CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS CIVIL RIGHTS PROTECTION FOR INSTITUTIONALIZED PERSONS ISSUE BRIEF NUMBER IB78049 AUTHOR: Jones, Nancy Lee American Law Division THE LIBRARY OF CONGRESS CONGRESSIONAL RESEARCH SERVICE HAJOR ISSUES SYSTEM DATE ORIGINATEDiQ§gO§[2§ DATE UPDATED Q 3 9 FOR ADDITIONAL INFORMATION CALL 287-5700 0304 CRS- 1 ‘ IB780l-$9 UPDATE-O3/03/80 l§§E§-2§El-£2l.§ During the 95th Congress, both the House and Senate considered proposals to give the 0.5. Attorney General authority to initiate legal actions to protect the rights of inmates in State institutions. Similar proposals were introduced in both the House and the Senate on the first day of the 96th fiongress. The proposals provide that the Attorney General may initiate a civil action for redress on behalf of institutionalized persons when he has reasonable cause to believe that a State or its agent ‘is depriving those persons of their constitutional and other federally protected rights and that this deprivation is pursuant to a pattern or practice of denial of such- rights. Those to be protected by these bills are ‘ institutionalized individuals who are mentally ill or retarded, chronically disabled, prisoners, confined juveniles, and elderly persons in nursing homes. §A§§§BQEE2-AEQ.2QLl§X-AEALZ§L§ The proposed legislation is aimed at a problem, which in recent years, has received much publicity --_ the often deplorable conditions for inmates confined in many State prisons, hospitals, and mental facilities. The Federal courts have in a great number of casesw recognized that confined individuals do not forfeit their fundamental constitutional rights by virtue of their institutionalization. For instance in Afiilliamg v. gggaggg the Federal district court found conditions in the Louisiana State Penitentiary at Angola which "should not only shock the conscience of any right thinking \rson, but which also flagrantly violate basic constitutional requirements as well as applicable State laws..." C.A. No. 71-98 (M.D. La.) aff'd. 547 F.2d 1206 (5th Cir. 1977). 1 More than one Federal court has held that involuntarily confined mentally ill and mentally retarded persons also have important constitutional rights. In the first reported case concerning the rights of institutionalized individuals to treatment, a Federal court in Alabama held that mentally ill patients "have a constitutional right to receive such individual treatment as will give each of them a reasonable opportunity to be cured or to improve his or her mental condition," and that retarded inmates have a constitutional right to "such individual habilitation as will give nthem a realistic opportunity to lead a more useful and meaningful life and to return to sooiety."« flyatt v. ggiggpgy, 325 F. Supp. 781, 784 (M.D. Ala. 1971) (mentally ill); 3H0 F. Supp. 387, 390 p(M.D. Ala. 1972) (mentally retarded). other courts have held similarly. See, e.g. ggg York State Association f2r-§sfnrdeé-9hildr§nl 229- v- Aostsfellsr. 357 F- Supp. 752 (E.D. N.Y. 1973); gggalgg v. Tggman, 383 F. Supp. 53 (E.D. Tex. 197$; flglgh v. Ligigg, 373 F. Supp. 487 (D. Bin. 197fl), ggggg 550 F. 2d #22 (8th Cir. 1977). * Presently, confined persons who have1 complaints Aabout their treatment, "even if the alleged conditions of their confinement amount to a deprivation of constitutional guarantees, can only avail themselves of private suits to challenge the conditions to which they are subjected. The Attorney General .does not have the statutory authority to institute suits even pwhen he believes that the rights of these lpersons. are being violated on such a despread basis as to warrant Federal action. The pending legislation would authorize the Attorney General to bring suit to protect these individuals. The proponents of the legislation contend that these persons are now CRS- 2 % IB78ou9 UPDATE-O3/O3/80 inadequately protected by the law, and that the recitation that institutionalized persons do have a right to enjoy, at least to some” extent, their constitutional rights is empty rhetoric without a more effective method for enforcing these rights. They claim that not only to do these individualr ‘usually lack the resources and skills to secure legal representation, but 1 many are not even aware of their rights. The Justice Department has given its support to the proposals. In testimony before the Senate Judiciary Committee, Mr. Drew Days, III, Assistant Attorney General of the Civil Rights Division, argued that where there exists a systematic deprivation of the constitutional rights of institutionalized persons the Federal Government has a duty to protect those rights.) Civil Rights of Institutionalized Persons: Hearings on S. 1393 before the Subcommittee on the Constitution of the Committee on the Judiciary, 95th Cong., 1st sess. 9 (1977) (testimony of Drew 5. Days, III). However, without statutory authority to ‘initiate suits the Department is limited to appearing as an em;eee_eeg;ee or through intervening in litigation that has been privately initiated. The involvement of the Justice Department in litigation concerning the deprivation of prisoners‘ constitutional rights‘ began in 1971 when the district court granted the United States leave to intervene in gegee v. gellieg. The United States alleged, in addition ‘to racial segregation of prisoners, that Mississippi State correctional officers had failed to provide inmates with adequate health care and housing, and that prison officials had subjected the prisoners to excessive means of punishment. 349 F. Supp. 881 (N.D. hiss. 1972). 9 However, since then the right of the United States toy intervene i* (existing litigation has been challenged. In two cases, which alleged- constitutional violations in institutions, the district courts granted (the United States leave to intervene. Reg; v. gegelle, 550 F. 2d (5th Cir. 1977) (correctional facility); geldegeee v. gegehggeg, #46 F. Supp. 1295 (E.D. Pa. 1977) (facility for mentally retarded). The appeals courts denied petitionsy for writs of mandamus to require dismissal of the United States as an intervening party. In both these cases the Supreme Court denied certiorari. ;g_;e_§§§e;;e, U26 U.S. 925 (1976); gee; v. Broderick, 431 U.S. 933 (1977). However, in gegelle three Justices expressed doubts about the United States‘ authority to intervene in a suit against State prison officials when there was no allegation that the State had denied equal protection to the inmates "on account of race, color, religion, sex or national origin ..." 42 U.S.C. 2000h*2. (H26 U.S. at 928, Justice Rehnquist dissenting, joined by the Chief Justice and Justice Powell.) The Justice Department has attempted to initiate suit in more than one instance on behalf of institutionalized persons on the itheory that the Attorney General has inherent authority to represent the United States in court when the United States has a Federal interest to protect. In two cases, the district courts have dismissed the Department's complaints on (the) grounds that there is no statutory authority authorizing such suits. Qgiged ggetee v. gelemee, 419 F. Supp. 358 (D. Ed. 1976) (Rosewood State Hospital); gg;§ed_§§ete§ v. geggeee, (Boulder River Hospital), No. 76-3568 1(9th Cir. 1979). (Both cases were appealed and the Fourth and Ninth Circuit Courts of ‘Appeals have affirmed the lower courts‘ decisions.i (gg;§ed_§§etee v. gelemg (563 F.2d 1121 (nth Cir. 1977)): gni;e§_§tetee v.’ ggggegg, 600 F.2d 129; (9th Cir. 1979). 1 3 The Fourth Circuit, in gelemeg, noted the legislation pending in the 95th CBS-' 3 ’ IB780l89 UPDATE-O3/03/80 Congress, but held that despite the interest of the United States in the suit, the Federal Government has neither explicit nor implicit statutory authority to sue. The court discussed, in detail, the development of the doctrine that permits the United States to sue when not authorized by 'tatute. See also, Note, Honstatutory Executive Authority to Bring Suit, 85 Marv. L. Rev. 1566 (1972).y The court stressed considerations ofl federalism and comity and expressed its reluctance to sustain nonstatutory executive acts in the area of civil rights absent a clear necessity (comity is the principle by which the courts of one State or jurisdiction recognize the laws and judicial decisions of another. It is not a rule of law, but a practice developed and respected because of courtesy, respect, and convenience). It also emphasized that historically nonstatutory executive authority to sue has been limited to situations where the public at large has been affected and the problem is one of national significance where large-scale deprivations are at stake. See, e.g. ;n_;g_Qe§§, 158 U.S. 56H (1895); United States v. grand Jewelers, 318 F. Supp. 1293 (S.D. N.Y. 1970). The §glgmgg court did not find the case before it to be of that nature. Despite its apparent inability to initiate legal action in this type of case, the Justice Department has appeared in at least ten cases as an amiggg gggiag at the request of the courts and it has intervened in several more. But Mr. Days testified before the Senate that this is an ineffective method of dealing with these problems. He ‘expressed this opinion that if the Department were authorized to initiate suit it could better marshal its resources and choose the cases in which it believed it could most effectively participate. He also stated his belief that a comprehensive suit brought by the Department could eliminate several duplicative individual suits dealing with the same widespread deprivations. . Despite Administration support of the bills, the legislation has been opposed as unconstitutional on grounds that giving the Department of Justice such power is an intolerable invasion of States’ rights. The Association of Attorneys General, for example, argued that the essential principles of federalism prohibit such an intrusion by the Federal Government into smatters so long entrusted to the States. Louis J. Lefkowitz, the New York State Attorney General, stated the position of the organization: The State attorneys general do not question that confined persons are entitled to representation, but rather the placement of this function in a department of the Federal Government. Such Federal interference with State and local affairs would be an extraordinary and unwarranted departure from the delicate balance of Federal-State-relations which exists in our system of Government. It is particularly inappropriate when the United States Attorney General himself must defend lawsuits concerning conditions of confinement in Federal institutions such as prisons and mental health units. iother arguments have also been advanced. John Ashcroft, the Attorney General of Missouri, stated in a §gg_gggg_g;mg§ article that "...the rights of people in investigations are already protected." Those who object to ‘the legislation have voiced yconcern over the Federal-State tensions that are likely to be exacerbated when the Federal vernment initiates suit as an adversary of the State. They have urged that solutions to the problem could be worked out more effectively through cooperation than through lawsuits heard by Federal judges who may be ill equipped to deal with localized problems faced by particular State CRS- 4 137eou9 UPDATE-O3/03/80 institutions. More generic objections have been raised against granting the executive branch authority to bring suit to enforce Fourteenth Amendment guarantees on the ground that the Fourteenth Amendment protects individual rights and is not a grant of power to the national Government. a The proposals introduced in the 96th Congress, like those from the 95th Congress, do attempt to limit the circumstances under which the Attorney General may bring suit. Though none give him authority to sue for an isolated instance of mistreatment. Rather they all have required that a pattern or practice of institutional wrongs exist before the Attorney General may sue. This language has been interpreted, in other circumstances, to mean that the denial of rights must be of a repeated, routine, or generalized nature. see. e-9- united §rate§ v- 1r2nz9rher§-L22al-§§. au3 F.2d. Sufi (9th Cir.), gg;t;_ggn;gd, non 0.5. 980 (1971). The bills also implicitly recognize that the operation of institutions is first and foremost a State responsibility. In his Senate testimony last June, Mr. Days acknowledged the difficult issues inherent in litigation brought by the Federal Government against a State. He explained that he understood that the bill intended the Attorney General to engage in "realistic pre—suit negotiations" in a spirit of cooperation. Both the Senate and House versions of the bill in the 95th Congress (3. 1393 and H.R. 9000), to different degrees, required that before instituting a court action, the Attorney General musti notify appropriate; State aofficials of the allegations and his intent to bring suit. H.R. 9000 specified that notice of the allegations be supported by specific facts (and furthermore that the notice to the State and director of the institution include, if feasible, recommendations for remedying the alleged deprivations. The House version also required that the state be given a reasonable time. to correct th deficiencies before the Department may institute suit. While S. 1393 and H.R. 9000 shared a common objective, H.R. 9000 was by far the more specific of the two. This may be in part because H.R. 9uoo was a product of compromise between two previously introduced bills. H.R. 9000 provided that the Attorney General is to promulgate standards, after consulting with appropriate experts, for the handling of prisoner grievances and those of others confined in correctional , institutions. (Mental institutions, hospitals, and nursing homes are excluded from this section of the bill.) In addition, it contained an administrative exhaustion requirement for prisoner suits instituted pursuant to #2 0.8. 1983, if the institution has developed acceptable grievance resolution procedures. 3. 1398 did not include any exhaustion requirement, nor did it mandate the development of standards for grievance resolution. The two bills thus far introduced in the 96th Congress (H.R. 10 and S. 10) basically parallel their predecessors in each House from the 95th Congress. H.R. 10 differs from H.R. 9400 in that it requires the Attorney General to promulgate standards for the resolution of prisoner grievances within 180 days from the date of enactment of the Act (H.R. 9400 did not specify a time limit). H.R. 10 also eliminates the section giving the Attorney General (explicit authority to intervene in any case brought to seek relief for conditions depriving institutionalized persons of their Federal rights. 5. 10 (like 5. 1393) does provide for intervention in pending cases. is. 10 also includes several features ,that were not present in S. 1393, such requirements that: (1) allegations be supported by specific facts; (2) the state be given an opportunity. tow remedy the violative situation; (3) information regarding suits brought under the Act be included in the Attorney General's annual report; and (Q) persons who report, violations of the Act CRS- 5 A IB78ou9 UPDATE-O3/03/80 shall not be subjected to any retaliation. All of these provisions are also included in H.R. 10. The Senate bill still does not include any exhaustion requirement. 1 ( e§§l§-AIl0N Ti H.R. 10 (Kastenmeier et al.) L Authorizes the Attorney General to institute a civil suit for or in the name of the United States whenever there is reasonable cause to believe that a person confined in a State correctional or health facility is being deprived of Federal constitutional or statutory rights. Requires persons confined in correctional, institutions to exhaust State administrative remedies that meet the minimum standards developed by the Attorney General before bringing a Federal action under the Civil Rights Act. Introduced on Jan. 15, 1979, and ireferred to the House Committee on the Judiciary. Reported to House Apr. 3, 1979 (H.Rept. 96-80). Passed House May 23, 1979. Passed Senate Feb. 28, 1980, after amendment which substituted text of S. 10 for that of H.R. 10. s. 10 (Bayh et al.) Authorizes the Attorney General to institute a civil suit for or in the name of the United States whenever there is reasonable cause to believe that a person confined in a State correctional or .health facility is being deprived of Federal constitutional or statutory rights and to intervene in a case for redress of deprivation of Federal rights ‘brought on behalf of a person so confined. Introduced on Jan. 15, 1979, and referred to the Senate { >mmittee of the Judiciary. Subcommittee hearings held Mar. 28-29, 1979. mark-up held Sept. 6, 1979. Reported to full Committee Sept. 7, 1979. Full “Committee reported favorably, with amendment (S.Rept. 96-416) Nov- 15, 1979. H.R. 10 passed in lieu Feb. 28, 1980. §§&3LE§§ U.S. Congress. House. Committee on the Judiciary. Subcommittee on Courts, Civil Liberties, and Administration of Justice. Hearings, 95th Congress, 1st session, on H.R. 2fl39 and - H.R. 5791. Washington, U.S. Govt. Print. off., 1977. 900 p. Hearings held Apr. 29; and May 11, 12, 18, and 23, 1977. ----- Hearings, 96th Congress, 1st session, on H.R. 10. Feb. 15, 1979. ~ [Not yet printed] ‘ G 9 ‘ iU.S. acongress. Senate. Committee on the Judiciary. Subcommittee on the constitution. Civil rights of institutionalized persons. Hearings, 95th Congress, 1st session, on S. 1393. Washington, U.S. Govt. Print. off., 1977. 1138 p. Hearings held on June 17, 22, 23, and 30; and July 1, 1977. Hearings, 96th Congress, 1st session, on S. 10. Har.'28-29, 1979. i [not yet printed] 02/28/80 11/15/79 10/23/79 09/07/79 09/06/79 05/2 3/79 04/03/79 03/23/19 02/15/79 02/09/79 01/15/79 01/15/79 07/31/78 07/28/78 on/13/Ia Ashcroft, John. CRS- 6 IB780fl9 UPDATE-O3/03/80 QEBONOLQGY QE.§!§E$§ Senate passed H.R. 10, as amended, by a vote of 55-36, after striking all language after the enacting clause and inserting the text of S. 10. S. 10 placed on Senate legislative calendar. 5. 10 reported by Senate Judiciary Committee (S.Rept. 96-H16). Senate Judiciary Committee mark-up of S. 10. S. 10, with amendments, reported to Senate Committee on the Judiciary. S. 10 considered by Senate Judiciary Subcommittee on the Constitution. H.R. 10, as amended, passed by House (Roll call no. 165, 3u2.62). H.R. 10, as amended, reported to the House from the Committee on the Judiciary (H.Rept. 96-BO). -03/29/79 - Subcommittee on the Constitution of the Senate Committee on the Judiciary held hearings on SD 100 Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Committee held hearings on H.R. 10. Subcommittee on Constitution of Senate Judiciary Committee held hearing on S. 10. S. 10 was referred to the Senate Committee on the Judiciary. ~ H.R. 10 was referred to the House Committee on the Judiciary. J S. 1393 was reported to the Senate from the Committee on the Judiciary with an amendment (S.Rept. 95-1056). H.R. 9uoo, as amended, was passed by the House. Roll call no. 61“ (25fl-69). H.R. 9uoo was reported to the House from the Committee on the Judiciary with an amendment (H.Rept. 95-1058). 22£ILQEAL-B§EEB§HQ§-§QQEC § A Federal law urged to aid State inmates. CRS- 7 IB78049 9 UPDAJTE-O3/03/80 New York times, May 15, 1977: 18. Berlow, Alan. "Rights of institutionalized: whose problem?" Congressional quarterly, Apr. 29, 1978: 1071. Lefkowitz, Louis J. On Federal involvement in State confinements. New York times, May 2a, 1977: 3a. U.S. Library of Congress. Congressional Research Service. Constitutionality of S. 10, 96th Congress, a bill to authorize actions for redress in cases involving deprivations of rights of institutionalized persons [by] Nancy L. Jones. [Washington] Apr. 2, 1979. ' cns Report --- The state action doctrine and S. 10, 96th Congress, a bill to authorize actions for redress in cases involving deprivations of rights of institutionalized persons [by] Nancy L. Jones. [Washington] July 2, 1979. CBS Report . LIBRARY OF WASHINGTON U'N!\/E?-.5!TY ST_. 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