guard) must be grieved to final decision even though the administrative remedy cannot provide the inmate with the relief he could get in a section 1983 complaint (monetary recompense).6

A second problem with the PLRA I would like to address is the requirement that 

an inmate receive ‘‘physical injury’’ in order to be awarded compensatory damages. 

Most of the Circuits have defined physical injury as something more than de minimis. You have heard extensive previous testimony that the physical injury requirement has been used to deny redress to inmates who have been raped and sexually 

assaulted.7 This requirement also appears to unfairly restrict damages which may 

be awarded to a disabled persons under the Americans with Disabilities Act (ADA).8

Let me give you an example from one of my own cases. I represent a paraplegic, 

a well known wheelchair racer. He was prescribed by his Board Certified Urologist 

to have clean rubber gloves and clean catheters to allow him to perform his elementary bodily functions. He was instructed to take all reasonable efforts during this 

process to not be in a place where he could transmit his germs to others , or where 

he could pick up the germs of others. He did this on his own for 10 years with only 

occasional urinary tract infections (UTI), which, is to be expected in such cases. 

But when he went to state prison, for nearly a year he was never examined by 

the staff physician. He was placed in a cell with another inmate and he was not 

given a fresh supply of gloves and catheters for each bodily function elimination. He 

was told to wash the items himself. Therefore, it was not surprising that he began 

to develop repeated urinary tract infections. 

The prison doctor, who had not seen the inmate for nearly a year since his arrival, 

without even examining the inmate, nor contacting his treating physician, told him 

that he was ordering a permanent catheter, called a Foley Catheter, to be inserted 

in the inmate’s penis and that he carry a bag in which his urine would be collected. 

My client, who was under 30, educated and in good physical shape, strongly objected. As one Board Certified Urologist testified, a Foley Catheter, increases rather 

than decreases the rate of UTI’s. Further, prolonged use of a Foley Catheter causes 

a decrease muscle functioning of the penis and associated parts. Over time these 

muscles atrophy. The inmate urged the doctor to call his treating physician. The 

prison doctor never did call the treating physician. 

As a result, the prison doctor ordered that the inmate be given a new bodily elimination regime. He could only urinate once every six hours, that each time he did 

so, he had to travel to the nurse’s station, be examined by the nurse who would 

press on his stomach to see if the bladder was distended, and, only if it was, would 

she give him the necessary catheter and gloves. To his humiliation, she had to 

watch him do it himself. And if she believed he was not distended enough, she 

would refuse him those necessary implements. On several occasions, he was refused. 

The urgency to eliminate became excruciatingly painful. Several times he wet himself. His existence because so tortured that he would refuse food and drink so he 

could wouldn’t have the urgency to eliminate. 

He filed a grievance begging to be allowed to catheterize himself as needed and 

without humiliation. He even attached a letter from his treating physician. His complaint was denied at every level, upholding the prison doctor. Thus, we filed a fedVerDate Aug 31 2005 16:38 Jan 08, 2009 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\042208\41903.000 HJUD1 PsN: 41903
76 

9 But see Kiman v. New Hampshire Department of Corrections, 451 F.3d 274 (1st Cir. 2006) 

where the First Circuit held that the lower court must determine whether the inmate must exhaust his administrative remedies as a prerequisite to suit under the ADA. 10 42 U.S.C.A. § 1997e sections (a) (exhaustion requirement) and (c)(1) (dismissal) both specifically state ‘‘any other Federal law’’ and section (e) refer to ‘‘[n]o Federal civil action’’. 11 546 U.S. 151, 126 S.Ct. 877 (2006) 12 42 U.S.C.A. § 1997e (c) 

eral lawsuit against the doctor and prison officials, alleging discrimination against 

him because he was disabled. He testified that he was aware of no one else in the 

healthy male prison population who was prescribed such a cruel and horrendous regime, alleging he was subjected to this regime only because he was disabled, a paraplegic. 

In a Motion to Dismiss, the medical provider argued that he received no physical 

injury. While we were able to argue some physical injuries (increased bladder infections, physical pain and incontinence) it is possible that this could be lost on summary judgment.9

In my view, this is a clear violation of the ADA. Non-paraplegic inmates were not 

prohibited from urinating and forced to an every six-hour schedule. The PLRA applies to all inmate suits in federal Courts.10 The physical injury requirement runs 

directly in conflict with the ADA, in that the ADA is about equal rights and emotional trauma to a disabled person and not physical injuries. In U.S. v. Georgia,11

the Supreme Court held that a disabled inmate who is discriminated against could 

sue for compensatory damages. The requirement for physical injury potentially eviscerates the Americans with Disabilities Act as it applies to inmates, rendering its 

protections meaningless. 

As a former Attorney General, I take seriously the litigation burden felt by the 

Courts and government officials. I was responsible for defending against inmate 

lawsuits prior to passage of the PLRA. However, any lessening of that burden must 

be carefully tailored to maintain accountability for violations of prisoners’ Constitutional rights. The PLRA can be reformed without changing its most effective measure: the screening provision 12 that requires courts to review prisoners’ cases prior 

to authorizing service on the defendants, and to sua sponte dismiss cases that are 

frivolous, malicious, fail to state a claim, or seek damages from an immune defendant. That provision represents the key mechanism to realize the PLRA’s stated purpose of reducing frivolous prisoner suits. The fixes for the PLRA proposed in H.R. 

4109 do not interfere with this critical provision. 

I also would propose to this Subcommittee that you consider including in H.R. 

4109, a provision that during the 90 day stay options in § 3(a)(2) that use of Alternative Dispute Resolution (ADR) processes be authorized as a means of early resolution of legitimate inmate grievances.. ADR consists of Mediation, Arbitration or 

Early Neutral Evaluation (ENE) 

To briefly explain, mediation involves negotiation moderated by a trained mediator. Arbitration is an agreement to litigate the case de novo before an arbitrator 

whose decision is binding. ENE involves sending a case to a neutral attorney with 

subject matter expertise. The ENE attorney can provide a non-binding evaluation 

and is available to assist the parties in reaching agreement. To a pro se prisoner, 

this outsider’s view may well terminate a non-meritorious claim early without running up financial costs in the system and cutting inefficient use of time by parties, 

attorneys and courts. 

ENE was started by 20 attorneys in the Northern District of California in the 

1980’s and is spreading across the United States. Indeed, the Federal District Court 

for the Western District of Pennsylvania in Pittsburgh recently adopted ENE as an 

ADR tool. Unfortunately, it does not cover social security or prisoner cases. By authorizing the use of these ADR programs, I believe many districts across America 

will adopt ADR for prisoner cases. 

These ADR programs, used in other federal cases, provide an impartial and accessible forum for just, timely and economical resolution of federal legal proceedings. 

Our own federal courts have recognized that the ADR processes are effective and 

economical use of the court’s resources. In particular I believe ENE would be valuable in prisoner litigation as the neutral attorney could provide a neutral look the 

inmate claims to see whether the claim can be best resolved without litigation. 

Lastly, as a solo practitioner, I must add my voice in support have to support the 

other testimony regarding the unfair provisions of the PLRA limiting attorneys fees. 

As a solo practitioner I have learned of many meritorious cases involving First 

Amendment rights, and in particular retaliation against prisoners for exercising 

their rights. Since these cases involve only nominal damages and not physical injury, the 150% requirement makes it impossible for someone such as me to repVerDate Aug 31 2005 16:38 Jan 08, 2009 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\042208\41903.000 HJUD1 PsN: 41903
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resent an inmate in a meritorious case. The inmates seldom have access to funds 

to pay an attorney up front, and if my recovery is limited to 150% of a nominal damage award, there is no way that I would be able to devote my time to such a case. 

I willingly do pro bono work for Pennsylvania inmates and am a registered lobbyist 

in Pennsylvania for criminal justice reform minded individuals and groups. But, as 

a solo practitioner I cannot litigate without adequate recompense for my time. 

In fact, it is, in my opinion as a former Attorney General, that the 150% requirement is the single greatest contributing factor to the unwillingness of the states to 

settle cases, since they know they will not be required to pay the attorney’s fee if 

only a nominal amount of a buck or two is awarded. They can afford to pay $1.50 

in attorney’s fees, but not the actual fee earned by the attorney based upon the time 

required for the lawsuit. Not only does the 150% requirement preclude attorneys 

from taking on meritorious cases involve clear rights violations, but it also can 

waste the court’s resources because it eliminates the incentive for the government 

to settle the case prior to the attorney spending large hours on the case and thus 

raising their liability for the attorney’s fee. 

I urge you to support, and consider co-sponsoring H.R. 4109 in order to ensure 

that prisoners’ meritorious claims can be heard in federal court. It is critical maintain the federal courts’ ability to effectively oversee the corrections system and to 

maintain inmate belief that the system can work for them. Fixes to the PLRA are 

long overdue, and I commend Congressman Scott and Congressman Conyers for 

their leadership on this very important issue. 

Mr. SCOTT. Thank you very much. 

Ms. Woodford. 

TESTIMONY OF JEANNE S. WOODFORD 

Ms. WOODFORD. Thank you. Good afternoon. Thank you, Congressman Scott, Congressman Gohmert, and all Members of the 

Committee, for giving me the opportunity to testify today about 

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

I am the former warden of San Quentin State Prison and the 

former director and under secretary and, for a short time, acting 

secretary of the California Department of Corrections and Rehabilitation. I have 30 years of experience in the field of corrections. I 

am here to testify in support of making necessary fixes to the Prisons Litigation Reform Act. 

As a prison administrator, I was often unable to address deficiencies in our prisons, not only due to a lack of resources but, just 

as often, due to a lack of political will. I also was witness to the 

frustration of the Attorney General’s Office on occasion when put 

in the difficult position of trying to defend a policy or a practice 

that was clearly in conflict with the law solely because the executive branch of State government was more comfortable following 

the order of a court than correcting a deficiency, itself. The political 

ramifications that result when a government official appears to 

choose prisoners and prisons over other State needs continues to 

prevent government leaders from adopting policies and appropriating money to address grossly deficient prison conditions. 

Any good prison administrator should not fear the involvement 

of the courts. I have come to understand the importance of court 

oversight. The courts have been especially crucial during recent 

years as California’s prison population has exploded and prison officials have been faced with the daunting task of running outdated 

and severely overcrowded facilities. Right now, virtually every aspect of California’s prison system is under court oversight. This is 

true for health care, for mental health care, for dental care, for 

prison overcrowding and for conditions for youth. The list goes on 

and on. 

78 

The California Department of Corrections and Rehabilitation also 

has been subject to Federal court intervention to address such 

issues as employee investigations, employee discipline and even the 

code of silence that was responsible for hiding the wrongdoings of 

some staff in their actions against prisoners. 

All of this court intervention has been necessary because of the 

State’s unwillingness to provide the department with the resources 

or to make the policy changes needed to bring about necessary reform in the prison system. 

The PLRA allows States to move to terminate consent decrees 

after 2 years. The San Quentin death row consent decree, which 

deals with conditions of confinement, is one example of a case 

where improvements were interrupted because of the provisions of 

the PLRA. More time was spent litigating about whether the decree was in effect than remedying the inadequate conditions on San 

Quentin’s death row. 

Death row prisoners are a perfect example of where court intervention may be absolutely necessary. Some of the most difficult 

conversations I had as a warden were with the family members of 

the victims of death row inmates. Understandably, these family 

members are in pain beyond belief. Some would ask me questions 

like, why did I even feed the prisoners? I had to explain to them 

that, as a prison administrator, my role was to provide for the safety and security of prisoners, staff and the public. Without court 

intervention, I believe I would not have been able to meet this responsibility. In California’s prison system, it normally takes up to 

a year or more to exhaust administrative remedies through every 

level of appeal. 

What is a prisoner to do if he or she is not receiving adequate 

medical treatment for a serious heart condition, for example? That 

prisoner may be forced to suffer for over a year waiting for a response to a grievance. I do not think that the PLRA was intended 

to cause this kind of harm. 

There also exist countless reasons why prisoners may be unable 

to complete the grievance process. For instance, prisoners may be 

transferred from one prison to another or paroled before they are 

able to fulfill each level of the appeal. Grievances may be rejected 

because a prisoner cannot clearly articulate his or her complaint or 

for a minor problem, such as using handwriting that is too small. 

Many of these prisoners are mentally ill and are barely literate, as 

others have talked about. 

In December of last year, the Sacramento Bee reported that the 

release dates for nearly 33,000 prisoners in California were miscalculated. As a result, prisoners have been forced to stay in prison 

beyond their appropriate sentences. According to some courts, these 

prisoners, however, will not be able to recover compensatory damages for this violation of their rights because over-detention does 

not meet the physical injury requirement. 

Having served as the CDCR director and as under-secretary and 

as acting secretary for over 2 years, I have become familiar with 

the problems faced by youth incarcerated in California. This is an 

extremely vulnerable population that must be treated differently 

than the adult population. Requiring use to exhaust a complicated 

and a neglected grievance process is unreasonable. In some cases, 

79 

youth are only able to complete the grievance process if they have 

a caring adult on the outside or the attention of an attorney to assist them. Even then, sometimes they are unsuccessful. 

In conclusion, good prison administrators do not need the many 

excessive protections imposed by the PLRA. The PLRA must be 

changed to ensure that courts can provide much needed oversight 

of correctional facilities. H.R. 4109 includes necessary fixes to the 

PLRA that will not open the floodgates to frivolous lawsuits but 

will actually help prison officials to ensure that prisons operate humanely and in accordance with the law. It is, after all, the responsibility of government to protect the rights of all citizens and, more 

importantly, to protect those who are the most vulnerable. We 

know of too many instances of prison abuse to ignore the needs of 

prisoners and of incarcerated youth to have appropriate access to 

the courts. The proposed modifications to the PLRA will allow prison administrators to respond to complaints and will ensure prison 

grievances about constitutional violations are not ignored. 

Thank you so much. 

[The prepared statement of Ms. Woodford follows:] 

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PREPARED STATEMENT OF JEANNE S. WOODFORD


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Mr. SCOTT. Thank you very much. 

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

now have questions from the panel, 5 minutes each. I will recognize myself for 5 minutes. 

Ms. Hart, the way our system works is that you have got a lot 

of people working independently. The legislature passes mandatory 

minimums. The police arrest. The judge sentences. They are all 

kind of independent on their own. 

Is it possible to end up with a prison that is unconstitutionally 

overcrowded and that is lacking health care and sanitation? 

Ms. HART. Absolutely. 

Mr. SCOTT. Then what happens? 

Ms. HART. Under the PLRA? They can sue. They can get—— 

Mr. SCOTT. Who can sue? 

Ms. HART. The prisoners can. I will tell you that this is exactly 

one of the things we faced in Philadelphia. The preliminary injunction order I talked about was something where the prior prison 

commissioner decided to control the prison by backing up inmates 

into the police districts. That judge was able to enter a preliminary 

injunction. It was a sweeping preliminary injunction. 

Mr. SCOTT. Under the PLRA? 

Ms. HART. Under the PLRA. 

They were awarded attorneys’ fees for it, well over $250,000 ultimately, and the practice stopped. 

The PLRA has carefully retained the power of Federal judges to 

act swiftly. In that case, for example, the judge ruled that the inmates did not have grievances available to them and did not prohibit them from filing suit. 

Mr. SCOTT. How would H.R. 4109 change any of that? 

Ms. HART. How would H.R. 4109 change—4109—well, in terms 

of stopping it? It would not. It would not stop a judge from doing 

it. A judge would be able to do it. 

Now, you could have, for example, consent decrees that could 

have—the prison, for example. What has happened traditionally 

when prison officials sometimes feel they have too many people in 

their prisons is they start agreeing to consent decrees to ship them 

elsewhere. 

There was one, for example, in Texas recently where you try and 

control your budget, basically, by saying we’re not going to accept 

a certain number of prisoners, and you send them off. 

Mr. SCOTT. Well, how would H.R. 4109 make things any worse 

than they are now? 

Ms. HART. Because basically it would allow you to start doing 

that again. It allows certain correctional administrators to trump 

State laws and to make agreements that they are not permitted to 

and put the burden on elsewhere. It returns you back to the prePLRA time where people could make agreements that trumped 

State laws, that weren’t necessary to violate constitutional violations—— 

Mr. SCOTT. You’re trying the case—I mean, if you have a legitimate case where, in fact, you have unconstitutional conditions, how 

would H.R. 4109 make things any worse than they are now on a 

legitimate case? 

88 

Ms. HART. The biggest problem here with H.R. 4109 is the fact 

that it covers far beyond legitimate cases. The PLRA tried to make 

sure that you protected the powers of Federal judges to still remedy constitutional violations quickly. What—— 

Mr. SCOTT. Do you need a physical injury under the PLRA? 

Ms. HART. Excuse me? 

Mr. SCOTT. Do you need a physical injury? 

Ms. HART. For a physical injury for emotional damages, that is 

what it does require. It is an extension of what was the Federal 

Tort Claims Act Provision. It has not stopped the type of suit—— 

Mr. SCOTT. If you do not have a physical injury, how do you get 

a constitutional violation? 

Ms. HART. The courts have interpreted it very narrowly. The 

PLRA has not stopped lawsuits. There are a lot that still get filed. 

There are still substantial—— 

Mr. SCOTT. For unconstitutional violations without a physical injury, can those cases be brought under the PLRA? 

Ms. HART. They are. The courts are interpreting it very narrowly. They are basically saying it is a de minimis injury. Candidly, I will tell you, I think that the PLRA does—try to, by lifting 

what was out of the Federal Tort Claims Act Provision, something 

designed to try and stop what were very insubstantial claims. Do 

I think they could have done better? 

Mr. SCOTT. Let me ask Mr. Bright. 

Can you bring cases like that under the PLRA? 

Mr. BRIGHT. Well, the question, Mr. Chairman, is the damages 

suit, I think your point is very well taken. 

I mentioned in my statement a woman who woke up in the night, 

and there was blood gushing from her neck because a mentally ill 

inmate had cut her throat from her ear all the way down to her 

chin. It almost killed her. It was just lucky that it did not. 

Now, the reason for that was the Alabama Department of Corrections only had one guard supervising a room full of bunkbeds with 

350 inmates in it. Now, the Commissioner of Corrections would tell 

you he needs more guards. The warden of the prison would tell you 

she needs more guards. But the fact of the matter is there was not 

the money there to do that. So the jail is unconstitutional. As a result of it, this woman is injured. She has got no damages suit because she does not meet the grievance procedure of—she meets, obviously, actual injury, but she does not meet the grievance procedure. 

Mr. SCOTT. Well, you mentioned the Abu Ghraib Prison conditions would not be—that you would not be able to sue for those 

kinds of conditions. Ms. Hart suggested that, if you have unconstitutional conditions, of course they can hear those cases. 

Mr. BRIGHT. Well, the point that, I think, we would have a disagreement about there is the extent of the relief that the courts can 

order. I mean, this bill has, basically, provisions none of us have 

really talked very much that very much limited what a Federal 

court can do in terms of the remedy that it orders and how long 

it can supervise what happens. 

In the case that I mentioned earlier, we are in the third year 

now, still trying to get compliance with an order entered 2 years 

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lier, you can spend more time now litigating whether there is compliance or not, whether the decree should come to an end, and 

whether or not we are complying with the provisions that are 

there. Again, that is injunctive relief that the court ordered. 

But, again, at times when I deal with the commissioner of corrections, prison lawyers, jail lawyers, who say, we’ll agree, there is no 

question that we need to do A, B, C, and D to cure this. You cannot 

settle a case under the Prison Litigation Reform Act. You have got 

to have a finding by a judge that there is a constitutional violation, 

and then you are limited to 2 years in terms of how long the court 

can enforce that, which makes for an interesting thing; most people 

who disobey court orders and who are held in contempt of court 

pay a serious price for that. It is amazing to me that prison officials 

can do that with virtual impunity when that happens. I think that 

is part of why the act and why some of the amendments which 

would restore the power of the Federal courts to deal with these 

cases like any other cases are critically important. 

Mr. SCOTT. Judge Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Judge Gibbons, you mentioned that your law firm represents all 

inmates diagnosed with AIDS in New Jersey; is that correct? 

Mr. GIBBONS. Yes. 

Mr. GOHMERT. Is that pro bono? 

Mr. GIBBONS. Yes. 

Mr. GOHMERT. It is pro bono. You are certainly to be commended—your firm is—for the work that you do there. 

I guess, if this were passed, that we are talking about today, 

then this would allow your firm to receive attorneys’ fees for that 

representation; is that correct? 

Mr. GIBBONS. I think the significance of the HIV case is that the 

decree is ongoing because the problem of AIDS and HIV in the 

prison has not gone away. 

Mr. GOHMERT. That is correct. 

Does that mean you would be able to get attorneys’ fees under 

this bill? 

Mr. GIBBONS. We have regular, ongoing relationships with the 

authorities in the prison over conditions. 

Mr. GOHMERT. Right. So, Judge, that would mean your law firm 

would be able to receive attorneys’ fees under this bill; is that correct? 

Mr. GIBBONS. Possibly, but—— 

Mr. GOHMERT. I understand. I am not kidding. I think it is absolutely wonderful that you are doing this, that your firm handles 

these cases pro bono. That is one of the reasons why I think there 

is agreement on both sides when it comes to sexual assault, there 

should not be a need for a demonstrated physical injury in order 

to pursue a claim. Obviously, the case that was mentioned earlier 

where an individual went to the hospital would have been unaffected because he did go to the hospital. There was demonstrated 

physical injury. Ms. Woodford mentioned that good prison administrators do not need the provisions of the PLRA. 

Mr. Chairman, we invited Martin Horn, the Commissioner of the 

Department of Corrections and Probation of New York City to testify at the hearing. Unfortunately, Commissioner Horn was unable 

90 

to join us due to conflicts, but he has 35 years of experience in corrections, 13 years of experience as the chief executive of large correctional agencies. Although he didn’t—was unable to testify today, 

he took the time to write a significant letter that looks more like 

a brief to the Committee. I would ask unanimous consent to include this in the record even though, according to Ms. Woodford, 

he would apparently be an administrator who is not good because 

he indicates he needs the PLRA. 

I would ask unanimous consent to include it in the record. Okay. 

Thank you. 

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Ms. WOODFORD. May I say that I have a great deal of respect for 

Mr. Horn, so I would not want it on the record that I think otherwise. 

Mr. GOHMERT. But you did say that a good administrator would 

not need the PLRA. He indicates he is. Therefore, using deductive 

reasoning, he must not be a good administrator. But you feel like 

he is a decent administrator if not good? 

Ms. WOODFORD. Yes, I do. 

Mr. GOHMERT. Okay. Thanks. 

You know, one of the things I have observed just in my few years 

here in Congress is that there is a tendency to overreact by both 

Republicans and Democrats. The PLRA, as we have heard from 

wonderful testimony in the prior hearing—I mean, and I do not 

mean ‘‘wonderful’’ as in enjoyable. It was not enjoyable at all, but 

it pointed out some real problems with the PLRA, with the things 

that we have indicated should be addressed. 

But it strikes me, it reminds me of a coach we had back in school 

that on these bus trips, he’d slam the air conditioning, you know, 

that knob—he would slam it all the way over to cold. People would 

freeze to death. He would slam it all the way to hot. People would 

get too hot. He would slam it back. And by the end of the trip, people were constantly getting sick. 

Now, the issue before us is immeasurably more serious than air 

conditioning, but it reminds me—you know, the PLRA went too far, 

which it appears it does need some tweaking. And rather than 

slamming it back to the other extreme and remove the most important provisions entirely, that maybe what it needs here is a little 

adjustment. Because what I see is, you know, there is potential 

here, as Ms. Hart pointed out, to give inmates more rights than our 

military has and than even victims often have. I hate to see an 

overreaction, because I have seen some good come from this bill. 

So, Mr. Chairman, I mean, it is up to you all as the majority 

party as to what happens, but I would think a little tweaking is 

more in order than going clear back to the other extreme. And I 

see my time has expired. 

Mr. SCOTT. Thank you. 

I would just respond by saying we are trying to work together 

to see—there appears to be significant common ground, and we 

want to take advantage of that common ground and make the appropriate adjustments. 

The gentleman from Michigan, Chairman Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

This has been a good hearing. I don’t think all Democrats and 

Republicans have a tendency to overreact, especially not on the 

House Judiciary Committee. Some, there are some, though. There 

are a few. 

So, what, Ms. Woodford, what do you make out of this? What 

have you heard at this hearing that you would remind us to take 

with a grain of salt? What have you heard that you would want 

us to retain in our memory banks as long as possible? 

Ms. WOODFORD. Well, I think what I have heard is that prisons—if you haven’t been there and experienced them—and some, 

obviously—I worked at San Quentin 2 weeks after graduating from 

97 

college for 27 years. I started as a correctional officer and left as 

the warden. 

If you have not been in these prisons, it is hard to understand 

the culture and how they operate, and how a different leader can 

bring—can have transparency or there might not be any transparency, and that the impact of these prisons on our society as a 

whole is often misunderstood. I used to say to people, we think we 

lock up people and throw away the key. Not so; 95 percent of them 

return to our communities much sooner than we think. They are 

always connected to their families and to their communities 

through visiting and through writing and through all of those connections that people have. How we treat them—how we treat 

them—is so important. It makes a statement in our society. It 

makes a statement to their families and to their children. 

We need to be much more involved in what happens. And, unfortunately, prisons get to be the political ball often in budget processes. If you try to say, we need to do this because it is the right 

thing to do and this society should treat people better, it gets to 

be you are soft on crime. Well, we need to remember everybody 

comes home, and they do. And I think that is really what we 

should remember from this. 

Mr. CONYERS. What do you think, Judge? What do you make out 

of what has happened here today? Is there anything you have 

heard here that we ought to take with a grain of salt? 

Mr. GIBBONS. Well, I have heard from Pennsylvania—and Pennsylvania has been very influential in getting the PLRA passed in 

the first place. And I have had some experience with Pennsylvania 

cases. There is a tale of two cities. 

The Philadelphia tale is that the city, after litigating for a while, 

decided on a consent decree which put a cap on a dungeon, 

Holmesburg Prison. Now, the city could have taken another route 

and said, well, if you think the conditions are unconstitutional, we 

will build more facilities, but that would take money. So they opted 

for a settlement with a cap, and the district attorney didn’t like 

that. And when he became mayor, he was no more satisfied than 

before, but he did not take the route of raising the money to build 

constitutionally adequate facilities. 

The other city, Pittsburgh—Allegheny County—took a different 

course. They decided to litigate. And they litigated, and they litigated for 18 years, and they disobeyed court orders. And each time 

they disobeyed a court order, they were held in contempt and were 

fined $25,000 to the point where the contempt fines totalled $2 million, 700-and-some-odd thousand dollars. And the city finally realized it might be sounder to build a compliant facility, so they finally built a new jail after 18 years. And this terrible judge, when 

they built the facility, entered an order giving them back the 

$2,700,000 to help pay for it. 

The PLRA grows out of this Pennsylvania environment. What is 

clogging up the courts in prison litigation is resistance to spending 

money on constitutionally adequate facilities, not the wicked Federal judges releasing prisoners willy-nilly. 

Mr. CONYERS. Thank you. 

98 

The gentleman from California, our only Attorney General in 

Congress, referenced the intimidation factor. And Mr. Preate, I 

think, also mentioned it. 

How large an influence is that on shaping the relationship between inmates and guards? 

Mr. PREATE. Mr. Conyers, you are addressing that to me? 

As I said, the vast majority of guards and staff at prisons are 

fine. They are professional. I have seen that. There are some who 

are rogues, who are just, you know, very difficult and onerous and 

retaliatory. That is what creates this, this problem. The grievances 

flow from that, from one’s not being willing to listen to somebody 

else’s point of view. Where you have the professional and courteous 

interchange, then it is not a problem, but I have to say that it is 

the subtle things. If you complain about a guard, even sometimes 

a fellow who is professional, you know, he would make a remark 

and say, you know, ‘‘All right, I have had it with you.’’ And the 

next thing you know that prisoner is transferred to another institution and loses all the accumulation of perks that he gets. They get 

their little TVs, that they have to pay for; it is not free. You know, 

they may lose their single cell. And they’ve got to go to a double 

cell. I mean, these cells are small. They are closets. I have seen 

them. I go into those institutions. And the loss of that is enormous. 

If that is all you have—if that is all you have and your life is in 

that cell, in that little cubicle that you have for a container, you 

have lost everything. 

And that is why, you know, there is a perception that prisoners 

want to get out of prison to go to Federal court, you know, and 

have a fun time. Not so. The reality is that is not the reality. Most 

of the prisoners do not want to leave their prisons that they have 

set up house in because of the accumulation of goodwill that they 

have there, the staff that they know, the routine that they know. 

These are all so important to them. That routine is what gets them 

through every day. You change that routine, you’ve changed their 

life. And that is so hard for people on the outside to understand. 

They do not want to change. 

I have a prisoner who was—I got him a new trial in Pennsylvania. I got him a new trial. And he was moved from State prison 

back to the county prison. As soon as he got back to the county 

prison, he went up to the judge who was sitting there, standing 

there taking a guilty plea. 

He says, ‘‘Judge, can I go back to the State prison?’’ 

He says, ‘‘No, I have not sentenced you yet.’’ 

He says, ‘‘But everything I have, I own is back there.’’ Can’t go 

back. 

So it is not the reality to say, ‘‘Oh, I want a few days off.’’ And 

besides that, now we have something called video conferencing 

where the people stay in the prison and where the judge sits in his 

chambers or in a facility where there is video conferencing. So 

there isn’t this—there may have been 10 or 15 years ago, but it 

doesn’t exist anymore. That is the real world that I know, Congressman. That is the real world that I know. 

Mr. SCOTT. The gentleman’s time has expired. We will have an 

additional round. 

The gentleman from California. 

99 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Your Honor, some of your comments remind me a little bit of 

what Justice Scalia once said. He said, when he was growing up, 

people would see something they did not like or that they thought 

was wrong, and they would say, ‘‘there ought to be a law.’’ Now 

people look at it and say, ‘‘it is unconstitutional.’’ 

Some of these questions, it seems to me, are not on constitutional 

violations but are the question of where a governmental institution 

ought to put its money and are, at base, political decisions. We may 

not like it, and we may argue that more funds ought to be spent 

in one way or another, but, frankly, that is the basis of our system. 

And with all due respect, Judge, I don’t believe, in each and 

every instance that you have cited, it is the Federal courts that 

have the only wisdom and knowledge in these areas. 

And Ms. Woodford, I congratulate you on the work that you have 

done. You have had a tremendous record in the past. Your citation 

of some of the victims—families’ of victims of murder saying they 

do not want people to be fed is interesting. I have never heard that 

with all of the families of victims of murder, and I had to deal with 

a lot of them because my office handled the death penalty cases, 

and that may be the case. But most of the time, I heard from those 

people that the court system had become a game that was playing 

with their lives and that the uncertainty of the system and the fact 

that they were left out, they were the last ones thought of during 

the whole process, formed an impression on me that I have never 

lost. 

I remember the night of the execution of Robert Alton Harris. 

Well, actually, it wasn’t the execution. It was the time that he went 

up four times at the U.S. Supreme Court on successive petitions, 

each one of them being the same in substance. The U.S. Supreme 

Court finally took that case away from all Federal courts and retained jurisdiction only to the Supreme Court. It had never been 

done in the history of the United States before, and it probably will 

never be repeated. I remember when one of the Federal judges had 

granted a stay and was asked whether he was aware that he was 

granting a stay that was of the same substance that the Supreme 

Court had just denied. And he said, ‘‘Yes, I am aware of that.’’ And 

when I had to report that to the mother of the 15-year—one of the 

two children killed by Robert Alton Harris 16 years before, she said 

to me, ‘‘Oh, I get it. It is a game.’’ 

And I think we ought to treat prisoners humanely, but I think 

we also ought to understand there is never enough money to do everything we want. And it is a balancing act, and it is a question 

of, how much do we have? And I mean, we talk about the problems. 

There are problems. We increased the prison population during the 

8 years I was Attorney General substantially, and I am not embarrassed about it because the crime rate dropped by 30 percent and 

homicides dropped by 50 percent. We were averaging 3,200 homicides per year in California, and 8 years later, it had dropped almost 50 percent. Now there are a lot of citizens that are walking 

around alive; a lot of families who were not impacted by that. So 

I do not think we ought to apologize for it. And if you tell me that 

Federal courts have the right to come in and to demand by judicial 

100 

fiat that we release X number of prisoners, I happen to think there 

is something wrong with that. 

And the statements I have heard here from those who are talking about the PLRA restriction on consent decrees, let me just read 

to you what the law says: Prospective relief shall not terminate, if 

you go in and you request after 2 years that it be terminated, if 

the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn in the least intrusive means to correct the 

violation. 

That means, if there is a continuing constitutional deprivation or 

violation, you cannot get it dismissed. There was a suggestion by 

at least one of the panelists that it is automatic. It is not automatic. And what we tried to do was to say that the Federal jurisdiction goes to the constitutional violation but doesn’t go beyond 

that. And while the Federal courts may have a different idea of 

how we ought to run our prisons, their idea under our Constitution 

is no greater than the idea of the elected officials and the appointed 

officials at the State level. 

So let us understand exactly what the consent decree restriction 

is. It allows you to go in for 2 years to request it, and if the constitutional deprivation has been resolved, then there is no underlying jurisdiction. And that is, I believe, what we were talking 

about, Ms. Hart, with regard to the reasonableness of the PLRA; 

is it not? 

Ms. HART. That is correct. I think the PLRA tried very hard to 

make sure that the Federal judges retained the power to swiftly resolve constitutional concerns and retain the power to remedy them. 

What it tried to do was limit when those court orders went far beyond what was the constitutional requirement because we had very 

sweeping consent decrees that were micromanaging prisons. 

I remember, in New York City, for example, the consent decree 

was so detailed that it even went down to the level of what kind 

of cleanser they had to use—Boraxo—to clean the floors and at 

what strength. And when they moved to terminate it, I remember 

the head of the Corrections Department saying, ‘‘I do not mean to 

be glib here, but maybe we want to use Mr. Clean.’’ 

I think it raises a fundamental question of whether you want the 

Federal courts in the business of having the Mr. Clean versus 

Boraxo debate. They should be in the business of enforcing Federal 

constitutional rights, and that is what the PLRA protected. 

Mr. BRIGHT. If I could just respond, too, Mr. Lungren, because 

I want to make it clear, I was not saying that it was automatic. 

In fact, I said we spend a lot of time litigating the issue of whether 

it should come to an end. I don’t know of any other kind of injunctive relief where you are constantly litigating whether you still 

need it. 

And I also want to just make this point as someone who has 

done this now forever. You—if a prison—Alabama, for example, has 

got a capacity of 12,000. In its old, dilapidated prisons, they have 

got 28,000 people there. They are incredibly overcrowded. There is 

no lawsuit to be brought unless you find that things are so bad 

101 

that people are having their throats slit, that they are being raped 

because there is no security, if they are being denied medical care 

because the whole system has just completely broke down. I see 

horrendous conditions in these institutions that we say there is no 

lawsuit to be brought here because, as bad as it is, it is not bad 

enough to get a Federal court to do anything about it the way the 

law is today. 

So I—we are not fighting about Mr. Clean or Boraxo. We are 

really fighting about the most basic sort of life issues of whether 

people are in jeopardy of being killed, of being assaulted or of being 

assaulted with these socks with padlocks in them and things like 

that. These are not trivial matters. 

Mr. LUNGREN. I wouldn’t suggest they are trivial matters, but 

you ask why you don’t—you see this strange situation where injunctive relief can be dissolved later on and you have to argue over 

it. Well, it is part of the political process. A new administration 

comes in. A new person is elected. A Governor, they appoint somebody. That is part of the political process. They ought to be able 

to come up with their new ideas. 

Mr. BRIGHT. Right. 

Mr. LUNGREN. And my point is, there is nothing that I have been 

able to find, as much as I respect Federal judges, that grants them 

the greater wisdom than State judges, than other people of goodwill. And the point is that, under a constitutional system where 

most of the major decisions are supposed to be made in the political 

environment in the best sense of the word, I don’t want to see that 

depreciated. And it is our obligation to go out and to speak and to 

convince the public that we need to spend more money and that, 

if we intend to put people in prison, they ought to be humane prisons, and that we need to pass laws to make sure that we protect 

people against sexual assault in prison, and that we prosecute people for that, and that—I mean, we have legislation we passed that 

has a Federal commission looking at that right now. 

So I agree with all of those things, but part of it is the question 

of whether these decisions are to be made and if, in fact, the Federal judiciary is required to come in, that intervention ought to be 

only for the purpose that is absolutely necessary. Otherwise, we are 

distorting our entire constitutional array of powers. 

Mr. BRIGHT. And I must say, I think it is. There is tremendous 

deference that I see to the legislative branch in terms of allocation 

of funds, to the executive branch in terms of how they run these 

institutions, but I think we all would agree there is a constitutional 

line that can be crossed and that, when that line is crossed, a Federal judge has no other choice except, under his oath of office, to 

uphold the Constitution of the United States and to say this is just 

beyond the pale, and we do go beyond the pale from time to time. 

Mr. LUNGREN. Not beyond the pale. It is unconstitutional. 

Mr. BRIGHT. No, I am just trying to summarize. 

I am saying, when people are getting raped and beaten up because there is one guard responsible for 500 prisoners; if there are 

sustained injuries as a result of that, which there were at the 

Tutwiler Prison for Women in Alabama—people literally could not 

sleep at night because they were constantly being terrorized because there was no protection. You could not go to sleep because 

102 

somebody might slit your throat, somebody might beat you up. You 

are hypervigilant all the time. And I will tell you, Mr. Lungren, 

being hypervigilant 24 hours a day will wear you out in a few 

weeks, but year after year, it will really do serious—and being 

beaten by other prisoners and being sexually assaulted and having 

the male guards come in the shower while you are there and sexually humiliate you while you are there, those kinds of things are 

what I am talking about. 

I am not talking about a Federal judge who disagrees with how 

an institution is run. I am seeing these cases where the conditions 

in these places are absolutely beyond what this civilized society 

would tolerate. 

You have got to remember that the prisons today are in the condition they are in because Frank Johnson and other judges said, 

you cannot lock people in what was called a ‘‘Draper doghouse’’ at 

Draper Prison and shut the door from the outside and put a padlock on it where the inmates could not even stand up and where 

they are all in there in the dark together and where they had to 

use a hole in the middle of it for a toilet. I mean, those were the 

conditions. And that is where the Federal judges played a role, 

which I think, as we look back on this civilization, if you read 

David Oshinsky’s ‘‘Worse than Slavery’’ about Parchman Farm in 

Mississippi, that we should thank God that Judge Keady and other 

people enforced the Constitution when it was clearly being neglected in our country in those institutions. I am sure you agree. 

Mr. SCOTT. Thank you. 

We are going to have another round of questions. I just wanted 

to follow through on that, Mr. Bright. 

If an injunction were necessary and were put in place and they 

actually abided by the injunction, it would fix the problem. 

Mr. BRIGHT. Right. 

Mr. SCOTT. If you ended the injunction, there would be every expectation that they would drift back to where they were; is that not 

right? 

Mr. BRIGHT. Well, let me just say this, too, on this question 

about whether or not the act is needed. 

If you are running a constitutional prison, if you are training 

your staff so that they are not abusing people, if you are running 

these places professionally, you are not going to have a lawsuit 

against you. You are not going to need any act because there is not 

going to be a constitutional violation. 

You are absolutely right, Mr. Chairman. If you bring the facility 

within constitutional standards, you can always say to the Federal 

court, ‘‘we are doing what is required,’’ and there is no longer any 

need for Federal court supervision in this situation. But I will tell 

you the cases that I see—and I want to make one other correction 

here; the courts are not ordering releases. And no court has done 

anything lately. There has not been a three judge court that has 

ordered any limit on population, but the orders that were being entered in some of these places that were at triple or at four times 

the capacity were limiting the capacity of certain facilities. If you 

don’t—if you want to go above that capacity, then you can use another facility; you can rent a facility; you can make some other arrangements. Generally, that was agreed to by the people who did 

103 

it as the solution to those problems. But we have not had, as I said, 

we have got prisons operating now at more than double capacity 

with no court orders at all. 

Ms. WOODFORD. Congressman Scott, may I respond to the comments of Congressman Lungren? Thank you so much. 

What I would like to say—I would like to go to New York and 

Marty Horn for an example. You have New York, who is closing a 

prison this year and proposes to close four more in 12 months. 

They have reduced their prison population and have reduced their 

crime rate at the same time. So locking people up is not the only 

way that you can reduce crime rates. And in fact, many researchers 

say that, in States that have looked at this differently, they are actually having greater reductions in crime rates than States that 

continue to lock people up. 

Corrections is a science. And where people use that appropriately, you get appropriate outcomes. In the State of New York, 

I think, thanks to Marty Horn, he has convinced people that you 

close prisons not to save money but to put that money into community corrections, to bring people back to their communities in an 

appropriate way, providing mental health care and health care and 

other resources and supervision that is necessary to keep them in 

their communities. So you can do this responsibly. 

I have never heard a judge tell us what to do. I have heard 

judges ask us what we are going to do to remedy problems. And 

when the State has failed to come forth with a remedy, then judges 

go out to experts around the country and bring them into our State 

to tell us and help us and know what to do to resolve many issues. 

That is true with mental health care in our prison system in 

California. I can tell you that, when I started there in 1978, it was 

unbelievable to me to see inmates sitting in their cells, screaming, 

just screaming loudly over and over again and getting no treatment 

whatsoever. It took litigation to bring about appropriate conditions. 

And when some of that litigation came to an end, then the State 

thought they did not need to do it anymore, and we ended up back 

in the same litigation. I am in my second round of litigation on 

overcrowding. I am in my second round of litigation on health care, 

my second round of litigation on mental health care. I have been 

through litigation on a broken appeals process. 

All that I have learned about managing a prison, unfortunately, 

I learned from the courts. And I am sad to say there is no book 

on how to be a prison administrator. I learned what a good appeals 

process was because of a court case called Alonso Day. I learned 

about how inmates should be treated because of the variety of court 

cases that came into California. 

I will also say, you can be an outstanding prison administrator 

and have horrible things happen in your prison. I ran San Quentin 

State Prison. It is a city. At the time that I was there, it had 6,200 

inmates and 2,000 staff. I had a school. I had a college program. 

You have manufacturing. It is truly a city. You cannot know everything that is going on in that city as you cannot know everything 

that is going on in D.C. today at this moment as we sit here. So 

it does—having the eyes and ears of many people in our prisons 

helps us make sure that they are safe and appropriate and running 

within the law. 

104 

So I needed to say that. Thank you. 

Mr. SCOTT. Thank you. 

The gentleman from Texas. 

Mr. GOHMERT. Thank you. I won’t be long. 

But, you know, one of the things—sometimes folks come into 

these hearings, and when they are not sworn in, they don’t realize 

that it can still carry a penalty if there is a lack of truthfulness. 

And I do not think that there is any lack of intent to be truthful 

here, but the temptation is to make broad, sweeping statements. 

You mentioned that crime rates are actually lowering in States 

that are using other—and I am sure you have something in mind. 

But what I am seeing is, in States where they have begun to exceed their capacity, like in Texas, and they are starting to have to 

cut people loose earlier and make parole dates earlier, we are seeing crime rates go back up necessarily when you have high recidivism rates as we have been having in this country. 

Of course, from personal experience, you have groups like Prison 

Fellowship go in, and they actually make a real difference with the 

mentoring and the follow up and that kind of thing. But what we 

have been seeing lately from what has been presented to me are 

crime rates going up, and that includes States that are releasing 

people. 

Is that what you are talking about? 

Ms. WOODFORD. Well, I am talking about New York where they 

are doing it responsibly. They are not doing it as a cost savings as 

Texas is. I read about Texas. And Texas said they need to reduce 

the cost of incarceration. New York, on the other hand, is taking 

the money that they are saving from running prisons and putting 

it into their community corrections, and they are doing it safely. 

And I think, you know, New York, as I understand it, is still the 

safest large city in the country, and their crime rates continue to 

go down. Everything that I have read—and I read lots of research. 

I certainly would not have cited that if I had not read that in the 

research that I do on these issues. 

And, then, in California, in a recent case, researchers put forth 

to the Federal court judges that their study of early releases 

around the country did not show an increase in crime rates. I am 

only quoting what they said. I don’t—I, personally, did not—— 

Mr. GOHMERT. Well, we would probably agree that prisons 

should include things like alcohol and drug treatment to help increase the chances that they can address those issues when they 

come out—— 

Ms. WOODFORD. Well—— 

Mr. GOHMERT. Things like that, correct? 

Ms. WOODFORD. I am sorry, Congressman. 

Yes, I absolutely agree with that, but you have to look at the reality of the situation. 

For example, in California, six out of ten prison admissions are 

parole violators serving about 3 months. It is very difficult to bring 

about rehabilitation in 3 months. So, if you are truly interested in 

bringing about rehabilitation, it should drive policymakers to a different decision about how to handle that issue. 

Mr. GOHMERT. And as a judge, I can tell you what I saw repeatedly is that people were able to achieve on probation—where I 

105 

could lock people up, up to 2 years, as a condition of probation, 

they achieved a lot better rehabilitation if the hammer were kept 

over their heads while they received these other things. 

But Mr. Horn points out—and he is certainly quite familiar with 

New York prisons and jails. But he goes into the problems with 

like the Benjamin litigation that he cites in his letter as part of the 

record. It was filed in 1975. Even though the PLRA exists, it has 

still been ongoing. 

And I tell you, one of the things that I see across America as the 

pendulum swings back and forth is that it gets very close to the 

end of its swing when you have Federal judges that they appoint 

masters to run an entity, whether it is a school or a prison. They 

control the master. They make the rules. And then they review the 

rules to see if they think they are appropriate. In other words, they 

become the executive, the legislative and the judicial branch all 

rolled into one. And it makes some of us very angry because it, in 

cases where courts do all of those things, for over 30 years, they 

have just obliterated the Constitution they are sworn to uphold. 

That is not the role of courts. And yet, that is often the way it has 

been relegated. The PLRA, obviously, does not take away the ability to have consent decrees. 

But my one exposure to socks and locks where I was appointed 

to represent somebody who was charged with that was, it was completely fabricated, but the idea of a lock in a sock made people so 

upset that it got a lot of folks stirred up until I helped my client 

to the end of the case. 

Mr. BRIGHT. Well, I will tell you, in the cases I have had, Congressman, I have seen the wounds and I—— 

Mr. GOHMERT. Have you recommended that they not give people 

locks that can be used as weapons? 

Mr. BRIGHT. Yes. In fact, that is a classic example. 

Mr. GOHMERT. Well, then, that ought to be able to be used—— 

Mr. BRIGHT. I will give you two examples. 

We have this prison in Georgia, Alto Prison, which one young 

man got paroled from there and was going to go back, and he committed suicide rather than go back. That is how the prison was operated. It was known that, if you went there, you were going to get 

raped. And the saying was, ‘‘you could either F or fight.’’ That was 

pretty much the deal. And this young man who we represented had 

been beaten by other inmates with locks. He had been beaten so 

bad that he was in and out of consciousness. So, if he was faking 

it, he was doing one great job—— 

Mr. GOHMERT. It is not an issue of faking it, but—— 

Mr. BRIGHT. He had injuries all over his head. And the argument 

was that he did not file his grievance within 5 days. He was not 

conscious during much of that time. 

Mr. GOHMERT. And we are wanting to see those restraints addressed so that it does not eliminate somebody’s ability to make a 

grievance and to make a claim. We want to see that it is corrected. 

That is not the issue. 

Also, we are in a hearing where we were allowed one witness, 

but since you called the system in Atlanta ‘‘Mickey Mouse’’ and 

‘‘kangaroo court’’ earlier, you know, the judge in me wants to hear, 

well, what do they have to say about that allegation? 

106 

But, in the meantime, my time is up. 

Mr. BRIGHT. Well, I would urge you to look at some of these 

grievance systems as a judge and to look at how complicated they 

are. As I said, some of them have five steps and a 2-day statute 

of limitations. 

Mr. GOHMERT. We are looking at them, and we want to fix them. 

Mr. BRIGHT. I think you should look at it. 

And I would just say, Judge, if somebody writes outside the margin—I doubt if, when you were a judge, you threw a pleading out 

because somebody went outside the margin. You might have told 

them to rewrite it, but you did not throw it out. So that tells you, 

I think, something about how serious we are about this is alerting 

the court system to what is going on. They were alerted to it. They 

just didn’t want to deal with it. 

Mr. GOHMERT. My time has expired, and we do have to go vote. 

Mr. SCOTT. The gentleman from California. 

Mr. LUNGREN. Well, I went to Catholic school, and so when I 

wrote outside the margin, the nun did not allow me to get credit 

for it in my particular case. 

And by the way, I think we are going to attempt to address the 

issue of intimidation or such short periods of time that it is unreasonable. But as I understand the law as it is interpreted, if someone were unconscious, that ability to avail themselves of the grievance would be unavailable under Federal law, and so that would 

not be held against them. That does not go to the point that we 

think, maybe, you know, 2 days or 5 days is a little bit too short. 

Let me ask the panelists this: There has been criticism from four 

of you of the current status of the law with respect to the stopping 

or the dissolving of consent decrees. 

With the limitation in the law that I read to you—that is, that 

prospective relief shall not terminate if the court makes written 

findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of Federal right, 

that it extends no further than necessary to correct the violation 

of the right and that prospective relief is narrowly drawn in the 

least intrusive means to correct the violation—what is wrong with 

the current law in terms of allowing a consent decree to be dissolved? 

I wish to start on my right and to move this way. 

Ms. WOODFORD. First off, I am not a lawyer, so I am not an expert on this area. I only brought up the consent decree in California because we spent so long trying to figure out whether the 

consent decree still applied as opposed to just fixing the few remaining items of that consent decree. And I believe it was well 

over 2 years before we had a ruling. And then the State is now required to fix a couple of remaining items in that consent decree. 

So it just seemed like time wasted, in my opinion. 

Mr. PREATE. Congressman, Attorney General, I did not testify on 

the consent decree in my testimony. I did not have that when I was 

Attorney General of Pennsylvania, but you raise some legitimate 

concerns, some federalism concerns, and I think that it is important that those concerns be addressed in any revision of the PLRA. 

We’re not looking for a wholesale lifting of the PLRA’s requirement, ban on consent decrees, but there has got to be some way 

107 

to address the problem because the prisons of America are growing 

faster than we can build them. 

Mr. LUNGREN. And I understand. I am just trying to find out 

whether there is any problem with the current law with respect to 

allowing parties to go in—a party to go in and to get the consent 

decree dissolved within 2 years. 

Mr. PREATE. Well, you would have to address that to Judge Gibbons or to Steve Bright because I do not do that litigation. 

Mr. LUNGREN. All right. 

Judge. 

Mr. GIBBONS. Well, my objection to the present law is that it 

puts the burden on the original plaintiff who had succeeded in getting an injunction which the court determined was necessary to 

correct a constitutional violation. And instead of putting the burden 

on the defendant to show that changed circumstances no longer require injunctive relief, it puts the burden on the original plaintiff 

to say, yeah, the constitutional violations are still a threat. 

Now, I was on the court long enough to remember that those 

kinds of arguments were made with respect to school desegregation 

decrees all the time. 

How is this different? Why should a class action that gets systemwide relief in a prison be anything other than a permanent injunction unless the defendant can show the changed circumstances, 

like, for example, building a new Allegheny County jail, are sufficient to modify the injunction? 

Mr. LUNGREN. Well, I guess it goes to the question of Federalism, 

which some of us think is important, and also executive versus judicial branch, which some of us think are important under the Constitution. 

Mr. GIBBONS. I heard that same argument with respect to school 

desegregation decrees. The local elected school district is supposed 

to make these decisions about who goes to what school. That does 

not fly. You are just tilting the balance, shifting the burden of 

proof. 

Mr. SCOTT. Thank you. 

Ms. Woodford, you were challenged on the idea that you could 

save—do corrections a little more intelligently as you reduce prison 

sentences. Are there studies that show that drug courts work by 

giving rehabilitation rather than locking people up, thereby reducing the incarceration rate, save money and reduce crime? Are there 

studies that show that? 

Ms. WOODFORD. Yes, that is true. 

Mr. SCOTT. Are there studies that show that if you educate, 

spend some money in education in prison, you can reduce the recidivism rate? 

Ms. WOODFORD. Yes, that is true also. 

Mr. SCOTT. So there are a lot of things that you can do to reduce 

prisons if you use your money more intelligently; is that the point 

you were making? 

Ms. WOODFORD. Absolutely, sir. 

Mr. SCOTT. And there are plenty of studies that absolutely document that, without question? 

Ms. WOODFORD. Yes, that is true. 

108 

Mr. GOHMERT. As a follow-up to that, do you think the Federal 

Government ought to be the one to tell everybody how to run their 

prisons? 

Ms. WOODFORD. I don’t know that I think the Federal Government ought to be the body to tell us how to run prisons, but I certainly think they need to be involved to be sure that we are running them appropriately and constitutionally. And without their 

intervention, I think that we would not have evolved in our prison 

system as we have. And without their intervention, I think we will 

regress if they are not there to oversee that we are operating constitutionally. 

Mr. GOHMERT. Well, having now been in Washington as an elected official for 3 years, I can assure you all wisdom does not reside 

in this town. Thank you. 

Mr. SCOTT. Thank you. 

I would like to thank all of our witnesses today. This is a very 

important issue. Keith DeBlasio is in the front row. He was very 

active in the Prison Rape Elimination Act and has shown a great 

deal of interest in this issue. 

I would like to thank our witnesses for their testimony today. We 

have a number of letters and statements from various State organizations that we will include, without objection, as part of the 

record. 

Members may have additional written questions for our witnesses, which I would ask you to respond to as quickly as possible 

so that they may be part of the record. And without objection, the 

hearing record will remain open for 1 week for the submission of 

additional materials. 

Without objection, the Subcommittee stands adjourned. 

[Whereupon, at 6:47 p.m., the Subcommittee was adjourned.] 

(109) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

110 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY


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X-38.eps
392 


X-39.eps
393 


X-40.eps
394 


X-41.eps
395 


X-42.eps
396 


X-43.eps
397 


X-44.eps
398 


X-45.eps
399 


X-46.eps
400 


X-47.eps
401 


X-48.eps
402 


X-49.eps
403 


X-50.eps
404 


X-51.eps
405 


X-52.eps
406 


X-53.eps
407 


X-54.eps
408 


X-55.eps
409 


X-56.eps
410 


X-57.eps
411 


X-58.eps
412 


X-59.eps
413 


X-60.eps
414 


X-61.eps
415 


X-62.eps
416 


X-63.eps
417 


X-64.eps
418 


X-65.eps
419 


X-66.eps
420 


X-67.eps
421 


X-68.eps
422 


X-69.eps
423 


X-70.eps
424 


X-71.eps
425 


X-72.eps
426 


X-73.eps
427 


X-74.eps
428 


X-75.eps
429 


X-76.eps
430 


X-77.eps
431 

Æ 


X-78.eps