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

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No. 97-634 | Supreme Court, U.S,

IN THE MAR

Supreme Court of the United 4%

OCTOBER TERM, 1997

1998

E CLERK

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS; JOSEPH D. LEHMAN;

JEFFREY A. BEARD, PH.D.; JEFFREY K. DITTY;

DoES NUMBER 1 THROUGH 20 INCLUSIVE,

. Petitioners,

| RONALD R. YESKEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE COUNCIL OF STATE GOVERNMENTS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

US. CONFERENCE OF MAYORS,

NATIONAL LEAGUE OF CITIES, AND

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

RICHARD RUDA *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON - Eras Printine Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001

SG’

Whether the Americans With Disabiliti

" | in state prisons. es Act ap-

2 |

TABLE OF CONTENTS

QUESTION PRESENTED ..0.0...........-...ccccceescececseseseeseees

TABLE OF AUTHORITIES. .............-............0:-ssseeseeeesess

INTEREST OF THE AMICI CURIAE |...

SUMMARY OF ARGUMENT .....020. eee

ARGUMENT ........................

THE COURT OF APPEALS ERRED IN HOLD-

ING THAT THE AMERICANS WITH DISABILI-

TIES ACT APPLIES TO INMATES IN STATE

RIED <necerctersnactinnpieminanmenpespepammmasanstenneussnnaensese =

A. State Prison Administration Is Entitled To Sub-

stantial Deference Under The Constitution...

B. Congress Did Not Intend To Apply The ADA

RE a LSE OSL

CSI, cennsrezsesssssscemseesnsesedesvenszemenncequetenmmemensmennens

(iii)

TABLE OF AUTHORITIES

Ca-es Page

Amos v. Maryland Dept. of Pub. Safety & Corr.

Servs., 126 F.3d 589 (4th Cir. 1997) _........ 4, 12, 14,17

Armstrong v. Wilson, 942 F. Supp. 1252 (N.D. Cal.

1996), aff'd, 124 F.3d 1019 (9th Cir. 1997),

petition for cer’. “'ed, 66 U.S.L.W. 3398 (Oct.

QR, EEE 14

Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996)... 13

Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997). 12

Crawford v. Indiana Dept. of Corrections, 115 F.3d

Cf EEE ERE ee ee 20

City of Boerne v. Flores, 117 S.Ct. 2157 (1997)... 21

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Constr. Trades Council, 485 U.S. 568

| aS 21

Estelle v. Gamble, 429 U.S. 97 (1976) —.............. 9, 9-10, 10

Farmer v. Brennan, 511 U.S. 825 (1994)... 10, 11

Gabel v. Lynaugh, 835 F.2d 124 (5th Cir. 1988) _. 12

Gregory v. Ashcroft, 501 U.S. 452 (1991)... 7, 15, 16

Hudson v. Palmer, 468 U.S. 517 (1984) —................. 3,8

Jones v. North Carolina Prisoners’ Labor Union,

EC 3, 9,11

LeFaut v. Smith, 834 F.2d 389 (4th Cir. 1987)...... 10

Lewis v. Casey, 116 S.Ct. 2174 (1996) 2,9

Love v. Westville Corr. Center, 103 F.3d 558 (7th

RR I ee 12, 15

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983) -............................... 16-17

New York v. United States, 505 U.S. 144 (1992)... 7, 21

Preiser v. Rodriguez, 411 U.S. 475 (1973)... 2,11, 16

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

Screws v. United States, 325 U.S. 91 (1945)... 7

Thornburgh v. Abbott, 490 U.S. 401 (1989)... 9

Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995),

cert. denied, 116 S.Ct. 772 (1996)... 17

Turner v. Safley, 482 U.S. 78 (1987)... 4, 8, 8-9, 14

United States v. Bass, 404 U.S. 336 (1971)............. 15-16

United States v. Dow, 357 U.S. 17 (1958) ............. 16-17

United States v. Jin Fuey Moy, 241 U.S. 394

ee 21

TABLE OF AUTHORITIES—Continued

Page

United States v. Lopez, 514 U.S. 549 (1995) ........... 7

Will v. Michigan Dept. of State Police, 491 U.S. 58

RT Nene yl Mii Aol a RS 15-16

Wilson v. Seiter, 501 U.S. 294 (1991) ....................... 9,10

Statutes and Regulations

FS 20

I 18

Co 5, 17-18, 18

TT 5, 19

IED ss ccrnsssnscsecaseentiogmansssemmememetil 5, 19

TTT aE 19

an 12

esi cccininerepieaneneieennnmiesnenensetaneses 17

Ie iaiieeiiaadhin 5, 17

ET 6

a 12

eee 3,14

Other Authorities

American Heritage Dictionary Of The English

pC 18

The Federalist No. 45 (Isaac Kramnick ed. 1987)

li clare nnretn rena enitmerebnemetieenees 7

Edith E. Flynn, “Diagnostic and Reception Cen-

ters,” in Encyclopedia of American Prisons

(Marilyn D. McShane & Frank P. Williams, III,

Eo 13

H. Rep. No. 485(I), 101st Cong., 2d Sess. (1990),

reprinted at 1990 U.S.C.C.A.N. 268 0.0... 20

H. Rep. No. 485(II), 101st Cong., 2d Sess. (1990),

reprinted at 1990 U.S.C.C.A.N. 332 ............... 20

Judicial Conference of the United States, Long

Range Plan For The Federal Courts (1995)........ 12

Maleolm L. Lachance-McCullogh & James M.

Tesoriero, “AIDS,” in Encyclopedia of Ameri-

can Prisons (Marilyn D. McShane & Frank P.

0 Eat 12-13

TABLE OF AUTHORITIES—Continued

National Center on Addiction and Substance

Abuse, Behind Bars: Substance Abuse and

America’s Prison Population (1998) ........ csiinainiaite

Statistical Abstract of the United States 1997

Page

| 18-19

U.S. Department of Justice, Bureau of Justice

Statistics, Sourcebook of Criminal Justice Statis-

CT ELE TA NS A

Louis & Carol Veneziano, “Disabled Inmates,” in

Encyclopedia of American Prisons (Marilyn D.

McShane & Frank P. Williams, III, eds. 1996)...

Webster's Third New International Dictionary

IN THE

Suprene Court of the United States

OCTOBER TERM, 1997

No. 97-634

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS; JOSEPH D. LEHMAN;

JEFFREY A. BEARD, FuH.D.; JEFFREY K. DITTY;

DoEes NUMBER 1 THROUGH 20 INCLUSIVE,

2 Petitioners,

RONALD R. YESKEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE COUNCIL OF STATE GOVERNMENTS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

US. CONFERENCE OF MAYORS,

NATIONAL LEAGUE OF CITIES, AND

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE '

Amici are organizations whose members include

state, county, and municipal governments and officials

'The parties have consented to the filing of this brief

amicus curiae. Letters indicating their consent have been filed

throughout the United States. Amici have a com-

pelling interest in legal issues that affect state and

local governments.

“Prison administrators are responsible for main-

taining internal order and discipline, for securing

their institutions against unauthorized access or es-

cape, and for rehabilitating, to the extent that human

nature and inadequate resources allow, the inmates

placed in their custody.” Procunier v. Martinez, 416

U.S. 396, 404-05 (1974). Because corrections admin-

istrators are responsible for every aspect of inmates’

lives, “the possibilities for litigation ... are bound-

less.” Preiser v. Rodriguez, 411 U.S. 475, 492 (1973).

Moreover, inmate populations have a substantially

greater percentage of persons with ADA covered dis-

abilities than the population at large. The court of

appeals’ holding that the ADA protects state prison-

ers makes prison management even more complex and

difficult, subjecting administrators’ decisionmaking to

endless judicial second guessing and thereby “un-

necessarily . . . perpetuat[ing] the involvement of

the federal courts in affairs of prison administra-

tion.” Id. at 407; see also Lewis v. Casey, 116 S.Ct.

2174, 2185 (1996).

Because of the importance of this issue to amici

and their members, this brief is submitted to assist

the Court in its resolution of the case.

with the Clerk of the Court. Pursuant to Rule 37.3 of the

Rules of this Court, amici state that no counsel for a party

has authored this brief in whole or in part, and that no person

or entity, other than the amici, their members, or their

counsel, has made a monetary contribution to the preparation

or submission of this brief.

STATEMENT

Amici adopt petitioners’ statement.

SUMMARY OF ARGUMENT

1. One of the States’ core functions is protecting

the lives, liberty and property of their citizens

through the mechanisms of the criminal law. A

principal means by which the States accomplish this

responsibility is by committing to a term of imprison-

ment those “persons who have a demonstrated pro-

clivity for antisocial criminal, and often violent, con-

duct.” Hudson v. Palmer, 468 U.S. 517, 526 (1984).

The Court’s cases interpreting both the contours of

fundamental rights within prisons and the Eighth

Amendment recognize that the practical necessities of

prison administration require that prison officials be

given broad deference. As the Court has explained,

“the realities of running a penal institution are com-

plex and difficult.” Jones v. North Carolina Prisoners’

Labor Union, Inc., 483 U.S. 119, 126 (1977).

2. Affirmance of the court of appeals’ holding

would make state prison administration substantially

more complex and difficult than it already is. Various

surveys indicate that prison populations have a much

greater percentage of persons with such ADA covered

disabilities as HIV infection and AIDS, learning dis-

abilities, mental retardation, psychological disorders,

drug addiction and alcoholism. In most state prison

systems, inmates are classified and assigned to facili-

ties based, in part, on their disabilities. Administra-

tors engage in this practice to meet disabled inmates’

needs in a cost-effective manner. Yet this practice ap-

parently violates a Justice Department regulation (28

C.F.R. § 35.130(b)(2)), and has prompted several

ADA suits by inmates who assert that they must be

mainstreamed into the general prison population.

Indeed, because prison administrators are responsi-

ble for every aspect of prisoners’ lives, such fundamen-

tal decisions as allocating jobs in prison industries,

spaces in educational and vocational training pro-

grams, recreational opportunities, and other institu-

tional privileges are likely to prompt costly and

fact-intensive ADA suits. If the ADA is held to

apply, the decisions of prison administrators will be

subject to endless judicial second-guessing, a result

contrary to this Court’s longstanding recognition that

federal courts are not to become “the primary arbiters

of what constitutes the best solution to every admin-

istrative problem, thereby unnecessarily perpetuat-

[ing] the involvement of the federal courts in affairs

of prison administration.” Turner v. Safley, 482 U.S.

78, 89 (1987) (citation omitted).

3. The court of appeals’ holding that the ADA’s

“public services” provisions apply to state prisons

ignores this Court’s longstanding recognition of the

centrality of prison administration to the States’

sovereign interests. Its holding cannot be affirmed

given the numerous indications in the statute which

demonstrate that Congress did not intend for the

ADA to apply to state prisoners.

Prisons do not provide “public services.” As the

Fourth Circuit has noted, this language “connotes a

ban on discrimination in services provided to the

public, not in the prison context where the public is

excluded.” Amos v. Maryland Dept. of Pub. Safety

& Corr. Servs., 126 F.3d 589, 596 (4th Cir. 1997)

(citation omitted). Prisons simply do not provide

“public services” in the same way that a state uni-

versity or park system does. Moreover, to “meet[]

the essential eligibility requirements” for “participa-

tion in [prison] programs or activities,” 42 U.S.C.

§ 12131(2), a person must be incarcerated, an act

which removes them from the public at large.

The conclusion that Congress did not intend for the

ADA to apply to state prisoners is buttressed by its

findings. Most significantly, Congress found that “dis-

crimination against individuals with disabilities per-

sists in such critical areas as employment, housing,

public accommodations, education, transportation,

communication, recreation, institutionalization, health

services, voting, and access to public services.” 42

U.S.C. § 12101(a) (3). Notably, Congress did not in-

clude such terms as “incarceration,” “imprisonment,”

or “corrections” in this finding, a telling omission

given that there were 700,000 prisoners in state cus-

tody at the time of the ADA’s enactment, a popula-

tion which greatly exceeded the number of patients

institutionalized in state mental hospitals and resi-

dental facilities. Other findings demonstrate that

Congress enacted the ADA to enable the disabled to

engage in “independent living,” and “to pursue those

opportunities for which our free society is justifiably

famous.” Id. § 12101(a)(8) & (9). The absence of

any findings manifesting Congress’ intent to apply

the ADA to state prisoners reinforces the conclusion

that the court of appeals’ holding should be reversed.

ARGUMENT

THE COURT OF APPEALS ERRED IN HOLDING

THAT THE AMERICANS WITH DISABILITIES ACT

APPLIES TO INMATES IN STATE PRISONS

The court of appeals erred in holding that respond-

ent has a cause of action under the Americans With

Disabilities Act (ADA) to challenge the decision of

Pennsylvania’s prison administrators which denied

him entry into a motivational boot camp. Regardless

of whether the operations of the States’ corrections de-

partments constitute a “program or activity” under

the literal language of the statute, see 42 U.S.C.

§ 12132, this language cannot be deemed to manifest

Congress’ intent to apply the ADA’s “Public Services”

subchapter to state prison systems because there are

other contrary indications in the statute.

As explained below, the management of prison

systems is a core state function. This Court’s cases

interpreting both the Eighth Amendment’s prohibi-

tion against the infliction of “cruel and unusual pun-

ishments” and the contours of fundamental rights in

the prison setting establish that state prison admin-

istrators are entitled to broad deference in carrying

out their duties. Thus, even if Congress has the

power to subject state prison systems to the ADA,

see Pet. App. lla, the federal courts cannot presume

that Congress did so given the numerous contrary in-

dications in the statute. This Court should therefore

reverse the judgment of the court of appeals.

A. State Prison Administration Is Entitled To Substan-

tial Deference Under The Constitution

1. It is axiomatic that “[t]he Constitution created

a Federal Government of limited powers,” Gregory v.

Ashcroft, 501 U.S. 452, 457 (1991), and that “ ‘[t]he

powers not delegated to the United States by the Con-

stitution, nor prohibited by it to the States, are re-

served to the States respectively, or to the people.’ ”’

New York v. United States, 505 U.S. 144, 155

(1992) (quoting U.S. Const. amend. X). As James

Madison explained :

The powers delegated by the proposed Constitu-

tion to the federal government are few and de-

fined. Those which are to remain in the State

governments are numerous and indefinite. .. .

The powers reserved to the several States will

extend to all the objects which, in the ordinary

course of affairs, concern the lives, liberties, and

properties of the people, and the internal order,

improvement and prosperity of the State.

The Federalist No. 45, at 296 (Isaac Kramnick ed.

1987). See also Screws v. United States, 325 U.S.

91, 109 (1945) (plurality opinion) (“Our national

government is one of delegated powers alone.’’).

One of the ways in which the States accomplish

this core function of securing “internal order” and

protecting “the lives, liberties, and properties of the

people,” Federalist No. 45, at 296, is through defining

and punishing criminal activity. As this Court has

repeatedly observed, “[u]nder our federal system, the

States possess primary authority for defining and

enforcing the criminal law.” United States v. Lopez,

514 U.S. 549, 561 n.3 (1995) (internal quotations

and citations omitted). One of the principal means

by which the States enforce the criminal law is by

committing to a term of imprisonment those “persons

who have a demonstrated proclivity for antisocial

criminal, and often violent, conduct.” Hudson v.

Palmer, 468 U.S. 517, 526 (1984).

In cases interpreting both the Eighth Amendment

and the contours of fundamental rights within pris-

ons, the Court has recognized that the practical neces-

sities of prison administration require that the deci-

sions of prison officials be given broad deference:

Prison administrators are responsible for main-

taining internal order and discipline, for secur-

ing their institutions against unauthorized access

or escape, and for rehabilitating, to the extent that

human nature and inadequate resources allow,

the inmates placed in their custody. The Her-

culean obstacles to effective discharge of these

duties are too apparent to warrant explication.

Suffice it to say that the problems of prisons in

America are complex and intractable... .

Procunier v. Martinez, 416 U.S. 396, 404-05 (1974).

Thus, the Court, while acknowledging that

“[p]rison walls do not form a barrier separating

prison inmates from the protections of the Constitu-

tion,” has held that a prison regulation which im-

pinges on fundamental rights is nonetheless “valid if

it is reasonably related to legitimate penological inter-

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

The Court further explained that this

standard is necessary if “prison administrators

... and not the courts, [are] to make the diffi-

cult judgments concerning institutional opera-

tions.” Subjecting the day-to-day judgments of

prison officials to an inflexible strict scrutiny

analysis would seriously hamper their ability to

9 -

_ anticipate security proble» and to adopt innova-

tive solutions to the intractable problems of

prison administration. The rule would also dis-

tort the decisionmaking process, for every ad-

ministrative judgment would be subject to the

possibility that some court somewhere would con-

clude that it had a less restrictive way of solving

the problem at hand. Courts inevitably would

become the primary arbiters of what constitutes

the best solution to every administrative problem,

thereby “unnecessarily perpetuat[ing] the in-

volvement of the federal courts in affairs of

prison administration.”

Id. at 89 (quoting Jones v. North Carolina Prisoners’

Union, 433 U.S. 119, 128 (1977) (rejecting First

Amendment challenge to prison regulations), and

Procunier, 416 U.S. at 407). See also Lewis v. Casey,

116 S.Ct. 2174, 2185 (1996). And in Thornburgh v.

Abbott, 490 U.S. 401, 415-19 (1989), the Court made

clear that even when fundamental constitutional

rights are implicated, prison officials are not required

to “set up and shoot down every conceivable alterna-

tive method” of accommodating a right.

The Court has shown a like degree of deference in

its cases which hold that the Eighth Amendment’s

prohibition against the infliction of “cruel and un-

usual punishments” applies not only to punishments

imposed pursuant to a sentence but also “to some

deprivations that were not specifically part of the

sentence but were suffered during imprisonment.”

Wilson v. Seiter, 501 U.S. 294, 297 (1991).

Thus, in Estelle v. Gamble, 429 U.S. 97, 104

(1976), the Court held that an Eighth Amendment

violation “is manifested by prison doctors in their

response to the prisoner’s needs or by prison guards

in intentionally denying or delaying access to medical

care or intentionally interfering with the treatment

once prescribed.” Id. at 104-05 (footnotes omitted).

The Court, however, further explained that “([t]his

conclusion does not mean . . . that every claim by a

prisoner that he has not received adequate medical

treatment states a violation of the Eighth Amend-

ment.” Id. at 105. Out of respect for the deference

that corrections administrators require to manage

their prisons, the Court thus held that the Eighth

Amendment is not violated unless administrators act

with “deliberate indifference to [the] serious medical

needs of [their] prisoners.” /d.

The Court has further explained that even where

prison conditiuns are “harmful enough to satisfy the

objective component of an Eighth Amendment claim,

whether [an administrator’s conduct] can be charac-

terized as [stating a claim also] depends upon the

constraints facing the official.” Wilson, 501 U.S. at

303. This rule applies to all conditions of confinement

claims because “as a general matter, the actions of

prison officials with respect to these nonmedical con-

ditions are [not] taken under materially different

constraints than their actions with respect to medical

conditions . . . [making] ‘it . . . appropriate to apply

the “deliberate indifference” standard articulated in

Estelle.” ” Id. at 303 (quoting LaFaut v. Smith, 834

F.2d 389, 391-92 (4th Cir. 1987) ).

Most recently the Court reiterated that the Eighth

Amendment “incorporates due regard for prison offi-

cials’ unenviable task of keeping dangerous men in

safe custody under humane conditions.” Farmer v.

Brennan, 511 U.S. 825, 845 (1994) (internal quota-

tions & citations omitted). As the Court has recog-

nized, this standard is nothing less than a manifesta-

tion of the balance struck by the text of the Eighth

Amendment, which “does not outlaw cruel on on

usual ‘conditions,’” but rather “outlaws cruel and

unusual ‘punishments.’ ” Jd. at 837.

That the Constitution provides state prison admin-

istrators with a zone of deference is simply an ac-

knowledgment that “the realities of running a penal

institution are complex and difficult.” Jones, 433 U.S

at 126. As this Court has noted: -

It is difficult to imagine an activity in whi

a State has a stronger interest, or » he that rs

more intricately bound up with state laws, regu-

lations, and procedures, than the administration

of its prisons. The relationship of state prisoners

and the state officers who supervise their con-

finement is far more intimate than that of a

State and a private citizen. For state prisoners,

eating, sleeping, dressing, washing, working, and

playing are all done under the watchful eye of

the State, and so the ibilities for litigati

yal ~~ oh poss les for litigation

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

See also Turner, 482 U.S. at 84-85 (“[rJunning a

prison is an inordinately difficult undertaking”).

2. Affirmance of the court of appeals’ holdi

would make state prison eiuinieteation ¢ oe rere

more “complex and difficult” than it already is. Jones

433 U.S. at 126. As the Court noted in Preiser, prison

administrators are responsible for every aspect of

prisoners’ lives. See 411 U.S. at 491-92. Such funda-

mental administrative decisions as allocating jobs in

prison industries, spaces in educational and vocational

training programs, recreational opportunities, and

other institutional privileges are likely to prompt an

ADA suit. See, e.g., Amos v. Maryland Dept. of Pub.

Safety & Corr. Servs., 126 F.3d 589, 591 (4th Cir.

1997); Love v. Westville Corr. Center, 103 F.3d 558

(7th Cir. 1996). This is a consequence of no small

moment given the highly litigious nature of prison-

ers, see, e.g., Judicial Conference of the United States,

Long Range Plan For The Federal Courts 63-65 &

n.14 (1995),? and that prison populations are likely

to have a much greater percentage of persons with an

ADA covered disability than the population at large.’

See, e.g., Malcolm L. Lachance-McCullogh & James

M. Tesoriero, “AIDS,” in Encyclopedia of American

Prisons 14 (Marilyn D. McShane & Frank P. Williams

III, eds., 1996) (“HIV infection rates in prisons ex-

2 The Fifth Circuit has observed that “ ‘pro se civil rights

litigation has become a recreational activity for state prison-

ers,’ and prisoners have abused the judicial system in a man-

ner that non-prisoners simply have not.” Carson v. Johnson,

112 F.3d 818, 822 (5th Cir. 1997) (quoting Gabel v. Lynaugh,

835 F.2d 124, 125 n.1 (5th Cir. 1988) (per curiam) ).

* The ADA defines a “disability” as “a physical or mental

impairment that substantially limits one or more of the major

life activities of [an] individual; . . . a record of such an

impairment; or .. . being regarded as having such an impair-

ment.” 42 U.S.C. § 12102(2). The Justice Department’s reg-

ulations state that

[t]he phrase physical or mental impairment includes, but

is not limited to, such contagious and noncontagious dis-

eases and conditions as orthopedic, visual, speech and

hearing impairments, cerebral palsy, epilepsy, muscular

dystrophy, multiple sclerosis, cancer, heart disease, dia-

betes, mental! retardation, emotional illness, specific learn-

ing disabilities, HIV disease (whether symptomatic or

asymptomatic), tuberculosis, drug addiction and alco-

holism.

28 C.F.R. § 35.104.

ceeded the general population by as much as five or

six to one”; National Institute of Justice/Center For

Disease Control survey “reflected an AIDS incidence

rate in prison that was twenty times higher than that

of the 1992 U.S. general population”).

As further example, a survey of all state and fed-

eral prison systems found that 10.7 percent of in-

mates have a learning disability, 4.2 percent suffer

from mental retardation, 7.2 percent have psychotic

disorders, and 12.0 percent have other psychological

disorders. Louis and Carol Veneziano, “Disabled In-

mates,” in Encyclopedia of American Prisons, at 159.

One study has “found that the prevalence of psycho-

logical disorders among prisoners in state, federal,

and military prisons varied . . . from 7 to 10 percent,”

and another “found that 42 percent of the inmates

tested had a learning deficiency, and that 82 percent

of those with learning deficiencies were classified as

learning disabled.” Jd. Numerous other inmates suf-

fer from alcoholism and drug addiction. See Bryant

v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996); see

also The National Center on Addiction and Substance

Abuse, Behind Bars: Substance Abuse and America’s

Prison Population 2 (1998) (estimating that 80

— of inmates have history of drug or alcohol

use).

The application of the ADA to state prison systems

would exacerbate the already “Herculean obstacles to

[the] effective discharge” of prison administration.

Procunier, 416 U.S. at 404. In most state prison sys-

tems, inmates are classified and assigned to a particu-

lar facility, in part, based on their disabilities. See

Edith E. Flynn, “Diagnostic and Reception Centers,”

in Encyclopedia of American Prisons, at 152-54. Ad-

ministrators engage in this practice to meet disabled

inmates’ needs in a cost-effective manner. Yet if the

ADA applied, this practice would apparently conflict

with the Justice Department’s regulation stating that

“fa] public entity may not deny a qualified individual

with a disability the opportunity to participate in

services, programs, or activities that are not separate

or different, despite the existence of permissibly sepa-

rate or different programs or activities.” 28 C.F.R.

§ 35.130(b) (2).

Indeed, classification decisions have already

prompted ADA suits on the ground that they violate

an inmate’s right to be mainstreamed in the general

prison population. See, e.g., Amos, 126 F.3d at 591

(claim by prisoners that their assignment to a par-

ticular institution because of their disabilities “de-

priv[ed] them of the opportunity to serve their sen-

tences at available facilities closer to their homes” as

well as “equal access to bathrooms, athletic facilities,

the ‘honor tier,’ and food services”); Armstrong v.

Wilson, 942 F. Supp. 1252 (N.D. Cal 1996), aff'd, 124

F.3d 1019 (9th Cir. 1997), petition for cert. filed, 66

U.S.L.W. 3398 (Oct. 20, 1997) (No. 97-686).

If the ADA applied, the decisions of corrections ad-

ministrators allocating scarce resources such as place-

ment in prison jobs or educational courses would be

subject to endless judicial second-guessing, a result

which is contrary to this Court’s longstanding recog-

nition that federal courts are not to become “the pri-

mary arbiters of what constitutes the best solution to

every administrative problem, thereby ‘unnecessarily

perpetuat[ing] the involvement of the federal courts

in affairs of prison administration.’” Turner, 482

U.S. at 89 (quoting Procunier, 416 U.S. at 407). And

ironically, the costs state prison systems incur in liti-

gating ADA suits—which, in addition to their own

legal costs, might include damages, attorney’s fees,

and costs »f complying with injunctions—will result

in administrators having even fewer funds with which

to meet inmate needs. See, e.g., Love, 103 F.3d at

559 (affirming judgment awarding prisoner $30,948

in damages and $39,536.75 in attorneys’ fees).

B. Congress Did Not Intend To Apply The ADA To State

Prisoners

Ignoring this Court’s longstanding recognition of

the centrality of prison administration to the States’

sovereign interests, the court of appeals held that the

literal language of the ADA’s “public services” provi-

sion manifests Congress’ intent to apply the statute

to state prisoners. To reach this result, the court of

appeals engaged in a superficial reading of the statu-

tory language, ignoring other telling indications in

the statute itself which demonstrate the implausibil-

ity of its holding. See Pet. App. 4a. Most revealing

is the lower court’s extensive reliance on the Justice

Department’s regulations rather than on probative

indicia of Congress’ intent. This would, of course, be

unnecessary if Congress’ intent was clear. See id.

at 5a-6a.

The Court, however, has never held that a federal

agency’s construction of ambiguous statutory lan-

guage should be given effect when it would funda-

mentally alter the federal-state balance. Indeed, the

Court has repeatedly required a clear statement by

Congress to ensure that it “‘ “has in fact faced, and

intended to bring into issue, the critical matters in-

volved in the judicial decision.”’” Gregory v. Ash-

croft, 501 U.S. at 461 (quoting Will v. Michigan

Dept. of State Police, 491 U.S. 58, 65 (1989) (quot-

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

(1971))). As the Court has further noted, “[t]his

plain statement rule is nothing more than an acknowl-

edgment that the States retain substantial sovereign

powers under our constitutional scheme, powers with

which Congress does not readily interfere.” Gregory,

501 U.S. at 461.

Adherence to this rule is of the utmost necessity

given the enormous burdens that ADA application

would have on state prison systems. As explained

above, inmate populations have a much higher inci-

dence of ADA covered disabilities than the population

at large. See supra pp. 12-13. Moreover, in contrast

to other ADA covered entities, prison administrators

oversee every aspect of inmates’ lives.* See Preiser,

411 U.S. at 492. Applying the ADA to prisons would

impose enormous burdens on the States and interject

the federal courts into the most sensitive areas of

penological policy. The court of appeals simply ig-

nored these unreasonable consequences, which compel

a more thorough analysis of the statutory language

and its context, purposes and history. See, e.y.,

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 776 (1983) (declining to

“attribute to Congress the intention to . . . open the

*An employer, for example, may rightfully be required to

provide a disabled employee with a reasonable accomodation

so as to enable the employee to perform a job. As a general

matter, however, an employer’s ADA obligations will begin

and end with the workday. The employer, for example, will

not bear responsibility for removing architectural and trans-

portation barriers unrelated to its workplace. In short, the

employer’s burden is limited; it does not encompass every

aspect of a disabled employee’s life.

door to . . . obvious incongruities and undesirable

possibilities”) (quoting United States v. Dow, 357

U.S. 17, 25 (1958) ).

The notion that Congress intended by §§ 12131 and

12132 to apply the ADA to state prisons and their

inmates is belied by the caption Congress gave the

relevant provisions. Subchapter II is entitled “Public

Services.” See 42 U.S.C. § 12131. As the Fourth Cir-

cuit has noted, this caption “ ‘connotes a ban on dis-

crimination in services provided to the public, not in

the prison context where the public is excluded.’ ”

Amos, 126 F.3d at 596 (quoting Torcasio v. Murray,

57 F.3d 1340, 1346 (4th Cir. 1995) ). To suggest that

a prisoner, who has been committed to the custody of

a State’s corrections department for a term of im-

prisonment, is receiving “public services” is to ignore

that members of the public at large cannot, and do

not desire to, receive these “services.” Prisons simply

do not provide “public services” as a state university

or park system does.

For similar reasons it is implausible to suggest that

Congress intended that the term “qualified individual

with a disability” would embrace state prisoners. 42

U.S.C. § 12131(2). As Congress defined the term, a

person is not deemed to be a “qualified individual”

unless he “meets the essential eligibility requirements

for the receipt of services or the participation in pro-

grams or activities provided by a public entity.” Jd.

Even if jobs in prison industries or places in a prison

course of instruction constitute a program or activity,

here, too, members of the public ordinarily do not

“meet [ ] the essential eligibility requirements” for

“participation in [prison] programs or activities,”

i.€., Incarceration in prison upon conviction of a crim-

inal offense. Indeed, it is odd to think of punishment

by incarceration for commission of a crime as an

“essential eligibility requirement[],” id., for one’s

“access to public services.” Jd. § 12101(a) (3).

That Congress did not intend for the ADA’s “pub-

lie services” provisions to apply to state prisoners is

buttressed by the findings it made. These findings

clearly demonstrate that Congress intended that the

ADA would principally apply to disabled individuals

living in free society and not prisons. See generally

42 U.S.C. § 12101(a). Most significantly, Congress

found that “discrimination against individuals with

disabilities persists in such critical areas as employ-

ment, housing, public accommodations, education,

transportation, communication, recreation, institu-

tionalization, health services, voting, and access to

public services.” Jd. § 12101(a)(3). Notably, Con-

gress did not include such terms as “incarceration,”

“imprisonment,” or “corrections” in this finding.

This a telling omission given that at the time of the

ADA’s enactment there were approximately 700,000

prisoners in state custody, see U.S. Department of

Justice, Bureau of Justice Statistics, Sourcebook of

Criminal Justice Statistics—1992 610 (1993), a pop-

ulation which greatly exceeded the number of patients

then institutionalized in state mental hospitals and

residential facilities for the mentally ill. See U.S.

Department of Commerce, Statistical Abstract of the

5 In its ordinary meaning, the term institutionalization con-

notes the act of “plac{ing] (a person) in the care of an

institution,” which is [a] place for the care of persons who

are destitute, disabled, or mentally ill.” The American Heri-

tage Dictionary Of The English Language 936 (3d ed. 1992).

See also Webster’s Third New International Dictionary 1172

(1986) (defining institutionalization as “the action or a re-

sult of institutionalizing <the [institutionalization] of the

insane>’’).

United States 1997 137 (1997) (Tables Nos. 204 &

205).

Congress also found that

the Nation’s proper goals regarding individuals

with disabilities are to assure equality of oppor-

tunity, full participation, independent living, and

economic self-sufficiency for such individuals; and

. . . the continuing existence of unfair and un-

necessary discrimination and prejudice denies

people with disabilities the opportunity to com-

pete on an equal basis and to pursue those oppor-

tunities for which our free society is justifiably

famous[. ]

42 U.S.C. § 12101(a) (8) & (9). Prisoners, of course,

do not engage in “independent living.” Jd. Nor are

they entitled to “full[y] participat[e]” in, or “to

pursue those opportunities for which our free society

is justifiably famous.” 7d.

As the tenor of these and Congress’ other findings

demonstrate, Congress enacted the ADA to address

discrimination against the disabled in “our free soci-

ety.” Id. None of the nine comprehensive findings

which Congress made manifests an intent to provide

state inmates with the protections of the ADA.* The

* Congress also stated that its purpose was “to invoke the

sweep of congressional authority .. . in order to address the

major areas of discrimination faced day-to-day by people with

disabilities.” 42 U.S.C. § 12101(b) (4). While prison popula-

tions contain large numbers of disabled inmates, the policies

and rules of state prison administrators cannot be reasonably

understood as being a “major area[] of discrimination faced

day-to-day by people with disabilities.” Jd. Only a small frac-

tion of the estimated forty three million disabled Americans

are ever imprisoned ; prison administrators’ policies and rules

are simply not a “major area[] of discrimination faced day-

to-day” by the disabled.

absence of any reference to “corrections” or “incar-

ceration” in its numerous findings demonstrates that

Congress would have viewed a judicial interpretation

that the statute protects state prisoners as an un-

intended and unduly disruptive result.

The legislative history supports this conclusion. As

one of the House Reports notes, the ADA “will per-

mit the United States to take a long-delayed but very

necessary step to welcome individuals fully into the

mainstream of American society.” H. Rep. No.

485(1), 101st Cong., 2d Sess. 24 (1990), reprinted

at 1990 U.S.C.C.A.N. 268. See also H. Rep. No.

485(II), 101st Cong., 2d Sess. 50, reprinted at 1990

U.S.C.C.A.N. 332 (“there is a compelling need to pro-

vide 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 main-

stream of American life”). As these statements make

clear, Congress’ concern was protecting disabled per-

sons in free society.

It is no answer that Congress intended the ADA to

apply to inmates because many of them are eventually

released and “have the same interest in access to the

programs, services, and activities available to the

other inmates of their prison as disabled people on

the outside have to the counterpart programs, serv-

ices, and activities available to free people.” Craw-

ford v. Indiana Dept. of Corrections, 115 F.3d 481,

486 (7th Cir. 1997)._ The Equal Protection Clause

already prohibits state prison administrators from

engaging in irrational discrimination against disabled

inmates; 42 U.S.C. § 1983 provides remedies for such

violations. Imputing to Congress an intent to provide

inmates with substantive protections in excess of

those provided by the Equal Protection Clause not

only raises a troublesome constitutional question over

the scope of Congress’ powers to enforce the Four-

teenth Amendment, see City of Boerne v. Flores, 117

S.Ct. 2157 (1997), it also interjects the federal courts

into the most complex questions of the States’ penolog-

ical policies.

The Court has repeatedly recognized that statutes

should be construed to avoid serious constitutional

questions “ ‘unless such [a] construction is plainly

contrary to the intent of Congress.’” New York v.

United States, 505 U.S. 144, 170 (1992) (quoting

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Constr. Trades Council, 485 U.S. 568,

575 (1988) ); see also United States v. Jin Fuey Moy,

241 U.S. 394, 401 (1917) (“A statute must be con-

strued, if fairly possible, so as to avoid not only the

conclusion that it is unconstitutional, but also grave

doubts upon that score.”). Because there are numer-

ous indications in the statute that Congress did not

intend for the ADA to apply to state prisoners, the

Court should adopt a construction that avoids these

constitutional questions.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,