Marvin Jones, on His Own Behalf and on Behalf of Those Similarly Situated v. Fred R. Diamond

GODBOLD, Circuit Judge,

specially concurring:

While I agree with much of Judge Rubin’s opinion my approach to the case differs from his. I, therefore, set out my views in this separate opinion.

First, as to injunctive relief. The effect of the district court’s order was to grant relief injunctive in nature, both prohibitory and affirmative, though not all injunctive in form, and the district court retained jurisdiction. So far as I can discern no member of the en banc court suggests that the trial judge erred in granting this relief.

The panel upheld injunctive relief and awarded additional injunctive relief. While the panel opinion has been vacated it remains significant because Chief Judge Cole *1384 man’s concurring/dissenting en banc opinion adheres to what the panel held but then departs from it because he considers there has been a total change in circumstances. All of us recognize that there has been substantial change, and for the better, but I believe that the record does not show such total change in circumstances that we could properly dismiss this case or reverse or vacate the injunctive relief that was granted by the district court and so far as this record shows is at this moment still in effect.

With the case in this posture grant of injunctive relief by our court is appropriate. We merely build upon the injunctive order already in effect. Under this approach many of the details of conditions in the old jail in the early and mid-1970’s are largely beside the point. Therefore, the differences of view over the evidence of these conditions and our review of this evidence need not be decided. 1

It seems to me that with respect to injunctive relief our task is to determine the extent to which the relief already ordered by the district court should be broadened or supplemented because it was insufficient and the extent to which relief already ordered should be narrowed or eliminated because of changed circumstances. Necessarily these inquiries are net, not gross; we may see some relief that the district judge should have granted but that nevertheless need not be ordered now because changed circumstances have obviated the need for it. 2

Applying the foregoing approach to the specific matters that Judge Rubin would include in an injunction, or would direct the district court to handle on remand, here is where I come out.

Racial discrimination: The trial judge granted limited relief. Judge Rubin would broaden it. I agree. The record does not show that racial discrimination has ceased in the new jail.

Adequate supervision by persons not inmates: The district judge did not order relief, there is no substantial dispute that supervision in the old jail was inadequate, the record does not show that supervision in the new jail is adequate. I agree that an order should issue.

Classification system and separation of pre-trial detainees and convicted criminals: There was no substantial classification system in the old jail and pre-trial detainees were not separated. The record does not disclose that these matters have been cor *1385 rected. The district judge granted no relief. We should.

Discipline: The district judge granted relief based upon what appear to me to be undisputed facts. Judge Rubin would supplement the relief. I agree. It is not shown that a new jail has eliminated this matter.

Mail: Constitutional violations are not disputed and it is not shown that they have been discontinued. Judge Rubin would grant injunctive relief. I agree that this is appropriate.

Overcrowding: The district judge granted partial relief of sorts. We do not know how crowded the new jail is or what the real possibilities are of its becoming overcrowded. I agree that the district court should, after taking evidence, set limits against overcrowding if it appears there is any substantial possibility of its occurring.

Contact visitation: Visitation rights in the old jail were nominal. The district judge granted no relief. The necessary facts about the new jail are unknown to us. I agree with Judge Rubin that this must be handled by the district court after hearing, keeping in mind security needs and availability of facilities.

Turning to issues other than injunctive relief, I agree with Parts VII, VIII, IX, X, and XI of Judge Rubin’s opinion.

COLEMAN, Chief Judge, with whom AINSWORTH, CHARLES CLARK, RONEY, GEE, HILL, FAY, GARZA, HENDERSON and REAVLEY, Circuit Judges, join, concurring in part and dissenting in part:

The original (panel) opinion in this case is reported, 5 Cir., 594 F.2d 997 .

The panel held that (1) the bull pens in the jail had been unconstitutionally segregated and this was to be enjoined; (2) visitation privileges for ordinary pretrial detainees should be set forth in written rules so that detainees may understand them and so that courts may have a definite basis for review in the face of claimed arbitrariness and capriciousness; (3) prison mail rights had been settled by our decision in Guajardo v. Estelle, 5 Cir. 1978, 580 F.2d 748 ; (4) pretrial detainees are entitled to protection against unnecessary or unprotected contact with prisoners known to be violent or disturbed or infected with a contagious disease; (5) federal courts may intervene when jail officials fail to protect prisoners from homosexual attacks, personal violence, or unnecessary contact with the contagiously ill; (6) when a pretrial detainee is charged with an infraction of prison rules he should be informed of the infraction and an opportunity to demonstrate that he is not guilty; (7) attorney fees should be awarded the plaintiffs; and (8) overcrowding was enjoined.

’ I adhere to what the panel said on these topics, at the time it was said. Because a total change of circumstances has since intervened I respectfully dissent from the en banc opinion in those respects hereinafter set out.

I

CHANGED CONDITIONS — NO SURVIVING CONTROVERSY

For the Court to spend its en banc energies on a controversy which, in essence, no longer exists is an unusual judicial event, out of harmony with the indisputable Constitutional principle that if there is no controversy there is no case. This litigation was pursued contemporaneously with the combined efforts of Jackson County authorities and the taxpaying public to build and equip an entirely new jail at an entirely new location. The majority opinion (footnote 5) concedes that a new jail has been in use for nearly two years, since February 15, 1979. This jail provides single cell occupancy, with eighty square feet per prisoner. The opinion chooses not to mention the formal action of the Jackson County Board of Supervisors declaring that the County shall never again use the old jail unless necessitated by some unforeseen emergency. Four individuals are allowed the option of individually refiling their claims for damages. If the en banc Court wishes to *1386 grant this option, and I do not disagree, the en banc opinion could well have been limited to that question while affirming the panel opinion in all other respects.

The en banc majority says, however, that “The burden is on the defendants to prove that the wrongs of the past could not reasonably be expected to recur” and “[T]he record of defendants’ performance permits us to draw no such conclusion”, concluding that “nothing in the record provides . . . any assurance to this Court that . . . the wrongs of the past will not be recommitted.” 1

The case would not be moot if the record supported those conclusions, but what does the record say ?

The record establishes the sincere concern of the people and the duly constituted authorities of Jackson County for the welfare of prisoners. The old Jackson County jail, on the top floor of the courthouse, was built in 1949. In 1971 it was only twenty two years old, which is no advanced age for structures of this kind. Yet, the movement for the construction of a new jail was inaugurated that year. Half the cost of constructing and equipping the new jail, nearly a million dollars, was financed by the federal government. It was constructed, equipped and staffed in accordance with federal LEAA standards. It is operated according to standards, rules, and procedures prescribed by LEAA. It is to be doubted that a more modern jail facility can be found anywhere in the United States.

The majority opinion fails to credit the people and the authorities of Jackson County with the new jail and also chooses to overlook the following:

1. Except for Hinds County, in which the State Capitol is situated, Jackson County maintains the best county law library in the State for use by public defenders and others;

2. Jackson County instituted the first work release program in the State, by which convicted individuals can live away from the jail or penitentiary, spend their nights in a minimum security environment, work during the day and support their families, and make efforts to rehabilitate themselves by employment;

3. Jackson County, in cooperation with State authorities, instituted the first restitution center in the State, in which individuals convicted of crimes involving property rights may work and make restitution to their victims without being sent to jail or to the penitentiary;

4. The new prison program authorized a county bond issue of $800,000, approved at the polls. This provided the funds for a modern Juvenile Facility, opened in 1975, along with the new jail.

These facts conclusively negate an attitude of indifference for the welfare of prisoners and negates the notion that the officials of Jackson County can be expected to do right only if they are required to operate the new jail under the terms of a sweeping injunction.

II

INJUNCTIVE RELIEF IS NOT WARRANTED

There is not the slightest whisper that the jail now being used by Jackson County is in violation of Constitutional guaranties. Hence, this case, in principle, is exactly like the Dallas County (Texas) jail case decided a little over a year ago, Taylor v. Sterrett, 600 F.2d 1135 (5th Cir., 1979 — Wisdom, Ainsworth and Roney, JJ.).

The Court pointed out that the objects sought to be accomplished in the original suit had been accomplished and that the conditions for which a remedy was sought had been remedied. Held: the trial judge should have granted the county’s motion that the court decline to retain further jurisdiction of the case.

This decision was in keeping with the following precedents:

*1387 Federal Courts do not sit to supervise state prisons. Meachum v. Fano, 427 U.S. 215, 229 , 96 S.Ct. 2532, 2540 , 49 L.Ed.2d 451 (1976).

An equitable decree should not go further than necessary to eliminate the particular violation which prompted judicial intervention in the first place. Dayton Board of Education v. Brinkman, 433 U.S. 406, 420 , 97 S.Ct. 2766, 2775 , 53 L.Ed.2d 851 (1977).

In achieving constitutional compliance no court is bound to invoke draconian measures, particularly when another course, less drastic and already initiated, seems more likely to produce results. Battle v. Anderson, 594 F.2d 786, 792 (10th Cir. 1979).

Courts must be wary to avoid obtrusively monitoring the conduct of prison officials and thereby encumbering the administration of prison affairs. Newman v. Alabama, 503 F.2d 1320, 1328 (5th Cir. 1974).

Prison authorities should not be required to maintain prison security with one eye on the subject and the other on the consequences of contempt, in which the District Court could convert a warden into a prisoner. Newman v. Alabama, 559 F.2d 283, 291 . (5th Cir. 1977), cert. denied, 438 U.S. 915 , 98 S.Ct. 3057 , 57 L.Ed.2d 1114 (1978).

The majority opinion directs that the local prison officials shall be put under a sweeping injunction, governing the daily, routine operations of the jail.

Since the majority takes this position I can only remind Jackson County that there are well defined policies and procedures for the dissolution of injunctions, once they have been issued.

Ill

THE EN BANC COURT HAS RETRIED THE CASE AT THE APPELLATE LEVEL

In 1971, this Court declared:

This Court reviews eases, it neither tries nor retries fact issues. Thus we must not be understood as even intimating that we can engage in the fact-finding process at the appellate level.

Hill York Corporation v. American International Franchises, Inc., 448 F.2d 680, 691 (5th Cir. 1971).

Apparently, the 1971 Court was wasting its time. In over fifteen years this is the first time, that I can recall, in which the Court makes its own credibility choices and findings of fact. This turn of judicial events is all the more disappointing because the majority opinion frankly concedes: “There was absolute conflict in the testimony about sanitary conditions (emphasis added).”

The Court is obviously well aware of what it is doing when it repudiates the findings of the District Court, made on conflicting evidence, after that Court had seen and heard the witnesses.

The District Judge filed 40 pages of factual findings. He found:

“The jail is in a generally good state of cleanliness and the burden of proof concerning the foregoing allegations was not met by the plaintiffs.” (Findings, p. 10).

He found that the jail was reasonably free of insects or evidence thereof. There is no evidence of mice, rats, or vermin in the jail.

He found that each prisoner is provided a clean mattress, blanket, mattress cover, and sheet. Over a period of approximately eighteen months prior to trial, 718 new mattresses had been bought and put to use in the jail.

The majority opinion says (p. 1371) that:

“Photographs and other evidence satisfy us that the prisoners’ account of the jail more accurately described conditions, at least at the outset of the suit, than the account by the sheriff and jailer and that the district court was clearly erroneous in reaching the conclusion it did.” (Emphasis added.)

The Court relies heavily on the testimony of John Boone and an accompanying environmentalist who made a one day visit to the jail, February, 1977, solely for the purpose of getting ready to testify for the plaintiffs. On the basis of that one visit Boone testified that on that isolated occa *1388 sion, in his opinion, the jail was filthy, inhumanly overcrowded and unsuitable for the confinement of prisoners.

The cold record explodes Mr. Boone’s credibility. It shows, without dispute, that on the day of Boone’s visit the prison held twenty-one state convicts and 22 pre-trial detainees, against a bunk capacity of 76. 2 Furthermore, this was about two months after the prisoners rioted because their visitation privileges had been curtailed when the sheriff caught contraband being brought into the jail. These orderly members of the plaintiff class did only $30,000 worth of damage to the jail, putting it out of business for a considerable time. 3 The evidence showed that repairs to the jail had not been completed when Boone had his visit.

The difficulty with the Court’s position is that Boone and Theodore James Gordon were not the only “experts” who visited the jail and thereafter testified.

Dr. Allen Ault

Allen Ault, Ph.D., had been Warden and Superintendent of the Maximum Security Prison and Associate Commissioner in Geor *1389 gia, where he had been responsible for the operations of 19 state prisons and 35 county prisons, with 11,000 prisoners. In 1977 he was serving as Commissioner of the Mississippi Department of Corrections (penitentiary) and was a member of the Board of Directors of the American Correctional Association.

Dr. Ault testified. During the preceding six months, on three different occasions, in unannounced visits, Dr. Ault had inspected the Jackson County jail. On those inspections, Dr. Ault had found the jail to be clean, “probably as neat and clean as any jail I’ve observed”. The prisoners were clean. He saw no evidence of rodents or insects. The jail was quiet, appeared to be orderly, and there was not a lot of commotion or chaos. He felt no high rate of tension in the jail.

Timothy Wilson

Timothy Wilson, a witness called by the plaintiff, was a photographer for the Pascagoula newspaper, where he had worked for 7 years. In 1971, one of their reporters had been put in jail. This was during the term of Sheriff Navarette, whose administration is not involved in this litigation but who was sheriff immediately preceding Diamond. The paper was trying to get the jail cleaned up, so Wilson went up and took 7 pictures of the condition of the jail under Navarette. These pictures, Exhibits 98 through 104, were introduced in evidence. Some of them were handed around at our en banc conference, under the apparently mistaken belief that they illustrated conditions under Diamond. In 1971, Wilson said, the jail facilities were pretty bad; holes in the walls, torn up lavatories, paint off the walls, mattresses torn up. Wilson had never seen a jail before, but this one “was a mess”.

In 1972, after Diamond took office, Wilson had gone back and taken photographs which showed “vast improvement.” There was “quite a change, a very nice cleanup, walls painted, everything looked pretty good.” It “satisfied us as a newspaper.”

Later, the defendants called Gary Holland, the Editor of the newspaper, as their witness. Shortly after Diamond took office, as a matter of investigation, Holland went unannounced to the jail and ate some of the food being issued to the prisoners. He found it to be very good. He had been in the jail a few times since, looked in on some of the inmates, talked with a few inmates. He had helped conduct religious services in the jail. He thought the jail was “crowded” but had not “seen anything necessarily unclean; seemed to be in pretty good shape.”

I shall not extend this opinion to inordinate limits by summarizing the testimony of Sheriff Diamond (then fatally ill with lung cancer and probably not likely to swear a pack of lies in preparation for his encounter with his Maker), Jailer Tootle, Sheriff Ledbetter, Jailer Broadus (now dead) and others. The majority concedes that this testimony, if believed (which was the function of the District Court), exonerated the defendants.

What we have here is the classical situation of experts and other witnesses testifying on opposite sides of a case and contradicting one another on the witness stand. Somebody is mistaken. The resolution of conflicts of that kind, where credibility is involved, is always for the trier of fact and never for the appellate tribunal. In crediting the testimony of Mr. Boone and his associate, a vital part of which was erroneous on its face, and in discrediting the testimony of Dr. Ault and the officers, the majority abandons the time-honored rule and stands the appellate function on its' head. It is somewhat ironical that the vehicle for such an event is a case which, in fact, has already evaporated.

Incidentally, Dr. Ault testified that the Jackson County prison authorities had talked with him about taking the state convicts to the penitentiary, but he told them he could not do it because an outstanding federal court order, affirmed by this Court, forbade it. The federal court order requiring that conditions at Parchman be upgraded to Constitutional standards was undoubt *1390 edly correct. Even so, Jackson County authorities must know, now, what it means to be ground between Scylla and Charybdis.

IV

CONTACT VISITATION

The majority opinion on this subject is a curiosity. It refrains from holding outright that pretrial detainees are constitutionally entitled to contact visitation. Instead, it directs that when this case returns to the District Court there shall be an evidentiary hearing in which the parties shall be accorded an opportunity to submit evidence concerning whether there is reason to deny contact visitation to pretrial detainees under the standard of Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979). This puts the burden on the jailer instead of the one seeking the privilege and is tantamount to holding that contact visitation for pretrial detainees is required by the Constitution unless the custodial officials can establish a good reason to the contrary.

In my opinion, contact visitation for pretrial detainees is not a right guaranteed by the Federal Constitution. It is a matter which is, and ought to be, left to the discretion of prison authorities who, not the courts, have the critical responsibility for maintaining prison security and good order, including the prevention of access to drugs and weapons.

Subsequent to Bell v. Wolfish, two courts of appeals have specifically decided this issue. The cases are Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3rd Cir. 1979), and Jordan v. Wolke, 615 F.2d 749 (7th Cir. 1980). In both cases the Circuit Courts of Appeals held that pretrial detainees do not have an unfettered right to contact visitation. The language of Jordan v. Wolke is particularly appropriate, 615 F.2d at 753 -754:

For similar reasons we believe that the denial of contact visitation by the authorities who operate the Milwaukee County Jail does not constitute punishment in a constitutional sense. Plaintiffs’ sole complaint is that detainees are not allowed physical contact with visitors during the relatively brief periods of their detention. Although the Court in Wolfish did not address the issue of contact visitation, id. at 559-60 n.40, 99 S.Ct. at 1885 n.40, it did chart the path on which analysis must proceed. First, that prohibition of contact visitation is not intended by the defendants as punishment is undisputed. Second, the prohibition is rationally related to the legitimate purpose of preserving prison security and order. As the Supreme Court said, the authorities “must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees.” Id. at 540 , 99 S.Ct. at 1874 . Finally, the prohibition of contact visitation is not “excessive in relation to the . .. purpose” of maintaining security and order. Id. Wolfish itself sustained the validity of highly intrusive “body-cavity” searches of detainees that were performed as a matter of course after each contact visit. In approving these searches, the Court noted that an alternative to their use would be to “abolish contact visits altogether.” Id. at 560 n.40, 99 S.Ct. at 1885 n.40. The Court thus recognized the dilemma of prison authorities. Some method must be employed to assure that weapons, drugs, and other kinds of contraband do not enter the jail. Where contact visitation-is permitted, the Supreme Court has found it permissible to conduct body-cavity searches. Where no contact visitation is permitted, the searches are unnecessary. Neither alternative is so clearly preferable to the other that a court is warranted in substituting its judgment for that of “the persons who are actually charged with and trained in the running” of detention facilities. See id. at 560 , 99 S.Ct. at 1886 . Thus, under the standards prescribed in Wolfish , the Constitution was not offended.

The Second Circuit had the issue before it in Marcera v. Chinlund, 595 F.2d 1231 (1979). It held, 595 F.2d at 1237 : “In sum, it is too late in the day to suggest that it does not offend the Constitution not to per *1391 mit pretrial detainees contact visits.” The Supreme Court promptly granted certiorari, vacated, and remanded for further consideration in light of Bell v. Wolfish, 442 U.S. 915 , 99 S.Ct. 2833 , 61 L.Ed.2d 281 .

As to any further hearing, the record indisputably shows that when Sheriff Led-better apprehended the introduction of drugs into the jail he began searching visitors for contraband, a permissible procedure, see Newman v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977), cert. denied, 438 U.S. 915 , 98 S.Ct. 3144 , 57 L.Ed.2d 1160 (1978). Nevertheless, the prisoners rioted and wrecked the jail, to the tune of $30,000 in damages. Indeed, the repairs had not been completed when the designated “experts” for the plaintiff visited the jail in February, 1977, one of the causes for the delay being that the replacement of toilet bowls had to be accomplished by having them specially moulded.

When one notices that four convicts on death row in the Georgia penitentiary could, and did, escape by using hacksaws smuggled to them — when one notices that in another Georgia state prison eight convicts escaped, four of them convicted murderers — one realizes as a matter of sound judgment that prison security is not lightly to be undone, even by the federal judiciary. It is not uncommon for a pretrial detainee to be a murderer or a bank robber or a kidnapper, held on probable cause. The federal courts should restrain themselves from invading this area in the name of that Constitution which, at the outset, hailed domestic tranquility.

V

EXPERT WITNESS FEES

The majority opinion directs that upon remand the plaintiffs shall be allowed to recover expert witness fees. No Act of Congress is cited as authority for this proposition; indeed, there is none. Instead, the majority opinion relies on a Senate Report concerning legislation which could have contained such a provision, but did not.

The majority opinion lends no ear to what the Supreme Court, nearly fifty years ago, told us in Henkel v. Chicago, St. P., M. & O. Ry. Co., 284 U.S. 444 , 52 S.Ct. 223 , 76 L.Ed. 386 (1932), which pointed out,, in a unanimous opinion by Mr. Chief Justice Hughes, that from 1799 forward Congress had never authorized fees for expert witnesses in civil suits and held that Congressional legislation is controlling.

The Fifth Circuit has consistently denied recovery of expert witness fees in excess of that provided by 28 U.S.C. § 1821 . Baum v. United States, 432 F.2d 85 , 86 (5th Cir. 1970); Gerber v. Stoltenberg, 394 F.2d 179 (5th Cir. 1968); United States v. Kolesar, 313 F.2d 835, 837 (5th Cir. 1963); Green v. American Tobacco Co., 304 F.2d 70, 77 (5th Cir. 1962).

There is no doubt that Congress could, and may yet, legislate on the subject of expert witness fees in civil cases, just as it has on the subject of attorney fees, but the inescapable fact is that it has not done so. That is immaterial, I suppose, for the Court now does so.

CONCLUSION

On the topics, and for the reasons herein-above set forth, I respectfully dissent.

. For example, we do not need to decide whether the old jail was filthy or clean in 1973. That decision is unnecessary to establish a predicate for injunctive relief in general. It is unnecessary as the basis for a specific order that the new jail must be kept clean because no one suggests such an order is necessary.

. In a purist sense the erection of the new jail does not eliminate the need for an injunction, but in a practical way it greatly affects our en banc decision. For instance, while eschewing the effect of the new jail on whether to grant injunctive relief, Judge Rubin does not suggest injunctive relief against several conditions that he finds existed in the old jail. Actually, in this fourth appearance of an old case, on a stale record of facts many of which are years old, and with knowledge by the court that conditions have changed, but changed how much we do not accurately know, the court simply does the best it can. In many cases — such as school desegregation cases, racial composition of jury boxes, one-man one-vote, and election districting — where we are reviewing sweeping supervisory remedies relating to conditions that the court knows are subject to change and may have changed, we have required the parties to supply us with a “fresh record” containing the latest factual data that will assist us in determining whether relief denied below is presently necessary and if necessary what the remedy should be. Frequently this information has solely related to events and conditions after the entry of the judgment appealed from. But we have not hesitated to make the latest available facts the basis for a decision about injunctive relief and for design of a remedy if appropriate. We have taken this approach to avoid the possibility that either our decision or our remedy would not be adjusted to the realities of a situation to be governed by a sweeping remedial order.

The idea of a “fresh record” in this case is appealing. But the number and breadth of issues relating to the new jail in a physical sense and to the policies and methods of operating it would require extended hearings in the district court to build an up-to-date picture, further postponing effective decision of this case.

. P. 1375.

. In his prepared resume, filed with the District Court, plaintiffs Exhibit 82, Mr. Boone refers to himself as a public administrator, media executive, social worker, human services professional, penologist, 'and correctional change planner. A shortened version of the resume reads as follows:

Was 55 years old. Held an undergraduate degree in sociology, a master’s degree in psychiatric social work, and had done postgraduate work in mental health services and criminal justice management, and at the National Institute of Law Enforcement and Criminal Justice. He was organizer and founder of the “Campaign for Alternatives to Prisons”. In 1951-1952, he was a prison guard at the United States Penitentiary in Atlanta. From 1952 to 1965, he worked as a parol officer, group psychotherapist, and case worker, as case supervisor, and as chief of the classification and parole department at Atlanta. In 1965-1966, he was Director of the Crime and Corrections Project of the Southern Regional Council. In 1969-1970, he was field representative, community relations services, United States Department of Justice. In 1970-1973, he served at Lorton and in Massachusetts.

Except for his time at Lorton and as Massachusetts Commissioner of Corrections, which includes Walpole prison, Mr. Boone had not been employed in jail administration, although he had had peripheral employment in prisons. According to h's resume, Mr. Boone was Superintendent at Lorton, 1970-1972, and Commissioner of Corrections, Massachusetts, 1972-1973, but the resume also shows that he attended summer sessions at the University of California in 1972 and 1973 and that he was a Fellow at Harvard in 1972-1973. Since 1973 Boone had been with the National Campaign for Alternatives to Prisons, of which he was the founder. Since 1974 he had been an employee of a television station in Boston. According to his sworn testimony, Dr. Ault had never heard of Boone, a Georgian like himself, until Ault was called by the Massachusetts Governor’s Office, asking him to come to the State and take over as Warden of Walpole Prison, where, said Ault, “they totally lost control and the state patrol had to go in and run the institution”. Dr. Ault did not accept the invitation. When Mr. Boone testified, the previous February, he was not asked why he remained at Walpole for such a short time, or why he left, but the record does show that after he did leave in 1973 he was never again employed in, or in charge of, a prison of any kind.

The record contains the following interesting colloquy with Dr. Ault on the witness stand:

Q. Who was Warden of Walpole at that time?

A. I don’t recall who was Warden but John Boone had been Commissioner and had just recently been fired. They then called me and inquired whether I’d like to be Commissioner of the Department of Corrections in Massachusetts.

BY MR. WALKER:

Object as to what he was told by other persons, Your Honor. I think this is hearsay.

BY THE COURT: Sustained.

However, there had been no objection when the question was asked and after the answer was given there was no motion to strike it.

. The majority opinion, Footnote 11, attaches significance to the fact that the exasperated sheriff referred to these rebellious destroyers of public property as jail birds, even though the majority disclaims any condonation for the rebellion. This is reminiscent of the speech which the famous liberal philosopher, John Stuart Mill, M. P., made in the British House of Commons, April 21, 1868:

“What was formerly our chief secondary punishment — transportation—before it was abolished, had become almost a reward. Penal servitude, the substitute for it, was beginning, to the classes who were principally subject to it, to be almost nominal, so comfortable did we make our prisons, and so easily had it become to get quickly out of them”.