Reply Brief — Pennsylvania Dept. of Corrections v. Yeskey

18 Supreme Court, U.S. a

i oe Be.

No. 97-634

APR 14 1998

GLERK

IN THE

a =

Supreme Court of the United States et

OCTOBER TERM, 1997

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS, ET AL.,

Petitioners,

RONALD R. YESKEY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

PETITIONERS’ REPLY BRIEF

PAUL A. TUFANO

General Counsel

Commonwealth of Pennsylvania

(Counsel of Record)

SYNDI L. GUIDO

Deputy General Counsel

Office of General Counsel

333 Market Street

17th Floor

Harrisburg, PA 17101

Telephone (717) 783-6563

Counsel for Petitioners

LS ETS

PACKARD PRESS® / APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000

TABLE OF CONTENTS

Page

TER Ge Ga II So wc bb cb cdcccscdccocccce ii

RE e'n bs echt de dasenn ca écincaeetcecees 1

I. PRISON MANAGEMENT IS NOT

JUST A TRADITIONAL STATE

FUNCTION, IT IS ONE OF THE

MOST FUNDAMENTAL ASPECTS

OF STATE SOVEREIGNTY................ 1

II. TITLE Il OF THE ADA TRULY IS

SNE Se 3

III. INCLUDING STATE PRISONERS

WITHIN THE SCOPE OF TITLE II’S

PROTECTIONS IS AN UNCON-

STITUTIONAL INTERPRETATION

ee 11

A. The Fourteenth Amendment ............. 12

B. The Commerce Clause .........cccccccces 15

oe es oe eee eee ee 17

TABLE OF AUTHORITIES

Cases Page

Amos v. Maryland Dep’t of Pub. Safety

and Correctional Services, 126 F.3d 589

(4th Cir. 1997), petition for cert. filed,

66 U.S.L.W. 3474 (U.S. Dec. 19, 1997)

EET PPT TTITITT TTT Te 4

Batson v. Kentucky, 476 U.S. 79 (1986). ..........00000- 6

City of Boerne v. Flores, 117 S. Ct. 2157 (1997).... 12, 13, 14

City of Cleburne v. Cleburne Living Ctr.,

GP A asec codccdecucesduvcccoccces 13

City of Rome v. United States, 446 U.S. 156 (1980). ...... 13

Coolbaugh v. Louisiana, No. 96-30664, 1998

U.S. App. LEXIS 3199 (Sth Cir, Feb. 27, 1998) ... 14-15

Employment Div., Dep’t of Human Resources

of Oregon v. Smith, 494 U.S. 872 (1990) ........... 14

Farmer ». Brennan, 511 U.S. 825 (1994) ...... 6.666006: x

Goss v. Lopez, 419 U.S. 565 (1975) ..... 6... cece enees 6

Gregory v. Ashcroft, 501 U.S. 452 (1991) .........6655. 4

Heath v. Alabama, 474 U.S. 82 (1985)...........660085 2,3

J.E.B. v. Alabama, 511 U.S. 127 (1994)... 0.0... 0.66005. 7

Kentucky Dep't of Corrections v. Thompson,

NE eR RE eae é eee ssccccccecees 7

Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119 (1977)... 0... 6c cece ees 7

Moody v. Daggett, 429 U.S. 78 (1976) ... 2... cece 7-8

Olim v. Wakinekona, 461 U.S. 238 (1983).............. 7

Oregon v. Mitchell, 400 U.S. 112 (1970) ...........055. 12

Printz v. United States, 117 S. Ct. 2365 (1997) .......... 12

Procunier v. Martinez, 416 U.S. 396 (1974). ............ 2,3

TABLE OF AUTHORITIES — (Continued)

Cases, continued Page

Rhodes v. Chapman, 452 U.S. 337 (1981) .............. 7

Romer v. Evans, 517 U.S. 620 (1996)... .........66055. 7

South Carolina v. Katzenbach, 383 U.S. 301 (1966).... 12, 13

Turner v. Safley, 482 U.S. 78 (1987) ............... 3, 13, 14

United States v. Lanza, 260 U.S. 377 (1922) ............ 2

United States v. Lopez, 514 U.S. 549 (1995) .......... 15, 17

Coustitutional Provisions

EE 7

i, Mi céeccbegduseevecededcceesoes 7

Statutes

42 U.S.C. (1994)

ith dbecnenéesddbesdbadeudevcsecas’ 9, 11

DM hadudgcsedeeteeesebosedscevesccooedes 6

PU eERednnebeessebeenedernseseceeccéserecess 4,5

Pa. Stat. Ann. tit. 61 (West Supp. 1997)

PO Seb bdedesncbensosetessedocdocceecccesee 15

Books, Articles, and Reports

Harry Elmer Barnes, The Evolution of Penology in

ee 3

John J. Dilulio, Jr., Governing Prisons:

A Comparative Study of Correctional

EE 9

Marci A. Hamilton, City of Boerne v. Flores:

A Landmark for Structural Analysis,

39 Wm. & Mary L. Rev. 699 (1998)............... 11

TABLE OF AUTHORITIES — (Continued)

Books, Articles, and Reports, continued Page

Staughton George, et al., Charter to William Penn

and Laws of the Province of Pennsylvania,

1GB2 - 1700 (1879) 2... w eee ereereneees

United States Comm'n on Civil Rights,

Accommodating the Spectrum of Individual

Abas Ce occ ccccccccevcsesccccccccess 9, 10, 11

ial ple aeg ES ta tela a

Miscellaneous

Merriam Webster's Collegiate Dictionary

CRE OB, FEB. ccccccccccccccccccccccecsecceoes

iv

No. 97-634

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS, ET AL.,

Petitioners,

RONALD R. YESKEY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

ARGUMENT

I. PRISON MANAGEMENT IS NOT JUST A TRADI-

TIONAL STATE FUNCTION, IT IS ONE OF THE

MOST FUNDAMENTAL ASPECTS OF STATE SOV-

EREIGNTY.

The appropriate outcome of this case turns on the fact

that Pennsylvania has a sovereign right to manage its own

prisoners. In apparent recognition of this fact, respondent and

his amici have attempted to minimize Pennsylvania's interest

to the point of absurdity. According to respondent, “while

management of state prison inmates is a function traditionally

performed by states, it is not a fundamental attribute of state

sovereignty.” (Respondent's Brief at 20). Nothing could be

further from the truth. A state’s autonomy in enforcing its

l

2

criminal code is a fundamental, defining aspect of sovereignty.

See Heath v. Alabama, 474 U.S. 82, 89 (1985).

Foremost among a state's exclusive sovereign preroga-

tives is the power to create and enforce a criminal code, id. at

93, and maintaining prisons is an essential part of that sover-

eign power. Procunier v. Martinez, 416 U.S. 396, 412 (1974).

Thus, each state has the independent ability to decide what

conduct to criminalize and how severe the applicable penalty

should be — up to and including death. See Heath, 474 US. at

89 (explaining that a sovereign has the inherent power to

determine what constitutes an offense against its authority and

to punish that offense).

States are sovereign entities, separate from both the fed-

eral government and each other. Jd. To decide whether an

entity is a separate sovereignty, this Court looks at whether

the entity draws its authority to punish an offender from its

own distinct source of power. Jd. at 88. The authority to cre-

ate criminal laws and punish offenders is a power each state

possessed before joining the Union, and that power was

reserved to them by the Tenth Amendment. /d. at 89; United

States v. Lanza, 260 U.S. 377, 382 (1922). State sovereignty is

rooted in these facts.

The states’ power to enforce their criminal laws is so fun-

damental that “an act denounced as a crime by both national

and state sovereignties is an offense against the peace and dig-

nity of both and may be punished by each.” Heath, 474 U.S.

at 89 (quoting Lanza, 260 U.S. at 382). Likewise, two identical

offenses are not the “same offense” within the meaning of the

Double Jeopardy Clause if they are prosecuted by two differ-

ent states. Jd. at 92. This Court's decision in Heath illustrates

just how fundamental this aspect of sovereignty really is to

each and every state. In that case, the Court determined that

a state has the power to sentence a person to death even

though another state has already sentenced that person to life

in prison for committing the very same murder.'

' Larry Gene Heath paid two men $2,000 to kill his wife, Rebecca, who

was nine months pregnant. The assassins kidnapped Rebecca from her home

3

Pennsylvania's authority to punish those who violate its

laws is distinct and independent from that of the federal gov-

ernment and every other state in our nation.? It is this crucial

power which defines Pennsylvania as a sovereign entity. Incon-

ceivably, respondent and his amici attempt to denigrate this

fundamental aspect of sovereignty as a mere “traditional”

state function. >

I. TITLE 0 OF THE ADA TRULY IS AMBIGUOUS.

The state’s operation and maintenance of prisons is part

and parcel of its power to create a penal code and punish

those who violate it. See Procunier, 416 U.S. at 412. The

federal-state balance of power would clearly be altered by

in Alabama, shot her in the head, and left her corpse in Georgia. Heath was

arrested in Georgia, where he pled guilty to murdering Rebecca in exchange

for a life sentence. He was subsequently arrested by the Alabama authori-

ties. Despite the earlier prosecution in Georgia, Heath was later convicted,

in Alabama, for the same murder, this time, he received the death penalty.

Heath's death sentence was upheld by this Court because Georgia and Ala-

bama were deemed separate sovereigns. Heath, 474 U.S. at 88.

? Pennsylvania first became a proprietary colony in 1681, and its pro-

vincial legisiature passed the colony's first criminal laws in 1682. Harry

Elmer Barnes, The Evolution of Penology in Pennsylvania 32 (1968). Dur-

ing its colonial period, Pennsylvania was not a sovereign entity because its

laws could be vetoed by the British government. Staughton George, et al.,

Charter to William Penn and Laws of the Province of Pennsylvania, 1682 —

1700 85 (1879). Just a few weeks after the Declaration of Independence was

signed in 1776, Pennsylvania's Constitutional Convention was convened.

Pennsylvania became a sovereign entity when its constitution was ratified on

September 28, 1776. Robert E. Woodside, Pennsylvania Constitutional Law

567-68 (1985). In contrast, the federal government did not become a sover-

eign entity until June 21, 1788, when the federal constitution was ratified by

nine states, including Pennsylvania, which was the second state to ratify the

Constitution. Jd. at 17.

> Citing Turner v. Safley, 482 U.S. 78, 84-85, 99-100 (1987), respondent

argues that prison management must not be a “core” state function because

“there always has been a place for federal oversight of state prisons.”

(Respondent's Brief at 21). Based on the Supremacy Clause, the federal

judiciary obviously has the authority to intervene to correct violations of the

federal constitution, but there has never been room for the federal govern-

ment to engage in general regulatory oversight of how a state treats its own

prisoners.

federal regulation of this sovereign function. In the absence of

a clear congressional statement, Title II of the ADA cannot be

applied to state prisoners. See Gregory v. Ashcroft, 501 U.S.

452, 460 (1991). Without repeating all of the arguments set

forth in their opening brief, petitioners want to emphasize that

the ADA is riddled with ambiguities about its application to

state prisoners. Respondent supports his contrary contention

with four arguments, none of which have merit.

First, Title II prohibits public entities from discriminating

against the disabled by excluding them from, or denying them

the benefit of, “services, programs, or activities.” According to

respondent, the terms “programs” and “services” are not

ambiguous because Pennsylvania's Motivational Boot Camp

Act refers to “programs” and “services.” (Respondent's Brief

at 11-12). Respondent completely misses the point that was

made so cogently by the Fourth Circuit in Amos v. Maryland

Dep't of Pub. Safety and Correctional Services, 126 F.3d 589

(4th Cir. 1997): The same word can have more than one mean-

ing depending on the context in which it is used, and prison

programs, activities, and services are different in kind than

those provided to the public. Amos, 126 F.3d at 601. For this

reason, Title II is ambiguous about its application to services,

programs, and activities as those terms are understood within

the unique setting of a state prison.

Respondent wants this Court to igiore that ambiguity,

arguing that “the ADA does not apply only to ‘services, pro-

grams, or activities’ because the second clause of § 12132

“affirmatively forbids a public entity from subjecting people

with disabilities to discrimination generally.” (Respondent's

Brief at 12). The federal government makes a similar argu-

ment:

[T]he anti-discrimination principle of Title II is not

limited to the discriminatory exclusion of individuals

from, or denial of the benefits of, “services, pro-

grams, or activities.” Title II also provides that no

qualified person with a disability shall “be

to discrimination by any such [public] entity.” Thus,

whether or not prisons provide “services, programs,

5

or activities,” they are prohibited from di i

on the basis of disability by the concluding clause of

Section 12132, a “catch-all phrase that prohibits all

discrimination by a public entity.”

(Brief of the United States at 9-10) (citations omitted). How-

ever, the true significance of the catch-all phrase in § 12132 is

that it makes the statute even more ambiguous because the

phrase is subject to two conflicting interpretations.‘

Respondent and his amici believe the catch-all phrase

means that a state and its agencies cannot discriminate against

the disabled even if the particular agency does not provide any

“services, programs, or activities.” This is certainly one inter-

pretation, but it is not particularly persuasive. Section 12132

provides:

Subject to the provisions of this subchapter, no

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 dis-

crimination by any such entity.

42 U.S.C. § 12132. If respondent is correct, and Congress

meant to outlaw all discrimination against the disabled — irre-

spective of any relationship to services, programs, and activi-

ties provided by the agency — then the words “be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity” are superfluous and

can be eliminated so that § 12132 reads as follows:

Subject to the provisions of this subchapter, no

qualified individual with a disability shall, by reason

of such disability . . . be subjected to discrimination

by any such entity.

Yet, even under this revised version of § 12132, there is no

proscription on general discrimination against the disabled.

* According to Merriam Webster's Collegiate Dictionary 3% (10th ed.

1994), the word “ambiguous” means “doubtful or uncertain; inexplicable;

capable of being understood in two or more possible senses or ways.”

6

The statute only prohibits discrimination against a “qualified

individual with a disability,” which is defined as an individual

who “meets the essential eligibility requirements for the

receipt of services or the participation in programs or activities

proviced by a public entity.” 42 U.S.C. § 12131(2) (emphasis

added).

The most reasonable interpretation of § 12132 is that it

only applies to services, programs, or activities provided by a

state agency, but respondent and his amici interpret the provi-

sion to apply regardless of whether an agency provides any

services, programs, or activities. These two conflicting inter-

pretations demonstrate that the catch-all phrase of § 12132

renders the statute ambiguous about its application to state

agencies, such as Pennsylvania's Department of Corrections,

that do not provide the public with services, programs, or

activities. This ambiguity is but one of several that plague the

ADA.

Second, respondent argues that the term “qualified indi-

vidual with a disability” is not ambiguous because it does not

imply voluntariness and, therefore, does not exclude prisoners.

(Respondent's Brief at 12). In making this assertion, respon-

dent relies on the fact that Title II applies to other activities

that a citizen may be compelled to participate in, such as edu-

cation and jury duty. (Respondent's Brief at 13; see also Brief

of the United States at 11).

Respondent's argument ignores the fact that the term

“qualified individual” also implies the legal entitlement to

receive a benefit or participate in a program, activity, or ser-

vice so long as certain qualifications are met. Thus, the fact

that individuals who are compelled to participate in certain

activities may also be affected by Title II has no bearing on

whether the statute applies to prisoners. Citizens are entitled

to go to school and to serve as jurors and there are substan-

tive limitations on the state’s ability to deny participation in

those activities. Goss v. Lopez, 419 U.S. 565, 573 (1975)

(acknowledging a student's legitimate entitlement to a public

education); Batson v. Kentucky, 476 U.S. 79, 87 (1986)

7

(recognizing a citizen's right not to be discriminated against in

the jury selection process); J.E.B. v. Alabama, 511 U.S. 127,

141 (1994) (same).

In contrast, prisoners can never be “qualified individuals”

as that term is commonly understood because state prisoners

simply do not enjoy the entitlements available to the general

citizenry. For example, the Thirteenth Amendment, which was

ratified shortly before the Fourteenth Amendment, prohibits

involuntary servitude for all persons except those subject to

punishment for violating criminal laws. U.S. Const. amend.

XIII. Under the Eighth Amendment, the state is entitled to

punish any prisoner so long as the punishment is not cruel or

unusual. U.S. Const. amend. VIII. Prisoners can be constitu-

tionally subjected to conditions of confinement that are harsh

and unpleasant. Rhodes v. Chapman, 452 U.S. 337, 347 (1981)

(explaining that restrictive and harsh prison conditions are not

unconstitutional).

In addition to punishment, prisoners may be denied privi-

leges that would otherwise be available to any citizen. Prison-

ers can be denied the right to vote, removed from public

office, denied the freedom to associate, denied visitation,

denied full enjoyment of common First Amendment liberties,

and prohibited from engaging in otherwise lawful and

constitutionally-protected behaviors. See Romer v. Evans, 517

U.S. 620 (1996) (reaffirming proposition in Davis v. Beason,

133 U.S. 333 (1890) that convicted felon can be denied the

right to vote); Jones v. North Carolina Prisoners’ Labor Union,

Inc., 433 U.S. 119, 132 (1977) (it is not unconstitutional for

prison regulations to curtail the right of free association); Ken-

tucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 464-65

(1989) (prisoner may be denied visitation rights).

Within the confines of the Constitution, states have the

unfettered discretion to assign prisoners to any prison and to

exclude them from programs and activities. See Olim v. Waki-

nekona, 461 U.S. 238, 249 (1983) (unless a state places sub-

stantive limitations on an official’s discretion, it has not cre-

ated a constitutionally-protected interest); Moody v. Daggett,

429 U.S. 78, 88 n.9 (1976) (prisoners have no entitlement to

participate in rehabilitative program). With respect to services,

a prisoner can expect that his basic human needs will be cared

for, but he can expect no more. Farmer v. Brennan, 511 U.S.

825, 832 (1994) (“prison officials must ensure that inmates

receive adequate food, clothing, shelter and medicai care, and

must ‘take reasonable measures to guarantee the safety of the

inmates”).

Under respondent's interpretation of Title II, disabled

prisoners would be the only prisoners with a legal right to

compel the benefits of, or the right to participate in, these

state prison programs — a result that goes beyond prohibiting

the state from discriminating against disabled prisoners. Title

II would constitute an affirmative grant of substantive rights

and benefits that no able-bodied state prisoner possesses. This

ridiculous result underscores the fact that Congress could not

have been speaking of prisoners when it used the words

“qualified individuals.”

Third, respondent argues that the name of Title II —

Public Services — does not imply that it covers only those ser-

vices provided to the general public because many public ser-

vices are only provided “to those who meet certain selection

criteria.” (Respondent's Brief at 14). Respondent is mixing

apples and oranges. It is absurd to think that prisoners are

“selected” to receive a “public service.”

Fourth, respondent argues that the ADA is not ambigu-

ous in its application to inmates because both the ADA and

piisons are geared toward rehabilitation. (Respondent's Brief

at 14-15). In making this argument, respondent greatly exag-

gerates the importance of rehabilitation as an objective of

state correctional systems and improperly elevates it to the

level of the ADA'’s rehabilitative objectives.

In contrast to incarceration, the whole purpose of the

ADA is to take individuals who, through no fault of their own,

have been victimized by isolation and segregation and assimi-

late them into public life. On the other hand, the purpose of

incarceration is to remove individuals from society with sev-

a,

9

eral objectives in mind — punishment or retribution, deter-

rence, incapacitation or public protection, and rehabilitation

or reformation. John J. Dilulio, Jr., Governing Prisons: A

Comparative Study of Correctional Management 260 (1987).

Significantly, prisoners are not victims of their isolation; they

created the circumstance that caused them to be segregated in

the first place.

To rehabilitate prisoners, segregation and isolation serve

as necessary tools to ensure their eventual reintegration into

society. Under the ADA, current segregation is not part of

eventual integration into public life; the goal is immediate

assimilation. Thus, respondent's contention that the statutory

goals of the ADA mirror those of the boot camp is flawed. In

the boot camp, as well as traditional prisons, rehabilitation is

directed toward future integration into society, whereas the

ADA is intended to provide current integration. These are

two very different objectives.

In addition to the four arguments discussed above,

respondent and his amici attempt to bolster their position by a

misleading analysis of Congress's use of the term “institution-

alization” in 42 U. US. C. § 12101(a)(3). Essentially, they concede

the fact that the term came directly from a report issued by

the United States Commission on Civil Rights, which found

that discrimination persists in critical areas, such as institution-

alization. United States Comm’n on Civil Rights, Accommo-

dating the Spectrum of Individual Abilities, at 159 (1983).

However, respondent goes on to say that the “report specifi-

cally identified the criminal justice system, including prisons,

as a setting in which disability discrimination occurs.”

(Respondent's Brief at 26-27). The ACLU, for example,

claims that the “legislative history relied upon by Petitioners

demonstrates that disabled prisoners were indeed among the

institutionalized groups about whom Congress was con-

cerned.” (Brief of the ACLU at 9-10 n.6. See also Brief of

National Advisory Group for Justice, et al. at 11; Brief of the

United States at 28 n.11).

Respondent and his amici do not base their contentions

on the text of the Commission’s report. That report is divided

10

into two parts, and “Institutionalization” is analyzed in sec-

tions 2 and 4 of Part I. Chapter 2, “Discrimination Against

Handicapped People,” and chapter 4, “The Goal of Full Par-

ticipation,” are broken into sections which include discussions

of the following topics: Education, Employment, Institutional-

ization, Medical Treatment, Sterilization, Architectural Barri-

ers, Transportation, and Other Areas. In chapter 2, the topic

“Institutionalization” contains a discussion of the problem of

systematically placing disabled individuals in “large-scale resi-

dential institutions for handicapped people.” United States

Comm’n on Civil Rights, Accommodating the Spectrum of

Individual Abilities, at 32 (1983). The “Institutionalization”

portion of chapter 4 decries the fact that “segregating handi-

capped people in large, impersonal institutions is the most

expensive means of care” and suggests that “alternative living

arrangements allowing institutionalized residents to return to

the community can save money.” /d. at 78.

Respondent and his amici argue that the Commission’s

report also includes a discussion of prisons and prisoners.

However, that claim is not based on the report itself, but on

Appendix A to that report. That appendix is comprised of a

list of some “major social and legal mechanisms, practices, and

settings in which handicapped discrimination arises.” United

States Comm’n on Civil Rights, Accommodating the Spectrum

of Individual Abilities, Appendix A at 165 (1983). Respondent

and the ACLU point out various references to prisons and

prisoners which are included in that list under the category

pertaining to the criminal justice system. (Respondent's Brief

at 26-27; Brief of the ACLU at 9-10 n.6). Respondent and his

amici totally ignore the fact that the category involving the

criminal justice system is completely separate from the one

dealing with institutions. See United States Comm’n on Civil

Rights, Accommodating the Spectrum of Individual Abilities,

Appendix A at 166, 168 (1983). Moreover, the preamble to

Appendix A explicitly states that the “items listed are issue

areas in which problems of discrimination occur, however, no

implication is intended that the listed practices are necessarily

discriminatory.” Id., Appendix A at 165 (emphasis added).

11

The conclusions in the Commission's report include a finding

that serious and pervasive discrimination against the disabled

persists in such critical areas as “education, employment,

institutionalization, medical treatment, involuntary steriliza-

tion, architectural barriers, and transportation.” Jd. at 159.

The criminal justice system — including prisons, prisoners,

and detainees — is noticeably absent from this list.

In § 12101(a)(3), Congress explicitly found that persistent

discrimination exists in all of the categories delineated in the

Commission's conclusions, except for involuntary sterilization.

Congress also found persistent discrimination in some of the

other categories contained in the Commission’s appendix, such

as voting and housing, but Congress chose not to include the

criminal justice system in § 12101(a)(3) — even though prisons

and prisoners were specifically included in that category of the

appendix. Under the circumstances, it is difficult to fathom

how respondent and his amici can contend that the term

“institutionalization” has anything to do with prisons or pris-

oners.

Il. INCLUDING STATE PRISONERS WITHIN THE

SCOPE OF TITLE Il’S PROTECTIONS IS AN

UNCONSTITUTIONAL INTERPRETATION OF

THE ADA.

As both respondent and the federal government concede,

this Court must interpret statutes in light of the Constitution.

(Respondent's Brief at 19; Brief of the United States at 19-20

n.6). Petitioner does not suggest that this Court hold that the

ADA is unconstitutional per se; rather, if the ADA is read as

respondent suggests, it will be unconstitutional. Congress does

not have the power under the Fourteenth Amendment or

the Commerce Clause to apply Title II of the ADA to state

prisoners.*

* This is not to say that the rights of disabled prisoners will go unpro-

tected. As Professor Hamilton recently pointed out, “There is no vacuum of

power outside Congress's limited powers. Rather, when it exceeds its limited

powers, it strays into domains reserved for other branches, the states, or the

people.” Marci A. Hamilton, City of Boerne v. Flores: A Landmark for

Structural Analysis, 39 Wm. & Mary L. Rev. 699, 709 (1998).

12

A. The Fourteenth Amendment

Respondent and his amici maintain that Congress was

authorized to enact Title II of the ADA under its power to

enforce the Fourteenth Amendment. They argue that the

ADA is legislation that is necessary and proper to remedy and

deter unconstitutional discrimination against the disabled.

(Respondent's Brief at 35-36; Brief of the United States at

22).6

Section 5 of the Fourteenth Amendment gives Congress

the power to remedy constitutional violations; it does not give

Congress the power to create new substantive rights unless

they somehow remedy a constitutional violation. City of

Boerne v. Flores, 117 S. Ct. 2157 (1997) (striking down the

Religious Freedom Restoration Act — “RFRA” — as an

unconstitutional exercise of Congress’s power to enforce the

Fourteenth Amendment). Compare South Carolina v. Katzen-

bach, 383 U.S. 301, 308 (1966) (upholding remedial provisions

of the Voting Rights Act of 1965 to “banish the blight” of

almost 100 years of racial discrimination in voting) with

Oregon v. Mitchell, 400 U.S. 112, 118 (1970) (concluding that

Congress had exceeded its enforcement authority by lowering

the minimum voting age in state and local elections from 21 to

18).

Respondent mistakenly believes that Congress can raise

the level of judicial scrutiny without changing the substantive

meaning of a constitutional right. (Respondent's Brief at 39).

What respondent fails to recognize is that raising the level of

judicial scrutiny necessarily expands the substance of a consti-

tutional right by protecting an individual from conduct that

would otherwise be constitutional. In this regard, petitioners

recognize that “legislation which deters or remedies constitu-

tional violations can fall within the sweep of Congress’

enforcement power even if in the process it prohibits conduct

which is not itself unconstitutional.” City of Boerne, 117 S. Ct.

* As this Court pointed out in Printz v. United States, 117 S. Ct. 2365,

2378 (1997), the Necessary and Proper Clause is the “last, best hope of those

who defend ultra vires congressional action.”

13

at 2163; South Carolina v. Katzenbach, 383 U.S. at 308 (find-

ing that the “pervasive evil” of racial discrimination in voting

was remedied through elimination of literacy tests that were

otherwise constitutional). Thus, Congress can outlaw other-

wise constitutional conduct, provided that the legislation is

needed to remedy some constitutional violation.’ See City of

Rome v. United States, 446 U.S. 156, 177 (1980) (holding that

Congress could prohibit certain electoral schemes that were

not unconstitutional themselves but that were discriminatory

in effect).

Respondent and his amici argue that Title II of the ADA

was needed to remedy violations of the equal protection

clause. However, Title II does not remedy such violations

because disabled people are not a suspect class for which the

Constitution requires mandatory accommodation. Congress

may be able to give disabled individuals statutory rights that

exceed those granted by the equal protection clause, but it

may not do so under the guise of enforcing constitutional

rights that do not exist.

In City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432

(1985), this Court refused to recognize the disabled as a sus-

pect or quasi-suspect class,* setting the outer bounds of Con-

gress’s remedial power to protect them from unconstitutional

discrimination. In Turner v. Safley, 482 U.S. 78 (1987), this

Court determined that even when the highest level of scrutiny

would otherwise apply, prison regulations are valid as long as

7 In arguing that the ADA should be “upheld as a valid exercise of

Congress's Section 5 power if there is a ‘congruence and proportionality

between the injury to be prevented or remedied and the means adopted to

that end,"” the federal government is putting the cart before the horse. (See

Brief of the United States at 22). The first inquiry is whether there is a con-

stitutional violation to be prevented or remedied. If the injury being pre-

vented or remedied does not rise to the level of a constitutional violation,

the means adopted to address that end are irrelevant.

* Although City of Cleburne specifically dealt with the mentally dis-

abled, it identified the disabled generally as a nonsuspect class for purposes

of equal protection analysis. 473 U.S at 445-46.

14

they bear a reasonable relationship to a legitimate penological

interest. Turner, 482 U.S. at 89.°

Just as RFRA attempted to make a substantive alteration

of this Court's holding in Employment Div., Dep't of Human

Resources of Oregon v. Smith, 494 U.S. 872 (1990), Title II's

application to state prisoners would make a substantive alter-

ation to this Court's holdings in City of Cleburne and Turner.

RFRA’ similarity to the ADA is striking. Both purportedly

establish greater rights for individuals by increasing the judi-

cial scrutiny of state action to a level higher than this Court

has deemed appropriate.

The ADA heightens judicial scrutiny applicable to actions

affecting disabled persons by requiring a closer nexus between

the governmental purpose and the governmental means than

presently exists under the rational basis test. The ADA man-

dates an affirmative justification for any state action that inci-

dentally burdens the disabled, a nonsuspect class. A state's

actions are no longer presumptively valid despite a rational

relationship to a legitimate state interest. Even if the state's

chosen policy passes the rational basis test, it will not be vali-

dated by the courts unless the state can affirmatively prove

that it cannot make an accommodation without altering the

fundamental nature of its programs, activities, and services.

This searching judicial scrutiny is incompatible with the less

onerous rational basis test.

The same problems that this Court found insurmountable

in RFRA also pervade Title II of the ADA. See City of

Boerne, 117 S. Ct. at 2171. In striking down RFRA, this Court

might as well have been speaking about the ADA. See, e.g.,

Coolbaugh v. Louisiana, No. 96-30664, 1998 U.S. App. LEXIS

* There are two reasons for this judicial restraint. First, prison admin-

istration is a task that has been committed to the legislative and executive

branches of government. Turner, 482 U.S. at 85. Thus, with respect to fed-

eral prisons, deference must be given to Congress and the Department of

Justice. With respect to state prisons, however, this Court has recognized

that our federalist system provides an additional reason for deference to

state prison administrators. /d. Thus, state prison management should be left

to the state legislative and executive branches of government.

15

3199, at *31 (Sth Cir. Feb. 27, 1998) (Smith, J., dissenting).

RFRA was not a constitutional exercise of Congress's power

to enforce the Fourteenth Amendment, and neither is Title II

of the ADA.

B. The Commerce Clause

Even though Title II of the ADA does not constitute an

appropriate exercise of Congress's power to enforce the

Fourteenth Amendment, it is not necessarily unconstitutional

in its entirety. When applied to many public services, Title II

may be a constitutional exercise of Congress's powers under

the Commerce Clause. However, Title II cannot be constitu-

tionally interpreted in a way that authorizes federal regulation

of state prison management, a noncommercial activity that

Contrary to respondent's contention, Pennsylvania's boot

camp is not “specifically designed to reintegrate prisoners into

the stream of commerce.” (Respondent's Brief at 46). The

boot camp is specifically designed to (1) reduce the number of

individuals who commit drug and alcohol related crimes,

which is a primary cause of prison overcrowding; (2) eliminate

insurrection and prison rioting, which are caused by over-

crowding; and (3) reduce criminal behavior by exploring alter-

native methods of incarceration. Pa. Stat. Ann. tit. 61, § 1122

(West Supp. 1997). In fact, a state’s management of its prison-

ers has no substantial effect on interstate commerce that is

“visible to the naked eye.” See United States v. Lopez, 514 U.S.

549, 562 (1995).

Like the federal government's argument that was rejected

in Lopez, one cannot conclude that prison management and

inmate classifications substantially affect interstate commerce

without piling inference upon inference upon inference. See id.

at 567. Respondent does not bother to explain the basis for his

conclusion that assignment to Pennsylvania's boot camp sub-

stantially affects interstate commerce. However, it is only

through a tortured process of conjecture that one can reach

the theoretical conclusion that a prisoner's assignment to the

boot camp may ever substantially affect interstate commerce.

16

That speculative hypothesis requires one to start with the

premise that assignment to the boot camp gives an individual

the opportunity to receive drug and alcohol treatment, inten-

sive discipline and regimentation, continuing education, voca-

tional training, prerelease counseling, engage in rigorous

physical activity, and work on public projects. From that point

forward, a long series of facts must be assumed, although

those events may never take place.

To begin with, it must be taken for granted that the

inmate will successfully complete the boot camp's require-

ments because he has received the education, discipline, regi-

mentation, training, and counseling provided in the boot

camp. If he does complete those requirements, the inmate will

be paroled and released into the local community under the

supervision of the Board of Probation and Parole. One must

assume that, as a result of the drug and alcohol treatment the

inmate received at the boot camp, he will not use those sub-

stances after he is released into free society. Inasmuch as he

probably will not use those substances anymore, the parolee

should not test positive on random drug or alcohol tests con-

ducted during the period of parole supervision. Because the

individual received intensive discipline and regimentation and

was required to engage in rigorous physical activity, he will —

hopefully — have developed a sense of personal responsibil-

ity, self-discipline, and respect for others. Theoretically, these

qualities, combined with the fact that he no longer uses drugs

or alcohol, will prevent the individual from committing

another crime and being returned to prison. Ideally, since the

individual has received continuing education, vocational train-

ing, and prerelease counseling at the boot camp, he will have

learned the skills and work ethic necessary to find and main-

tain a job, which will have an incidental effect on interstate

commerce. Evcntually, if enough inmates successfully com-

plete the boot camp and become more productive citizens, the

effect on interstate commerce might conceivably be a substan-

tial one.

If this type of logic can be used to find that participation

in the boot camp substantially affects interstate commerce,

17

then Congress would also have the power to dictate the boot

camp's eligibility requirements. By dictating eligibility require-

ments, Congress would be able to change the sentencing alter-

natives available for violations of state law. This is a slippery

slope that directly threatens the vital balance of power

between the state and federal governments. In Lopez, this

Court rejected nearly identical reasoning because, otherwise,

it would be “hard-pressed to posit any activity by an individual

that Congress is without power to regulate.” Lopez, 514 U.S.

at 564. This case is virtually indistinguishable from Lopez, and

the federal government has not even attempted to distinguish

this case from that one. (See Brief of the United States at

20-21 n.7). This Court should not allow Congress to use its

Commerce Clause powers to invade a fundamental area of

state sovereignty which has no substantial effect on interstate

commerce.

CONCLUSION

For the foregoing reasons, in addition to those set forth in

their opening brief, petitioners respectfully ask this Court to

reverse the decision of the lower court and remand with

instructions to affirm the judgment of the district court, which

dismissed this action in its entirety.

Respectfully submitted,

PAUL A. TUFANO

General Counsel

Commonwealth of Pennsylvania

(Counsel of Record)

SYNDI L. GUIDO

Deputy General Counsel

Office of General Counsel

333 Market Street

17" Floor

Harrisbuzg, PA 17101

(717) 783-6563

April 14, 1998 Counsel for Petitioners