Petition — Newman v. Alabama

82-1354

No.

CRANE

IN THE ALEXANDER |

Supreme Court of the United States

OCTOBER TERM 1982

eee

N.H. NEWMAN, et al., )

Petitioners, )

UNITED STATES OF AMERICA, etal., —_)

Amicus Curiae, )

v. )

STATE OF ALABAMA, et al., )

Respondents. )

I

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ALVIN J. BRONSTEIN,

Counsel of Record

ELIZABETH ALEXANDER

National Prison Project of the

American Civil Liberties Union

Foundation, Inc.

1346 Connecticut Ave., N.W.

Washington, D.C. 20036

202/331-0500

RALPH I. KNOWLES, JR.

Drake, Knowles & Pierce

1509 University Blvd.

Tuscaloosa, AL 35401

JOHN L. CARROLL

Southern Poverty Law Center

1001 S. Hull St.

Montgomery, AL 36104

Attorneys for Petitioners

’ [

[

THE CASILLAS PRESS, INC. — 1717 K Street N.W. — Washington, D.C. — 223-1220

E ]

QUESTION PRESENTED

WHETHER THE COURT OF APPEALS

RENDERED A DECISION IN CONFLICT WITH

DECISIONS OF THIS COURT AND OF OTHER

COURTS OF APPEALS, WHEN IT RULED THAT A

FEDERAL DISTRICT COURT, WHICH HAS ISSUED

A REMEDIAL INJUNCTIVE ORDER TO STATE OF-

FICIALS TO CURE LONGSTANDING CONSTITU-

TIONAL VIOLATIONS, IS LIMITED TO THE USE OF

CONTEMPT SANCTIONS TO ENFORCE THAT

ORDER AND MAY NOT ISSUE ANY FURTHER IN-

JUNCTIVE ORDERS TO EFFECTUATE THE

ORIGINAL ORDER AND CURE THE CONSTITU-

TIONAL VIOLATIONS?

PARTIES

The petitioners are N.H. Newman, Jerry Lee Pugh and

Worley James, the named plaintiffs in the courts below

for themselves and a class of all those persons who are

now or may in the future be confined as prisoners by the

Alabama prison system.

The respondents are George C. Wallace, Governor of

Alabama; Charles Graddick, Attorney General of

Alabama; and Fred Smith, Commissioner of Corrections.

Governor Wallace and Commissioner Smith were

automatically substituted as parties when they assumed

their respective offices on January 17, 1983. Rule 25(d),

Federal Rules of Civil Procedure.

(iii)

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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ARGUMENT IN SUPPORT OF GRANTING

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APPENDIX:

Decision of the United States Court of Appeals ............... la

Order of the United States Court of Appeals

ES RESS 17a

Order of the United States District Court ............0.00005 19a

(iv)

TABLE OF AUTHORITIES

Cases: Page

Carr v. Montgomery County Board of Education,

BEET ND, FOO Es PRs CUE vee Kecccccasoeccccvcecncuns 9

Carr v. Montgomery County Board of Education,

Bee CD. GET Ces PPO 6 kc cedveveseccccbavessodsur 9

Ciudadanos Unidos de San Juan v.

Hidalgo County Grand Jury Commissioners,

ee ls HUME We BU6 bak > ba ¥'n.06 6d odes cdusvetbus 9

Dayton Board of Education v. Brinkman,

Ge RITE b's bec buchc cede ccnds ris COMedtieseercanes 7

Evans v. Buchanan,

Pe ae Fe Gls NOU i vccdsascavaedd cucesaskdecnteees i)

Ford Motor Company v. United States,

oe 1 Peer ee ene rrr errr er 12

Franks v. Bowman Transportation Co., Inc.,

Ge EE TUE OTE Seva vcenysceeduretbksevick Caxcvecvandon 6

Graddick v. Newman,

U.S. se Us ORDO bo) hace 40 00s 2x aankere ee 5, 16

Hutto v. Finney,

AER fi rn ee eee r ray rar 7, 8, 11, 12, 14

Miller v. Carson,

ee Pee ee, COTTE 6 80-0400 socdhanacadddanecereannee 9

Milliken v. Bradley,

TREE cA cin ahceancdshereatpessceees bexarees 10

Milliken v. Bradley,

Pople Be Fs cee) | Fe eee ee 7,8, 15

Morgan v. O’Bryant,

SFG We ee ns NOOEE orcas cheseeaienbivedtevarsagvaehn 9

(v)

Page

Newman v. Alabama,

349 F.Supp. 278 (M.D. Ala. 1972), aff'd, 503 F.2d

1320 (Sth Cir. 1974), cert. denied, 421 U.S. 948

ee Grete vec ceo CeU Ry tee wath 4ebn babes 6669-6608 3

Newman v. Alabama,

i CE, Fs SOFT occ bcndovisvevencecscsoccess 4

Preston v. Thompson,

rn, Ss wvrig haa heke Cevdvestcascécnedes 9

Pugh v. Locke and James v. Wallace,

406 F.Supp. 318 (M.D. Ala. 1976), aff'd with

modifications sub nom. Newman v. Alabama,

559 F.2d 283 (Sth Cir. 1977), cert. denied in

relevant part, 438 U.S. 781 and 438 U.S. 915 (1978) ............ 3

Roe v. Wade,

ES cot ob cece eeu eels bea ae x eee ona 6

Smith v. Sullivan,

ee at, PE csc cksaee hace he vaes tcecdeciees's 9

Sosna v. Iowa,

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Swann v. Charlotte-Mecklenburg Board of Education,

EE Coa sce ls pec ebhssb ws sabe cnubsies ve 8

United States v. Glaxo Group Limited,

I ae han eu et eter esaans ealeae 12

United States v. Montgomery County Board of

es SO Rie AEP CUO co Vdcb ie ccecdevcesieeeteiees 16

United States v. Nixon,

EE iol Si Sie i oS bale KOR Ks bay odes wee Aenean 16

Washington v. Washington State Commercial

Passenger Fishing Vessel Association,

ETE tei vhadeded ct tio ened beast 'ses 8, 12, 13, 14

(vi)

Page

Constitutional Provisions:

UNITED STATES CONSTITUTION

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Fourteenth Amendment ..........cccccsccccccccvces 2,3, 11

STATUTES AND RULES

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CCC aas USCC RRAEREARED OCF ORE RR es ee 88 2,3

Federal Rules of Civil Procedure, Rule 25(d) ............... (i)

IN THE

Supreme Court of the United States

OCTOBER TERM 1982

es

N.H. NEWMAN, et al.,

Petitioners,

UNITED STATES OF AMERICA, et al.,

Amicus Curiae,

Ve

STATE OF ALABAMA, et al.,

Respondents.

Nee Nee Ne Nee ee ee ee”

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

DECISIONS BELOW

The decision of the United States Court of Appeals for

the Eleventh Circuit is reported at 683 F.2d 1312 (11th Cir.

1982) and a copy is attached hereto as Appendix A. (A.1).

The order of the United States District Court for the Mid-

dle District of Alabama is not reported and a copy is at-

tached hereto as Appendix C. (A.19).

JURISDICTION

The judgment of the United States Court of Appeals for

the Eleventh Circuit was entered on August 9, 1982. An

order denying a petition for rehearing was entered on Oc-

tober 19, 1982 and a copy of that order is attached hereto

as Appendix B. (A.17). On December 29, 1982, Justice

Powell extended the time for filing this petition to and in-

2

cluding February 14, 1983.' Jurisdiction is conferred by

28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves Amendment VIII to the Constitution

of the United States prohibiting cruel and unusual punish-

ment:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual

punishments inflicted.

made applicable to the states by Sections 1 and 5 of

Amendment XIV to the Constitution of the United States:

SECTION 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

SECTION 5. The Congress shall have power to

enforce, by appropriate legislation, the provi-

sions of this article.

and enforced by Title 42, Section 1983, United States

Code:

'That order was entered in Miscellaneous No. A-570.

3

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or

other proper proceeding for redress.

STATEMENT OF THE CASE

We recite only so much of the eleven year history of this

litigation as is necessary for a determination of the issue

presently before the Court. Beginning in 1971, the peti-

tioners, all of whom are Alabama prison inmates, brought

three separate lawsuits under 42 U.S.C. § 1983 and 28

U.S.C. § 1343(3) to redress alleged constitutional viola-

tions in the Alabama prisons. See Newman v. Alabama,

349 F.Supp. 278 (M.D. Ala. 1972), aff'd, 503 F.2d 1320

(Sth Cir. 1974), cert. den. 421 U.S. 948 (1975); Pugh v.

Locke and James v. Wallace, 406 F.Supp. 318 (M.D. Ala.

1976), affd with modifications sub nom. Newman v.

Alabama, 559 F.2d 283 (Sth Cir. 1977), cert. den. in rele-

vant part, 438 U.S. 781 and 438 U.S. 915 (1978). On more

than one occasion the district court held that conditions in

the Alabama prison system, including overcrowding,

violated the rights of inmates under the eighth and four-

teenth amendments and ordered injunctive relief. (A.3).?

At his request, the district court appointed former

Alabama Governor Fob James receiver of the Alabama

2Hereafter, all references *o the opinions of the courts below will be

cited to the Appendix to this Petition and designated A.

4

prison system charged with bringing the system into con-

formity with the court’s decrees. Newman v. Alabama,

466 F.Supp. 628 (M.D. Ala. 1979). (A.3).

On October 9, 1980, the district court in order to further

implementation of its original orders, approved and sign-

ed a consent decree in which the respondents and the

receiver (collectively, “the State”) agreed to comply fully

with all prior remedial orders of the court within specific

deadlines. In the portion of the consent decree relevant to

this petition, the State agreed and the court directed them

to reduce periodically the number of state prisoners held in

county jails until September 1, 1981, when none was to re-

main. An earlier order of the district court had placed

limits on inmate population in state prisons. The State

complied in part with this order by crowding state inmates

into county jails, where the district court found conditions

“worse than any that exist in the state prisons.” Newman

v. Alabama, 466 F.Supp. 628, 630 (M.D. Ala. 1979). Thus

it became necessary for the district court to concern itself

with the unconstitutional overcrowding of State inmates

in county jails. (A.3, 4).

Rather than steadily decreasing as the consent decree re-

quired, the population of State inmates in county jails ac-

tually increased throughout the early months of 1981.

(A.4). In an order dated July 15, 1981, the district court

stated that it had given the State “every possible oppor-

tunity . . . to achieve compliance with . . . Orders of this

Court within the last nine years,” yet the State had been

“continuously in direct violation of the Orders of this

Court.” The court concluded that it had “a duty to protect

the constitutional rights” of Alabama prison inmates and

that “the only valid substantial relief available . . . is the

release of substantial number of inmates to help relieve the

overcrowded condition of the Alabama Prison System.”

5

(A.4, 5). To effectuate its earlier orders and to protect the

constitutional rights of class members, the district court

ordered the release of a number “of those inmates who ap-

pear to be most likely to assume positions of responsibility

and trust outside of prison.” (A.22).?

Another hearing was held in the district court on

November 12, 1981, wherein it was stipulated that on that

date there were 1,528 state prisoners confined in city and

county jails although the order of the district court entered

on October 9, 1980, directed that all state prisoners should

be removed from city and county jails by September 1,

1981. (A.21). In addition, the Court of Appeals found that

“as the case came before the district court on December 14,

1981, the fact of unconstitutional overcrowding of state

prisoners in county jails could not be disputed.” (A.11).

On December 14, 1981, the district court ordered the

release on parole for the balance of their sentence of 352

prisoners from a list provided by the state officials based

upon criteria acceptable to the Alabama Prison Ad-

ministration. (A.23). The district court also ordered that

prisoners who would be eligible for parole consideration

within six months of the date of the order could be given

immediate consideration by the Alabama Board of Par-

dons and Paroles.

The State moved the district court to stay its December

14 order and the motion was denied. Thereafter, the Court

of Appeals granted the State’s application for a stay pend-

ing an appeal.

4An application for a stay of this order was denied by the Court of

Appeals and by this Court. Graddick v. Newman, ___ U.S. —_,

102 S.Ct. 4 (1981).

6

The August 9, 1982 opinion of the Court of Appeals

dismissed the appeal of the July 15, 1981 order as moot

because the state officials had fully complied with that

order.4 The Court of Appeals vacated the December 14

order, holding that all of the parties and the district court

were mistaken in regarding that order as a means of “en-

forcing” the October 9, 1980, consent decree and declar-

ing, instead, that the December 14 order was a “distinct

mandatory injunction” in which the court framed relief

that was beyond the contemplation of the consent decree.

(A.8).

The Court of Appeals said that the October 9, 1980

order should have been enforced by having the state of-

ficials adjudged in contempt and then having the court im-

pose sanctions of either incarcerating the Governor and

other state officials or imposing fines on them. (A.9).

The Court of Appeals went on to say that although the

petitioners had adequately established a constitutional

violation requiring redress, they did not carry their burden

of showing the inadequacy of their legal remedy and thus

‘Petitioners agree with that part of the Court of Appeals’ ruling

and review of same is not sought by this petition.

However, the ruling of the Court of Appeals concerning the December

14 order is not moot for two reasons, even though the 352 prisoners

named in that order have presumably been released by now. First, the

harm to those members of the plaintiff class near the end of their

prison terms who are least deserving of further incarceration and who

suffer from the continuing unconstitutional overcrowding is “capable

of repetition, yet evading review.” Roe v. Wade, 410 U.S. 113, 125

(1973). Second, in these certified consolidated class actions there re-

mains a present, live controversy concerning the power of the district

court to effectuate its previous orders and cure continuing constitu-

tional violations. Sosna v. Iowa, 419 U.S. 393 (1975);Franks v.

Bowman Transportation Co. Inc., 424 U.S. 747 (1976). A conclusion

of mootness in the instant case would forever foreclose review of the

important underlying question concerning the district court’s power.

7

were not entitled to a mandatory injunction. The “ade-

quate” legal remedy, according to the Court of Appeals,

was again a civil contempt proceeding and coercive sanc-

tions. (A.11, 12).

The Court of Appeals denied a petition for rehearing on

October 19, 1982. On December 29, 1982, Justice Powell

extended the time for filing this petition to and including

February 14, 1983.

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI

A. Conflicts with decisions of this court

This case is important for the issues it raises as to the

proper allocation of functions between the federal district

courts and federal courts of appeals. This Court has con-

sistently recognized that “[t]he proper observance of the

division of functions between federal trial courts and the

federal appellate courts is important in every case,”

especially in cases where the district court has been asked

to issue an effective remedy to cure unconstitutional con-

ditions in public institutions. Dayton Board of Education

v. Brinkman, 433 U.S. 406, 410 (1977), Milliken v.

Bradley, 433 U.S. 267 (1977) (Milliken II) (public schools);

Hutto v. Finney, 437 U.S. 678 (1978) (state prisons).

The opinion and order of the Court of Appeals vacating

the remedial order of the district court are contrary to the

general principles which this Court has enunciated govern-

ing the equitable powers of district courts to fashion

remedies for constitutional violations and raise important

questions about the proper function of appellate courts in

reviewing remedial orders. In this case, the appellate court

held that federal judges in complicated civil rights cases

may only use their power to impose contempt sanctions to

obtain compliance with previously entered orders.

The general principles governing resolution of this issue

are well settled by prior decisions of this Court.

Washington v. Washington State Commercial Passenger

Fishing Vessel Association, 443 U.S. 658, 695-96 (1979);

Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Milliken v.

Bradley, 433 U.S. 267, 280-81 (1977) (Milliken II); Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1,

15-16 (1971). Although it mentioned Hutto in passing, the

Court of Appeals ignored the now classic statement in

Swann that, once invoked, “the scope of a district court’s

equitable powers to remedy past wrongs is broad... .”

402 U.S. at 15.

The principles governing the remedial powers of district

courts require federal courts to focus upon three factors.

First, the nature of the remedy is to be determined by the

nature and scope of the constitutional violation, and the

remedy must, therefore, be related to the condition alleged

to offend the constitution. Second, the decree must be

remedial in nature and designed as nearly as possible to

restore victims to the position they would have occupied

in the absence of a constitutional violation. Third, the

federal courts in formulating a remedy must take into ac-

count the interests of state and local authorities in manag-

ing their own affairs consistent with the constitution.

Futhermore, while state and local authorities have

primary responsibility for managing their own affairs, if

those authorities fail in their affirmative obligations

judicial authority may be invoked. Milliken v. Bradley,

433 U.S. 267, 280-81 (1977) (Milliken I1).°

*Although they were not heeded at all by the < ourt of Appeals in

the instant case, the three Milliken factors have veen painstakingly

9

District courts have always been given great leeway in

fashioning effective remedies to enforce their orders and

this Court has consistently approved and encouraged such

flexibility. The continuing development of school

desegregation cases provides an instructive look at the ap-

proved process of constantly fashioning new equitable

relief in complicated cases.

In the Montgomery County, Alabama School Case, the

district court originally mandated only the desegregation

of certain grades and required the defendants to produce a

plan for the gradual desegregation of others during the

following year. Carr v. Montgomery County Board of

Education, 232 F.Supp. 705 (M.D. Ala. 1964). When the

defendants made little progress on their own in that

regard, the court entered a further order in 1968, now in-

structing the defendants to comply with its previous

orders by hiring and assigning faculty members in such a

fashion that the ratio of white to black teachers in each

school was substantially the same as the ratio of white to

black teachers throughout the system. In order to bring

that about within a reasonable time, the court set forth a

fixed schedule for meeting the mathematical formula in

each school. 289 F.Supp. 647, 654 (M.D. Ala. 1968).

Under the Court of Appeals’ reasoning in this case, the

lower court’s only remedy would have been to hold the

school officials in contempt. This Court, however, ap-

proved the district court order in full with Justice Black

writing for the Court:

adhered to by other courts of appeals. See, e.g., Morgan v. O’Bryant,

671 F.2d 23 (1st Cir. 1982); Smith v. Sullivan, 611 F.2d 1039 (Sth Cir.

1980); Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury

Commissioners, 622 F.2d 807 (Sth Cir. 1980); Preston v. Thompson,

$89 F.2d 300 (7th Cir. 1978); Evans v. Buchanan, 582 F.2d 750 (3rd

Cir. 1978); Miller v. Carson, 563 F.2d 741 (Sth Cir. 1977).

10

The 1964 initial order of Judge Johnson was

followed by yearly proceedings, opinions, and

orders by him. .. . The record, however, also

reveals that in some areas the board was not

moving as rapidly as it could to fulfill this duty,

and the record shows a constant effort by the

judge to expedite the process of moving as rapid-

ly as practical toward the goal of a wholly

unitary system of schools, not divided by race as

to either students or faculty. .. .

. . . Judge Johnso.: noted that in 1966 he had

ordered the board to begin the process of faculty

desegregation in the 1966-1967 school year but

that the board had not made adequate progress

toward this goal. ... He therefore concluded

that a more specific order would be appropriate

under all the circumstances. .. .

. . . [T]he record is filled with statements by

Judge Johnson showing his full understanding of

the fact that, as this Court also has recognized, in

this field the way must always be left open for ex-

perimentation.

United States v. Montgomery County Board

of Education, 395 U.S. 225, 230-35 (1969) (foot-

notes omitted).

Never in the long history of the case did any court sug-

gest that contempt was the only enforcement device

available. This Court recognized that the enforcement of

that injunction called for the very “experimentation” that

the district court employed. The same understanding is

implicit in the range of this Court’s decisions superinten-

ding protracted enforcement litigation. See, e.g., Milliken

v. Bradley, 418 U.S. 717 (1974) (reviewing 7 years of en-

forcement litigation below - none of it involving contempt

proceedings.)

The same principle has been followed in prison condi-

tions suits. In Hutto v. Finney, supra, this Court upheld

the district court’s finding that conditions in isolation cells

in the Arkansas penal system continued to violate the

eighth and fourteenth amendments. The Court also held

that the district court had the authority to place a max-

imum limit of thirty days on confinement in isolation cells.

Justice Stevens, writing for the Court, explained:

The question before the trial court was

whether past constitutional violations had been

remedied. .. . We find no error in the court’s

conclusion that, taken as a whole, conditions in

the isolation cells continued to violate the pro-

hibition against cruel and unusual punishment.

In fashioning a remedy, the District Court had

ample authority to go beyond earlier orders and

to address each element contributing to the viola-

tion. The District Court had given the Depart-

ment repeated opportunities to remedy the cruel

and unusual conditions in the isolation cells. If

petitioners had fully complied with the court’s

earlier orders, the present time limit might well

have been unnecessary. But taking the long and

unhappy history of the litigation into account,

the court was justified in entering a comprehen-

sive order to insure against the risk of inadequate

compliance.

The order is supported by the interdependence

of the conditions producing the violation. . . .

Finally, the excercise of discretion in this case is

entitled to special deference because of the trial

judge’s years of experience with the problem at

hand and his recognition of the limits on a

federal court’s authority in a case of this kind.

437 U.S. at 687-88 (footnotes omitted).

12

In a footnote Justice Stevens further discussed the scope

of a district court’s equitable powers:

As we explained in Milliken v. Bradley, 433

U.S. 267, 281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d

745, state and loca! authorities have primary

responsibility for curing constitutional viola-

tions. “If, however ‘[those] authorities fail in their

affirmative obligations... judicial authority

may be invoked.’ Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 15,

91 S.Ct. 1267, 28 L.Ed.2d 554. Once invoked,

‘the scope of a district court’s equitable powers to

remedy past wrongs is broad, for breadth and

flexibility are inherent in equitable remedies.’ ”

Ibid. In this case, the District Court was not

remedying the present effects of a violation in the

past. It was seeking to bring an ongoing violation

to an immediate halt.

437 U.S. at 687 n.9

One year after its decision in Hutto this Court decided

Washington v. Washington State Commercial Passenger

Fishing Vessel Association, 443 U.S. 658 (1979), and af-

firmed the power of a federal district court to issue detail-

ed remedial orders.* In Washington, the United States, on

its own behalf and as trustee for seven Indian tribes

brought suit against the State of Washington in federal

district court seeking an interpretation of two treaties and

an injunction requiring the state to protect the Indians’

share of runs of anadromous fish. The district court inter-

‘This Court has often commented on the remedial powers of

district courts in complex litigation such as antitrust cases. See, e.g.,

Ford Motor Company v. United States, 405 U.S. 562, 573 (1972),

United States v. Glaxo Group Limited, 410 U.S. 52, 64 (1973).

13

preted the treaties and issued an injunction, but the State

Supreme Court later ruled that the Department of

Fisheries could not comply with the federal injunction.

The federal district court then entered a series of orders

enabling it to assume direct supervision of the State’s

fisheries, and its power to take such direct action was

upheld by this Court in an opinion written by Justice

Stevens:

State-law prohibition against compliance with

the District Court’s decree cannot survive the

command of the Supremacy Clause of the United

States Constitution. ... It is also clear that

Game and Fisheries, as parties to this litigation,

may be ordered to prepare a set of rules that will

implement the Court’s interpretation of the

rights of the parties even if state law withholds

from them the power to do so. ...

Whether Game and Fisheries may be ordered

actually to promulgate regulations having effect

as a matter of state law may well be doubtful.

But the District Court may prescind that problem

by assuming direct supervision of the fisheries if

state recalcitrance or state-law barriers should be

continued. It is therefore absurd to argue, as do

the fishing associations, both that the state agen-

cier may not be ordered to implement the decree

and also that the District Court may not itself

issue detailed remedial orders as a substitute for

state supervision. The federal court unques-

tionably has the power to enter the various

orders that state officials and private parties have

chosen to ignore, and even to displace local en-

forcement of those orders if necessary to remedy

the violations of federal law found by the

14

In short, we trust that the spirit of cooperation

motivating the Attorney General’s representation

will be confirmed by the conduct of state of-

ficials. But if it is not, the District Court has the

power to undertake the necessary remedial steps

and to enlist the aid of the appropriate federal

law enforcement agents in carrying out those

steps. Moreover, the comments by the Court of

Appeals strongly imply that it is prepared to

uphold the use of stern measures to require

respect for federal-court orders.

443 U.S. at 695-96 (footnotes omitted).

Justice Stevens, in a footnote, quoted the comments made

by the United States Court of Appeals for the Ninth Cir-

cuit concerning the use of stern measures by a district

court:

The state’s extraordinary machinations in

resisting the [1974] decree have forced the district

court to take over a large share of the manage-

ment of the state’s fishery in order to enforce its

decrees. Except for some desegregation

cases . . ., the district court has faced the most

concerted official and private efforts to frustrate

a decree of a federal court witnessed in this cen-

tury. The challenged orders in this appeal must

be reviewed by this court in the context of events

forced by litigants who offered the court no

reasonable choice. 573 F.2d 1123, 1126 (CA9

1978).

443 U.S. at 696 n.36.

Thus, this Court in Hutto and Washington reaffirmed

the broad scope of a district court’s equitable powers. In

both Hutto and Washington this Court declared that the

district court had ample authority to go beyond its earlier

15

orders in the face of state recalcitrance. State officials in

both cases had had the opportunity to remedy constitu-

tional or federal law violations and had failed to do so. In

such situations, often involving a long and unhappy

history of litigation, the district court is justified in enter-

ing a comprehensive order or in assuming direct supervi-

sion of state agencies.

Ignoring the Milliken II factors the Court of Appeals in

this case held that the consent decree of October 9, 1980,

requiring the state to remove state prisoners from county

jails, would be most effectively enforced by incarcerating

the governor or fining the recalcitrant state officials. By

holding that the district court’s order of December 14,

1981 was not a means of enforcing the consent decree, the

Court of Appeals departed from the direction taken by

this Court and other courts of appeals on the questions of

whether a lower court’s remedial order is related to the

constitutional violation and whether it is remedial in its ef-

fect.

In place of the district court’s orderly and reasoned solu-

tion to the overcrowding problem, the appellate court re-

quired that the remedy of contempt be employed, a

remedy which under the circumstances of this case is un-

necessarily intrusive, far more so than the remedy ordered

by the district court. The use of contempt power would

throw the state and federal sovereigns into direct conflict,

ignores political reality, and aggravates rather than

reduces state and federal friction.’ While the lack of

’The district court “attempted to provide every possible opportuni-

ty for the Defendants to achieve compliance with both State law and

the Orders of [that] Court within the last nine years.” (A.21).

However, it is a fact of political life that state officials, particularly

elected officials, win few friends and many detractors when they. take

unpopular actions, even in response to federal court orders. Il-

16

funds is no excuse for the violation of constitutional

rights, we do recognize, as the district court recognized,

that the Alabama prison system is underfinanced and that

the defendants’ inability to obtain additional monies from

the Legislature has slowed compliance. (A.20, 21). The

district court can not hasten compliance by siphoning off

funds from a poorly-financed system and filling up the

United States’ coffers with money that should be spent on

improving conditions.

The suggestion that the public officials might themselves

be imprisoned is similarly impractical. The policy underly-

ing the supposed preference for one remedial device over

another surely must be, in this context at least, that the

preferred remedy can bring results with reduced friction.

To prefer the incarceration of a sitting governor over the

December 14 order is to stand that policy on its head. The

District Court had no intention of promoting a needless,

embarrassing ard ultimately fruitless constitutional crisis.

See United states v. Nixon, 418 U.S. 683, 691-92 (1974).

An ineffectual remedy is no remedy at all and neither fir-

ing state officials nor incarcerating them would do

anything to cure the existing constitutional violations.

The decision of the appellate court, if left standing, sets

a dangerous precedent which could seriously erode the

principles of equitable relief established in prior decisions

of this Court. A firm statement is needed by this Court to

reaffirm the power and the duty of district courts to act

lustrative of the fact that politics, rather than legal principles, form the

basis of the respondents’ position is that the Governor took issue with

the district court’s December 14, 1981 release order but acquiesced in

the July 14, 1981 order. See Graddick v. Newman, supra. The district

court understood as much and acted accordingly, accepting respon-

sibility for some distasteful and unpopular actions, out of deference to

the delicacy of the respondents’ position.

17

with deliberate speed in providing an effective remedy in

prison cases where degrading conditions subject prisoners

to cruel and unusual punishment.

B. Conclusion

Certiorari should be granted because the Court of Ap-

peals’ approach to remedial orders is contrary to the deci-

sions of this Court in Hutto and Milliken and does not

respect the role of the district court in fashioning remedial

orders. This case provides the proper vehicle for determin-

ing the respective roles of trial and appellate courts in

determining appropriate remedial guidelines in prison con-

ditions, as well as other, cases. The issue is presented

clearly in this case since the appellate court and the district

court agreed that there were serious existing constitutional

violations which were not being addressed by responsible

state officials.

Respectfully submitted,

ALVIN J. BRONSTEIN

ELIZABETH ALEXANUVER

National Prison Project of the

American Civil Liberties Union

Foundation, Inc.

1346 Connecticut Ave., N.W.

Washington, D.C. 20036

202/331-0500

RALPH I. KNOWLESS, JR.

Drake, Knowles & Pierce

1509 University Blvd.

Tuscaloosa, AL 35401

JOHN L. CARROLL

Southern Poverty Law Center

1001 S. Hull St.

Montgomery, AL 36104

Attorneys for Petitioners

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7606

N. H. NEWMAN, et al.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA, et al.,

Amicus Curiae,

versus

STATE OF ALABAMA, et al.,

Defendants-Appellees,

CHARLES A. GRADDICK,

Attorney General, State of Alabama,

Movant-Appellant.

No. 81-8003

N. H. NEWMAN, et al.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA, et al.,

Amicus Curiae,

versus

STATE OF ALABAMA, et al.,

Defendants-Appellants.

2a

Appeal from the United States District Court

for the Middle District of Alabama

(August 9, 1982)

Before MORGAN, TJOFLAT and KRAVITCH,

Circuit Judges.

TJOFLAT, Circuit Judge:

On July 15 and December 14, 1981, the district court

ordered officials of the Alabama Department of Correc-

tions to release from custody several hundred convicted

state prisoners as a means of reducing unconstitutional

overcrowding in the Alabama prison system. In these con-

solidated cases, those officials, the Attorney General of

Alabama, and the Governor of Alabama, as receiver of

the Alabama prison system, challenge the propriety of the

district court’s orders. Because the appellants have fully

complied with the July 15 order, we dismiss the appeal of

that order as moot. As for the December 14 order, we con-

clude that the record does not support its entry. We

therefore vacate that order and remand this case to the

district court for further proceedings.

We recite only so much of the eleven year history of this

litigation as is necessary to our decision. Beginning in

1971, the plaintiffs, all of whom are Alabama prison in-

mates, brought three separate lawsuits to redress alleged

constitutional violations in the Alabama prisons. See

Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala. 1972);

Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976); James

3a

v. Wallace, 406 F. Supp. 318 (M.D. Ala. 1976).' On more

than one occasion the district court held that the condi-

tions in the Alabama prison system, including over-

crowding, violated the rights of inmates under the eighth

and fourteenth amendments and ordered injunctive

relief.2 The court’s actions in these cases were affirmed,

with modifications, on consolidated appeal. Newman v.

Alabama, 559 F. 2d 283 (Sth Cir. 1977), cert. denied, 438

U.S. 915, 98 S.Ct. 3144 (1978).3 In 1979, in an effort to

expedite compliance with its orders, the district court ap-

pointed Alabama Governor Fob James receiver of the

Alabama prison system, charged with bringing the system

into conformity with the court’s decrees. Newman y.

Alabama, 466 F. Supp. 628 (M.D. Ala. 1979).

On October 9, 1980, the district court approved and

signed a consent decree in which the defendants and the

receiver (collectively, “the State”) agreed to comply fully

with all prior remedial orders of the court within specific

deadI 1¢es. In the portion of the consent decree relevant to

this appeal, the court directed the State to reduce

'The defendants in these suits included the State of Alabama, the

Department of Corrections, and numerous state officials in their in-

dividual and official capacities. In Alabama v. Pugh, 438 U.S. 781, 98

S.Ct. 3057 (1978), the Supreme Court held that the eleventh amend-

ment barred this action against the State of Alabama and the Alabama

Department of Corrections. The individual state officials who run the

various state agencies involved in this case are still parties, however. In

this appeal, we deal only with those defendants who are officials of

the Department of Corrections, and the Attorney General.

This relief included wide-ranging measures to ensure reasonably

adequate food, clothing, shelter, sanitation, medical attention, and

personal safety for prisoners. Newman v. Alabama, 559 F.2d 283, 288

(Sth Cir. 1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144 (1978). This

appeal concerns only the issue of unconstitutional overcrowding in the

prison system.

'Thereafter, the three cases were consolidated for further pro-

ceedings in the district court.

4a

jails until September 1, 1981, when none were to

remain.‘ with the unconstitutional overcrowding of

state inmates in county jails.

Rather than steadily decreasing as the consent decree re-

quired, the population of state inmates in county jails ac-

tually increased throughout the early months of 1981. The

plaintiffs took no steps, however to obtain compliance

with the consent decree; they did not move the district

court to order the State to show cause why it should not be

held in civil contempt for violating the decree. Instead,

they filed a “Motion to Require the Provision of Sufficient

Funds for Compliance With the October 9, 1980, [Con-

sent] Order or the Release of Members of the Plaintiff

Class Until There is Compliance.” This motion asked the

court to direct the State to provide funds sufficient to build

new prison facilities that would alleviate the overcrowding

in county jails. Alternatively, the motion requested the

release from state custody of 200 prisoners a week until no

state prisoners remained in county jails.

The district court held a hearing on the plaintiffs’ mo-

tion at which the parties stipulated that the overcrowding

of state prisoners in county jails had not abated. The

plaintiffs abandoned their request for prison construction

funds* and asked the court for immediate relief from the

overcrowding. On May 20, the court ordered the Depart-

*An earlier order of the district court had placed limits on inmate

population in state prisons. The State complied in part with this order

by crowding state inmates into county jails, where the district court

found conditions “worse than any that exist in the state prisons.”

Newman v. Alabama, 466 F.Supp. 628, 630 (M.D. Ala. 1979). Thus,

it became necessary for the district court to concern itself with the un-

constitutional overcrowding of state inmates in county jails.

‘The record on appeal does not contain the transcript of this hear-

ing. Subsequent orders of the district court, however, indicate that

plaintiffs did not pursue their request that the court order the State to

provide sufficient funds for new prison construction.

Sa

ment of Corrections to submit to the court a list of 250

prisoners “least deserving of further incarceration”; addi-

tional lists, each with the names of 250 prisoners, were to

be submitted every two weeks, for a period of eight weeks.

In an order dated July 15, the district court stated that it

had given the defendants “every possible opportunity . . .

to achieve compliance with... Orders of this court

within the last nine years,” yet the State had been “con-

tinuously in direct violation of the Orders of this Court.”®

The court concluded that it had “a duty to protect the con-

stitutional rights” of Alabama prison inmates and that

“the only valid substantial relief available... is the

release of a substantial number of inmates to help relieve

the overcrowded condition of the Alabama Prison

System.” The court named 400 inmates to be released,’

and ordered that on July 24, writs of habeas corpus issue

for these prisoners;* it also accelerated the parole eligibili-

*We note that, despite the district court’s observation that the State

had been in continuous violation of the court’s orders, the plaintiffs

had never initiated contempt proceedings against the State, the State

had never been given the opportunity to show that it was not in con-

tempt, and the court had never adjudged the State in contempt.

’Although the court had previously ordered the Department of Cor-

rections to submit lists of inmates “least deserving of further in-

carceration,” it was the district court that actually selected the

prisoners to be released. The court did not disclose the criteria it used

to select these inmates though there is some indication in the record

that it attempted to select those who were within six months of their

probable parole dates.

*The use of the writ of habeas corpus to effect the release of pri-

sioners was plainly erroneous since no prisoner had applied for a

habeas writ and since the constitutionality neither of prisioners’ con-

victions nor of their sentences was at issue. We therefore treat the

district court’s July 15 order as an injunction mandating the release of

prisoners not because of any infirmity in the judgments requiring their

individual confinements, but in order to remedy unconstitutional

overcrowding. Notably, the court’s December 14, 1981, release order

did not mention habeas corpus.

6a

ty dates of fifty others.? On July 22, the court amended its

July 15 order by reducing the number of inmates to be

released on habeas corpus to 277.'° On July 25, the State

complied with the habeas writs and released the designated

prisoners. ''

Despite the July 25 release of 277 prisoners, the plain-

tiffs remained dissatisfied with the overcrowded condi-

tions of the county jails. Again, instead of seeking to have

the State held in contempt and coercive sanctions imposed

for its noncompliance with the October 9, 1980, consent

decree, they moved for “enforcement” of that decree by

asking the court to release more prisoners. The motion

was heard on November 12. The parties stipulated that ap-

proximately 1,500 state prisoners remained in county jails,

though the consent decree required that none be confined

there beyond the previous September 1. On December 14,

the court ordered the release of 352 named inmates on

December 22. This order differed from the one issued on

"The district court did not actually order that these inmates be

released; rather, it directed the Board of Pardons and Paroles to ac-

celerate consideration of their release on parole.

'’The court did so upon the Department of Corrections’ assertion

that it had mistakenly included certain prisoners on the lists it had pro-

vided of those least deserving of further incarceration.

''The day after the district court issued the writs, Alabama At-

torney General Graddick, who had not previously been active in this

litigation, moved to intervene and requested a stay. On July 17, the

Governor, in his capacity as receiver, moved to dismiss the Attorney

General’s motions. The district court denied the motion to stay on Ju-

ly 22. On July 23, the Attorney General sought a stay in this court,

which was denied. That same day the Attorney General filed for a stay

in the Supreme Court. On July 25, Circuit Justice Powell denied the

Attorney General’s motion. The Attorney General then moved the

Chief Justice for a stay, and he referred the motion to the entire

Court, which denied it on September 2. Graddick v. Newman, ____

U.S. ___, 102 S.Ct. 4 (1981). In the meantime, on July 25, the 277

prisoners granted habeas writs were released.

7a

July 15 in three respects. First, the court did not issue writs

of habeas corpus.'? Second, the court placed the releases

on parole, subject to the parole authority of Alabama law.

Third, the court ordered that all unreleased inmates who

would be eligible for parole within six months of the date

of its order be considered for parole immediately.

The State moved the district court to stay its December

14 order; the motion was denied. The State then applied to

us for a stay, and we granted one pending this appeal.

Both the district court’s July 15 and December 14 orders

are before us.'?

We first determine that the appeal of the district court’s

July 15 order should be dismissed as moot. The defen-

dants have fully complied with that order directing release

of specifically named inmates and accelerating parole

eligibility for others. The July order was not a continuing

injunction; it merely required the State to perform certain

discrete acts, which it did. No action by this court could

change what has been done, and “federal courts are

without power to decide questions that cannot affect the

rights of litigants in the case before them.” North Carolina

v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404 (1971).

'2S¢ee note 8, supra.

'3Only the Attorney General appealed the July 15 order; neither the

other defendants nor the receiver opposed this first release of

prisoners. While there is room to argue that the Attorney General was

not a party to this litigation when he appealed the July order, see note

11, supra, we accept Justice Rehnquist’s guidance that the Attorney

General has always been a party to this case, although an inactive one,

since his predecessors as Attorneys General were made parties. Grad-

dick v. Newman, U.S. 102 S.Ct. 4, 10 (1981) (opinion of

Justice Rehnquist). The Attorney General may therefore properly ap-

peal the district court’s July 15 order. All of the defendants and the

receiver have appealed the district court’s December 14 order.

The court faced a similar scenario in Southern Bell Tel.

& Tel. Co. v. United States, 541 F.2d 1151 (Sth Cir. 1976),

and determined that “the matter in controversy ha[d]

become passe” because the defendants had “complied with

all the orders of the District Court and all the orders [had]

expired.” /d. at 1154. It therefore dismissed the appeal as

moot. We do likewise with the appeal of the district court’s

July order.

The appeal of the December 14 order does not suffer the

same fate, however. Having granted a stay of that order,

we are faced with a live controversy and consider the

December order on its merits.'4

Before discussing the propriety of the December 14

order, we must properly characterize it. All of the parties,

and apparently the district court, regarded that order as a

means of “enforcing” the October 9, 1980, consent decree.

This view was mistaken. The December 14 order was a

distinct mandatory injunction in which the court framed

relief that was beyond the contemplation of the consent

decree: the immediate release of 352 state prisoners. We

now explain how we arrive at this conclusion.

The consent decree directs the State to limit the state in-

mate population of county jails. How the State is to ac-

complish this is left to the State. If the State seeks to com-

ply with the decree by freeing prisoners, it alone would

determine who is to be released and the conditions of

release. The plaintiffs, if they think the State is failing to

'*That we review the December order on its merits buttresses our

decision to dismiss the appeal of the July order as moot, for it

demonstrates that the July decree did not present an issue “capable of

repetition, yet evading review.” Preiser v. Newkirk, 422 U.S. 395, 403,

95 S.Ct. 2330, 2335 (1975).

9a

take the action required by the consent decree and wish the

court to intervene, have available a traditional equitable

remedy. They can initiate contempt proceedings by mov-

ing the court to issue an order to show cause why the State

should not be held in civil contempt. At the show cause

hearing, the State would be entitled to demonstrate that it

had complied with the court’s decree, or why it should not

be adjudged in contempt, or if adjudged in contempt, why

sanctions should not be imposed. The State would also

have the right to move the court to modify the consent

decree. '*

If the court finds that the State has failed to comply

with the consent decree and holds the State in contempt, '®

a variety of sanctions would be available to the court,

'SWhile the State could not attack the validity of the underlying

consent decree at a show cause hearing, AMF Inc. v. International

Fiberglass Co., 469 F.2d 1063 (ist Cir. 1972), it would of course be

free to move the court to modify that decree based on changed condi-

tions. A motion to modify could be heard contemporaneously with

the show cause order and could bear on the outcome of the contempt

hearing.

‘6At oral argument, counsel for the State suggested that an ad-

judication of contempt would never be appropriate in this case be-

cause the State’s good faith efforts at compliance with the consent

decree would preclude a finding of wilfulness which, according to the

State, is a necessary element of civil contempt. The Supreme Court

long ago disposed of this contention:

The absence of wilfulness does not relieve from civil con-

tempt. Civil as distinguished from criminal contempt is a

sanction to enforce compliance with an order of the ~ourt

or to compensate for losses or damages sustained by

reason of noncompliance. ... Since the purpose is

remedial, it matters not with what intent the defendant did

the prohibited act.

McComb vy. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497,

499 (1949) (citations omitted). See Louisiana Education Assn. v.

Richland Parish School Bd., 421 F.Supp. 973, 976 (W.D.La. 1976)

aff'd 585 F.2d 518 (Sth Cir. 1978).

10a

depending on the circumstances. One sanction might be to

incarcerate one or more of the defendants, or the receiver.

While a federal court is always reluctant to coerce com-

pliance with its decrees by incarcerating a state official, if

that official is in contempt there can be no doubt of the

court’s authority to do so. See Hutto v. Finney, 437 U.S.

678, 690, 98 S.Ct. 2565, 2573 (1978). State officials are not

above the law.

Another sanction might be to fine the recalcitrant of-

ficials. “Civil contempt may . . . be punished by a remedial

fine, which compensates the party who won the injunction

for the effects of his opponent’s noncompliance. . . . If [a

state official] refuses to adhere to a court order, a finan-

cial penalty may be the most effective means of insuring

compliance.” /d. at 691, 98 S.Ct. at 2573.

In this case the plaintiffs chose to ignore equiiy’s time-

honored contempt procedure in their effort to obtain the

State’s compliance with the October 9, 1980, decree. They

did not seek the imposition of sanctions against the state

officials who were charged with reducing the prisoner

population in the county jails; instead, they asked the

court itself to assume that responsibility and to effect the

reduction. The plaintiffs simply moved the court to select

the prisoners to be released and to release them. By so

moving, the plaintiffs sought new and extraordinary in-

junctive relief that was beyond the scope of the consent

decree.

The court responded by ordering the Department of

Corrections to identify several hundred prisoners who

were, in the eyes of the Department, most worthy of

release. The court then decided who among those iden-

tified should be released, ordered the release of 352

prisoners, and directed the Alabama Board of Pardons

and Paroles to supervise the releasees as it would prisoners

the Board paroled. None of this relief was provided in the

consent decree, either expressly or by implication. Thus, in

our view, the district court’s order was a discrete man-

datory injunction. The question thus becomes whether the

district court had before it on December 14 the necessary

predicate for a mandatory injunction and, if so, whether

the court abused its discretion in fashioning the relief it

did.

To be entitled to permanent injunctive relief from a con-

stitutional violation, a plaintiff must first establish the fact

of the violation. Rizzo v. Goode, 423 U.S. 362, 377, 96

S.Ct. 598, 607 (1976). He must then demonstrate the

presence of two elements: continuing irreparable injury, if

the injunction does not issue, and the lack of an adequate

remedy at law. Beacon Theatres, Inc. v. Westover, 359

U.S. 500, 506, 79 S.Ct. 948, 954 (1959). If the plaintiff

makes such a showing, the court may grant injunctive

relief, but the relief must be no broader than necessary to

remedy the constitutional violation. See Newman vy.

Alabama, 559 F.2d 283, 288 (Sth Cir. 1977), cert. denied,

438 U.S. 915, 98 S.Ct. 3144 (1978). We now test the

district court’s December 14 injunction against these re-

quirements.

First, the plaintiffs more than adequately established a

constitutional violation requiring redress. In Newman v.

Alabama, 466 F. Supp. at 630, the district court specifical-

ly found that the confinement of Alabama inmates in

county jails violated the Constitution. That decision was

not appealed. Moreover, the October 9, 1980, consent

order, which, of course, is binding on the State, recogniz-

ed the unconstitutional overcrowding in the county jails by

specifying measures to alleviate it. Also significant is tl.at

the State never moved the district court to modify its fin-

dings concerning overcrowding; thus, as the case came

12a

before the district court on December 14, 1981, the fact of

unconstitutional overcrowding of state prisoners in county

jails could not be disputed.

We conclude, however, that the plaintiffs did not carry

their burden of showing the inadequacy of their legal

remedy.'’ For the plaintiffs had a complete legal remedy

had they only availed themselves of it. The October 9,

1980, consent decree, which set limits on state inmate

population in county jails, represented effective relief for

the established constitutional violation. Certainly, the

plaintiffs must concede that if the State had complied fully

with the consent decree, the unconstitutional over-

crowding in the county jails would have been remedied.

And, as we have earlier recounted, the law provided the

plaintiffs a procedure for obtaining full compliance with

that decree in the event the State refused to abide by its

terms: a civil contempt proceeding and coercive sanctions.

Thus, the plaintiffs possessed all the legal relief they could

have expected: a consent decree containing a remedy for

the constitutional violation and the means for realizing

that remedy.

When the plaintiffs sought the injunctive relief the

district court gave them on December 14, they made no

showing that the State, if adjudged in contempt for

violating the consent decree, would not respond to any of

the traditional sanctions available to the court to coerce

compliance; the court was therefore not presented with a

situation in which its contempt power might be ineffec-

'7In this context, the issues of inadequate legal remedy and ir-

reparable injury are closely related; we thus do not address the ir-

reparable injury element separately.

13a

tual.'* The plaintiffs plainly were not entitled to a com-

pletely new injunction whose issuance depended on a

demonstration of inadequate legal remedy, and the district

court erred in granting it.

Even if the plaintiffs had established the proper

predicate for an injunction, the December 14 order would

nevertheless fall since it involved the court in the operation

of the State’s system of criminal justice to a greater extent

than necessary to remedy the constitutional violation. A

federal court, when fashioning a remedy to redress con-

stitutional violations in a prison, must recognize that it is

ill equipped to involve itself intimately in the administra-

tion of the prison system. Procunier v. Martinez, 416 U.S.

396, 405, 94 S.Ct. 1800, 1807 (1974). Deference to prison

authorities is especially appropriate when state penal

facilities are involved. Jd., 94 S.Ct. at 1807.

The district court’s December 14 injunction is defective

in several respects. First, in determining which prisoners to

release, the court utilized its previously ordered lists of in-

mates that the Department of Corrections believed to be

“least deserving of further incarceration.” Under Alabama

law, however, the Board of Pardons and Paroles, and not

the Department of Corrections, determines inmate release

eligibility, as well as all other parole policy. In ordering the

Department of Corrections to determine which prisoners

the court should consider for release, the district court

overrode the division of authority between the Depart-

ment of Corrections and the Board of Pardons and

'8It could be argued that a conclusion that the court’s contempt

power is ineffectual cannot be drawn until the court first exercises that

power and sanctions fail to produce compliance with the underlying

injunctive order.

l4a

Paroles, and intruded upon Alabama parole policy.'®

Moreover, by actually naming the prisoners to be released

and ordering that their release be subject to Alabama

parole authority, the court further usurped the functions

of Alabama prison and parole officials, who were reduced

to mere functionaries in carrying out the court’s com-

mands.

Finally, the court’s overreaching, in directing the Board

of Pardons and Paroles to supervise the releasees as if they

had been paroled under Alabama law and in ordering the

Board to accelerate the parole eligibility of unreleased

prisoners, becomes even more apparent when we consider

that the Board of Pardons and Paroles was not, and is not,

a party in this case.

Of course, our conclusion that the provisions of the

district court’s December injunction were overly broad is

only correct if the court could have taken other, less in-

trusive, action. We find that it could have. We are again

drawn to the October 9, 1980, consent decree which sets

limits on state inmate population in county jails. This con-

sent order gives the plaintiffs complete relief without un-

necessarily entagling the district court in the administra-

'%Alabama law of parole provides that:

No prisoner shall be released on parole merely as a

reward for good conduct or efficient performance of

duties assigned in prision, but only if the board of pardons

and paroles is of the opinion that there is reasonable pro-

bability that, if such prisoner is released, he will live and

remain at liberty without violating the law and that his

release is not incompatible with the welfare of society.

ALA, CODE tit. 15-22-26 (1975) (emphasis supplied). By ordering the

Department of Corrections to submit names of prisoners whom if

believed worthy of release, the district court directly contradicted

Alabama law, which vests all parole authority and discretion in the

Board of Pardons and Paroles.

15a

tion of the prison and parole systems; it charges the

lawfully constituted Alabama state officials with conform-

ing the jail population to the decreed limits. That this is

the proper course cannot be questioned:

[A] district court in exercising its remedial

powers may order a prison’s population reduced

in order to alleviate unconstitutional conditions,

but the details of inmate population reduction

should largely be left to prison administrators.

This is consistent with the policy of minimum in-

trusion into the affairs of state prison ad-

ministration that the Supreme Court has ar-

ticulated for the federal courts. See Williams v.

Edwards, 547 F.2d 1206, 1212 (5th Cir. 1977).

Ruiz v. Estelle, 650 F.2d 555, 570-71 (Sth Cir. 1981).

The consent decree appears to represent the proper

balance between the duty of the district court to remedy

constitutional violations and the right of the State to ad-

minister its prison and parole systems. More importantly,

it places the responsibility for operating a constitutional

prison system where it belongs: with the State. It is the

State that must, and should, make the tough, even agoniz-

ing, decisions how to meet the terms of the consent decree.

In ordering the release of state inmates, the district court,

in effect, relieved the State of its responsibility to follow

the law, while at the same time involving itself imper-

missibly in the operation of the Alabama prison and

parole systems.

Our reasoning is informed and supported by the

analysis the former Fifth Circuit employed when it review-

ed this case in 1977. In Newman v. Alabama, 559 F.2d at

288, the court determined that the

real issue is whether in striving to attain constitu-

tional objectives the District Court in a few

16a

respects went impermissibly beyond the re-

quirements of the federal constitution; more

specifically, did the Court supersede the duly

constituted state authorities in the performance

of vital state functions rather than compelling

those authorities to perform those functions in a

constitutional manner? We all understand, of

course, that federal courts have no authority to

address state officials out of office or to fire state

employees or to take over the performance of

their functions. Most assuredly, however, in pro-

per cases a federal court can, and must, compel

state officials or employees to perform their of-

ficial duties in compliance with the Constitution

of the United States.

What was true then remains so now.

In summary, the district court erred in entering the

December 14 injunction since the plaintiffs possessed an

adequate legal remedy in the form of the October 9, 1980,

consent order which was enforceable through the court’s

contempt power. Even if the issuance of an injunction had

been warranted on December 14, the district court abused

its discretion by framing relief which was impermissibly

intrusive on the State’s prerogative to administer its prison

and parole systems.

IV

For the reasons stated, we DISMISS the appeal of the

district court’s July 15, 1981, order as MOOT. The

December 14, 1981, order of the district court is

VACATED and this cause is REMANDED for pro-

ceedings not inconsistent with this opinion.

SO ORDERED.

17a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7606

N. H. NEWMAN, et al,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA, et al,

Amicus Curiae,

versus

STATE OF ALABAMA, et al,

Defendants-Appellees,

CHARLES A. GRADDICK,

Attorney General, State of Alabama,

Movant-Appellant.

Appeal from the United States District Court

for the Middle District of Alabama

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion August 9, 11 Cir., 1982, ___. F.2d ____).

( )

Before MORGAN, TJOFLAT and KRAVITCH, Circuit

Judges

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26), the suggestion for

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

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APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

N. H. NEWMAN, ET AL; )

JERRY LEE PUGH, Etc; )

WORLEY JAMES: ET AL, )

Plaintiffs, )

UNITED STATES OF AMERICA; _)_ CIVIL ACTION

BARRY E. TEAGUE, Etc; ) No. 3501-N

THE NATIONAL PRISON PROJECT, ) ale qoree

Etc; ET AL, aus . ) CIVIL ACTION

Amici Curiae, ) No. 74-203-N

vs.

LARRY D. BENNETT, Etc; ET AL,

)

)

STATE OF ALABAMA; ET AL; )

)

Defendants. )

ORDER

These causes are now submitted to the Court on the

Receiver’s August 28, 1981, request for postponement of

consideration of further release of inmates and upon

Plaintiffs’ September 3, 1981, motion’ to enforce this

Court’s October 9, 1980, Order. A hearing was held on

November 12, 1981, wherein it was stipulated that on that

date there were 1,528 State prisoners confined in city and

county jails. The Order of this Court entered herein Oc-

tober 9, 1980, directed that all State prisoners should be

removed from city and county jails by September 1, 1981.

20a

Although the federal courts do not sit to supervise State

prisons or to interfere with the administration of State in-

stitutions, nevertheless, in certain instances the courts

must intervene and act to prevent violations of prisoners’

fundamental rights. Adams v. Mathis, 458 F.Supp. 302

(M.D. Ala. 1978), aff'd. 614 F.2d 42 (Sth Cir. 1980);

Nicholson v. Choctaw County, Alabama, 498 F.Supp. 295

(S.D. Ala. 1980); McCray v. Bennett, 467 F.Supp. 187

(M.D. Ala. 1978). Indeed, this Court is under a duty to

and will intervene to protect prison inmates from

wholesale infringement of their constitutional rights. Pugh

v. Locke, 406 F.Supp. 318 (M.D. Ala. 1976), aff'd. 559

F.2d 283, cert. den. 438 U.S. 915. See, Procunier v. Mar-

tinez, 416 U.S. at 405-406; Johnson v. Avery, 393 U.S.

483 (1969). Among those rights retained by an inmate is

freedom from conditions which constitute cruel and

unusual punishment in violation of the Eighth and Four-

teenth Amendments. This Court has recognized that occa-

sional temporary excesses in the population of a prison

facility or jail must occur and may occur without violation

of anyone’s constitutional rights. However, the continued

overcrowding of such facilities for an extended time, when

considered in the light of all other circumstances, may

constitute a violation of the constitutional rights of those

inmates so incarcerated. See, Newman v. Alabama, 503

F.2d 1320; William v. Edwards, 547 F.2d 1302; Jones v.

Diamond, 636 F.2d 1364 (Sth Cir. 1981) [en banc]; Rhodes

v. Chapman, ___. U.S. ___., 49 L.W.. 4677 (1981).

The Defendant Department of Corrections is under a

statutory duty to accepi prisoners duly tendered to it for

incarceration. However, it has grossly inadequate facilities

available for said purpose. It is agreed by all parties that

the Alabama Department of Corrections is still out of

compliance with the standards established by this Court

2la

in Newman v. Alabama, supra, and in Pugh v. Locke,

supra (see, Consent Decree entered herein October 9,

1980). It is further stipulated by all parties that most of the

terms of the said Orders should have been met long before

now and that full compliance must ultimately be achieved.

Moreover, this Court recognizes that massive and complex

problems which have built up over a period of years in the

Alabama Prison System cannot be cured overnight. Well-

meaning State officials have been given the choice of

violating State law or possibly the constitutional rights of

certain inmates. Moreover, this Court has attempted to

provide every possible opportunity for the Defendants to

achieve compliance with both State law and the Orders of

this Court within the last nine years.

During this time, the State Department of Corrections

has often been in direct violation of the Orders of this

Court. On October 9, 1980, this Court ordered that by

September 1, 1981, there would be no State inmates in-

carcerated in city or county jails in Alabama. On

November 12, 1981, there were 1,528 State prisoners con-

fined in city and county jails in Alabama. At present, there

are over 1,447 State inmates in city and county facilities.

As noted by this Court on numerous occasions, if and

when the Defendants and or the Receiver cannot or do not

meet the requirements of the Constitution as required by

the terms of the Orders, this Court will take such action as

may be reasonably necessary to protect the rights of

prisoners in the Alabama Prison System.

Therefore, because of the failure of those empowered to

secure needed construction, this Court has a duty to

fashion relief to protect coristitutional rights of citizens.

Hutto v. Finney, 437 U.S. 678, 687. It has been continual-

ly noted by this Court throughout the nine years’ duration

of these cases that, “when a State fails to comply with the

22a

Constitution, the federal courts are compelled to enforce

it.” Newman v. Alabama, 466 F.Supp. 623, 635; Bibb v.

Montgomery County Jail, M.D. Ala., Civil Action No.

76-380-N. This Court is of the opinion that the constitu-

tional rights of the Plaintiff class are in jeopardy and that

any substantial continuation of the incarceration of State

inmates in city and county facilities under conditions and

circumstances now current would probably violate their

constitutional immunity to cruel and unusual punishment.

To avoid this result, this Court is of the opinion that the

only valid substantial relief available to “insure against the

risk of inadequate compliance” (see, Hutto v. Finney,

supra, at 687) and to help relieve the overcrowded condi-

tion of the Alabama Prison System is the release of a

substantial number of those inmates who appear to be

most likely to assume positions of responsibility and trust

outside of prison. For that purpose, this Court will direct

the release of the inmates listed in Appendix A hereto. See,

generally, Costello v. Wainwright, 397 F.Supp. 20 (M.D.

Fla., 1975), aff'd. 525 F.2d 1239 (Sth Cir. 1976), vacated

on rehearing on other grounds 539 F.2d 547 (Sth Cir.

1976) [en banc], rev’d. 430 U.S. 525, aff'd. on remand 553

F.2d 506 (Sth Cir. 1977). This list is composed of inmates

with good conduct records who are approaching normal

release dates within six(6) months of the date of this Order

(Appendix A). In addition, this Court is of the opinion

that the constitutional rights of all Alabama State inmates

will best be preserved by this Court’s Order directing ac-

celeration of the eligibility date of parole of each inmate

who will be eligible for parole consideration any time

within six(6) months of the date of this Order.' It is the

' 'This opinion should not be construed as ordering the parole of any

such inmate. This Court simply recognizes that certain inmates may be

deserving of parole and that a parole of one or more of them in less

time than is normally required would be a factor in protecting the con-

stitutional rights of inmates remaining incarcerated.

23a

opinion of this Court that, to otherwise construe the law in

relation to those named for release or those eligible for ac-

celerated parole consideration, would effect a violation of

the constitutional rights of many inmates in the custody of

the Alabama Department of Corrections. Therefore, it is

ORDERED, ADJUDGED and DECREED by this

Court that on December 22, 1981, the Defendant Depart-

ment of Corrections for the State of Alabama release from

the Alabama Prison System, unless otherwise Ordered,

those inmates listed on Appendix A. The placement of

these inmates on Appendix A has been made on the basis

of criteria acceptable to the Alabama Prison Ad-

ministrators.? Any inmate hereby ordered released shall be

released on parole for the balance of his sentence and shall

be subject to the general conditions of parole specified in

CODE OF ALABAMA, § 15-22-29(b)[1975], and any

special conditions which have been, or may hereafter be,

prescribed by the Alabama Board of Pardons and Paroles.

Nothing contained in this Order shall be construed to pro-

hibit the Alabama Board of Pardons and Paroles from

promulgating additional specific conditions of parole with

respect to any inmate released under the terms of this

Order. In addition, nothing herein shall be construed to

affect the otherwise normal functioning of Alabama Par-

dons and Paroles procedures. It is further

ORDERED by this Court that those inmates who will be

eligible for parole consideration any time within six(6)

months of the date of this Order be given an accelerated

parole eligibility date so as to allow their immediate con-

?This statement should not be construed as intimating that any of-

ficials of the State of Alabama in any way approves of the terms of

this Order.

24a

sideration by the Alabama Board of Pardons and Paroles.

It is further

ORDERED by this Court that any inmates listed on Ap-

pendix A who are subject to a detainer by the federal

government or another State or county, independent of

any sentence now being served by said inmate, be released

to said detainer subject to all conditions thereof. It is fur-

ther

ORDERED by this Court that any inmate listed on Ap-

pendix A who is presently serving a “split sentence” is

hereby released subject to all the conditions of the proba-

tion portion of said split sentence. Said probation may be

revoked only for cause occurring after the inmate’s release

from the Alabama Prison System. It is further

ORDERED by this Court that any inmate listed on Ap-

pendix A who is under order to pay restitution to his or her

victim is hereby released subject to said obligation to pay

such restitution and such remedies therefor as may be pro-

vided.

DONE this /4th day of December, 1981.

UNITED STATES DISTRICT JUDGE