# Petition — Newman v. Alabama

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1083

## Text

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
i ec kn eek ss sedvedss docecneesnaces (i)
LG CC Eee ES ESDdbvecsvebsvenccccsencoesene (i)
MEE Sie vcclevodadsevtscsccosvoceses (iv)
Na Tl als bans i ke srg ssevivccvecesesss 1
tec sete ete se ae lebaeveséesecceseseceevec 1
CONSTITUTIONAL AND STATUTORY
eS .G \ schheebeecedeccscccccvessees 2
OE OME GG ove ss cccvccsccccccccccccccsees 3
ARGUMENT IN SUPPORT OF GRANTING
Eee eure We Nees heals etre vacevtoadcresees 7
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,
TEES cdg xis ad bias Oeb 64 bob Vee s ares 5 ddhees aor 6

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
i ea ss od bRe bas oc ed oer adnccedssee 2,3, 11
Fourteenth Amendment ..........cccccsccccccccvces 2,3, 11
STATUTES AND RULES
ES ccs ies i abbiees sanbetawereccse sacs 2
err eer eee eee eT EEE EE 3
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

19a
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0457%3A1. Public record. Not legal advice.