Amicus Curiae Brief — Pennsylvania Dept. of Corrections v. Yeskey

| supreme Court, U.S.

FILED

No. 97-634

__— No. 97-686 NOV @ 97

In The

Supreme Court of the United States

October Term, 1997

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS,

ET AL., Petitioners,

Vv.

RONALD R. YESKEY, Respondent.

PETE WILSON, et al., Petitioners,

Vv.

JOHN ARMSTRONG, et al., Respondents.

STATE OF CALIFORNIA, et al., Petitioners,

Vv.

DERRICK CLARK, et al., Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Third and Ninth Circuits

BRIEF OF AMICI CURIAE

STATES OF NEVADA, ALABAMA, ALASKA, ARKANSAS,

COLORADO, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA,

TERRITORY OF GUAM, HAWAII, IDAHO, INDIANA, IOWA,

KANSAS, LOUISIANA, COMMONWEALTH OF THE NORTHERN

MARIANA ISLANDS, MICHIGAN, MISSISSIPPI, MISSOURI,

MONTANA, NEBRASKA, NEW HAMPSHIRE, NEW JERSEY, NEW

MEXICO, NEW YORK, RHODE ISLAND, SOUTH CAROLINA,

SOUTH DAKOTA, UTAH IN SUPPORT OF PETITIONERS

FRANKIE SUE DEL PAPA

Attorney General of the

State of Nevada

ANNE B. CATHCART

Counsel of Record

Sr. Deputy Attorney General

100 North Carson Street

Carson City, NV 89701-4717

(702) 687-4170

BILL PRYOR

Attorney General

State of Alabama

WINSTON BRYANT

Attorney General

State of Arkansas

M. JANE BRADY

Attorney General

State of Delaware

JOHN M. FERREN

Corporation Counsel

District of Columbia

CHARLES H. TROUTMAN

Acting Attorney General

Territory of Guam

CARLA J. STOVALL

Attorney General

State of Kansas

JEFF MODISETT

Attorney General

State of Indiana

THOMAS J. MILLER

Attorney Gencral

State of lowa

ROBERT B. DUNLAP, II

Acting Attorney General

Commonwealth of the

Northern Mariana Islands

JEREMIAH W. NIXON

Attorney General

State of Missouri

DON STENBERG

Attorney General

State of Nebraska

PHILIP T. MCLAUGHLIN

Attorney General

State of New Hampshire

DENNIS C. VACCO

Attorney General

State of New York

CHARLES M. CONDON

Attorney General

State of South Carolina

BRUCE M. BOTELHO

Attorney General

State of Alaska

GALE A. NORTON

Attorney General

State of Colorado

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

ALAN G. LANCE

Attorney General

State of Idaho

MARGERY S. BRONSTER

Attorney General

State of Hawaii

RICHARD P. IEYOUB

Attorney General

State of Louisiana

FRANK J. KELLEY

Attorney General

State of Michigan

MIKE MOorRE

Attorney General

State of Mississippi

JOSEPH P. MAZUREK

Attorney General

State of Montana

PETER VERNIERO

Attorney General

State of New Jersey

TOM UDALL

Attorney General

State of New Mexico

JEFFREY B. PINE

Attorney General

State of Rhode Island

MARK W. BARNETT

Attorney General

State of South Dakota

JAN GRAHAM

Attorney General

State of Utah

TABLE OF CONTENTS

INTEREST OF THE AMICI STATES .......... l

REASONS FOR GRANTING THE PETITIONS ... 3

I. PRISON MANAGEMENT IS A CORE

STATE FUNCTION WHICH CANNOT BE

SUBJECT TO THE PROVISIONS OF THE

ADA AND THE REHABILITATION ACT

BECAUSE EACH LACKS A CLEAR

STATEMENT OF CONGRESSIONAL

TP PTETT Teer TLE 5

Il. APPLICATION OF THE STATUTES TO

STATE PRISONS OPENS A PANDORA’S

BOX OF LITIGATION OPPORTUNITIES

AND IMPOSES IMMENSE COSTS ....... 11

DE oebbnececbecceescocsceces 16

TABLE OF AUTHORITIES

Case Cites Page

Amos v. Maryland Dept. of Public Safety

and Correctional Services

1997 WL 581652 (4th Cir. Md.) ......... 12

Aswegan v. Bruhl

113 F. 3d 109 (8th Cir. 1997) ........... 13

Atascadero State Hospital v. Scanlon

Ge We SO CIPEED ccc cer escssecccses 4,6

Bell v. Wolfish

Gee We SEPEUED co ccc cnerebeenoors 12

Bryant v. Madigan

84 F.3d 246 (C.A. 7 (Ill.) 1996) ......... 13

City of Boerne v. Flores

SSy ET GUE och cet vecesese 11, 15

Crawford v. Indiana Dep't of Corrections

115 F.3d 481 (7th Cir. 1997) ......... 13, 15

Dean v. Knowles

912 F.Supp. 519

(U.S. D.C. for S.D. Fla., 1976) ......... 14

Garza v. Miller

688 F.2d 480 (7th Cir. 1982) ............ 7

Gates v. Rowland

39 F.3d 1439 (9th Cir. 1994) ........... 10

Gregory v. Ashcroft

MEE so 66's ise og ik om 4,6

McCord v. Maggio

910 F.2d 1248 (Sth Cir. 1990)............ 7

McGill v. Duckworth

944 F.2d 344 (7th Cir. 1991) ........... 12

Meachum v. Fano

nn, cee tensinenedee s 4 7

Olim v. Wakinekona

I ae 7

Pennhurst State School and Hospital v. Halderman

ee 6

Preiser v. Rodriguez

ED o's. o oe 6m 6.0.0 'e ie « 4,5, 11

Procunier v. Martinez

EE so 6 0's 06:4 9 6 0 68's 6a 4,5

Taylor v. Freeman

34 F.3d 266 (4th Cir. 1994) ............ 12

Torcasio v. Murray

57 F.3d 1340 (4th Cir. 1995) ......... 7, 12

Turner v. Safley

Ee 12

United States v. Bass

SU PEI og cc ccc ccc eececes< 4,6

iV

Will v. Michigan Dept. of State Police

en ee EE gs 6 6 6 0 Miah 6.vied ed 6

Williams v. Meese

926 F.2d 994 (10th Cir. 1991) ............ 7

Statutes Page

SG EE cco cceves ou sane keane 62.65 7

42 U.S.C.A. § 12132 (West 1995)............ 7,9

Other Authorities Page

H.R.Rep. No. 465 (II)... eee wees 8

D.Bhew. Ble. 00G, BD ow. ccc craw ceeseweces 8

INTEREST OF THE AMICI STATES

Nevada and the other amici states submit this brief as

amici curiae in support of two separate petitions for writs of

certiorari: Commonwealth of Pennsylvania v. Yeskey, Case

No. 97-634; and Armstrong v. Wilson and Clark v. State of

California, Case No. 97-686. The amici states urge the

Court to reverse the decisions of the Third Circuit Court of

Appeals and the Ninth Circuit Court of Appeals, and declare

that the Americans with Disabilities Act and the

Rehabilitation Act (hereinafter "statutes" or “laws") do not

apply to the states’ management of their convicted felons.

The amici states recognize that the statutes attempt to

advance a commendable goal - the elimination of

discrimination against individuals with disabilities and for the

integration of persons with disabilities into the economic and

social mainstream of American life. | However, the

application of the statutes to state prisons improperly

interferes with a unique and long recognized essential state

function: the management of its prisons. The lower courts’

decisions would allow Congress to intrude upon this core

state function merely by enacting a broadly worded law of

general applicability. This is contrary to the traditional rule

that whenever Congress intends to intrude upon a core

function, it must do so with an unmistakable and specific

statement within the language of the statute.

This theory of congressional authority, if permitted,

will upset the constitutional balance of power between the

national and state governments. It will allow Congress carte

blanche to intrude upon the core state function of prison

management without any warning to the affected states, and

without any indication or assurance that adequate or deliberate

2

consideration was given to the compelling interest of the

states in administering their prisons. The amici states believe

this will disturb the essential and delicate balance between the

national and state governments.

These statutes cannot be held applicable to state

prisons absent an unequivocal expression of congressional

intent to impact a core state function. In the complete

absence of a clear statement of congressional intent, however,

five circuit courts of appeal have come to different

conclusions regarding the applicability of the statutes to state

prisons, resulting in inconsistent decisions and uncertainty

among the states. This split among the circuit courts must be

resolved.

The amici states share a strong and serious concern for

the ability of their prison administrators to manage dangerous

and manipulative groups of inmates confined within state

prison systems. Inmates are well known for demanding

special treatment or costly and inappropriate concessions, for

a variety of reasons ostensibly based upon constitutional

rights but which more often than not are designed to breach

the safe, secure and orderly management of the prison. To

permit the intrusion of federal regulators or courts into

complex decisions involving the classification, housing,

employment, education, transfer, safety and security of

inmates will inhibit the policy-based choices of prison

officials with potentially disastrous results.

Finally, the fiscal impact of the application of the

statutes to state prison systems presents serious concern for

state legislatures that are presented with a multitude of

demands for the allocation of limited resources. The

construction of new prisons, or the renovation of older

prisons, are tremendously costly undertakings. Given the

special problems posed by inmate populations, flexibility in

3

the use and management of prison facilities is critical.

Limiting the ability of prison administrators to accommodate

and control the diverse and constantly fluctuating prison

populations within reasonable fiscal constraints can have a

strong adverse impact on state budgets.

REASONS FOR GRANTING THE PETITIONS

Petitioners’ requests for these writs should be granted for the

following reasons. _In enacting the statutes, Congress failed

to include a clear and unequivocal statement that it intended

to interfere with the core state function of prison

management. Without such a statement, the language of each

statute is ambiguous and they cannot be held to apply to the

core state function of state prison systems. However, three

of the five circuit courts which have considered this issue

have reached the contrary conclusion, holding that the broad

language of the statutes does include state prisons. The very

fact that the circuit courts are split on the question of the

application of these statutes to state prison systems

demonstrates this ambiguity, and leaves all states without

direction on this question. This Court is requested to provide

the states with necessary guidance.

There are compelling public policy reasons behind the

requirement that Congress must make its intentions clear in

the language of a statute when it intends to impact a core state

function. First, placing the language in a proposed statute

puts all interested parties on notice that Congress is

considering passage of a law that may make substantial

changes impacting a specific and vital area of state

government. This gives affected groups an opportunity to be

heard on the proposed legislation. Second, the opportunity

for public debate increases the likelihood that Congress will

have given adequate and careful deliberation to various

4

viewpoints prior to enacting a law which could change the

balance between the national and state governments.

In traditionally sensitive areas, such as

legislation affecting the federal balance, the

requirement of clear statement assures that the

legislature has in fact faced, and intended to

bring into issue, the critical matters involved

in the judicial decision.

United States v. Bass, 404 U.S. 336, 349 (1971). Third,

requiring a clear expression of intent avoids costly litigation

and contradictory results in courts throughout the country.

Finally, it avoids uncertainty by state legislators as to whether

they must reconsider the allocation of limited state resources.

The unique and difficult problems of operating state

prisons fall squarely within the purview of state government.

Prison management is a core state function, and this has been

clearly recognized by the Court.

It is difficult to imagine an activity in which a

State has a stronger interest, or one that is

more intricately bound up with state laws,

regulations, and procedures, than the

administration of its prisons.

Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973). See also

Procunier v. Martinez, 416 U.S. 396 (1974) (Problems facing

state prison systems acknowledged to be difficult and

intractable and best left to the expertise of trained prison

administrators). The amici states share a strong concern that

many laws appear to be passed without considering their

impact on state prison systems. This underscores the

importance that the Court affirm that Atascadero State

Hospital v. Scanlon, 473 U.S. 234 (1985) and Gregory v.

5

Ashcroft, 501 U.S. 452 (1991) require a specific and clear

statement in the text of the statute if Congress intends that an

act apply to state prison systems.

PRISON MANAGEMENT IS A CORE STATE

FUNCTION WHICH CANNOT BE SUBJECT TO THE

PROVISIONS OF THE ADA AND THE

REHABILITATION ACT BECAUSE EACH LACKS A

CLEAR STATEMENT OF CONGRESSIONAL

INTENT

This Court has recognized that prison management is

a core state function.

It is difficult to imagine an activity in which a

state has a stronger interest, or one that is

more intricately bound up with state laws,

regulations, and procedures, than the

administration of its prisons. . . Since these

internal problems of state prisons involve

issues so peculiarly within state authority and

expertise, the States have an important interest

in not being bypassed in the correction of these

problems.

Preiser, supra; see also, Procunier supra, at 412.

One of the primary functions of government is

the preservation of societal order through

enforcement of the criminal law, and the

maintenance of penal institutions is an essential

part of that task.

6

If the Court accepts the argument that the statutes are

applicable to state prisons, it will upset the constitutional

balance between federal and state governments, and allow a

recognized core state function to be legislated by Congress

merely by the enactment of broadly worded statutes. Under

the Supremacy Clause, Congress may impose its will upon

the states, "so long as it is acting within the powers granted

it under the Constitution." Gregory v. Ashcroft, 501 U.S.

452, 460 (1991). "For this reason, ’it is incumbent upon the

federal courts to be certain of Congress’ intent before finding

that federal law overrides’ this balance." Id., at 460, citing

Atascadero, 473 U.S. 234, 243 (1985). The Court in Gregory

explained:

{I]f Congress intends to alter the ‘usual

constitutional balance between the States and

the Federal Government,’ it must make its

intention to do so ‘unmistakably clear in the

language of the statute." Alascadero State

Hospital v. Scanlon, 473 U.S. 234, 242

(1985); see also Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89, 99

(1984). . . "In traditionally sensitive areas,

such as legislation affecting the federal

balance, the requirement of clear statement

assures that the legislature has in fact faced,

and intended to bring into issue, the critical

matters involved in the judicial decision.’

United States v. Bass, 404 U.S. 336, 349, 92

S.Ct. 515, 523, 30 L.Ed.2d 488 (1971).’ Will

v. Michigan Dept. of State Police, 491 U.S.

58, 65 (1989).

The ADA broadly defines “public entity" to be "any

State or local government" and “any department, agency,

special purpose district, or other instrumentality of a State or

7

States or local government." 42 U.S.C.A. § 12132 (West

1995). The Rehabilitation Act contains similar sweeping

language to describe government programs or activities. 29

U.S.C. § 794(b). Both the ADA and the Rehabilitation Act

prohibit discrimination by public entities against disabled

persons. The Rehabilitation Act prohibition is limited to any

program or activity of any state or local government entity

receiving federal financial assistance.

It is far from clear whether Congress intended for the

statutes to apply to prisons. A prison is not ordinarily

contemplated as being a "pubiic entity" in the usual sense of

the word. A prison does not invite members of the general

public on its premises; there is no right of the general public

to have access to prison facilities or property. In Williams v.

Meese, 926 F.2d 994 (10th Cir. 1991), the court held that

"the Federal Bureau of Prisons does not fit the definition of

"programs or activities.’" Similarly, the Fourth Circuit has

held that correctional facilities "do not provide ‘services,’

‘programs’ or ‘activities’ as those terms are ordinarily

understood." Torcasio v. Murray, 57 F.3d 1340, 1347 (4th

Cir. 1995). Prisons do not sponsor programs, services or

activities for the general public, and inmates do not have a

right to participate in any programs, services or activities

which a prison system devises. See Garza v. Miller, 688 F.2d

480, 485-486 (7th Cir. 1982) cert. den., 459 U.S. 1150

(1983), no property or liberty interest in prison employment;

Olim v. Wakinekona, 461 U.S. 238, 245 (1983), no justifiable

expectation of inmate to be incarcerated in any particular

prison; McCord v. Maggio, 910 F.2d 1248, 1250-1251 (Sth

Cir. 1990), inmate has no right to any particular

classification, which is a matter left to the discretion of prison

officials; Meachum v. Fano, 427 U.S. 215, 224-225 (1976).

8

Prison services, programs and activities are not

available to all inmates for many reasons, as they were not

designed for the general benefit of inmates but rather to

enhance public safety, to reduce recidivism, to protect prison

guards, to reduce costs, to occupy inmate time, to segregate

inmates into manageable and orderly groups, and to

encourage inmates to earn money to pay back the state for

costs associated with incarceration. Prison officials must be

free to deny inmates access to all manner of programs and

activities for countless reasons involving safety, security, and

the cost-effective and orderly operation of prison systems.

The legislative history for both statutes contains no

specific indication that Congress even considered whether

prison systems should be subject to their provisions. One

portion of legislative history which makes a statement

regarding the desired effect of the ADA is the following

excerpt from S.Rep. No. 116, 20; H.R.Rep. No. 485 (II):

There is a compelling need to provide a clear

and comprehensive national mandate for the

elimination of discrimination against

individuals with disabilities and for the

integration of persons with disabilities into the

economic and social mainstream of American

life. Further, there is a need to provide clear,

strong, consistent, enforceable standards

addressing discrimination against individuals

with disabilities.

In a prison environment, an administrator’s primary

concern is not the integration of all inmates into the prison’s

economic and social mainstream. This is simply not a viable

or even desirable goal given the types of individuals who

comprise prison populations and the fact that many will never

be released into society. Safety and security are the

9

immediate and paramount concerns of prison administrators,

who must be able to make such decisions without being

concerned the decision will be deemed discriminatory because

the inmate had a disability. A prison administrator must be

able to make decisions necessary to protect any inmate, even

if that means exclusion of an inmate due to a disability.

Under the Eighth Amendment standard traditionally

applied in the prison context, inmates have no right to

participate in any programs, services or activities in a prison

system, except that their basic human needs must be met.

But even these can be provided in different ways depending

upon the security concerns present. For example, an inmate

need not be permitted access to a cafeteria or law library in

order to receive food or legal materials. There simply are too

many variables to consider in determining whether a

particular inmate should be a participant in a specific program

or activity.

Under the ADA,

[NJo qualified individual with a disability

shall, by reason of such disability, be excluded

from participation in or be denied the benefits

of the services, programs, or activities of a

public entity, or be subjected to discrimination

by any such entity.

42 U.S.C.A. § 12132 (West 1995). A qualified individual

with a disability is a person who “meets the essential

eligibility requirements for the receipt of services or the

participation in programs or activities." 42 U.S.C.A. §

12131(2) (West 1995). Inmates do not "qualify" for services,

programs or activities simply by being incarcerated. To assert

that being a convicted felon qualifies a person to access to all

facilities and functions in a prison system regardless of safety,

10

security or other legitimate penological concerns completely

distorts any common sense or logical interpretation of these

statutes. Even inmates who are otherwise eligible to be

considered for participation in programs or activities are

denied placement for many reasons, such as the existence of

an enemy situation, lack of space, disciplinary record, risk of

violence, nature of crime committed, remoteness of medical

facility, etc. Compelling the complete accommodation of all

disabled inmates regardless of other considerations

significantly chills the ability of prison staff to keep safety

and security the overriding concern in reaching difficult

decisions regarding prisoner assignments.

Prisoners are distinguishable from nonprisoners in that

they are serving time for having committed a crime. While

recognizing they do not forfeit all of their constitutional

rights, many of their rights are diminished by the fact of

imprisonment, or necessarily limited in the interest of safety

to the general public and to the prison population.

The Act [ADA] was not designed to deal

specifically with the prison environment. It

was intended for general societal application.

There is no indication that Congress intended

the act to apply to prison facilities irrespective

of the reasonable requirements of effective

prison administration." Gates v. Rowland, 39

F.3d 1439, 1446-47 (9th Cir. 1994).

The very fact that Congress was silent in both the

legislative histories and in the language of the statutes as to

whether they were intended to encompass the operations of

state prisons, allows only one conclusion: the laws cannot be

applied to state prisons. In the absence of a clear and

deliberate expression of Congress’ intent to alter the balance

between the states and the federal government where a core

11

state function is implicated, then the statutes cannot be

applied to state prisons.

Our national experience teaches that the

Constitution is preserved best when each part

of the government respects both the

Constitution and the proper actions and

determinations of the other branches.

City of Boerne v. Flores, 117 S.Ct. 2157, 2172 (1997). The

operation of state prison systems is a core state function of

paramount concern to every state. The states must retain

their states’ ability to manage their prisons without federal

micromanagement. Absent a clear statement in the statute

evidencing an intent by Congress to intrude upon state prison

operations, the ADA and the Rehabilitation Act cannot be

held to apply to state prisons.

APPLICATION OF THE STATUTES TO STATE

PRISONS OPENS A PANDORA’S BOX OF

LITIGATION OPPORTUNITIES AND IMPOSES

IMMENSE COSTS

By recognizing that prison management is a core state

funcuon in Preiser, the Court also recognized the institutional

need for inmate and staff safety, and the deference that must

be given to prison officials.

Absent the most extraordinary circumstances,

federal courts are not to immerse themselves in

the management of state prison or substitute

their judgment for that of the trained

penological authorities charged with the

administration of such facilities.

12

Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994) (citing

Turner v. Safley, 482 U.S. 78, 84-89 (1987).

"The need to maintain internal order, discipline and

security differentiates prisons from outside society." Beil v.

Wolfish, 441 U.S. 520, 545-46 (1979). The propensity of

inmates for violence and <rngerousness is presumed to be

greater than that of nonprisoners. The desirability of a

particular inmate’s participation in various programs and

activities is dependent on many factors. The management and

infrastructure of state prisons have been developed to deal

with the unique nature of imprisonment and the multiple

problems that arise daily in managing inmates. “Prisons are

dangerous places." McGill v. Duckworth, 944 F.2d 344, 345

(7th Cir. 1991). If the violent criminals housed in prison are

not properly monitored and segregated, the weaker or

disabled inmates may become the prey of the more violent or

manipulative inmates. This risk of violence is pervasive in

prison, and prison officials have a duty under the Eighth and

Fourteenth Amendments to provide protection to prisoners

who are reasonably in danger of being victimized by their

fellow inmates.

If Congress is allowed to legislate the management of

state prisons under these statutes, states will be compelled to

divert substantial resources in restructuring prison facilities

and in defending actions brought under this legislation.

"Application of the ADA and Rehabilitation Act would have

serious implications for the management of state prisons, in

matters ranging from cell construction and modification, to

inmate assignment, to scheduling, to security procedures."

Torcasio, 57 F.3d at 1345. See also Amos v. Maryland Dept.

of Public Safety and Correctional Services, 1997 WL 581652

(4th Cir. Md.)

13

Each of the Circuits holding that the

Rehabilitation Act and the ADA apply to state

prisons has gone to extraordinary lengths to

acknowledge the chaos likely to result from

their holdings.

Besides the responsibility of modifying prison

facilities, extensive time and resources would be required to

handle the additional litigation.

Prisoners are not a favored group in society;

the propensity of some of them to sue at a

drop of a hat is well known; prison systems

are strapped for funds; the practical effect of

granting disabled prisoners right of access that

might require costly modifications of prison

facilities might be the curtailment of

educational, recreational, and rehabilitative

programs for prisoners, in which event

everyone might be worse off.

Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481 (7th

Cir. 1997) citing Bryant v. Madigan, 84 F.3d 246, 249 (C.A.

7 ill.) 1996).

Inmates filing lawsuits under ADA and Rehabilitation Act

theories have lost no time in demonstrating their ability to

assert rights to all manner of privileges by claiming various

disabilities. (Inmate confined to infirmary claimed

entitlement to personal cable TV, Aswegan v. Bruhl, 113 F.

3d 109 (8th Cir. 1997); One-armed inmate claims he was

removed from law library job due to his disability, Gilkey v.

Robson, Case No. 95-2060, pending in U.S. District Court

for the Northern District of Illinois; Inmate claiming to be

disabled (medical status disputed) claims he should be exempt

from having to wear restraints, St. Pierre v. McDaniel, Case

if

No. CV-N-94-792-ECR, pending in U.S. District Court for

the District of Nevada; Inmate demands more law library

time because it takes him longer to complete tasks due to

mobility limitations, Crayton v. Mayes, Case No. CV-

F-96-5842, pending in the U.S. District Court for the

Eastern District of California; Inmate and wife, HIV positive,

demanded conjugal visit, Bullock v. Gomez, Case No.

CV-95-6634, U.S. District Court of California; Inmates

claimed Dept. of Corrections’ refusal to provide free nicotine

patches violated ADA (Minnesota); Inmate claims he was

denied trustee position due to HIV status, Dean v. Knowles,

912 F.Supp. 519 (U.S. D.C. for Southern District of

Florida, 1976); Inmate complains that ADA inmates with

special diets have to eat last, Halpin v. Mathews, Case No.

GC-G 94-1935, pending in U.S. District Court for Middle

District of Florida; Inmate claims that as a totally disabled

vet, his costs of supervision and restitution should be paid by

the state, Jaap v. Olsen, Case No. 93-14177, U.S. District

Court for Southern District of Florida; States also report a

substantial percentage of cases from inmates demanding that

all facilities and programs be modified to accommodate

inmates with disabilities as defined in the statutes.

The ADA and the Rehabilitation Act are emerging as

the new inmate civil rights litigation frontier. The amici

states are experiencing increasing workloads related to inmate

claims involving these statutes. States have reported

significant numbers of cases involving such claims (e.g.,

current cases include 38 in California; 8 in Florida; 5 in

Nevada; 6 in Iowa; 6 in Pennsylvania; 8 in Indiana). Not

only do these lawsuits divert state resources, but they shift the

burden in litigation. The inmate need only allege he

possesses some sort of disability; prison officials must

demonstrate they cannot make a reasonable accommodation.

Considering the broad definition of “disability” under the

ADA (28 CFR Ch. 1, (35.104 Definitions) which appears to

15

include a wide range of physical or mental impairment,

virtually any inmate can claim he had some disability

requiring accommodation into all prison services, activities

and programs. Such a heavy requirement would eviscerate

the existing Eighth Amendment standard which has

historically been applied to the prison setting, replacing it

with a standard which is, as a practical matter, unworkable in

the prison context. The ADA and the Rehabilitation Act

effectively provide greater rights to disabled prisoners than to

non-disabled prisoners. The fiscal impact to the states of

accommodating these demands is of a magnitude which most

will be unable to absorb without a severe impact upon other

essential state operations.

Of particular concern to the amici states is that the

application of these statutes to prisons will erode the

flexibility that prison administrators need in managing

difficult and volatile prison populations. As foreseen by the

Seventh Circuit in Crawford, the result may be the

curtailment of programs for all prisoners. This is what

occurred following the enactment of the Religious Freedom

Restoration Act in 1993 and prior to this Court’s decision in

City of Boerne v. Flores. A number of state departments of

corrections were forced to limit their religious programs due

to the impact of inmate demands and litigation. § The

dramatic increase in prisoner demands for religious

accommodation and ensuing lawsuits severely curtailed the

ability of prison officials to provide religious services to

inmates.

There is no question that Congress was well-intended

in enacting these statutes to ensure that disabled persons in

the mainstream of American society have reasonable access

to public programs, activities and services. However, as to

prison systems, in which decisions are not made according to

what would be normal or desirable in the real world and can

have life or death consequences, application of these statutes

is a serious encroachment upon a core state function.

The petitions for writ of certiorari should be granted.

Respectfully submitted,

FRANKIE SUE DEL PAPA

ATTORNEY GENERAL OF NEVADA

ANNE B. CATHCART

Counsel of Record

Senior Deputy Attorney General

100 North Carson Street

Carson City, Nevada 89701-4717

(702) 687-3541

November 3, 1997