Reply Brief — United States v. Georgia

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Nos. 04-1205 and 04-1236

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

STATE OF GEORGIA, ET AL.

TONY GOODMAN, PETITIONER

STATE OF GEORGIA, ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER IN NO. 04-1203

PAUL D. CLEMENT

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 3914-2216

TABLE OF CONTENTS

Page

A. Prison administration is the relevant context ....... 1

B. Title II responds to a long history and a

continuing problem of unconstitutional

treatment of disabled prisoners .................... 2

1. Lane held that Section 5 legislation is

EE -nvncncepncdsandessecsiasdesbinekenid 3

By ee IES és ccsnccccnvectbasecees 4

3. The type of violation warrants congressional

DEED . d.woneneeuesesecscbiveciecseedsucueawans 13

4. Title Il is not underinclusive .................. 15

C. Title II is reasonably tailored to remedying

and preventing constitutional violations in

GUE coc cnnncincecciscecstesescccedes 16

PT EE. kk cekccsescveceviasndvaasesunteuenenns la

TABLE OF AUTHORITIES

Cases:

Alabama v. United States, 304 F.2d 583 (1st Cir.),

eS eee 8

Anderson v. Liberty Lobby, Inc.,

Gee Ce ED 6p ke y0nntnddcccssecnseussaons 10

Anderson v. Martin, 375 U.S. 399 (1964) ........... 8

Armstrong v. Davis, No. 99-15152, 2000

WL 369622 (9th Cir. Apr. 11, 2003) .............. 18

Ashwander v. Tennessee Valley Auth., 297 U.S.

POPEEED <ncecnaseuensspcusaceseseiasuencen 18

Barnes v. Gorman, 536 U.S. 181 (2002) ............ 20

Baskin v. Brown, 174 F.2d 391 (9th Cir.

DD eusesncduesnecneenendsstsesceddaneerusdele 8

Beckford v. Irvin, 49 F. Supp. 2d 170

Fs SD 6 4.60 cncuncsccateesssasdsccnaasaes 11

Cases—Coatinued Page

Benten v. Kessler, 505 U.S. 1084 (1992) ............ 10

Bivens v. Sir Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ........ 20

Bliley v. West, 42 F.3d 101 (4th Cir. 1930) ........... 8

Board of Trs. of the Univ. of Ala. v. Garrett,

ED tn cine ieee eueghenness ve 5,7

Bowman v. Beasley, 8 Fed. Appx. 175 (10th Cir.

2001), cert. denied, 535 U.S. 1001 (2002) ......... 18

Brooks v. Horn, No. Civ.A. 00-03637, 2004

WL 764385 (E.D. Pa. Apr. 7, 2004) .............. 18

Buck v. Bell, 274 U.S. 200 (1927) .............eeees 8

Butler v. Thompson, 184 F.2d 526 (4th Cir. 1950) ....8

Carrington v. Rash, 380 U.S. 89 (1965) ...........64. 8

Chapman v. King, 154 F.2d 460 (5th Cir.), cert.

denied, 327 U.S. 800 (1946) ............c cee eeeeees 8

City of Boerne v. Flores, 521 U.S. 507

DT dite se cecakcededennennehs nneenesee se coces 6

City of Cleburne v. Cleburne Living Ctr., Inc.,

ED sc ct cocunaebéaduseaveessccecess 4

City of Rome v. United States, 446 U.S. 156

PT cried ehGeheeksdedeheshdsescececccesce 10

Couvillion v. Michigan Parole Bd.,

No. 4:04-CV-130, 2005 WL 1036973

FR GED occcvccsecccccccccccce 18

Cutter v. Wilkinson, 1258. Ct. 2113 ;

cts LaGEseheasdhebsnsesoconcecces 14, 18, 19

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.),

og SR Rl) EPPPOTTTTITITTTTeTerTee 8

DeShaney v. Winnebago County Dep't of Soc.

Servs., 489 U.S. 189 (1989) ........cceeccrececes 18

Ill

Cases-—Continued Page

Dred Scott v. Sandford, 60 U.S. (19 How.) 393

iii ehhenddddeedednesectssseocceoecocecs 10

Drueding v. Devlin, 380 U.S. 125 (1965) ............. 8

Farmer v. Brennan, 511 U.S. 825 (1994) ........... 17

Gates v. Rowland, 39 F.2d 1439 (9th Cir. 1994) .... 18

Guinn v. United States, 238 U.S. 347 (1915) ......... 8

Hamm v. Virginia State Bd. of Elections, 230 F.

Supp. 156 (E.D. Va.), aff'd, 379 U.S. 19 (1964) ...... &

Harrelson v. Elmore County, 859 F. Supp. 1465

ED ib .60 cicedineendseneeooeveeees 11

Harris v. United States, 536 U.S. 545 (2002) ....... 18

Hicks v. Frey, 992 F.2d 1450 (6th Cir. 1993) ........ 11

Johnson v. California, 125 8. Ct. 1141

Dh e debeceeedieeseeedseoeerecooesoes 14, 18

Kimel v. Florida Bd. of Regents, 528 U.S. 62

DT Aiiecindsindsinendeadinesecesescoesenses 16

Lane v. Wilson, 307 U.S. 268 (1989) .............4.. 8

Lassiter v. Northampton County Bd. of Elections,

ECP EET TTT TTT TTT al

Lewis v. Casey, 518 U.S. 343 (1996) ............045. 13

Lopez v. Monterey County, 525 U.S. 266 (1999) .... 10

McCardle, Ex parte, 74 U.S. (7 Wall.) 506 (1869) ... 10

McDonald v. Key, 224 F.2d 608 (10th Cir.),

cert. denied, 350 U.S. 895 (1955) ...............4.. s

McKune v. Lile, 536 U.S. 24 (2002) ..............4.. 16

Miller v. King, 384 F.3d 1248 (11th Cir. 2004) ..... 2,5

Myers v. Anderson, 238 U.S. 368 (1915) .........4.. 8

Cases—Continued Page

Navedo v. Maloney, 172 F. Supp. 2d 276

Ga Be accnccscessdocedussverecesssooss 11

Nevada Dep't of Human Res. v. Hibbs,

Bee as We GED cca ccccsccescccsccocccens passim

Nixon v. Condon, 286 U.S. 73 (1932) .............44. s

Nixon v. Herndon, 273 U.S. 536 (1927) ............. 8

Oneisha v. Hopper, 171 F.3d 1289 (ilth Cir.

1999), cert. denied, 528 U.S. 1114 (2000) ........ 18

Oregon v. Mitchell, 400 U.S. 112 (1970) .............. 8

Parkinson v. Columbia County Dist. Att'y,

679 N.Y.S.2d 505 (Sup. Ct. 1998) ................ 11

Pennsylvania Dep't of Corrs. v. Yeskey,

Se ED bcc cccddsdedeedensacescees 4,16

Randolph v. Rodgers, 170 F.3d 850 (8th Cir.

EEE cnccnndéudnenscbecousecedsdeesasosuneeenc 18

Reed v. Reed, 404 U.S. 71 (1971) -............ceeeeees i)

Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947),

cert. denied, 333 U.S. 875 (1948) ............60000. 8

Rostker v. Goldberg, 453 U.S. 57 (1981) .............. 7

Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan.

PEED coneconcesncuscesannsacededsbssisodesenes 11

Serrano v. Francis, 345 F.3d 1071 (9th Cir.

2003), cert. denied, 125 S. Ct. 43 (2004) ........... 11

Smith v. Allwright, 321 U.S. 649 (1944) ............. 8

South Carolina v. Katzenbach, 383 U.S. 301

GUE cdendnvecccassedannensadbadcsensesans 5, 6,8

Spicer v. Virginia, Dep't of Corrs., 66 F.3d 705

SEE EEE oécdeesccdsecaanseuensssensedeues 11

Tennessee v. Lane, 541 U.S. 509 (2004) ........ passim

Terry v. Adams, 345 U.S. 461 (1963) ............... s

Cases—Continued Page

Thorn v. Richardson, No. 9577, 1971 WL 201

Gera CH GE ER EEE cccccccccscccccccedece )

Turner v. Safley, 482 U.S. 78 (1987) ......... 13, 14,17

United States v. Gainey, 380 U.S. 63 (1965) .......... 5

United States v. Louisiana, 225 F. Supp. 353

(E.D. La. 1963), aff'd, 380 U.S. 145 (1965) .......... 8

United States v. Raines, 362 U.S. 17 (1960) ......... 3

United States v. Virginia, 518 U.S. 515 (1996) .... 7,9

Virginia, Ex parte, 100 U.S. 339 (1879) ........... 10

Weeks v. Chaboudy, 984 F.2d 185 (6th Cir. 1993) ... 11

Wilkinson v. Austin, 125 S. Ct. 2384 (2005) ........ 17

Constitution, statutes and regulations:

U.S. Const.:

Art. I, § 8 (Commerce Clause) .................... 5

HE WEE eabdaddcdbecdenccsecec< 1, 11, 14, 15, 16

Amend. XIV:

écdecccdeddaduacddsacsusnsasanededsneonesed 6

De cccccccsncssasnssnsenssacesescecceses passim

Americans with Disabilities Act of 1990, 42 U.S.C.

PU OROOE, ccvccecesceccesecccccccessoscees 7,12

Fp ee SEED sccdccccccccsccessese 3, 4, 16

42 U.S.C. 12111-12117 (Title I) .................. 5

42 U.S.C. 12131-12165 (Title IT) ........... passim

SPs SED Sncedccodececcesanedeceeoss 17

SP ME cui nddesentséecsdecuncoenss 14,17

BR EE me 18

Civil Rights of Institutionalized Persons Act,

GR OPO dcdccccecccasccosseescsoseses 4

Statutes and regulations—Continued Page

as SED cececccccncccccocececcess 4

42 U.S.C. 19B7(2K BMI)... 0... eee eee ween ee eees 4

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 2, 86 Stat. 103 ............... 8

Family and Medical Leave Act, 29 U.S.C. 2601

GGT. cccccccccocncecscccesceccnncesseaseses 6, 20

Prison Litigation Reform Act of 1995, 42 U.S.C.

SED nc00ns0csencsencceseeceeeesecoeceseenaess 19

Rehabilitation Act, 29 U.S.C. 701 et seg. ........ 18, 20

CE, on nin eee encesedudeneebeeese 4

29 U.S.C. 794 (2000 & Supp. 2002) .............. 18

Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. 2000ce et seg. ............ 19

Se ED vdccccecccccnsccccccecances 4

42 U.S.C. 2000ce-1an]) ...... ccc cece ecceeeees 19

42 U.S.C. 2000ce-1(a(2) 1... . cece eee ceeneees 19

20 U.S.C. 6421(a)(2) (2000 & Supp. I] 2002) .......... 4

20 U.S.C. 6421(a)(3) (2000 & Supp. 11 2002) ......... 4

Pe CED cecccecddcsecocsncvasocssceceses 4

42 U.S.C. 5633(a)(9)(A) (2000 & Supp. I1 2002) ....... 4

42 U.S.C. 5633(a)(9)(F (i) (2000 & Supp. II

ED dboudcadeducedasandwansedsesusiuccceeuecos 4

Mass. Gen. Laws Ann. ch. 123 (West 2003):

DE dtdeduddecccnsecdecdeecdesscesusdseeooceese 11

DED sdadenckesasdedustsedenedenecedeedeneseeds 11

DED cccccubondodsucsdentesqdessesecedtoesacsas 11

DED é0cccesdeeecdecnsdcedusecseeesdéénucsnneses 11

28 C.F.R.:

PEED cu ccccacccsecccesseossenens 17

PEED Sccccccocccsuccectsscooeens 17

——

Vil

Miscellaneous: Page

AIDS and the Admin.of Justice: Hearing

Before the Subcomm. on Courts, Civil Liberties,

and the Admin.of Justice of the House

Comm. on the Judiciary, 100th Cong., 1st

EEE =canaagcestnecncstadsenkbeounsesconc 12

Civil Rights for Institutionalized Persons:

Hearings on H.R. 2439 and H.R. 5791

Before the Subcomm. on Courts, Civil Liberties,

and the Administration of Justice of the

House Comm. on the Judiciary, 95th Cong.,

PEED -Gdnncececucedctscsasecaseussoces 12

Civil Rights of Institutionalized Persons:

Hearings on S. 1393 Before the Subcomm.

on the Constitution of the Senate Comm. on

the Judiciary, 95th Cong., Ist Sess. (1977) .... 13, 15

118 Cong. Rec. (1972):

DG Ghdcdcdcstoccusddsodescenvcsecosceasacess 9

DBE ‘nedncndseeconscocecncatescuscsusauscsouces )

i, RPG cutncensnoccescececsessneescosecess 9

Dy EE Cecteccccnccdscdecesesscescccecsecesccese 9

DG Sdenbncssdbcnstesondecesescoseoeddenencss 9

136 Cong. Rec. 17,089 (1990) .............cceeeeees 13

Equal Employment Opportunities Enforcement

Act: Hearings on S. 2453 Before the Subcomm.

on Labor of the Senate Comm. on Labor and

Public Welfare, 91st Cong., 1st Sess.

EEE: ddeccdtdeceseesovedscndeedscdacenuneesees i)

Equal Employment Opportunities Enforcement

Act of 1971: Hearings on S. 2515, S. 2617 &

H.R. 1746 Before the Subcomm. on Labor

of the Senate Comm. on Labor and Public

Welfare, 92d Cong., Ist Sess. (1971) ............ 19

VII

Miscellaneous—Continued: Page

Equal Employment Opportunity Enforcement

Procedures: Hearings on H.R. 1746 Before

the General Subcomm. on Labor of the

House Comm. on Education and Labor,

Se Ge, SURE EEEED Secccecccasnsanescocess i)

Equal Employment Opportunity Enforcement

Procedures: Hearings on H.R. 6228 &

13517 Before the General Subcomm. on

Labor of the House Comm. on Education

and Labor, 91st Cong., lst & 2d Sess. (1969-

BED SaUdccescdccecenccoupencdebescusesdessesens i)

Robert D. Fleischner & Michael Cutler,

Annotated List of Cases Relating to

Treatment for Persons with Mental Illness

in Prisons and Jails (Dec. 2002), at

<http://www.centerforpublicrep.org/cgi-

SUOUED ccccccccccncctesccscesecees 4

FY 2004 Office of Justice Programs, Office

on Violence Against Women and Office of

Community Oriented Policing Services

Grants by State (visited Oct. 26, 2005)

<http://www.ojp.gov/Fy2004grants> ........... 19

H.R. Rep. No. 238, 92d Cong., lst Sess. (1971) ....... i)

H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 3,

GUE 6 u06ctosceccsdseudecsdecesesececncosses 12

Kentucky Legis. Research Comm'n, Research

Report No. 125: Mentally Retarded Offenders

in Adult and Juvenile Correctional Institu-

ESO GRESED occtccccc sconce ehiiebenieneeduneee 11

Miscellaneous—Continued: : Page

John Monahan et al., “Prisoners Transferred to

Mental Hospitals,” in Mentally Disordered

Offenders: Perspectives from Law and Social

Science (John Monahan & Henry J. Steadman

SED ducududduddcudensecddssesoccesseses< 11

Cathy Polter, Correctional Ass’n of N.Y.,

State of The Prisons: Conditions Inside

SEE Sancocacuchusuacdecussceseseuce 12

S. Rep. No. 415, 92d Cong., Ist Sess. (1971) ......... i)

Jn the Supreme Court of the United States

No. 04-1203

UNITED STATES OF AMERICA, PETITIONER

Vv.

STATE OF GEORGIA, ET AL.

No. 04-1236

TONY GOODMAN, PETITIONER

Vv.

STATE OF GEORGIA, ET AL.

REPLY BRIEF FOR THE PETITIONER IN NO. 04-1203

Neither respondents nor their amici ask this Court to

overrule its recent decisions in Tennessee v. Lane, 541 U.S.

509 (2004), and Nevada Department of Human Resources

v. Hibbs, 538 U.S. 721 (2003). But, as evidenced by respon-

dents’ heavy reliance (Br. 29, 32, 34, 35, 37-38 n.10) on the

dissenting opinions in those cases, this Court’s holdings in

Lane and Hibbs establish that Congress properly exercised

its power under Section 5 of the Fourteenth Amendment to

apply Title II of the Americans with Disabilities Act (ADA),

42 U.S.C. 12131-12165, to prisons.

A. Prison Administration Is The Relevant Context

The as-applied analysis of Congress’s Section 5 power

that was prescribed by this Court in Lane, 541 U.S. at 530-

534, properly focuses on the “class of cases” and “variety of

* * * constitutional guarantees” implicated by the States’

“administration of * * * the penal system.” /d. at 522,

525, 531. Neither respondents nor their amici make any

effort to defend the court of appeals’ much narrower focus

on the particular constitutional claim (the Eighth Amend-

ment) that happened to be asserted in the first case that

(1)

court decided involving prison administration. Miller v.

King, 384 F.3d 1248, 1272 (11th Cir. 2004); Pet. App. 19a.

- And with good reason: Lane made clear that the relevant

context for its as-applied analysis was not the individual

constitutional claim raised in the complaint—the complaints

in Lane raised no constitutional claims at all, Pet. App. 12-

28 (No. 02-1667)—but rather the entire “class of cases impli-

cating the accessibility of judicial services.” 541 U.S. at 531.

Moreover, the Court considered the full range of constitu-

tional concerns relevant to that entire substantive category

of governmental activity, including those not implicated by

the plaintiffs’ own claims, such as the constitutional interest

in access to the courts by civil litigants and jurors. That

approach recognizes that Section 5 legislation (i) responds

to and addresses not the isolated claims of future litigants,

but broad “pattern[s]” of unconstitutional conduct by gov- —

ernment officials in the substantive areas in which they op-

erate, Lane, 541 U.S. at 526, and (ii) may prophylactically

“proscribe| | facially constitutional conduct, in order to pre-

vent and deter unconstitutional conduct,” Hibbs, 538 U.S. at

727-728. See U.S. Br. 11-16.'

B. Title Il Responds To A Long History And A Continuing Prob-

lem Of Unconstitutional Treatment Of Disabled Prisoners

Respondents’ central argument (Br. 22-38) is that Con-

gress lacked an adequate record of unconstitutional treat-

ment of prisoners to apply Title II to the prison context.

That is wrong for four reasons.

1. Lane held that Section 5 legislation is warranted.

The short answer is that this Court held in Lane that the

constitutional predicate for Congress’s enactment of Title

II as Section 5 legislation is “clear beyond peradventure.”

' Even if a narrower context were appropriate, respondents and their amici

offer no response to the United States’ alternative argument (Br. 47-48) that,

at a minimum, Title II is constitutional as applied to Goodman's allegations

concerning actual violations of the Constitution (see Pet. App. 16a-18a).

541 U.S. at 529. In Lane, this Court surveyed a broad array

of evidence beyond the context of access to the courts to

support its determination that Congress passed Title II in

_ response to an established record “of pervasive unequal

treatment [of individuals with disabilities] in the administra-

tion of state services and programs, including systematic

deprivations of fundamental rights.” /d. at 524; see id. at

524-526 (discussing the history and evidence of discrimina-

tion in, inter alia, voting, marriage, unjust commitment and

institutionalization, public education, and the penal system).

The Court then concluded that “the sheer volume of evi-

dence demonstrating the nature and extent of unconstitu-

tional discrimination against persons with disabilities,” id.

at 528, combined with Congress’s express findings of dis-

crimination in areas that are the exclusive or predominant

domain of state governments, id. at 529; see 42 U.S.C.

12101(a)(3), “make[] clear beyond peradventure that inade-

quate provision of public services and access to public facili-

ties was an appropriate subject for prophylactic legislation,”

Lane, 541 U.S. at 529. It was only in the next step of the

Court’s Section 5 analysis—a separately designated section

of the opinion assessing whether “Title II is an appropriate

response to this history and pattern of unequal treatment,”

id. at 541 U.S. at 530—that the Court even discussed an as-

applied approach or precedents like United States v.

Raines, 362 U.S. 17 (1960). The Court then restricted “the

scope of that inquiry,” Lane, 541 U.S. 530, to the context of

access to the courts; id. at 530-531.

Respondents contend (Br. 20-21) that neither Congress

nor this Court focused on the prison context. Quite the op-

posite, Lane concluded that the “pattern of unequal treat-

ment” identified by Congress includes “administration of

* * * the penal system,” 541 U.S. at 525, and cited prison

cases that documerted that pattern, id. at 525 n.11. Con-

gress also specificaily found that “institutionalization” was

one “critical areal ]” in which “discrimination * * * per-

sists.” 42 U.S.C. 12101(a)(3). That targeted finding can

naturally “be thought to include penal institutions.” Penn-

sylvania Dep't of Corrs. v. Yeskey, 524 U.S. 206, 212 (1998).

Indeed, Congress employed the same terminology in the

Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997

et seqg., where it defined the “institutions” that house “insti-

tutionalized persons” to include a State or local “jail, prison,

or other correctional facility,” or “a pretrial detention facil-

ity,” 42 U.S.C. 1997(1)(B)(ii), (iii), and Subch. I-A (title).”

2. The record is substantial. Even were the Court to

re-open Lane’s holding concerning the predicate for Con-

gress’s exercise of its Section 5 power, ample evidence cor-

roborates the appropriateness of applying Title II to pris-

ons. See U.S. Br. 16-35; Goodman Br. 20-36; Paralyzed Vet-

erans Br. 7-13; ADAPT Br. 9-22; American Ass’n on Mental

Retardation Br. 15-20. Notably, while respondents criticize

various pieces of evidence, they do not actually deny the

reality of the Nation’s “history of unfair and often gro-

tesque mistreatment” of persons with disabilities, City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 438

(1985), nor could they. U.S. Br. 16-17 & n.8. Nor do they

deny the reality that Congress and the courts have, time

and again, documented the unconstitutional treatment

of disabled prisoners. See, e.g., U.S. Br. 24-32 & Add. A;

see also R. Fleischner & M. Cutler, Annotated List of

Cases Relating to Treatment for Persons with Mental IIl-

ness in Prisons & Jails (Dec. 2002), at <http://www.

centerforpublicrep. org/cgi-bin/pdf.pl?id=97283>. Instead,

respondents proffer a series of rules that would force this

* See Religious Land Use and Institutionalized Persons Act, 42 U.S.C.

2000cc-1(a) (same definition); 20 U.S.C. 6421(a)(2) and (3) (2000 & Supp. I

2002) (“institutionalization” includes “correctional facilities”); 42 U.S.C.

5633(a)(9) A) and (F )(i) (2000 & Supp. I] 2002) (“institutionalization” of juvenile

delinquents); 29 U.S.C. 701(a)(5); Yeskey, 524 U.S. at 209 (Title II “unmis-

takably includes State prisons and prisoners within its coverage”).

arts

Court to disregard “the stuff of actual experience” that

prompted congressional action, United States v. Gainey,

380 U.S. 63, 67 (1965), and constrain its review to an artifi-

cial subset of judicially depurated material. Not one of re-

spondents’ proposed rules for disallowing actual experience

comports with controlling precedent or common sense.”

First, respondents insist (Br. 35) that the Court must

disregard all evidence of unconstitutional treatment by po-

litical subdivisions of the States. Lane, in which both re-

spondents had been denied access to “county courthouses,”

541 U.S. at 513-514, held the opposite, id. at 527 & n.16.

Respondents rely (Br. 35) on the statement in Board of

Trustees of the University of Alabama v. Garrett, 531 U.S.

356, 369 (2001), that evidence of discrimination by local units

of government should be discounted because Congress may

subject them to damages suits without relying on its Section

5 power. But Lane distinguished Garrett on this point, not-

ing that a rule disallowing evidence involving local govern-

ment officials could not be reconciled with South Carolina

v. Katzenbach, 383 U.S. 301, 312-315 (1966), or Hibbs. See

Lane, 541 U.S. at 527-528 n.16. In addition, the employment

provisions in Title I of the ADA at issue in Garrett inde-

pendently sustainable under the Commerce Clause, so that

“the sole purpose of reliance on § 5 [was] to place the States

on equal footing with private actors with respect to their

amenability to suit.” /d. at 528 n.16. Title II, by contrast,

specifically focuses on the operaticas of state and local gov-

ernments qua governments. Moreover, respondents and

numerous other States have argued that Title II is not

proper Commerce Clause legislation as applied to prisons,

Miller, 384 F.3d at 1268 n.23; Nevada, Georgia, et al. Ami-

cus Br. at 7-8, Pennsylvania Dep't of Corrs. v. Yeskey, (No.

97-634). This case thus draws into question the substantive

* To the extent the Court considers it relevant, the appendix to this brief

contains a case-by-case response to respondents’ appendix.

power of Congress to remedy and deter a documented pat-

tern of unconstitutional treatment of disabled inmates by

both States and local governments, regardless of whether

the law is enforced through private damages actions, private

injunctive actions, or by the United States itself. That

makes the actions of local governments clearly relevant.

See Lane, 541 U.S. at 527-528 n.16; City of Boerne v. Flores,

521 U.S. 507, 530-531 (1997); South Carolina, 383 U.S. at

308-313 (1966).

Finally, respondents’ effort to distinguish Lane on this

point fails for the additional reason that local jails, like local

courthouses, often serve as arms of the state, and the inter-

change of prisoners and shared use of facilities between

state and local authorities is commonplace. See U.S. Br. 18

n.9. Under those circumstances, Congress’s enforcement

power under Section 5, like the substantive protections of

Section 1, can charge the States with some responsibility for

the unconstitutional conduct of the political subdivisions

that the States themselves created and empowered to act,

and with which they coordinate prison programs and ser-

vices.

Second, respondents variously complain (Br. 25-26, 30-

31) that the testimony, reports, studies, and cases that sub-

stantiate the problem of unconstitutional treatment of dis-

abled prisoners came either too early or too late. Lane and

Hibbs are to the contrary. In Lane, the Court expressly

and repeatedly relied on material documenting unconstitu-

tional treatment of the disabled that predated Title II by

more than respondents’ proposed seven-year cutoff (Br. 26)

or postdated its enactment. See 541 U.S. at 524-527 & nn.5-

14. For example, two of the cases the Court cited in Lane

to “document a pattern of unequal treatment in * * * the

penal system” postdated the ADA. /d. at 525 n.11. The

Court did the same in Hibbs, relying on cases that predated

the Family and Medical Leave Act, 29 U.S.C. 2601 et seq.,

by more than a century and others, like United States v.

Virginia, 518 U.S. 515 (1996), that postdated its enactment,

and legislative materials that also ran afoul of respondents’

seven-year cutoff. See Hibbs, 538 U.S. at 729-730, 733-734

& nn.3, 6-9.

Respondents, moreover, offer no rationale for their pro-

posed head-in-the-sand approach to “the gravest and most

delicate duty that this Court is called upon to perform.”

Rostker v. Goldberg, 453 U.S. 57, 64 (1981). After all, evi-

dence of unconstitutional treatment spanning a substantial

breadth of time would seem to be the very definition of a

“history and pattern” of constitutional violations. Garrett,

531 U.S. at 368. Moreover, with respect to information that

predates the enactment of Title I1, it would be an odd con-

ception of federalism that considered Congress’s lengthy

study of a problem and willingness to proceed incrementally

to be marks against the law’s constitutionality. With re-

spect to material that postdates Title II’s enactment, re-

spondents fail to explain why evidence of an endu_..1g prob-

lem does not substantiate Congress’s finding of an anteced-

ent problem. Indeed, the fact that violations continue to

occur would seem to undermine respondents’ argument for

discounting pre-enactment evidence, because it demon-

strates that earlier laws, and even Title II, have not eradi-

cated the problem.

Third, respondents (Br. 34-35) and Tennessee argue

(Amici Br. 14-18) that only final adjudications of constitu-

tional violations by the States can support an exercise of

Congress’s Section 5 power, and even then only if there are

sufficiently numerous adverse court judgments to meet

some unspecified adjudications-per-capita threshold (id. Br.

17-18), and if the legislation is targeted solely at adjudicated

offending States (id. at 17). That argument is irreconcilable

with precedent. The Court, for example, upheld nationwide

bans on literacy tests and durational residency require-

ments after the Court had repeatedly affirmed the constitu-

tionality of such procedures.' Likewise, the Court broadly

sustained the Voting Rights Act of 1965 in South Carolina,

supra, even though there were far fewer than “40 cases”

finding unconstitutional! discrimination in voting, and then

only by nine States “over decades” (id. 18), making the ratio

of violations to the number of eligible African American and

other minority voters (id. at 17-18) infinitesimally small.’

The argument also ignores that the absence of adjudi-

cated violations may reflect the courts’ own failure to recog-

nize the problem. See, e.g., Buck v. Bell, 274 U.S. 200

(1927); see also Hibbs, 538 U.S. at 729 (noting that historical

discrimination “is chronicled in—and, until recently, was

sanctioned by—this Court’s opinions”). For example, Con-

gress extended Title VII’s ban on gender discrimination to

the States, Pub. L. No. 92-261, § 2, 86 Stat. 103 (1972), just

four months after, “for the first time in our Nation’s history,

this Court ruled in favor of a woman who complained that

* Compare Oregon v. Mitchell, 400 U.S. 112 (1970) (upholding bans), with

Drueding v. Devlin, 380 U.S. 125 (1965) (mem.) (upholding residency require-

ments); Carrington v. Rash, 380 U.S. 89, 91 (1965) (same); Lassiter v. Nort-

hampton County Bd. of Elections, 360 U.S. 45 (1959) (literacy test upheld).

* We have found only 18 final judgments of unconstitutional voting

discrimination by the States before 1965. See Anderson v. Martin, 375 U.S.

399 (1964); Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S.

649 (1944); Lane v. Wilson, 307 U.S. 268 (1989); Nixon v. Condon, 286 U.S. 73

(1982); Nixon v. Herndon, 273 U.S. 536 (1927); Myers v. Anderson, 238 U.S.

368 (1915); Guinn v. United States, 238 U.S. 347 (1915); Alabama v. United

States, 304 F.2d 585 (5th Cir.), aff'd, 371 U.S. 37 (1962); McDonald v. Key, 224

F.2d 608 (10th Cir.), cert. denied, 350 U.S. 895 (1955); Butler v. Thompson, 184

F.2d 526 (4th Cir. 1950); Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949); Rice v.

Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948);

Chapman v. King, 154 F.2d 460 (5th Cir.), cert. denied, 327 U.S. 800 (1946);

Bliley v. West, 42 F.2d 101 (4th Cir. 1930); Hamm v. Virginia State Bd. of

Elections, 230 F. Supp. 156 (E.D. Va.), aff'd, 379 U.S. 19 (1964); United States

v. Louisiana, 225 F. Supp. 353, 396 (E.D. La. 1968), aff'd, 380 U.S. 145 (1965);

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.), aff'd, 336 U.S. 933 (1949).

= >. 2

her State had denied her the equal protection of its laws” in

a non-employment case. Virginia, 518 U.S. at 532 (citing

Reed v. Reed, 404 U.S. 71 (1971)). Title VII's legislative

record contains no specific data or findings regarding

women employees in state or local governments,” and we

have uncovered only one case before 1972 that actually

found unconstitutional employment discrimination on the

basis of gender by a State. See Thorn v. Richardson, No.

9577, 1971 WL 201 (W.D. Wash. 1971).

Respondents’ and their amici’s approach also would re-

quire overruling Hibbs. There, the Court rejected the dis-

sent’s emphasis on Nevada’s own benefit policies, which

predated the federal enactment, and instead found that

Congress “could reasonably conclude” that nationwide re-

medial legislation was justified, “no matter how generous

petitioner’s own [policies] may have been.” 538 U.S. at 734.’

The Court reached that conclusion, moreover, despite the

* See H.R. Rep. No. 238, 92d Cong., Ist Sess. (1971); S. Rep. No. 415, 92d

Cong., Ist Sess. (1971); 118 Cong. Rec. 1840 (1972) (Sen Javits) (only “overall

figures” for sex discrimination); id. at 1816-1819; id. at 4935. The isolated

such discrimination, S. Rep. No. 415, supra, at 10; 118 Cong. Rec. at 1816 (Sen.

Williams); id. at 1412 (Sen Byrd). Congressional hearings on the 1972

amendments were equally silent. See Equal Employment Opportunities

Enforcement Act of 1971: Hearings on S. 2215, S. 2617, & H.R. 1746 Before the

Subcomm. on Labor of the Senate Comm. on Labor & Pub. Welfare, 92d Cong., -

Ist Sess. (1971); Equal Employment Opportunity Enforcement Procedures:

Hearings on H.R. 1746 Before the Gen. Subcomm. on Labor of the House

Comm. on Educ. & Labor, 92d Cong., 1st Sess. (1971); Equal Employment

Opportunity Enforcement Procedures: Hearings on H.R. 6228 & H.R. 13517

Before the Gen. Subcomm. on Labor of the House Comm. on Educ. & Labor,

Vist Cong., Ist & 2d Sess. (1969-1970); Equal Employment Opportunities

Enforcement Act: Hearings on S. 2453 Before the Subcomm. on Labor of the

Senate Comm. on Labor & Pub. Welfare, 91st Cong., Ist Sess. (1969).

" See also Lopez v. Monterey County, 525 U.S. 266 (1999); City of Rome v.

United States, 446 U.S. 156, 174 (1980).

dearth of adverse final judgments against States for uncon-

stitutional family-leave policies.

Further amici’s adjudicated-violations-per-capita ap-

proach cannot be squared with the original purpose of Sec-

tion 5, which was not to leave the protection of liberties so

completely dependent upon the same federal judiciary that,

less than a decade earlier, had constricted congressional

power to contain the spread of slavery, see Ex parte

McCardle, 74 U.S. (7 Wall.) 506 (1869); Dred Scott v. Sand-

ford, 60 U.S. (19 How.) 393, 436-452 (1857), or to relegate

Congress to enforcing only those rights that the courts were

already doing a good job of policing. Under Section 5, “i]t

isnot * * * the judicial power” but “the power of Con-

gress which has been enlarged.” Ex parte Virginia, 100

U.S. 339, 345 (1879). Amici’s argument also overlooks that

a single case against a State (especially a class action) may

expose hundreds of constitutional violations, the worst of-

fending cases may settle, and a central purpose of Section

5 legislation is to remedy and prevent the forms of discrimi-

nation that are least amenable to courtroom proof, e.g.,

Hibbs, 538 U.S. at 736."

In short, respondents’ focus (Br. 30) on the materials

before Congress “in 1990” asks the wrong question. The

appropriaceness of Section 5 legislation turns upon whether

a problem of unconstitutional treatment exists, not whether

a long series of widely dispersed judicial adjudications or an

elaborate legislative history exists.

Fourth, respondents criticize (Br. 23-24) the lack of

specificity in the testimony of a single witness before Con-

gress, Cindy Miller of Massachusetts, who testified that

* The insistence upon final judgments loses sight of the fact that a prelimi-

nary injunction reflects the prisoner's “substantial likelihood of success on the

merits,” Benten v. Kessler, 505 U.S. 1084, 1085 (1992) (per curiam), and a denial

of summary judgment means that a reasonable factfinder—whether a judge,

jury, or Congress—could find unconstitutional treatment of the prisoner,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986).

“jailers rational|ize] taking away [inmates’] wheelchairs as

a form of punishment as if that is different than punishing

prisoners by breaking their legs.” Respondents insist that

the “rehabilitation counselor|’s]” testimony must have re-

ferred to the treatment of residents in a state mental health

hospital rather than in a state prison. But it is not clear that

respondents’ purported distinction is even meaningful.

“(Rjehabilitation counselor|s]” routinely work in correc-

tional facilities as well as mental health institutions, see,

e.g., Spicer v. Virginia, Dep't of Corrs., 66 F.3d 705, 707

(4th Cir. 1995) (en banc), and in many States (including

Massachusetts), mentally ill prisoners may serve their sen-

tences within mental health institutions.”

In addition, even if that one witness’s testimony were

ambiguous, it would not alter the very specific judicial con-

firmation of the same point (including a Massachusetts

case)'’ and the sheer volume of other evidence of unconstitu-

tional treatment. Respondent and their amici simply ignore

* See U.S. Br. 32 n.27; Mass. Gen. Laws Ann. ch. 123, §§ 1, 13, 14, 18 (West

2003); Reply App., infra, 4a, 8a, lla, 23a; Vitek v. Jones, 445 U.S. 480 (1980);

John Monahan, et al., “Prisoners Transferred to Mental Hospitals,” in

Mentally Disordered Offenders: Perspectives from Law and Social Science

233-244 (John Monahan & Henry J. Steadman eds., 1983).

" See Navedo v. Maloney, 172 F. Supp. 2d 276 (D. Mass. 2001) (prisoner

denied access to his wheelchair); see also Serrano v. Francis, 345 F.3d 1071

(9th Cir. 2003) (inmate in disciplinary unit denied wheelchair, forcing him to

craw! around vermin and cockroach-infested floor), cert. denied, 125 S. Ct. 43

(2004); Hicks v. Frey, 992 F.2d 1450 (6th Cir. 1993) (paraplegic in disciplinary

unit denied wheelchair); Weeks v. Chaboudy, 984 F.2d 185, 187 (6th Cir. 1993)

(“squalor in which | prisuner| was forced to live as a result of being denied a

wheelchair” violated the Eighth Amendment); Schmidt v. Odell, 64 F. Supp. 2d

1014 (D. Kan. 1999) (inmate deprived of wheelchair); Beckford v. Irvin, 49 F.

Supp. 2d 170(W.D.N.Y. 1999) (Eighth Amendment violated by same); Harre!-

son v. Elmore County, 859 F. Supp. 1465, 1466 (M.D. Ala. 1994) (paraplegic pri-

soner denied use of a wheelchair and forced to crawl around cell); ef. Parkinson

v. Columbia County Dist. Att'y, 679 N.Y.S.2d 505 (Sup. Ct. 1998) (Constitution

violated where inmate was deprived of prosthetic leg for at least a year).

the evidence that (i) persons with disabilities are “deprived

of medications while in jail,” H.R. Rep. No. 485, 101st

Cong., 2d Sess. Pt. 3, at 50 (1990); (ii) “Kentucky Correc-

tions offers no appropriate treatment to the retarded and

subjects them to varied institutional abuse”;'’ (iii) “[mJedical

care at best in most State systems barely scratches the sur-

face of constitutional minima”;"* (iv) inmates with the most

serious medical problems “get dumped” into higher security

facilities regardless of whether their crimes or behavior

warrant it;”* (v) “the confinement of inmates who are in need

of psychiatric care and treatment * * * in the so called

psychiatric unit of the Louisiana State Penitentiary consti-

tutes cruel and unusual punishment in violation of the

Eighth Amendment”;" (vi) mentally ill prisoners were de-

prived of nutritional food because “mental cases don’t know

what they eat anyway”; and (vii) there have been repeated

instances of deliberate abuse and gross medical maltreat-

ment causing dangerous infections, maggot-infested

wounds, and the deaths of disabled inmates, see U.S. Br. 24-

'' Kentucky Legis. Research Comm'n, Research Report No. 125: Mentally

Retarded Offenders in Adult and Juvenile Correctional Institutions at A-3

(1975).

"AIDS and the Admin. of Justice: Hearing Before the Subcomm. on

Courts, Civil Liberties, and the Admin. of Justice of the House Comm. on the

Judiciary, 100th Cong., Ist Sess. 39 (1987).

" Cathy Potler, Correctional Ass'n of N.Y., State of the Prisons: Condi-

tions Inside the Walls 12-13 (1986); see J.A. 90; U.S. Br. 28-29.

' Civil Rights for Institutionalized Persons: Hearings on H.R. 2439 &

H.R. 5791 Before the Subcomm. on Courts, Civil Liberties, & the Admin. of

Justice of the House Comm. on the Judiciary, 95th Cong., lst Sess. 320-321

(1977).

Civil Rights of Institutionalized Persons: Hearings on S. 1393 Before

the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 95th Cong.,

Ist Sess. 234 (1977) (S. 1393 Hearings).

25 & n.19. With respect to that evidence, the silence of re-

spondents and their amici speaks volumes."

3. The type of violations warrants congressional ac-

tion. Rather than answer that extensive evidence—the

volume and specificity of which far exceeds the records in

Lane and Hibbs—respondents argue (Br. 10-19) that it

must all be ignored because the constitutional claims of pris-

oners are subjected to rational-basis review. The premise

is wrong. The rights of disabled prisoners to adequate med-

ical care, humane conditions of confinement, protection from

violence, and prison terms that are not lengthened or served

under inordinately harsh conditions, see J.A. 90; U.S. Br.

21-30, are protected by more than the any-conceivable-

rational-basis standard. Furthermore, prisoners have a

“fundamental constitutional right of access to the courts” to

challenge their convictions or conditions of confinement,

Lewis v. Casey, 518 U.S. 343, 346 (1996), and the Constitu-

tion’s protection of that right is at least as robust as the

general public’s (7.e., Lane respondent Jones’s) right to ob-

serve court proceedings. Indeed, because prison adminis-

tration is an area in which the “government exerts a degree

of control unparalleled in civilian society,” Cutter v.

Wilkinson, 125 S. Ct. 2113, 2121 (2005), and deprives dis-

abled inmates of the resources, freedom, and physical capac-

ity to meet their own needs, the Constitution’s attentiveness

to state conduct is heithtened and pervasive.

Respondents’ relia..ce (Br. 14-19) on Turner v. Safley,

482 U.S. 78 (1987), misunderstands the operation of both

" Respondents’ search (Resp. Br. 24 & n.8) of Westlaw’s (incomplete)

computerized legislative history of the ADA reveals the pitfalls of artificially

narrow, word-specific search requests. Respondents failed to look for the

terms Congress employed. Had they searched for “jail,” “inmate,” or “correc.

tional,” they would have found the specific consideration of Title II's application

to prison administration that they seek. See U.S. Br. 21-23, 28; 136 Cong. Rec.

17,039 (1990) (reproducing federal Bureau of Prisons’ guidance on the

management of HIV-positive prison inmates).

that standard and Title II. As this Court underscored just

last Term, the Turner standard of review applies “only to

rights that are inconsistent with proper incarceration.”

Johnson v. California, 125 8. Ct. 1141, 1149 (2005). More-

over, even when Turner calls for deference, it provides for

more searching review than rational-basis scrutiny, as

Turner itself demonstrates, see 482 U.S. at 94-99 (striking

down marriage restrictions). Title II, moreover, does not

mandate the creation of new programs or services. It re-

quires only that qualified individuals with disabilities be

afforded equivalent access to whatever programs and ser-

vices the prison already offers, 42 U.S.C. 12132. When the

State determines that certain accommodations of constitu-

tional rights are perfectly consistent with incarceration, but

makes them unavailable to qualified inmates with disabili-

ties, the State’s action is not saved by Turner. Indeed, in

that context, the judgments for which Turner suggests that

deference is appropriate will rarely be implicated. Like-

wise, the Court’s Eighth Amendment jurisprudence recog-

nizes that the pervasive control the State exercises over

prisoners imposes unique affirmative duties on the States

and does not broadly permit the State to engage in any con-

duct for which a rationale could be hypothesized.

Respondents’ argument also misunderstands the func-

tion of deferential judicial scrutiny-under Turner. Turner

recognizes that state action implicating and possibly violat-

ing the Constitution is pervasive in prisons, but neverthe-

less prescribes a measure of judicial restraint in evaluating

prison policies out of concerns for both federalism and the

separation of powers. However, both of those concerns have

substantially reduced force when Congress acts under Sec-

tion 5 of the Fourteenth Amendment. Further, to transform

Turner's expression of judicial restraint and respect for the

legislative process into a judicial sword that would preclude

Congress from responding, under Section 5 of the Four-

teenth Amendment, even to a proven record of constitu-

tional violations would get the Constitution’s structural

principles exactly backwards.

4. Title Il is not underinclusive. Respondents contend

(Br. 27-29, 31-33) that the extensive evidence of violations of

disabled inmates’ Eighth Amendment rights must be dis-

counted because the States were simultaneously violating

the constitutional rights of non-disabled inmates, rendering

Title Il “underinclusive[]” (id. at 44). That argument

largely answers itself. It would be an odd version of feder-

alism that deemed a congressional response to only one spe-

cies of constitutional violations to be suspect, or that allowed

States to insulate themselves from targeted Section 5 legis-

lation by violating an even broader swath of constitutional

rights. Congress, moreover, could reasonably conclude that

Eighth Amendment violations disproportionately endanger

the lives and physics! safety of inmates with disabilities,

given their often enhanced vulnerability to prison conditions

in general, and to the deprivation of adequate medical care

in particular. Congress, likewise, could (and did) conclude

that the unconstitutional treatment of inmates with disabili-

ties was an integral part of the broader problem of the

States’ improper treatment of Americans with disabilities.

Respondents’ companion argument (Br. 27-29) that Title

II is unconcerned with Eighth Amendment violations be-

cause they are not a form of “discrimination” is without ba-

sis. The concepts of inequitable treatment and inhumane

treatment overlap. When prison officials deny inmates with

disabilities access to toilet facilities or subject them to a

substandard diet because “mental cases don’t know what

they eat anyway,” S. 1393 Hearings 234, they discriminate

against disabled inmates with respect to the minimal condi-

tions guaranteed by the Eighth Amendment. Indeed, this

Court held in Lane that Title II enforces not just the consti-

tutional prohibition on “irrational disability discrimination,”

but also remedies and prevents violations of “other basic

constitutional guarantees.” 541 U.S. at 522 (citing cases

implicating Eighth Amendment rights). And that aspect of

Title II added to, rather than detracted from, its constitu-

tionality. Beyond that, respondents’ observation (Br. 22-23)

that Title II promotes mainstreaming overlooks that (i)

Congress also unambiguously expressed its desire to com-

bat discrimination in “institutionalization,” 42 U.S.C.

12101(a)(3); Yeskey, supra; (ii) Title II promotes the main-

streaming of disabled prisoners within prison life; and (iii)

the vast majority of disabled inmates “will eventually return

to society,” McKune v. Lile, 536 U.S. 24, 36 (2002) (plural-

ity), so that their inclusion in prison rehabilitative programs

and other institutional services directly promotes their later

transition into the mainstream of community life.

C. Title Il Is Reasonably Tailored To Remedying And Prevent-

ing Constitutional Violations in the Prison Context

Respondents contend (Br. 38-44) that Title II is not con-

gruent and proportional because it goes too “far beyond the

Constitution s requirements” (Br. 40). As an initial matter,

that argument is hard to reconcile with respondents’ com-

plaint elsewhere (Br. 27-29, 31-33, 44) that Title II is

“underinclusive” because it does not address more constitu-

tional violations committed by the States.

| In any event, while some applications of Title II might

provide stronger procedural and substantive protection

than the Constitution mandates, Section 5 permits that.

“Congress’ § 5 power is not confined to the enactment of

legislation that merely parrots the precise wording of the

Fourteenth Amendment.” Kimel v. Florida Bd. of Regents,

528 U.S. 62, 81 (2000). Rather, Congress may both remedy

past violations of constitutional rights and enact “prophy-

lactic legislation that proscribes facially constitutional con-

duct, in order to prevent and deter unconstitutional con-

duct,” Hibbs, 538 U.S. at 727-728.

Respondents and their amici also fail to show that the

gap between the Constitution and Title II as applied to pris-

ons is materially different from the gap between Title II and

the various constitutional rights of access to the courts up-

held in Lane. The features of Title II that this Court em-

phasized in upholding its application to the courts apply

with full force in the prison context. Title II does not im-

pose inflexible commands, but rather requires only that

States undertake “reasonable measures,” Lane, 541 U.S. at

531, and “reasonable” accommodations and modifications,

id. at 532; 42 U.S.C. 12131(2), to ensure only that otherwise

“qualified individual{s]” with disabilities, 42 U.S.C. 12132,

be afforded reasonable access to programs and services that

the State independently has determined are consistent with

incarceration. Title II does not require States to abandon

their essential eligibility criteria for prison programs, to

“fundamentally alter the nature of the service provided,” or

to incur “undue financial or administrative burden{s].”

Lane, 541 U.S. at 532; 28 C.F.R. 35.130(b)(7), 35.150(a)(3).

Those requirements echo the general mandate of “reason-

ableness” in prison regulations, Turner, 482 U.S. at 89; and

the States’ obligations to refrain from imposing “atypical

and significant hardship[s],” Wilkinson v. Austin, 125 S. Ct.

2384, 2395 (2005), and to provide “humane conditions of con-

finement,” “adequate food, clothing, shelter, and medical

care,” and “reasonable measures to guarantee [prisoners’]

safety,” Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Indeed, Title II’s flexible commands are, if anything, a

more reasonable and “appropriate response to [a] history

and pattern of unequal treatment,” Lane, 541 U.S. at 530, in

the prison context than in the court-access context. First,

to the extent Title I] imposes affirmative duties of accom-

modation on States, those duties are more congruent and

proportional within prison walls, where (unlike most other

contexts) affirmative obligations under the Constitution

itself are the rule, rather than the exception. See, e.g.,

DeShaney v. Winnebago County Dep't of Soc. Servs., 489

U.S. 189 (1989). Second, courts have been particularly re-

ceptive to the need to provide an appropriate degree of def-

erence to prison officials, even in applying statutory and

constitutional standards that are facially more rigorous.

See, e.g., Cutter, 125 S. Ct. at 2123, Johnson, 125 S. Ct. at

1152. And a number of courts have recognized that Title

II’s terms permit reasonable deference to prison adminis-

trators.'’ If doubt remains, courts should construe Title II

to preserve its constitutionality. £.g., Harris v. United

States, 536 U.S. 545, 555 (2002); Ashwander v. TVA, 297

U.S. 288, 348 (1936) (Brandeis, J., concurring).

Furthermore, Title II’s standards, see 42 U.S.C.

12134(b), largely mirror those that the Rehabilitation Act of

1973, 29 U.S.C. 794 (2000 & Supp. II 2002), imposes upon

the federal government, which operates the largest correc-

tional system in the Nation, and all fifty States, which have

voluntarily chosen to accept federal funding that triggers

that Act’s requirements. If those standards failed to accord

sufficient deference to the unique needs of the prison con-

text or if, in fact, tney “mark[ed] the end of deference to

State prison operations” that amici portend (Tenn. Br. 6),

then presumably some evidence of those problems would

have surfaced in the federal system or in the States in the

decades since the Rehabilitation Act and Title II were en-

See Bowman v. Beasley, 8 Fed. Appx. 175, 179 (4th Cir. 2001) (per

curiam) (“wide deference”), cert. denied, 535 U.S. 1001 (2002); Armstrong v.

Davis, No. 99-15152, 2000 WL 369622, at *1 (9th Cir. Apr. 11, 2000) (mem.)

(Turner-style deference); Oneisha v. Hopper, 171 F.3d 1289, 1300 (11th Cir.

1999) (en banc) (deferring to “penological concerns”), cert. denied, 528 U.S.

1114 (2000); Randolph v. Rodgers, 170 F 3d 850 (8th Cir. 1999); Cowvillion v.

Michigan Parole Bd., No. 4:04-CV-130, 2005 WL 1036973, at *6 (W.D. Mich.

May 4, 2005); Brooks v. Horn, No. 00-03637, 2004 WL 764385, at *9 (E.D. Pa.

Apr. 7, 2004); see also Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994)

(applying Turner-style deference under Section 504 of the Rehabilitation Act).

acted." But neither respondents nor their amici cite any

and, in fact, they all continue to accept federal funding for

their prisons. All Title II does is extend those workable

standards to every level of correctional facility and to each

prisoner with a qualifying disability within a State.

Amici’s concern (Br. 26) that Title II will “spur more

prison litigation” suffers from the same flaws. Indeed, just

last Term, the Court rejected the identical argument with

respect to the protections for prisoners’ religious freedom

required by the Religious Land Use and Institutionalized

Persons Act—protections that can potentially be invoked by

every prisoner and that subject state justifications to statu-

tory strict scrutiny, 42 U.S.C. 2000cc-1(a)(1) and (2). In

Cutter, the Court saw “no reason to anticipate that abusive

prisoner litigation will overburden the operations of state

and local institutions,” and noted that the Prison Litigation

Reform Act of 1995 (PLRA), 42 U.S.C. 1997e, was “designed

to inhibit frivolous filings.” 125 S. Ct. at 2124-2125. In fact,

while the State of Washington now joins a brief labeling the

PLRA a “facile assurance” (Tenn. Br. 25), Washington took

a decidedly different view last Term when it told this Court

that frivolous prisoner suits are “best addressed through

legislation like the PLRA,” rather than the denial of sub-

stantive civil rights protection. New York & Washington

Amicus Br. at 16, Cutter v. Wilkinson (No. 03-9877). If, as

Washington argued last year (id. at 2-3, 15), RLUIPA’s

strict scrutiny standard is a workable and appropriately

deferential standard for accommodating religion in prisons,

it is hard to understand the insistence this year that Title

II’s reasonableness standard is an unworkable standard for

accommodating disabilities (unless accompanied by federal

* Every State receives federal funding for its prisons. See Cutter, 125 S.

Ct. at 2118-2119 n.4; FY 2004 Office of Justice Programs, Office on Violence

Against Women & Office of Community Oriented Policing Services: Grants

by State (visited Oct. 26, 2005) <http://www.ojp.gov/ fy2004grants >.

funding, at which point the standard apparently becomes

acceptable again).

Finally, amici argue (Br. 24-25) that allowing damages

is not appropriate. But amici make no effort to explain why

damages here—which echo the damages relief already avail-

able against States under the Rehabilitation Act, Barnes v.

Gorman, 536 U.S. 181, 184-187 (2002)—are less appropriate

than they were under Title II in Lane, or under the Family

and Medical Leave Act in Hibbs, 538 U.S. at 740. The

“gravity of the harm” that past violations have caused,

Lane, 541 U.S. at 523 —some of which have led to the physi-

cal suffering and deaths of prisoners, see U.S. Br. 24-29 &

Add. A and B—strongly counsels in favor of equivalent en-

forcement authority in this context. Indeed, this Court has

held that damages are an appropriate remedy to address

the violation of constitutional rights in the cause of action

created by Bivens v. Six Unknown Named Agents of Fed-

eral Bureau of Narcotics, 403 U.S. 388, 395 (1971). A forti-

ori, it is appropriate for Congress to make that same judg-

ment in exercising its Section 5 power.

For the foregoing reasons, and for those stated in our

opening brief, the judgment of the court of appeals should

be reversed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

OCTOBER 2005

REPLY APPENDIX

Detailed Annotation of Cases Evidencing the Problem of Unconstitutional

Treatment of Individuals with Disabilities in Correctional Facilities

Respondents’ United States’

Case Assertions Response

Balla v. Idaho * Conflates universal * See U.S. Reply Br. at 15-16.

State Bd. of deficiencies in

Corrs., 595 F. medical or * Court observed that psychiatric

Supp. 1558 (D. psychiatric care with care at prison was “

daho 1984) disability-based nonexistent,” 595 F. Supp. at 1568,

Department with

psychiatric care can be described

as deliberately indifferent,” ibid.,

with little or no care given to

inmates with serious mental

illnesses, id. at 1569. Failure to

provide needed diet to diabetic had

contributed to rendering him

blind, id. at 1574-1575, and had

(la)

‘Respondents’ United States’

Case Assertions Response

Battle v. * Challenge to general | * See U.S. Reply Br. at 15-16.

Anderson, prison iti

376F. Supp. 402 * The court specifically noted that

(E.D. ¢ Conflates universal half of the prison’s in-patient

1974), aff'd deficiencies in population was hospitalized for

in part and medical or psychiatric reasons, that “there is

rev'd in part on psychiatric care with no professional psychiatric staff

other disability-based available for treatment on a

993 F.2d 1551 discrimination. regular basis,” and the “

(10th Cir. 1993) treatment” is “sedation.” F

(reversing only | * Inmates’ claims of Supp. at 415. The court's

as to district deficient prison injunction included detailed

court’s denial of conditions swept provisions concerning medical

two motions to much more broadly care. See id. at 434.

intervene) than mental health

care,

issues such as law

Deficiencies in

medical care were

systemic. Court

denied money

damages.

Bee v. Greaves, | * Not decided on the See U.S. Reply Br. at 5-6, 7-10, 15-

744 F.2d 1387 merits. 16; Tennessee v. Lane, 541 US. at

(10th Cir. 1984), 527-528 n.16.

cert. denied, * County jail.

469U.S. 1214 Regardless of the fact that the

(1985) ¢ Inmate's forcible- inmate initially demanded

arose after he a oe ae

initially requested response to an

medication. Court emergency situation, 744 F.2d at

held that liberty 1395-1397, and the court found that

interest in avoiding the evidence in the inmate's favor

unwanted treatment was sufficient to defeat summary

is not absolute. judgment, ibid.

Respondents’ United States’

Case Assertions Response

Bonner v * Not decided on the * See U.S. Reply Br. at 7-10.

Arizona t merits.

of Corrs., 714 F * While the court held that the deaf,

Supp. 420 (D * Court rejected mute, and impaired plaintiff

Ariz. 1989) plaintiff inmate’s had no due process li interest

argument that he in avoidi i iecteen, ®

had a due process also held the plaintiff had a

liberty interest in constitutional interest in not being

avoiding protective removed from the prison’s honor

lockdown. dorm. 714 F. Supp. at 424-425.

Court found a genuine issue of

material fact as to whether

“requir|ing| a deaf, mute, and

vision-impaired inmate to navigate

qualified interpreter” prevented

him from the

removed him from the dorm. /d.

at 425; see id. at 423.

Bonner v. ¢ Not decided on the * See U.S. Reply Br. at 7-10.

Lewis, 857 merits.

F.2d 559 (9th ° ing the dismissal of

Cir. 1988) * Court affirmed certain of the inmate’s claims, the

grant of court made clear that a

judgment to issue of material fact existed as to

defendant on “whether the denial of a qualified

inmate’s equal sign i

ion and prevented (the inmate| from _

him or presenting his views,” 857

F.2d at 565, and it remanded for

determination of whether the Due

Respondents’ United States’

Assertions Response

Burchett v * Court contemplated | ¢ Although the court found it

Bower, 355 F that inmate unnecessary to address the

Supp. 1278 (D receiving psychiatric constitutional right to treatment, it

Ariz. 1973) treatment in state noted the uncontradicted

a testimony that the plaintiff was

could have hi mentally ill and that no psychiatric

treatment treatment was available at the

terminated and be prison, 355 F. Supp. at 1281, and it

returned to prison. enjoined defendants from

transferring the inmate back to the

process, see id. at 1281-1283. The

court also enjoined Yn A mage J

statute to Burchett,” id. at 1282.

Cody v. Hil- ¢ Challenge to general See U.S. Reply Br. at 15-16

liard, 599 F. prison i

Supp. 1025 Though also addressing other

(D.S.D. 1984), ¢ Conflates universal deficiencies in conditions,

aff'd in part and deficiencies in the court found that inmates with

rev'd in part on medical or “serious psychiatric needs” were

other psychiatric care with mee nem Se

830 F.2d 912 disabilit y-based medical personnel; it

(8th Cir. 1987) iscrimi eiedemeantes an

(en bane) (ap- especially grave deficiency” at the

peal did not * Eighth Circuit later prison. 599 F. Supp. at 1058-1059.

encompass por- reversed court’s

tion of district holding that double-

court's order celling was uncon-

medical and held that

psychiatric for inmates’ special

care), cert. dietary needs were

denied, 485 .

U.S. 906 (1988)

United States’

Case Assertions Response

Cortes- Non-disabled * See U.S. Reply Br. at 5-6, 15-16;

inOnes V inmates subj to Lane, 5A1 U.S. at 527-528 n.16.

iminez- conditions li

Nettleship, 842 Goodman's. Though the schizophrenic inmate

F.2d 556 (1st died at the hands of fellow inmates,

Cir. 1988), cert District jail the court upheld a jury finding

denied, 488 that, by transferring him to the

U.S. 823 (1988) Schizophrenic pri- overcrowded jail where he was

soner was killed by killed and leaving him “unsegre-

other inmates, not ape wh we pte» ama daa

by state officials. psy: for

Prison was generally nearly four months,” Puerto Rico

overcrowded. No prison officials exhibited deliberate

claim of discrimi- indifference to his health and

nation against safety. 842 F.2d at 559-560

decedent.

Cummings v. Not decided on the U.S. Reply Br. at 5-6, 7-10;

Roberts, 628 merits. Lane, 5A1 U.S. at 527-528 n.16.

F.2d 1065 (8th

Cir. 1980) County jail The court reversed sum

judgment for the defendants not

Inmate was not only on the inmate’s claim of

disabled when taken deliberate indifference to his

into custody, but medical needs, but also on his

suffered hack injury claim that prison officials’ failure to

while in detention. give him a wheelchair made it

for him to crawl on the

floor. 628 F.2d at 1068.

Delafose v. Claim at issue was The court held that disparate

Manson, 385 F. more similar to Title treatment of the two groups

Supp. 1115 (D. I employment- amounted to irrational

Conn. 1974) discrimination claim discrimination against mentally ill

inmates itali patients; the situation is not

for physical ailments analogous to employment

received “hospital ination because members of

y” while inmates neither group were working. 385

italized for F. Supp. at 1116-1121.

mental ailments did

‘Respondents’ United States’

Case Assertions Response

Doe v. ¢ Not decided on the * See U.S. Reply Br. at 7-10.

Coughlin, 697 merits.

F. Supp. 1234 * Though observing that other

(N.D.N.Y. 1988) Court decided the constitutional challenges to similar

case on privacy plans had failed, the court was

and noted unequivocal that involuntary

that the same placement of an inmate in a

challenge had been dormitory designated for HIV-

rejected when positive individuals—and thus

brought under the involun disclosure of the

Fourteenth inmate’s HIV-positive status—

Amendment. violated his constitutional right to

privacy, see 697 F. Supp. at 1236-

1241, and that the prison program

operated “in a constitutionally

impermissible manner,” id. at

1240. The court determined that

“(there is no acceptable reason

why a prisoner must have his

constitutional rights violated

particularly in an incomplete

program.” /d. at 1243.

Respondents’ United States’

Case Assertions Response

Duran v. Challenge to general | * See U.S. Reply Br. at 7-10, 15-16.

Anaya, 642 F. prison conditions.

Supp: 510 (D. * Though no harm had yet occurred,

NN.M. 1986) Not decided on the the court made clear that judicial

merits. intervention was necessary to

ensure “maintenance of minimal

Conflates universal constitutional standards” in the

deficiencies in areas of physical and mental

medical or psy- health, and that “the level of

chiatric care with psychiatric care being provided at

disability-based this time, particularly to prisoners

discrimination. in need of acute care, is

unacceptable by any conceivable

Preliminary injunc- measure or standard.” 642 F

tion was to prevent

certain reduc-

tions, not to cease

continuing constitu-

tional harm. Court

addressed harms to

the entire prison

population, not just

Supp. at 526. The court noted that

current programs “are deficient

even now in a number of important

——, ibid. (emphasis added),

that the impact would be

particularly severe for inmates

with serious mental health

problems, see id. at 516, 519.

Respondents’ United States’

Case Assertions Response

Eng v. Smith, * Not decided on the * See U.S. Reply Br. at 7-10, 15-16.

849 F.2d 80 (2d merits.

Cir. 1988) * Though not deciding whether the

* Conflates universal “deliberate indifference” standard

deficiencies in had been met, the court noted that

medical or psy- the evider.iary record supported a

chiatric care with finding of “systemic

disability-based [constitutional] deficiencies” in the

discrimination. prison’s mental health system, 849

F.2d at 82, and “deliberate

* Court declined to indifference to serious medical

resolve whether needs, ibid.

problems in prison’s

mental h

system rose to the

level of “deliberate

indifference” to

inmates’ medical

needs.

Flakes v. Percy, | * Suit addressed * The hospital's population included

511 F. Supp. conditions in a state _ convicted sex offenders in need of

1325 (W.D. Wis. hospital, not a specialized treatment, as well as

1981) prison. . people convicted of crimes and

transferred from prison. 511 F.

Supp. at 1326. In addition, the

hospital was in the process of

conversion to a prison, and the

state Division of Corrections

shared responsibility for the

facility. /bid. The court noted that

confinement in a mental institution

is “closely analogous to existence

in many prisons, and much more

stern and dreary than existence in

» many medium and light security

ee institutions.” Jd. at

1333.

Respondents’ United States’

Case Assertions Response

Inmates of Challenge to general | * See U.S. Reply Br. at 15-16.

Occoquan v. prison conditions.

Barry, 717 F. ¢ Among a long litany of deficiencies,

Supp. 854 Conflates universal the court found that, by housing

(D.D.C. 1989) deficiencies in seriously mentally ill inmates in a

medical or psy- cell block where they were locked

chiatric care with in their cells 23 hours a day and

disability-based received little treatment, 717 F.

discrimination. Supp. at 863-864, prison officials

exhibited “deliberate indifference

Non-disabled to their psychiatric health needs,”

inmates subjected to id. at 868.

conditions like

Goodman’s.

Court found prison

conditions

unconstitutionally

deficient in

numerous respects,

going far beyond

treatment of

disabled people.

Inmates of the Conflates universal See U.S. Reply Br. at 5-6, 15-16;

Allegheny deficiencies in Lane, 5A1 U.S. at 527-528 n.16.

County medical or psychia-

Jail v. Peirce, tric care with dis- Court found that the “provision of

487 F. Supp. ability-based dis- care to mentally ill inmates * * * is

638 (W.D. Pa. crimination. inadequate to the extent of

1980) ‘deliberate indifference,’ ” and

County jail. listed numerous respects in which

such care was “far below minimum

standards.” 487 F. Supp. at 643.

10a

nts’ United States’

Case Assertions Response -

James v. Challenge to general | * See U.S. Reply Br. at 15-16. —

Wallace, prison conditions.

382 F. Supp. * The court refused to dismiss the

1177 (M.D. Ala. Conflates universal plaintiffs’ claims, specifically

1974) deficiencies in noting their allegations that

medical or psy- members of the class were “incar-

chiatric care with cerated in institutions having

disability-based inadequate facilities and programs

discrimination. designed to meet the treatment

and custodial needs of those with

mental or emotional difficulties or

with geriatric problems.” 382F. —

Supp. at 1182.

Johnson v. County detention * See U.S. Reply Br. at 5-6; Lane,

Hardin County, center. 541 U.S. at 527-528 n.16.

908 F.2d 1280

(6th Cir. 1990) Court held that * Though holding that the county

county could not be was not liable, the court upheld the

liable because jury’s finding that jail officials

inmate had produced were liable for their deliberate

insufficient evidence indifference to the inmate’s

of custom or policy medical needs. 908 F.2d at 1284.

of deliberate

indifference to

medical needs.

Respondents’ United States’

Case Assertions Response

Kendrick v. * Challenge to general | * See U.S. Reply Br. at 15-16; U.S.

Bland, 5A1 F. prison conditions. Opening Br. at 40-41 (existing laws

Supp. 21 (W.D. inadequate); Lane, 541 U.S. at 526

Ky. 1981) Inmates’ suit & n.15.

encompassed a wide

variety of prison * The court specifically noted “acts

conditions. Case of brutality and cruel and inhuman

demonstrates that punishment” committed against

existing remedies inmates suffering from severe

were adequate mental impairments, 541 F. Supp.

before ADA, at 25, attributing this to guards’

because court lack of “adequate, or apparently

required prison to any, training in dealing with

correct certain mentally disturbed inmates,” ibid.

deficiencies The Rehabilitation Act section of

pursuant to the consent decree addressed only

Rehabilitation Act “physical barriers to the

handicapped.” /d. at 40.

Knecht v. Institution at issue * lowa Security Medical Facility,

Gilman, 488 was state hospital, where inmates were held and

F.2d 1136 (8th not prison; received certain drugs

Cir. 1973) population included involuntarily, included not only

people who had been civilly committed but also mentally

tivill illy committed. ill inmates from jails. 488 F.2d at

1138.

l2a

Respondents’ United States’

Case Assertions Response

Laaman v. Challenge to general | * See U.S. Reply Br. at 15-16.

Helgemoe, 437 prison conditions.

F. Supp. 269 * Though the court estimated the

(D.N.H. 1977) Conflates universal prevalence of mental illness in the

deficiencies in prison based on national statistics,

medical or it explained that “(t]Jhis is due at

psychiatric care with least in part to defendants’ failure

disability-based to adequately diagnose the plaintiff

discrimination. class so that no records exist,” and

the court also found that “the

Case involved national statistics reflect the

numerous incidence of mental illness at

deficiencies in prison NHSP.” 437 F. Supp. at 276 n.1.

conditions. Court’s The prison lacked sufficient

infor mation about personnel to address inmates’

prevalence of mental “serious mental health care

illness came from needs.” /d. at 324.

national statistics.

LaF aut v. Federal prison. * See Lane, 541 U.S. at 527-529

Smith, 834 nn.16-17; Hibbs, 538 U.S. at 730-

F.2d 389 (4th 732 (relying on cases and

Cir. 1987) legislative history concerning

federal-government

discrimination).

¢ Eighth Amendment was violated

when paraplegic inmate was placed

in a cell with toilet facilities that he

could use only by ing himself

across the floor. 834 F.2d at 392.

13a

nts’ United States’

Case Assertions Response

Langley v. * Not decided on the * See U.S. Reply Br. at 7-10, 15-16.

Coughlin, 715 merits.

F. Supp. 522 * The court cited evidence of

(S.D.N.Y. 1989) | * Conflates universal “repeated and systemic failures in

deficiencies in the provision of health care

medical or services to inmates with very

psychiatric care with serious mental disorders,” 715 F.

disability-based Supp. at 540, “dramatic failures to

discrimination. meet even minimal professional

standards in providing psychiatric

* Only a subclass of services,” ibid., and testimony

plaintiffs complained that certain mentally ill inmates

of deficient medical may be severely impacted by their

care. Non-disabled proximity to other mentally ill

inmates complained inmates, ibid. The court held that

about being housed the evidence was “ample” to show

with inmates who that the inmates “were injured by

arguably were a failure to treat [their] serious

disabled. medical needs,” that the “findings

would suffice to justify a conclusion

that plaintiffs’ rights were

violated,” id. at 542, and that state

officials were deliberately

indifferent, id. at 540.

Leach v. Shelby | * County jail. See U.S. Reply Br. at 5-6; Lane,

County Sheriff, 541 U.S. at 527-528 n.16.

891 F.2d 1241

(6th Cir. 1989), Court found policy or custom of

cert. denied, deliberate indifference to the

495 U.S. 932 needs of paraplegic prisoners,

(1990) including the plaintiff, who was not

bathed regularly and who was

forced to sit in his own urine for

long periods of time. 891 F.2d at

1243, 1248.

l4a

Respondents’ United States’

Case Assertions Response

Lee v. * Not decided on the * See U.S. Reply Br. at 7-10.

McManus, 543 merits.

F. Supp. 386 ¢ Preliminary injunction granted

(D. Kan. 1982) where paraplegic prisoner’s

catheter was not cleaned, and

where he was forced to sit in bodily

waste. 543 F. Supp. at 389-390.

The court “wis | to impress

n defendants its distress” at

plaintiff's treatment and officials’

passivity and complacency in the

face of serious medical needs. /d.

at 392.

Lightfoot v. * Challenge to general See U.S. Reply Br. at 15-16.

Walker, 486 F. prison conditions.

Supp. 504 (S.D. Though addressing the prison’s

Til. 1980) * Conflates universal overall health care system, the

deficiencies in court noted that “epileptics,

medical or

psychiatric care with

disability-based

discrimination.

* Non-disabled

inmates subjected to

conditions like

Goodman’s.

diabetics, asthmatics,

hypertensives and |inmates with]

cardiovascular problems, as well as

psychiatrically disturbed inmates,”

were held in “control cells”; these

cells were infrequently observed,

such that a prisoner could become

ill and die “within minutes,” and

conditions in the cells were

“abysmal.” 486 F. Supp. at 511.

Court also noted that prison

officials had “recklessly failed in

their duties to design and

implement a mental health care

delivery system which is capable of

—s minimally required

evels of adequate Pater health

care.” Jd. at 525.

1Sa

~ Respondents’ United States’

Case Assertions Response

Littlefield v. ¢ County jail. * See U.S Br. at 5-6; Lane,

Deland, 641 541 U.S. at 527-528 n.16.

F.2d 729 (10th

Cir. 1981) ¢ Finding constitutional

ies in the treatment of

y ill prisoners. 641 F.2d at

Lynch v. ¢ County jails. . ad oe Lane,

Baxley, 744 541 U.S. at 527-528 n.16.

Cir. 1984) =e * While the ey ey ,

was com was their

mentally poe involuntary

individuals civil commitment, the fact remains

incarcerated in that this case found unconstitu-

jails while tional treatment in a setting

civil by prison officials, is an

commitment of prison administration

proceedings, but that Title I] addresses. The case

who were not in jail cited evidence that mentally ill

for punishment. individuals were kept in

conditions. See

744 F.2d at 1460-1461 (prisons

were plagued by ov ,

safety hazards, lack of and

mental health and

without recreational facilities).

Moreover, this case noted that the

mentally ill have

that were not met in

Alabama prisons. /d. at 1458

ek sperm wes y showing

that “jail harmful to

those who are ill.”).

Those conditions

would affect all ill

l6a

Respondents’ United States’

Case Assertions Response

M v. * Not decided on the * See U.S. Reply Br. at 7-10.

Procunier, 477 merits.

F.2d 877 (9th * The evidence in this case “raise[d]

Cir. 1973) serious constitutional questions

respecting cruel and unusual

punishment or impermissible

“ofa mentally i

” a g

prisoner. 477 F.2d at

Maclin v. * Not decided on the * See U.S. Reply Br. at 7-10.

Freake, 650 merits.

F.2d 885 (7th * Paraplegic inmate established a

Cir. 1981) enn aera fat ht

denied access to ph

therapy and that prison

exhibited “deliberate indifference

to [his] serious medical needs” that

could violate the Eighth

Amendment. 650 F.2d at 889.

Mandel v. Doe, | * County jail. * See US. Br. at 56; Lane,

888 F.2d 783 541 US. at 527-528 n.16.

(11th Cir. 1989) | ¢ omy te

the | ¢ The fact that the inmate’s

bed of a work-detail disability was created while he was

pick-up truck. incarcerated does not diminish

disability. evidence presented

was that the failure to x-ray and

peemelgiaemesenened

- iat 187

impairment. 888 F.2d at 790.

The Eleventh Circuit found the

deficient

indifference.” Jd. at 787.

17a

Respondents’ ~ United States’

Case Assertions Response

Maynard v * Dismissed case ¢ Sufficient evidence of

New Jersey, inst State on constitutional violations to permit

719 F. Supp. leventh suit against state officials by the

— ny me te Perper wig + sg

1989) grounds, but denied prison officials

motion to dismiss as Se diaodant tation te

to prison medical to and treat

personnel. inmate’s AIDS, instead offering

him fs near, mater

tel :

bones ee TTF

Supp. at 293-294, 296.

Miranda v. * District jail. See US. Br. at 5-6; Lane,

Munoz, 770 541 U.S. at 527-528 n.16.

F.2d 255 (1st

Cir. 1985) Court of appeals reversed grant of

a directed verdict to four

» i officials in the Puerto

Rico correctional ‘'

that evidence showed that the deep

failings in medical treatment

“were as much a matter of central

administration policy as of local

reaction,” such that a reasonable

factfinder could hold them

oo 770 F.2d at 257, 261-

Respondents’ United States’

Case Assertions Response

Mitchell v. Challenge to general | * See U.S. Reply Br. at 5-6, 15-16;

Untreiner, 421 prison i Lane, 5A1 U.S. at 527-528 n.16.

——_

(N.D. Conflates universal ¢ Evidence showed that mentally ill

1976) deficiencies in and disabled inmates were

medical or subjected to particulariy

psychiatric care with i ing treatment. See 421 F

disability-based Supp. at 890 (“The Jail is entirely

ee psychological, dental staff

or on

Non-disabled the premises. Jail personnel with

inmates sub) to only some first aid training

Goodman's. need treatment.”); id. at

891 (“As many as four or five

County jail. mentally disturbed inmates at a

time are crowded into ‘Z’ cell.

There is no shower in ‘Z’ cell.

Vi ill inmates are likewise

into ‘Z’ cell with other

mentally disturbed inmates.”).

Mullen v. Federal prison. * See Lane, 541 U.S. at 527-529

Smith, 738 nn.16-17; Hibbs, 538 U.S. at 730,

F 2d 317 78th 732.

Cir. 1984)

19a

Respondents’ United States

Case Assertions Response

Negron v. Not decided on the * See U.S. Reply Br. at 7-10.

Preiser, 382 F. merits.

1 OK * The court found sufficient evidence

(S.D.N.Y. 1974) Court entered of mistreatment of mentally ill

injunction to inmates in isolation cells, see 382

record- ing, F. Supp. at 540-541, to issue an

refused to injunction to monitor and

Ei Amendment document the conditions of

iolation on current confinement, id. at 542-543

record. (“Plaintiffs have demonstrated

very serious questions going to the

en ae

irreparable harm durin th

of this litigation.”).

Negron v. Challenge to general | * See U.S. Reply Br. at 7-10, 15-16;

Ward, = F. prison i Lane, 5A1 U.S. at 522-523.

. 748

(S.D.N.Y. 1978) Not decided on the * Court found wi violations

‘ merits. of the due i of

mentally ill inmates wy i

Due process psychiatric treatment as a form

violation, rather i t. 458 F. Supp. at 760-

than discrimination 1. The evidence was so strong

on basis of mental that good faith immunity was

illness. denied. /d. at 761-764.

20a

~ Respondents’ United States’

Case Assertions Response

Nelson v. * Challenge to general | * See U.S. Reply Br. at 15-16.

Collins, 455 F. prison conditions.

Supp. 727 ¢ The court found Eighth

(D.M.D. 1978), | * Conflates universal Amendment violations in use of

aff'd and deficiencies in isolation cells, and that some

remanded sub medical or “inmates whose bizarre behavior is

nom. Johnson psychiatric care with the result of mental illness are

v. Levine, 588 disability-based confined in the isolation area

F.2d 1378 (4th discrimination. without adequate medical

Cir. 1978) treatment.” 455 F. Supp. at 735.

a y= * Non-disabled Prison ordered to a

only for judici inmates subj to procedure “by which prompt and

approval of conditions like sieeute euattenl review and care”

State’s plan to Goodman's. is ided, i ing “psychiatric

alleviate prison assistance.” /d. at 735.

conditions)

2la

‘Respondents’ ~ United States”

Case Assertions . Response

Newman v. * Challenge to general | * See U.S. Reply Br. at 15-16.

Alabama, 349 prison conditions.

F. Supp. 278 * The court stated that “(t]he fate of

(M.D. ¢ Conflates universal those many prisoners who are

1972), aff'd in deficiencies in mentally ill or retarded deserves

part, 503 F.2d medical or special mention,” 349 F. Supp. at

1320 (5th Cir. psychiatric care with 284, and that “[mJental illness and

1974), cert. disability-based mental retardation are the most

denied, 421 discrimination. prevalent medical problems in the

U.S. 948 (1975) Alabama prison s ibid. The

court found that

majority of mentally disturbed

inmates receive no treatment

whatsoever,” and further cited

both statistics and specific

instances of mistreatment of

mentally ill inmates. /d. at 284-

285. The court also found

unconstitutional treatment of

physically disabled patients,

including wounds that became

infested with maggots. /bid. This

led the court to conclude that “{i}t

is tautological that such care is

aay inadequate.” /d. at

Palmigiano v.

Garrahy, 443

F. Supp. 956

(DR 11977)

* Challenge to general

prison conditions.

¢ Conflates universal

deficiencies in

medical or

psychiatric care with

* See U.S. Reply Br. at 15-16.

* In addition to general prison

conditions, the court specifically

noted that the “grossly inadequate

system of medical care, including

psychiatric care, afforded inmates

is part of the intolerable totality of

conditions” that violates the

— Amendment. 433 F. Supp.

at 983.

‘

22a

Respondents’ United States’

Case Assertions Response

Parrish v. Court declined to * The court determined that the

Johnson, 800 consider Fourteenth state prison guard violated the

F.2d 600 (6th Amendment claim Eighth Amendment by engaging

Cir. 1986) because “the in a long series of “deviant acts,”

Fourteenth including “|cJausing a prisoner to

Amendment sit in his own feces, assaultifig a

provides a prisoner prisoner with a knife, extorting

with no greater food from a prisoner, verbally

protection than the abusing a prisoner,” and failing to

Eighth provide him with medical care, all

Amendment.” of which was “exacerbated by [the

prisoner's] paraplegic condition.”

800 F.2d at 605. The court

declined to consider prisoner’s

substantive due process

Fourteenth Amendment claim,

finding such rights co-extensive

with the Eighth Amendment. 800

F.2d at 604 n.5.

Ramos v. Challenge to general | * See U.S. Reply Br. at 15-16.

Lamm, 639 prison conditions.

F.2d 559 (10th ¢ In addition to problems in the

Cir. 1980), cert. Conflates universal general condition of the prison and

denied, 450 U.S. deficiencies in availability of medical care, the

1041 (1981) medical or court cited expert evidence that

psychiatric care with 5%-10% of the inmates were

disability-based “seriously mentally ill,” another

discrimination. 10%-25% “need treatment

although they are not seriously ill,”

Non-disabled and “(the lack of adequate mental

inmates subjected to health services * * * contributes to

conditions like inmate suffering and at times

Goodman’s. causes suicide and self-mutilation

by inmates” sufficient to constitute

an Eighth Amendment violation.

639 F.2d at 577-578.

23a

Respondents’ United States’

Case Assertions Response

Ruiz v. Estelle, | * Challenge to general | * See U.S. Reply Br. at 15-16.

503 F. re prison conditions.

1265 (S.D. Tex. ¢ The court cited evidence that 10%-

1980), aff'd in Non-disabled 15% of the prison population was

part and rev'd inmates subjected to mentally retarded and that the

in part, 679 conditions like failure to protect mentally

F.2d 1115 (5th Goodman’s. retarded inmates from abuse and

Cir. 1982) physical harm, as well as the

(reversing as to prisoners’ inability to understand

the scope of the and participate in prison

district court’s disciplinary proceedings, violated

remedy, but not the Eighth Amendment. 503 F.

as to its finding Supp. at 1346. Moreover, the court

of constitu- determined that the Texas

tionally’ defi- Department of Corrections

cient medical specifically violated the Eighth

and psychiatric Amendment rights of physically

care), cert. disabled prisoners by limiting

denied, 460 U.S. access to wheelchairs, hearing

1042 (1983) aids, and other assistive devices,

and by refusing wheelchair

accessible cells, toilets, and shower

facilities. /d. at 1340-1343 &

nn.153-162. Paraplegic inmate was

denied parole for failure to

participate in inaccessible work

programs. /d. at 1341 n.157.

Sites v. Mentally disabled Besides the plaintiff's equal

McKenzie, 423 inmates were protection claim based on

F. Supp. 1190 seeking treatment differential treatment of inmates

(N.D. W. Va. equal to that of who were civilly committed versus

1976) civilly committed “ ‘criminally’ insane.” the court

mentally ill, or same separately found that the state

treatment as regulation which precluded

similarly disablea prisoners in mental institutions

non-prisoners. from parole eligibility denied them

equal protection of the law and

was “clear|ly] unconstitutional.”

423 F. Supp. at 1194-1195.

24a

nts’ United States’

Case Assertions Response

Sykes v. * Challenge to general See U.S. Reply Br. at 5-6, 15-16;

Kreiger, 451 F. prison conditions. Lane, 541 U.S. at 527-528 n.16.

Supp. 421 (N.D.

Ohio 1975) * Non-disabled The court stated that, in addition

inmates subjected to to concerns regarding the general

conditions like prison population, “[o}f equal

Goodman’s. importance and immediate concern

to the Court is the plight of

* County jail. psychiatric inmates detained at

Cuyahoga County Jail.” 451 F.

ia . at 425. The court found the

il had “a crisis evolving from the

detention of inmates with

advanced mental and emotional

disorders” due to the lack of

appropriate facilities, psychiatric

care, procedures, and personnel.

Ibid.

Talley v. * Not aclaim for Lane, 541 U.S. at 522-523.

F.Supp. 383 disability discri-

mination, and court The court found that injunctive

(E. D_Ar only noted that two relief was warranted on behalf of

1965) plaintiffs were two inmates with “serious physical

forced to perform handicaps” who were required to

labor with serious do work beyond their physical

physical handicaps. capabilities, 247 F. supp. at 687,

and court “ha[d] no difficulty”

finding Eighth Amendment

violations, ibid, Court also found a

lack of needed medical assistance.

Ibid.

25a

Respondents’ United States’

Case Assertions Response

Thompson v. ¢ County jail See U.S. Reply Br. at 5-6; Lane,

City of Port- 541 U.S. at 527-528 n.16.

land, 620 F. * Complaint stemmed

Supp. 482 (D. from events sur- Plaintiff was locked up in a jail cell

Me. 1985) rounding his arrest, even after officers learned that “he

and the court noted really is a blind diabetic,” and thus

that plaintiff was not no reasonable basis for detention

incarcerated so that existed. 620 F. Supp. at 485. Case

the Eighth Amend- also demonstrates a critical lack of

ment did not apply. training and attention on the part

of law enforcement officers to

medical needs. /d. at 488 (holding

that the State’s conduct shocked

the conscience, constituting a

violation of plaintiff's substantive

due process rights).

Tillery v. ¢ Challenge to general See U.S. Reply Br. at 15-16; Lane,

Ownens, 719 F. prison conditions. 541 U.S. at 527-528 n.16.

i 1256

(W.D. Pa. 1989), | * Non-disabled in- Court specifically discussed at

aff'd, 907 F.2d mates subjected to length the ae of

418 (3rd Cir. conditions like Good- psychiatric care for mentally ill

1990) man’s. prisoners, and found that it

violated the Eighth Amendment,

719 F. ~ oy 1284-1290, 1302-

1306; and that acutely ill

psychiatric patients are kept in

“medieval conditions” in cells

infested with roaches, id. at 1288,

and “neither the cells nor the

inmates are kept clean,” id. at

1289. Court found serious failures

and deliberate indifference in

medical care afforded inmates with

epilepsy, diabetes, and AIDS, id.

at 1299-1301, 1305.

26a

professionals.

Respondents’ United States’

Case Assertions Response

Vitek v. Jones, No claim that ¢ Lane, 541 U.S. at 522-523.

}\445 U.S. 480 prisoners were being

(1980) involuntarily ¢ Vitek demonstrates that, besides

transferred to equal protection concerns, due

mental hospital process considerations are

because of implicated when mentally ill

intentional, prisoners are transferred or when

irrational other changes in the conditions of

discrimination. confinement are made. 445 U.S. at

493-94.

Waldrop v. Court granted ¢ The court found that the record

Evans, 681 F. summary judgment permitted a reasonable factfinder

Supp. 840 (M.D. to nine of the to conclude that two state officials

Ga. 1988), aff'd, defendants, were deliberately indifferent to

871 F.2d 1030 including high plaintiff's serious mental illness.

(11th Cir. 1989) ranking prison 681 F. Supp. at 853-855.

administrators, in

part, finding that the

prison was

adequately staffed

with medical

27a

Respondents’ United States’ -

Case Assertions Response

Wellman v. * Challenge to general | * See U.S. Reply Br. at 15-16

Faulkner, 715 prison conditions.

F.2d 269 (7th ¢ In addition to general concerns

Cir. 1983), cert. | * Conflates universal about the quality and availability of

denied, 468 U.S. deficiencies in medical care, the court specifically

1217 (1984) medical or found that the State had not

psychiatric care with “adequately staffed the psychiatric

disability-based care component of Michigan City’s

discrimination. medical care system,” and that

there had been no staff

¢ Non-disabled — for over two years.

inmates subjected to fendants’ medical expert saw

conditions like this as "[t|he most obvious serious

Goodman’s. deficiency in health care at Indiana

State Prison" because, "without an

on-site psychiatrist there is no one

qualified to evaluate and treat

psychiatric emergencies such as

suicide and homicide candidates, or

to follow patients who need to be

maintained on long term

ychotropic medications." 715

.2d at 272. Court also found

deliberate indifference in provision

of colostomy bags. Jd. at 274.

28a

Respondents’ United States’

Case Assertions Response

Williams v. ¢ Challenge to general See U.S. Reply Br. at 15-16.

Edwards, 547 prison conditions.

F.2d 1206 (5th The parties stipulated that there

Cir. 1977) * Conflates universal was “no psychiatric unit,

deficiencies in

medical or

psychiatric care with

disability-based

discrimination.

* Non-disabled

inmates subjected to

conditions like

Goodman’s.

although ‘|alpproximately 40% of

the inmate population, or 1,360

inmates, would benefit from

psychiatric treatment.’ An area

of the cell block is used to house

those for whom in-patient

psychiatric care would be

appropriate. Those confined to

the cell block are under

supervision of correctional

officers who have no medical

training. ‘No notes, medical

records or observations of the

inmates confined to the

—, ic unit are recorded.’

e parties conclude this

stipulation saying ‘The

psychiatric unit is totally

inappropriate for the

confinement of a psychiatric

patient.” 547 F.2d at 1217-1218.

Court therefore affirmed district

court holding of constitutional

violations. /d. at 1218.

Respondents’ ‘United States’

Case Assertions Response

Yarbaugh v. * Not decided on the See U.S. Br. at 7-10; Lane,

ae ee: merits. 541 U.S. at 527-528 n.16.

upp. 318

(D.D.C. 1990) ° of Columbia District Court found that the

jail. prisoner had not had a bath or

shower in nine months and

received no assistance in changing

positions in bed. It therefore

determined that “it is clear to the

Court that plaintiff is not receiving

medical services” for

yy ey ees

736 F. Supp. at 320.

Young v. * Not decided on the See U.S. Reply Br. at 15-16.

Harris, 509 F. merits.

Supp. 1111 Court found an basis for

(S.D.N.Y. 1981) a reasonable to conclude

that the State had violated

necessary

509 F. Supp. at 1113-1114.

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