ment. We believe the welfare of the unfortunate often extends beyond the requirements mandated by the United States Constitution.

We do not resist the initiation of or the intervention in lawsuits by the United States Attorney General because it will mean the participation of competent counsel on the other side. I am presently defending in federal court a class action involving the conditions of confinement in the security housing units of four California prisons. The plaintiff-prisoner class is being actively represented by at least fourteen lawyers, including lawyers from large private firms and from the Mexican-American Legal Defense Fund, Public Advocates, Inc., the Sacramento Legal Aid Society, the San Quentin Prison Law Office, the Youth Law Center and the California State Public Defender's office. Insofar as lawyer resources are concerned, California is often outnumbered because our state attorneys must be assigned out into scores of cases, many being litigated simultaneously. Examining our docket sheets, there is no apparent dearth of competent lawyers prepared to litigate, in federal or state court or in administrative hearings, issues on behalf of the confined. Many of the lawyers and firms with which we engage in litigation are federally funded, or funded by private foundations, or both. There is no lack of monetary incentive for the private attorney, as evidenced by the Civil Rights Attorneys' Fees Awards Act of 1976 (42 U.S.C. 1988) and California's own attorneys' fees awards for the enforcement of important rights affecting the public interest (Cal. Code of Civil Procedure, § 1021.5).

The serious consequence of United States Department of Justice participation would be the realignment of the respective sovereignties, the United States and the State, as courtroom adversaries. This is unnecessary; it is a mistake. S. 10 presupposes that the attorneys and investigators of the United States Department of Justice will have access to the confined persons and their institutions, particularly since Section 2 of the bill requires that an effort be made to consult with state officials on the supporting facts giving rise to the alleged unconstitutional conditions. California has no objection to any reasonable access-our public institutions are operated by public agencies which must answer to the public. But providing access, cooperating in federal investigations, and holding conferences with federal officials is not uncommon today. Particularly, where federal money is dispensed, such scrutiny is necessary. However, the spirit of a cooperative effort to solve the problems of the helpless, should not be blended with the coercive element of a threatened lawsuit. In the study of the care due the infirm, ill, disabled and handicapped, reasonable men, including experts in the social sciences, sometimes disagree on methods and means. Supplying the federal conferees with the "big stick" to prosecute can only chill the openness necessary for meaningful consultation and negotiation.

Our experience has been in the trial court, i.e., on the firing line. Trials involving conditions of confinement are difficult-for the parties, for the lawyers and for the trial judges. Plaintiffs' psychiatrists against defendants' psychiatrists; OSHA experts challenging OSHA experts; plaintiffs' photographs compared with defendants' photographs. An expert will testify that his inspection of an 80-bed institution revealed a burned-out light bulb, a cracked tile and a dead fly, and another expert will draw therefrom conclusions that the facility is inadequately lighted, dilapidated and unsanitary. It is very difficult to recreate in a courtroom, in an adversary proceeding, the physical and psychological conditions of an institution at a particular point in time.

California, so far as our records disclose, has not opposed the United States Department of Justice in litigation involving institutions. We do not anticipate such litigation. However, we are concerned that the possibility of lawsuits with the United States will adversely affect the cooperative and open-exchange relationships we seek with United States Attorneys and the Federal Bureau of Investigation.

Federal litigation is time-consuming and cumbersome. Trial preparation problems can be expected because the aggrieved person or persons are institutionalized. While federal discovery procedures are intended to expedite trial, their effect is often to the contrary. A final decision often takes years, and, during pendency of the action, administrators may be reluctant to initiate changes bearing on the subject of the litigation. Adverse parties and their lawyers become embroiled in the controversy, sometimes with long-standing impact on relationships.

The last assumption of S. 10 is that litigation is the ultimate solution. We disagree. Government officials and employees have been inundated with federal lawsuits. Nevertheless, most of the improvements in our system and its institutions have been brought about by legislative and adminstrative actions. Provid

ing the United States Attorney General with a vehicle to bring actions against state and local governments can only encourage resort to the courtroom, and more litigation. Comprehensive and cooperative planning, participated in by all government entities, has thus far been the most successful means to the end which is commonly desired, namely, good care and treatment for institutionalized citizens.

Senator BAYH. Our next witnesses I understand would also like to appear as a panel: Dr. William S. Hall and Mr. Alan E. Grischke. TESTIMONY OF WILLIAM S. HALL, M.D., STATE COMMISSIONER OF MENTAL HEALTH, SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH; AND ALAN E. GRISCHKE, J.D., CHIEF COUNSEL, DIVISION OF LEGAL SERVICES, DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, STATE OF ILLINOIS, APPEARING ON BEHALF OF THE NATIONAL ASSOCIATION OF STATE MENTAL HEALTH PROGRAM DIRECTORS

Mr. GRISCHKE. Thank you, Mr. Chairman.

Senator BAYH. I should identify you for our records here. Perhaps our colleague from South Carolina would like to introduce Dr. Hall. Senator THURMOND. Thank you very much.

Mr. Chairman, it is a pleasure to introduce Dr. William S. Hall. He is the State Commissioner of Mental Health for the State of South Carolina Department of Mental Health. He is head of the Association of Mental Health Institutions for the whole Nation. He is known far and wide for his experience and his ability along the lines of mental health. In our State we are very proud of him; proud of the great work he has done. I am very pleased to have him come here today and testify before this committee.

We are delighted to have you here, Dr. Hall.

Dr. HALL. Thank you, Senator Thurmond.

Mr. Chairman, my qualifications are set forth on the first two pages of my prepared report. I will forego calling those to your attention, unless there are some questions you would like to ask me.

I would like to say first and foremost that I subscribe completely to the statement Senator Thurmond just expressed before this group. He summed up my feeling and was very suscinct. In order to indicate to you why I feel that way, and in order to indicate to you why I feel that if the conduct of the Justice Department in South Carolina in Alexander v. Hall is an example of the expertise and competence of the Department of Justice in helping individuals who are in institutions of various kinds, then I need to be reschooled and have. my thinking turned around, I will just tell you a little bit about South Carolina.

We were the first State in the Southeast to have a psychiatric hospital accredited, the first to have all of its psychiatric hospitals accredited by the joint commission on accreditation of hospials, and 1 of only 18 States in the Nation at that time which could claim this achievement; we were the first in the Southeast to establish a comprehensive community mental health center. I believe the record will clearly show that we have been a leader in the field of mental health and that our modern mental health care delivery system has been closely watched and studied by other States.

Judicial intervention into the mental health system is intended to improve the quality of patient care. A closer look at the impact of this intervention on the mental health system does not necessarily lead to the conclusion that there have been positive improvements. Rather than creating a cooperative and constructive atmosphere, litigation creates defensiveness and resistance. It casts a negative image upon the institutions involved, making the recruitment of quality staff difficult, if not impossible. Judicial intervention is also demoralizing to a staff who already receives few visible rewards for their efforts. As a result, it is difficult to retain quality staff during periods of litigation and judicial surveillance.

Extraordinary amounts of time and money are spent in preparing for suits. This is time that could be better devoted to administrative duties and patient care and treatment. Also, this is money spent in defending and preparing for suits that could better be put to use for improved patient care and treatment, an area in which there is already a scarcity of funds.

Consequently, one must conclude that those who suffer most from litigation and judicial intervention are the institutionalized mentally ill themselves.

The remarks I have just made can best be illustrated by an example which occurred in my own State of South Carolina. Prior to the late 1960's and early 1970's, a vacuum had existed in the area of mental health law. However, in the late 1960's and early 1970's, the courts began to consider and define the rights of the mentally ill. These deeisions were readily accepted in South Carolina and a concerted effort was made to insure that we measured up to the expectations of the courts and our citizenry.

However, there was no comprehensive decision pertaining to this area until Judge Frank M. Johnson's 1971 landmark decision in the Wyatt v. Stickney case. Based on that case and others, the South Carolina Department of Mental Health was able to secure additional funding from our legislature and began moving towards an overall improvement in the quality of care and treatment provided to the mentally ill in South Carolina. Also, a complete overhaul of our mental health committment laws was begun to meet the constitutional requirements being established in those cases.

However, in February of 1972, five patients at South Carolina State Hospital instituted an action against the South Carolina Department of Mental Health, alleging that the commitment laws in effect at that time were unconstitutional and denied them due process of law and equal protection. That suit also raised issues as to the adequacy of

care.

Frankly, this private litigation and the other Federal court decisions I have referred to gave additional impetus to finalize the revision of our commitment laws and to secure all available additional resources to improve hospital conditions and the treatement of our patients.

After our new commitment laws were enacted in 1974 by our legislature but before they became effective on January 5, 1975, the Justice Department entered this lawsuit. They did so in a very unusual and, according to Federal Judge Robert Hemphill, a very unethical manner.

Having the full knowledge and understanding that the Alexander v. Hall case had been in litigation for some 2 years and that the South Carolina Department of Mental Health was represented by the State attorney general's Office, the Justice Department, without notice to the South Carolina Department of Mental Health or its attorneys, sent the FBI directly to the South Carolina State Hospital and demanded access to all patient records and the right to photocopy those records. On the advice of our attorneys, they were denied entry to the facility and access to the records.

Later, when they made a formal motion to intervene, which Judge Hemphill granted, he said this as to the conduct of the Justice Department:

This action was taken without prior notice to defendants' attorneys and this Court hastens to condemn such conduct by the Department of Justice as highly improper and patently unethical.

Our experiences with the Justice Department from that point deteriorated. Over the next 4 years, they were making increasing and unreasonable demands on the South Carolina Department of Mental Health with respect to answering numerous interrogatories and providing voluminous copies of records and documents. In order to answer their first set of interrogatories, we estimate that it was necessary for the South Carolina Department of Mental Health to expend more than $56,000 in employee time, including extensive overtime and other costs, in researching and compiling the requested information. Because of the short deadline allowed us in providing this information, it was necessary that the majority of our employees devote their primary attention to the answering of these interrogatories. As a result of these unavoidable demands, the care and treatment of patients suffered greatly I underscore that-the care and treatment of the patients suffered greatly.

During this 4-year period from 1974 until 1978 we experienced what can only be described as harassment and intimidation of employees, both past and present, and even going to the patient's homes and talking with them, the FBI, and as a result, the normal administrative function of the State Hospital was diverted from its primary duty of providing for patients to one of providing for the Justice Department. I think it should be noted here, and this is very important in my book, I think it should be noted here that at no point, at no point during the entire 2 years, did the Justice Department ask specifically to see the records of the five individuals who initiated the private litigation, and at no point did they direct specific attention toward the five who had complained. Instead, they took a shotgun approach and required us to review and answer interrogatories concerning all patients admitted or committed to the State hospital over the previous 5 years.

In our attempts to determine what standards we must meet to insure adequate treatment, the Justice Department had no answers. The Justice Department refused to recognize those standards established by HEW for medicaid and medicare as a guideline by which to determine the adequacy of care and treatment. Therefore, it would seem that the Justice Department while ignoring the guidelines and expertise of the Federal Government's health agency, had no standards or requirements of their own in determining whether intervention against

the South Carolina Department of Mental Health was warranted, but intended to develop such standards by the trial and error method of litigation.

It is impossible to estimate in dollars how much the Department of Mental Health expended from its operating funds in litigating this action with the Justice Department. However, I believe that any estimate less than $100,000 would be grossly conservative, and I would, frankly, not be surprised if it were at least twice that amount. In retrospect, there is no way that we can now estimate even the direct costs, let alone the indirect costs of this litigation to the Department of Mental Health and its patients. And I would speculate that the costs to the Justice Department and the FBI would probably exceed the costs expended by the Department of Mental Health.

During this period of time in which the Justice Department was involved in this litigation, the morale of our employees was at an alltime low. Some key employees left, and our recruiting efforts for new and qualified professionals were seriously compromised. It is a very uncomfortable feeling to be under the attack of your own Government when you are trying to do a job, and to feel the power and pressure of the Justice Department and the Federal Bureau of Investigation. The fact that an FBI employee knocks on the door of one of our employees, that is intimidating. As far as the reaction of that individual employee is concerned, he considers it intimidation.

Senator BAYH. It is intimidating to me. It is sort of like the IRS. I may be a U.S. Senator, but when the FBI knocks on the door, I am concerned.

Dr. HALL. We are in 100-percent accord with that.

Their resources and influences are overwhelming.

Unfortunately, the time and money spent by both the State of South Carolina and the Federal Government in this litigation was wasted. The participation in this lawsuit by the Justice Department was unwarranted and had no effect on the improvement of conditions at the South Carolina Department of Mental Health. The South Carolina Department of Mental Health had begun, before the intervention by the Justice Department, to make every possible effort to put itself in compliance with Federal Court decisions in the mental health field. Our efforts and direction had been set prior to this time, and we only required a reasonable amount of time to effect the necessary changes, particularly since the legislature was sympathetic.

Although we can all improve, given the proper resources, I am extremely proud of the South Carolina Department of Mental Health and the great majority of my fellow mental health professionals in meeting the needs of the mentally ill.

On February 21, 1978, we dedicated our newest hospital, the G. Werber Bryan Psychiatric Hospital near Columbia, S.C. This is a regional hospital for acute and intensive care, and one of four planned in South Carolina for intensive, short-term, psychiatric treatment. Our dedication speaker at that event was Federal Judge Frank M. Johnson, who, as I am sure you know, was the judge in the landmark Wyatt v. Stickney case. I would like to share with you the last two paragraphs of Judge Johnson's dedication address:

This State has taken seriously its constitutional obligations to the mentally ill. When in the late sixties and early seventies the plight of those in our mental