Petition — Di Buono v. Fauver
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88-1217 NUY 28 1983
aa Ls — L STEVAS,
in the
Supreme Court
of the
United States
OCTOBER TERM, 1983
V. WILLIAM DI BUONO, Assignment Judge,
et als., Petitioners
VS.
WILLIAM H. FAUVER, Commissioner,
Department of Corrections,
State of New Jersey
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
ROBERT C. DOHERTY
County Counsel for the County of
Union County Administration Building
Elizabethtown Plaza
Elizabeth, New Jersey 07207
(201) 527-4250
Attomey for Petitioners
QUESTIONS PRESENTED FOR REVIEW
1. Whether constitutional rights of inmates
and jail staff at a County Jail and constitutional
rights of the citizens of the County who,
through government officials operate the Jail,
are violated by double celling inmates in com-
bined cell and adjacent corridor space which
measures, at most, 40 square feet of space per
inmate for virtually 24 hours a day.
2. Whether the remedy fashioned by the
District Court in ordering the State Commis-
sioner of Corrections to remove all State Prison
sentenced inmates from the County Jail and
place them in the more spacious State facilities
in order to maintain a manageable population
limit at the County Jail was a proper exercise of
the Federal Court's power.
TABLE OF CONTENTS
Page
EN 2
Eg oc tage tees een eee. 2
Constitutional Provisions Involved .................. 2
es, yew sc ce hs seasons 4
Reasons for Granting the Petition............. oie oe
TABLE OF AUTHORITIES
Cases Page
Anderson v. Mt. Clemens Pottery Co.,
EINE, in 'n on acaba ch esha ew ee eee 11
Bell v. Woltish,
ee 56
Benjamin v. Maicoim,
495 F. Supp. 1357(S.D.N.Y.1980).............. 7
Campbell v. Cauthron,
G63 F. 20503 (6th Cir. 1980)... eee 7
Campbell v. McGruder,
554 F. Supp. 562 (D. D.C. 1982 ) on remand from
580 F. 2d 521(D.C. Cir. 1978).................. 7
Fischer v. Winter,
564 F. Supp. 281 (N.D. Cal. 1983).......... MAA
Griswold v. Connecticut,
re RS 6a ho a o's oven cee ee ete ee 10
Gross v. Tazewell County Jail,
533 F. Supp. 413 (W.D. Va. 1982)............... 7
Hutchings v. Corum,
501 F. Supp. 1276 (W.D. Mo. 1980).............. 7
Jones v. Diamond,
636 F. 2d 1364 (5th Cir.) en banc cert. dism.
OU NUD cons Scacchi weceeccacees 7
Lareau v. Manson,
Sn eae. WEED ook hu Sen Oeeane 6
Lemon v. Kurtzman,
WEN Gee CURCNED vk coc view c cs eanpues cones
Lock v. Jenkins,
Re fe le 2) ee rr
Martino v. Carey,
563 F. Supp. 984 (D. Or. 1983) .................
McMurry v. Phelps,
533 F. Supp. 742 (W.D. La. 1982)... ............
Rhodes v. Chapman,
452 U.S. 337 (1981) . .
Swann v. Charlotte-Mecklenburg Board of Education,
ee UI oS. oo nics Ger ee odines
Vasquez v. Gray,
523 F. Supp. 1359 (S.D.N.Y. 1981) ..............
Zenith Radio Corp. v. Hazeltine Research, Inc.,
SEE, PORTE isos car ees oa eee eet es
Constitution:
United States Constitution:
a EP ee rere are ATC arn
oe , Peer re rr rere
EID 6s wen psn hu eee weave yen
Fourteenth Amendment ..................00055
Miscellaneous:
Fed. Rules of Civ. Procedure 53(e)(2)............
IV
NO.
“in the
Supreme Court
of the
United States
OCTOBER TERM, 1983
=
V. WILLIAM DI BUONO, Assignment Judge.
et als., Petitioners
vs.
WILLIAM H. FAUVER, Commissioner,
Department of Corrections,
State of New Jersey
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Robert C. Doherty, County Counsel of the County of
Union and a member of the Bar of this Honorable Court, on
behalf of V. William Di Buono, Assignment Judge, et als.
(hereinafter County Defendants), the petitioners herein, pray
that a writ of certiorari issue to review the judgment: of the
United States Court of Appeals for the Third Circuit entered
in the above-entitled case on August 11, 1983.
OPINIONS BELOW
The August 11, 1983 opinion of the Court of Appeals,
whose judgment is herein sought to be reviewed, is reported
at 713 F. 2d 984 (C.A. 3-1983) and is reprinted in the
separate Appendix to this Petition. (App. 2 ). The prior opi-
nion of the United States District Court for this District of
New Jersey, also reprinted in the Appendix (App. 42 ), is
reported at 537 F. Supp. 993 (D.N.J.-1982).
JURISDICTION
The judgment of the Court of Appeals for the Third Cir-
Cuit was entered on August 11, 1983. (App. 40 ). A timely
petition for rehearing en banc was denied on October 5,
1983 by a 64 vote with three Judges joining in an opinion
dissenting from denial of rehearing. (App. 79 ). The jurisdic-
tion of the Supreme Court is invoked pursuant to 28 U.S.C.
§1254 (1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment to the Constitution of the United
States provides in pertinent part as follows:
“nor shall (any person) be deprived of ... liberty ...
without due process of law ...”’
The Eighth Amendment to the Constitution of the
United States provides in pertinent part as follows:
“cruel and unusual punishments (shall not be) in-
flicted.”’
The Ninth Amendment to the Constitution of the United
States provides that:
“The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage
others retained by the people.”’
The Fourteenth Amendment to the Constitution of the
United States provides that:
‘Nor shall any State deprive any person of ... liber-
ty ... without due process of law.”’
STATEMENT OF THE CASE
This is a class action brought by inmates, both pre-trial
detainees and sentenced prisoners, of the Union County
Jail in Elizabeth, New Jersey, alleging that the totality of the
conditions at the Jail due to severe overcrowding violated
the constitutional rights of the inmates in both classes. The
inmates sought declaratory and injunctive relief from the
U.S. District Court for the District of New Jersey and their
Complaint was brought pursuant to 42 U.S.C. §1983; U.S.C.
§ 1343 (3) and (4); and 28 U.S.C. §2201 and §2202.
The Jail officials (County Defendants) filed their Answer
to the Complaint together with a Third Party Complaint
against the New Jersey Commissioner of Corrections at-
tributing any unconstitutional conditions at the Jail to the
acts and omissions of the Commissioner. On October 22,
1981 the Plaintiffs and County Defendants entered into a
Consent Judgment resolving the matter by setting a popula-
tion maximum at the Jail based upon one inmate per
general population cell and providing procedures for main-
taining that population level. Contemporaneously therewith,
the County Defendants sought and received an Order to
Show Cause why the Commissioner of Corrections should
not be compelled to remove all State sentenced prisoners in
the County Jail in order to permit the County to comply with
the Consent Judgment.
The District Court appointed a Specia! Master who con-
ducted investigatory tours of the facility and hearings attend-
ed by the parties. He ultimately recommended a finding of
unconstitutional conditions at the Jail and proposed as a
remedy the continued removal by the State Commissioner
of Corrections of all State sentenced inmates from the Coun-
ty Jail. The District Court accepted the Report and rendered
its Opinion and order adopting the remedy suggested and
declining to accept the arguments raised by the Commis-
sioner to provide double celling at the Jail rather than order-
ing the removal of the State sentenced inmates which, in ef-
fect, prohibited double celling at the Jail in the general
population cells.
The Court of Appeals reversed (App. 2). A petition
for rehearing en banc was denied with a strong dissent by
four judges, three of whom joined in the dissenting opinion
(App. 82-109). Judge Gibbons, in the dissent, noted that the
holding of the majority is in conflict with other Circuit decr
sions and that
“by disregarding the Master's findings, and
fragmenting the case as if it did not involve an in-
terrelated set of interolerable conditions, all
resulting from overcrowding, the panel opinion has
applied bits and pieces of language in Bell v.
Wolfish, 441 U.S. 520 (1979) in a manner the
Supreme Court never intended.” (App. 79).
Further, Judge Gibbons noted that
“The minimum standards announced in the panel
opinion for conditions of pre-trial detention and
post conviction confinement in this Circuit are
more severe than any that have been tolerated in
any other locality in the United States.’’
(App. 82).
REASONS FOR GRANTING THE WRIT
ISSUE |: THE DECISION BELOW CONFLICTS WITH
DECISIONS OF THIS COURT CONCERNING
INMATE RIGHTS SECURED UNDER THE
FIFTH, EIGHTH AND FOURTEENTH AMEND-
MENTS.
A. Pre-Trial Detainees
The Court of Appeals misapplied the guidelines set by
Bell v. Wolfish, 441 U.S. 520 (1979) concerning the cond
tions of confinement for pre-trial detainees in a County Jail
facility. The Court merely viewed one of the conditions found
unconstitutional, viz., placing a mattress on the floor of a
general population cell, and found de novo that by adopting
the Commissioner's recommendation of a double bunk, this
condition would be removed.
The Court of Appeals, however, neglected to consider
the totality of conditions found by the Special Master. These
included, along with the mattresses on the floor: 1) absence
of recreation; 2) reduction in visitation; 3) delays in ad-
ministering programs; 4) inadequate lighting; 5) inability to
provide clean clothing daily; 6) absence of medical screen-
ing — all caused by the overcrowding and population level of
the Jail. As noted by Judge Gibbons in his dissenting opinion
to the Denial for Rehearing, the double celling will only ex-
acerbate the problem by increasing dramatically the popula-
tion level at the Jail (App. 105-106).
In sum, the panel decision has embarked on an indepen-
dent method of Due Process inquiry on inmate rights for the
Third Circuit. It as chosen to select one item found below to
be unconstitutional, addresses a remedy to it alone, and ig-
nores that practical ramifications of that remedy to all the
other factors in a totality context by the Special Master and
the District Court. Such an action is unique, it is submitted,
and in direct conflict with the string of decisions applying Bell
v. Wollish, supra which are as follows: Lareau v. Manson,
651 F. 2d 96 (2d Cir. 1981); Lock v. Jenkins, 641 F. 2d 488
(7th Cir. 1981); Jones v. Diamond, 636 F. 2d 1364 (5th Cir.)
(en banc), cert. dism. sub. nom. Ledbetter v. Jones, 453 U.S.
950 (1981); Campbell v. Cauthron, 653 F. 2d 503 (8th Cir.
1980); Fischer v. Winter, 564 F. Supp. 281 (N.D. Cal. 1983);
Martino v. Carey, 563 F. Supp. 984 (D. Or. 1983); Campbell
v. McGruder, 554 F. Supp. 562 (D. D.C. 1982), Campbell v.
McGruder, 554 F. Supp. 562 (D. D.C. 1982), on remand from
580 F. 2d 521 (D.C. Cir. 1978); McMurry v. Phelps, 533 F.
Supp. 742 (W.D. La. 1982); Gross v. Tazewell County Jail,
533 F. Supp. 413 (W.D. Va. 1982); Vasquez v. Gray, 523 F.
Supp. 1359 (S.D. N.Y. 1981); Hutchings v. Corum, 501 F.
Supp. 1276 (W.D. Mo. 1980); Benjamin v. Malcolm, 495 F.
Supp. 1357 (S.D.N.Y. 1980).
B. Sentenced Inmates
The same conditions heretofore outlined at the Union
County Jail for pre-trial detainees also apply to sentenced in-
mates. Rhodes v. Chapman, 452 U.S. 337 (1981). For the
same reasons as set forth above the Court of Appeals failed
to follow the established guidelines of the Supreme Court. in
determining the Eighth Amendment consequences of jail
conditions:
“No static test can exist by which courts
determine whether conditions of confinement
are civil and unusual, for the Eighth Amend-
ment must draw its meaning from the evolv-
ing standards of decency that mark the pro-
gress of a maturing society.’’ 452 U.S. at 346.
In criticizing the District Court's analysis of Eighth
Amendment considerations which led to the conclusion said
Amendment was violated, the Court of Appeals inexplicably
Stated that the Court
“failed to consider the totality of cir-
cumstances relevant to determining whether
7
conditions have fallen to the level at which the
shelter of inmates is unfit for human habita-
tion..”’
(App. 32).
Again, we must refer to Judge Gibbons vigorous dis-
sent and in determining what the Supreme Court meant by
the phrase “evolving standards of decency that mark the
progress of a maturing society’ we must compare the
Federal Standards under the Animal Welfare Act for non-
human primates (App. 82-83).
Further, the Court of Appeals again merely considered
the one aspect found unconstitutional — the mattress on the
floor — and failed to consider the practical ramifications that
would be caused by the increased population level at-
tributable to double bunking.
REASONS FOR GRANTING THE WRIT
ISSUE Il: CONSTITUTIONAL RIGHTS OF THE PEOPLE
OF THE COUNTY OF UNION AND THEIR
EMPLOYEES PROTECTED UNDER THE
NINTH AMENDMENT WILL BE VIOLATED IF
THE DECISION APPEALED FROM IS ALLOW-
ED TO STAND
While this writer readily admits the paucity of precedent
or of any cases similar to this latter point it is a point which
we honestly feel should be thoroughly developed by legal
research and briefs outside of the time constraints
necessarily imposed on a petition for certiorari.
It is respectfully urged that there is a fundamental right
of the citizens of a County, the “people’’ sovereign and
supreme under our form of government, to be safe and
secure in their homes. (Indeed the Fourth Amendment
enumerates a specific right in the context of search and
seizure.) We urge here, however, the concept of penumbral
guarantees to establish these rights which would, in part, af-
fect the above-referenced Fourth Amendment and the Four-
teenth Amendment wherein equal protection of the laws is
provided.
The point to be developed is that the people of the
County have a right to have a safe and secure jail, and one
that meets constitutional standards. In part, this would pro-
tect the people and their employees from any physica! harm
or damage caused by a riot, such as previously occurred
during the pendency of this litigation, and resulting escape
into the streets of dangerous persons; in other part, the peo-
ple have a right to be secure from the unnecessary financial
damage that could be visited upon them by virture of main-
taining an unconstitutional jail pursuant to such statutes as
42 U.S.C. 1983 et seq.
The concept of penumbral guarantees is not new and
has found its most famous expression in Griswold v. Con-
necticut, 381 U.S. 479 (1965). While generally the concept is
raised in cases dealing with a right to privacy we would like
to develop the point that it can likewise extend to other,
perhaps more novel, fundamental rights as well.
In addition, the people of the County have the right to
expect and provide safe working conditions for their jail staff.
An environment that packs human beings into space unfit,
by Federal Standards, for non-human primates, can only
Cause tensions and frustrations to rise in the inmates which
can lead to clear and continous danger to jail personnel and
threats to their safety.
10
REASONS FOR GRANTING THE WRIT
ISSUE Ill: THE COURT OF APPEALS ERRED BY Ex-
CEEDING THE APPROPRIATE SCOPE OF
APPELLATE REVIEW AND ABROGATING
THE BROAD DISCRETION OF THE DISTRICT
COURT TO FASHION A PROPER REMEDY.
The Supreme Court has clearly stated that “Appellate
Courts must constantly have in mind that their function is not
to decide factual issues de novo."’ Zenith Radio Corp. v.
Hazeltine Research Inc., 395 U.S. 100, 123 (1969). Further,
Fed. R. Civ. P. 53 (e) (2) provides that the findinas of fact by
a Special Master shai/ be accepted unless clearly erroneous.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 689
(1946).
The arguments raised by the Commissioner in his ap-
peal dealt with the very matters considered by the Special
Master, and rejected by him as well as rejected by the District
Court. The Court of Appeals, however. de novo found as a
fact that the Special Master's recommendations were wrong
and the Commissioner's remedial scheme (double bunking)
was preferable.
It is respectfully submitted that such action was an im-
permissable de novo fact finding mission by the Court of Ap-
peals panel.
A District Court has wide discretion in fashioning a
remedy, once a right and violation thereof have been shown.
Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1, 15 (1971). In Lemon v. Kurtzman, 411 U.S. 192, 200
(1973) this Court held that when “shaping equity decrees,
the trial Court is vested with broad discretionary power: ap-
pellate review is correspondingly narrow’’.
11
The scope of the remedy fashioned by the District Court
was directly related to the nature of the violation. The direct
cause of the violation was the number of inmates housed in
the facility, and not the method in which they were housed.
The effects of the large population being housed were the
conditions complained of, viz. sleeping arrangements,
recreation, visitation, clothing, services and the like.
The cause of the large population, as found by the
Special Master, was the refusal by the Commissioner of Cor-
rections to remove from the County Jail the State sentenced
inmates.
Thus, by ordering the removal of the State sentenced
inmates, the District Court fashioned a remedy uniquely
Suited to the direct cause of the violation. By so doing, the
District Court acted within the parameters of reasonable
discretion. Conversely, by conducting a de novo considera-
tion of the facts and ordering an alternate remedy. the Cir-
cuit panel exceeded the proper scope of Appellate review
CONCLUSION
For the foregoing reasons, as well as any additional
reasons presented by other parties who may seek certiorari
to review the decision of the Third Circuit, the petition for cer-
tiorari should be granted.
Respectfully submitted,
ROBERT C. DOHERTY, ESQ.
Union County Counsel
Department of Law
Administration Building
Elizabethtown Plaza
Elizabeth, New Jersey 07207
(201) 527-4250
oe 4 Pare
ROBERT C. DOHERTY
Appendix
INDEX
Page
Opinion of the United States Court of Appeals
3 ds I re Ae 8 ioe SEA 2
Opinion of the United States District Court
for the District Court of New Jersey................ 42
Order Denying Rehearing and Opinion.............. 79
App. 1
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 82-5310
UNION COUNTY JAIL INMATES, TIMMIE LEE BARLOW,
ELBERT EVANS, JR., RAYMOND SKINNER, JAMES
WYSOCKI, on behalf of themselves and all other
persons similarly situated
V.
V. WILLIAM DI BUONO, Assignment Judge; JOSEPH G.
BARBIERI, Criminal Assignment Judge; CUDDIE E.
DAVIDSON, JR., Bail Judge; as Representatives of the
Judges of the Criminal Courts of Union County; RALPH
FROELICH, Union County Sheriff; JAMES SCANLON,
Jail Administrator; THOMAS HEFFERSON, Jail War-
den; ROSE MARIE SINNOT, Chairman, Board of
Chosen Freeholders; GEORGE ALBANESE, County
Manager; and their Successors in Office, in their official
capacities, Randolph Pisane and Louis J. Coletti
V.
WILLIAM H. FAUVER, Commissioner, Department of Cor-
rections, State of New Jersey, and his Successor in his
Official capacity
William H. Fauver, Commissioner,
New Jersey Department of Corrections,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(Civil Action No. 81-863)
App. 2
Argued December 14, 1982
Before: HUNTER and GARTH, Circuit Judges
and WEBER, District Judge*
Irwin |. Kimmelman
Attorney General of New Jersey
Joseph T. Maloney (Argued)
Deputy Attorney General
Michael R. Cole
Of Counsel
Richard J. Hughes Justice Complex
CN 112
Trenton, New Jersey 08625
Attorneys for Appellant
Joseph H. Rodriguez
New Jersey Public Advocate-Defender
Office of Inmate Advocacy
T. Gary Mitchell (Argued)
Director, Office of Inmate Advocacy
Phyllis G. Warren
Assistant Deputy Public Defender
Department of the Public Advocate
Hughes Justice Complex, CN 850
Trenton, New Jersey 08625
Attomey for Union County
Jail Inmates, Barlow, Evans,
Skinner, Wysocki, et al.
*Honorable Gerald J. Weber, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
App. 3
Robert C. Doherty (Argued)
County Counsel for the
County of Union
Administration Building
Elizabethtown Plaza
Elizabeth, New Jersey 07207
Attorney for Appellees, Froehlich,
Scanlon, Jefferson, Sinnott,
Albanese and their Successors in
Office, in their official capacities
OPINION OF THE COURT
GARTH, Circuit Judge.
I.
This case raises serious and complex questions of the
constitutionality of conditions under which pre-trial detainees
and sentenced inmates are confined at the Union County
Jail (the Jail). All parties agree that the Jail is seriously over-
crowded and dispute exists only as to whether that over-
crowding and the conditions that result from it are so shock-
ing that confinement in the Jail amounts to punishment of
the pre-trial detainees in violation of the due process clause
or to cruel and unusual punishment of the sentenced in-
mates in violation of the Eighth Amendment. The district
court held that the conditions are unconstitutional for both
classes of inmates and that the unconstitutionality could only
be remedied if the Commissioner of the Department of Cor-
rections of the State of New Jersey removed those inmates
sentenced to state prison. We cannot agree.
On March 25, 1981, inmates of the Union County Jail
(hereinafter inmates) filed this civil rights action under 42
App. 4
U S.C. §1983. alleging that the Jail was over-populated' and
that the “totality of conditions” at the Jail violated the in-
mates’ constitutional right to due process and equal protec-
tion of the laws and their right to be free from cruel and
unusual punishment. The complaint sought a declaration
that the conditions at the Jail were unconstitutional and an
injunction ordering the County to reduce the population to
constitutional levels. The complaint was brought as a class
action, the class consisting of all persons who were then, or
who during the pendency of the suit would become. in-
carcerated in the Jail. The class, certified by the district
court. included pre-trial detainees? (inmates awaiting trial
and not considered bailworthy) and inmates sentenced to
terms either in the Jail or in state prison. The complaint nam-
ed as defendants various judges.? administrators of the jail.
and county officials (hereinafter known collectively as the
County).
On April 3, 1981. the County filed an answer to the
complaint, admittyng that the inmates were held in the over-
1. The State of New Jersey is in the midst of a serious statewide
prison overcrowding emergency. See Exec. Order No. 106 (Byrne) June
19, 1981), No. 108 (Byrne) (September 11. 1981). No. 1 (Kean) (January
20. 1982). No. 27 (Kean) (May 20. 1982). No. 43 (Kean) (July 15. 1983). As
a result of New Jersey's new criminal code. 23° more incarcerative
sentences were imposed in the first six months of 1981 than during the
comparable period in 1980. and the length of such sentences significant-
ly increased. Union County Jail Inmates v. Scanlon. 537 F. Supp. 993
996 &n. 3(D.NJ._ 1982) opinion below) (hereinafter Union County). Con-
sequently, prison population was projected to increase 38% from 1981 to
1982. id. at 996 n. 5. The state prison system is filled to 117% of its
design capacity for maximum and medium security inmates and the jail
systems of the other counties in the State are also beyond design capacr
ty Construction of new correctional facilities has not kept pace with the
demand for prison space /d at 996.
2 On February 15, 1982. 57% of the Jail population consisted of
pre-trial detainees. Union County. 537 F. Supp at 999
3. The acuion against the various judges was later dismissed
App 2a
App. 5
crowded conditions specified in the complaint. In a third-
party complaint filed on the same day against the Commis-
sioner of the New Jersey State Department of Corrections
(the Commissioner), the County attributed any unconstitu-
tionality of conditions at the Jail to overcrowding resulting
from the refusal of the Commissioner to accept for custody
those prisoners who had been sentenced to state prison.
The County argued that, pursuant to N.J. Stat Ann.
2C:43-10(e) (West 1982), the Commissioner was required to
remove from county facilities, within 15 days after sentenc-
ing, those inmates sentenced to terms in state correctional
facilities (state prisoners). The County sought a declaration
that the Commissioner's refusal to accept state prisoners
was unconstitutional and sought an injunction permanently
preventing him from refusing to take custody of state
prisoners.
On June 19, 1981, responding to the state-wide prison
overcrowding problem, Governor Byrne issued Executive
Order No. 106,¢ in which he declared that overcrowded con-
by Governor Byrne on September 11, 1981 (No. 108) and by Gover-
nor Kean on January 20, 1982 (No. 1). We take judicial notice of the
fact, not a part of the record below, that Governor Kean extended
the prior Executive Orders on May 20, 1982 (No. 8), on January 10,
1983 (No. 27), and on July 15, 1983 (No. 43) (extending until
January 20, 1984). The New Jersey Appellate Division upheld the
validity of the Executive Order on September 4, 1981. Worthington
v. Fauver, 180 N.J. Super. 368 (App. Div. 1981). On January 6,
1982, the Supreme Court of New Jersey unanimously affirmed the
judgment of the Appellate Division. Worthington v. Fauver, 88 N.J.
183, 440 A.2d 1128 (1982).
Executive Order No. 106 provided in relevant part:
NOW, THEREFORE, | BRENDAN T. BYRNE, Governor of the
State of New Jersey ... do hereby DECLARE a state of emer-
gency and ORDER and DIRECT as follows:
1. | DECLARE, that a state of emergency exists in the various
State and County penal and correctional facilities .
App. 6
ditions in New Jersey's State Prisons and county facilities
constituted a state of emergency, and that flexibility was
needed in the assignment of inmates in order to maximize
NOTE — (Continued)
2. | invoke such emergency powers as are conferred upon
me by the Laws of 1942, Chapter 251 (N.J.S.A. App. A:9-30. ef
seq.) and all amendments and supplements thereto.
3. | hereby DIRECT that the authority to designate the place
of confinement of all inmates confined in all State and/or Coun-
ty penal or correctional institutions shall be exercised for the
duration of this Order by the designee of the Governor
4. | hereby designate the Commissioner of the Department
of Corrections to effectuate the provisions of this Order.
5. The Commissioner may designate as a place of confine-
ment any available, suitable. and appropriate institution or
facility, whether owned by the State. a County. or any political
subdivision of this State, or any other person. for the confine-
ment of inmates confined in the State and/or County penal or
correctional institutions.
8. | further ORDER that the authority of the Commissioner to
designate the place of confinement of any inmate may be exer-
cised when deemed appropriate by the Commissioner
regardless of whether said inmate has been sentenced or is be-
ing held in pretrial dentention except that only persons
sentenced to a prison or committed to the custody of the Com-
missioner may be confined in a State Prison.
10. The Commissioner of Corrections shall develop an ap-
propriate Compensation program for the counties.
11. It shall be the duty of every person in this State. and the
members of the governing body, and of each and every official.
agent. or employee of every political subdivision in the State
and of each member of all other governmental bodies. agen-
cies and authorities in this State of any nature whatsoever. fully
to cooperate in all matters concerning this emergency
14. This Order shall take effect immediately (June 19, 1981)
App. 587a-89a
App. 7
the use of space. The Order suspended the operation of
N.J. Stat. Ann. 2C:43-10(e) (West 1982), and empowered
the Commissioner of Corrections to designate the place of
confinement for both state and county inmates, whether
pretrial detainees or sentenced inmates. The Commissioner,
exercising the discretion conferred by the Executive Order.
designated the Jail as the place of confinement for state
prisoners sentenced in Union County. The Commissioner
determined that the Jail, with modifications of the existing
structure, could accomodate a number of inmates greater
than its rated capacity.
On October 22, 1981 the district court approved a con-
sent agreement between the County and the inmates. The
Commissioner was not a party to the agreement. This
agreement specified a maximum population capacity of 238
for the Jail (assuming there would be one person in each
general population cell) and designated a procedure
whereby the County could request an immediate hearing
before the district court in the event the population of the Jail
approached or reached the maximum capacity specified.
The agreement contemplated that the district court might,
under such circumstances, order the release or transfer of
enough inmates to reduce the population below the stated
maximum. On that same date, the court entered an order
directing the Commissioner to show cause when he should
not be compelled to accept custody of all state prisoners in
the Jail.
On November 10, 1981, the Commissioner filed a mo-
tion to vacate and set aside the consent judgment under
Fed. R. Civ. Proc. 60(b\1) and 60(b\6), on the grounds that
it was entered without the consent of the Commissioner, and
that the consent given by the County was illegal as u/tra vires
under state law. The Commissioner contended that the
County was without the authority to enter such an agree-
ment, under the terms of Governor Byrne’s Executive
Orders Nos. 106 and 108.
App. 8
On December 16, 1981, the district court Stayed
scheduled hearings on the County's order to show cause
and the Commissioner's motion to vacate the consent judg-
ment. pending the decision of the New Jersey Supreme
Court in Worthington v. Fauver, 88 N.J. 183, 440 A.2d 1128
(1982). On January 6, 1982, the Supreme Court of New
Jersey in that case unanimously held that Executive Orders
Nos. 106 and 108 (Byrne) were a valid exercise of the power
delegated to the Governor under the Civil Defense and
Disaster Control Act. N.J. Stat. Ann. App.A:9-30 et seq
(West 1982). that the Orders did not violate the state con-
Stitutional doctrine of separation of powers. and that the
Commissioner's actions pursuant to the orders were not ar-
bitrary or Capricious.
On December 21, 1981 the inmates made a motion to
hold the County in contempt for failure to abide by the con-
sent decree. On January 8, 1982 the County made a motion
to vacate the consent judgment. The district court held a
hearing on January 20, 1982 in order to consider the two
motions previously stayed (the County's motion for a
preliminary injunction against the Commissioner, and the
Commissioner's motion to vacate the consent judgment) as
well as the two new motions. The district court reasoned that
if the County could comply with the consent judgment, then
the necessary actions would be within the scope of the
County's authorized responsibility and the Commissioner
would lack standing to attack the consent order.
On January 29, 1982. the district court. pursuant to
Fed. R. Civ. P. 53(b), appointed a Special Master to in-
vestigate conditions at the Jail and to assess the County's
efforts under consent judgment. Pending return of the
Special Master's Report within 45 days. the district court
denied without prejudice the Commissioner's motion to
vacate the consent order and deferred ruling on the other
motions.
The Special Master filed his Report and Recommenda-
tions on March 1, 1982. Most notably, the Special Master
App 9
found that, because of overcrowding. general population
cells designed for one inmate were being used to house two
inmates by use of mattresses placed on the floors of these 5’
x 7’ cells next to the toilet. The better part of the men's exer-
cise area and all of the women's recreation area had also
been converted into temporary dormitories, in which in-
mates slept on mattresses placed on the floor. Altogether,
with respect to the pretrial detainees, the Special Master
found six specific conditions that he regarded as constitu-
tional violations. See note 11, infra.s
With respect to the sentenced inmates, the Special
Master found two conditions that he regarded as constitu-
tional violations. The Special Master recommended that
these specific violations should be cured, and that the Com-
missioner should be given a reasonable time to bring the
population of the Jail down to the limit specified by the con-
sent judgment. He also found that the County had made a
good faith attempt to comply with the provision of the con-
sent judgment requiring maintenance of essential and other
inmate services, and that any failures on the County's part
were due to the overcrowding problem.
On March 12, 1982, the Commissioner filed objections
to the Special Master’s Report. He argued that the Special
Master should have recommended only the correction of the
particular objectionable conditions, rather than the transfer
of state inmates. The Commissioner noted that the practice
of double-bunking inmates had not been regarded as un-
constitutional per se by the Special Master.6 The Commis-
sioner argued that the County need only equip its general
5. In order to avoid unnecessary repetition of the findings, these
conditions will be set forth in detail only in connection with our
analysis of the district court's conclusions
6. In a footnote the Special Master stated ‘| make no ruling on
the feasibility or constitutionality of [equipping the general popula-
tion cells with two beds] since that question was not raised in the
record before me.’ App. 90a
population cells with two bunk-type beds in order both to
eliminate the unconstitutional practice of placing mattresses
on the floor and to increase the recreational opportunities for
both male and female inmates. He argued further that clean
clothes cuuld be provided to inmates at least once each
week and a medical screening procedure instituted, insofar
as the County already had an inmate-operated laundry on
the premises and a doctor and medical staff at the jail every
day. On March 25, 1982, the court held a hearing on the
Commissioner's objections to the Special Master's Report.
On April 27. 1982. the court filed an opinion and order,
adopting the findings of fact of the Special Master without
modification. The court held that the totality of cir-
cumstances resulting from overcrowding at the Jail, and
most notably forcing pre-trial detainees to sleep on mat-
tresses placed on the floor, constituted a violation of the de-
tainees’ due process rights. The court rejected the Commis-
sioner’s contention that installation of double-bunks and
other improvements could remedy these unconstitutional
conditions. The court held that. based on space considera-
tions alone, double-celling “amounted to punishment,” in
violation of the detainees due process rights. The court also
held that requiring the sentenced inmates to sleep for ex-
tended periods on mattresses placed on the floor constituted
cruel and unusual punishment. It held, in addition, that even
if bunk beds were substituted for floor mattresses, the
shelter provided would fail to meet “contemporary stan-
dards of decency’ and thus violate the Eighth Amendment,
since the sentenced inmates would have only 30 square feet
of daytime space and 19.5 square feet of sleeping space.
Having concluded that the conditions in the Jail were
constitutionally impermissible, the court held that, under the
Supremacy Clause, the Executive Orders that had caused
the overcrowding in the Jail must yield. The court declared
the Commissioner's action of designating the Jail as the
place of confinement for state prisoners void and ordered
App. 11
the Commissioner to remove. by July 1, 1982, ali state
prisoners who on that date had been confined in the Jail for
fifteen days or more since being sentenced to terms of im-
prisonment in state facilities. The order also required full
compliance with N.J. Stat. Ann. 2C:43-10(e) (West 1982)
thereafter.
The court also directed the County, pursuant to its
duties under the consent judgment. to implement a medical
screening program, to reinstate the recreation and visitation
programs at prior levels, and to comply with state regula-
tions that require it to provide inmates with clean clothing
and towels.
The Commissioner appealed from the April 27, 1982
order. Neither the County nor the inmates have appealed
HI
Jurisdiction
When the district court entered its April 27, 1982 order.
there were three pending motions before the count. First. the
motion of the County for a preliminary injunction directing
the Commissioner to remove state prisoners from the Jail:
second, the motion of the inmates to hold the County in con-
tempt of the consent judgment; and third, the motion of the
County to vacate the consent judgment. The motion of the
Commissioner to vacate the consent judgment, denied
without prejudice in the district court's January 29, 1982
order, was apparently not renewed by the Commissioner,’
and the district court ordered that the consent judgment be
continued in full force and effect
7. At oral argument before this court. counse! for the Commis:
sioner indicated that he continued to regard the consent judgment
as invalid
App. 12
The district court disposed of these motions by enjoin-
ing the defendants “to reduce the population of the Union
County Jail to constitutional levels.’ The court ‘‘declare(d)
that the failure and continued refusal of the Commissioner ...
to comply with the mandates of N.J.S.A. 2C:43-10(e) is un-
constitutional’ and ‘‘permanently enjoined the Commis-
sioner ... from refusing to accept State prisoners from the
Union County Jail in conformity with N.J.S.A. 2C:43-10(e).””
See Union County, 537 F. Supp. at 1009, 1015. The order
thus implicitly denied the motion of the inmates to hold the
County in contempt of the consent judgment. Finally, the
order ‘“‘continue(d) in full force and effect, except as modified
or supplemented,” the consent judgment approved on Oc-
tober 22, 1981. Union County, 537 F. Supp. at 1015. Accor-
dingly, the order, disposing of all claims by all parties, and
leaving “nothing to be done but to enforce ... what has been
determined,”’ is “‘final’’ for purposes of 28 U.S.C. §1291.
Richerson v. Jones, 551 F. 2d at 918, 922 (3d Cir. 1977). It is
from this order that the Commissioner appeals.®
8. The April 27, 1982 order, as noted, continued the consent
judgment in full force and effect, and indeed amplified the provi-
sions of that agreement. The provisions of thai judgment having
significance to the Commissioner were those confirming the
agreed-upon ‘maximum capacity” for the Jail (Paragraph (f)), giv-
ing the defendants until July 1, 1982 to achieve that population
figure (Paragraph (g)), and empowering the County to ‘‘notify the
Department of Corrections to remove any state prisoners who have
remained at the facility beyond the statutory fifteen (15) day period
since sentence was imposed” (Paragraph (h))
In his notice of appeal from the April 27, 1982 order, the Commis-
sioner expressly noted that he was appealing from that order
which. inter alia, ‘continues in full force and effect the Consent
Judgment approved on October 22, 1982."' It is clear from the
Commissioner's original motion that the thrust of his objection to
the consent judgment is that
the sole final authority to decide, under New Jersey state
law, what the Union County Jail inmate population capacity or
App. 13
The County did not appeal from the April 27, 1982 order
continuing the consent judgment in full force and effect
IV.
Pre-trial Detainees
A.
The constitutional framework and the more particular
Standard governing the due process rights of pre-trial de-
tainees were articulated by the Supreme Court in Bell v.
Wolfish, 441 U.S. 520 (1979). In Bel/ the Court held that
(i)n evaluating the constitutionality of conditions or restric-
tions of pretrial detention that implicate only the protection
against deprivation of liberty without due process of law,
we think that the proper inquiry is whether those cond+
tions amount to punishment of the detainee.
maximum shall be, is reposed solely (sic) in the Commissioner of
Corrections who is the Third Party Defendant in this case.
William H. Fauver
App. 35a (affidavit of Joseph J. Maloney) (emphasis in original)
It is further plain, in light of the decision of the New Jersey
Supreme Court in Worthington, that the Commissioner is correct as
a matter of state law. The County was indeed without authority to
agree to the population maximum. The only legal basis for the
district court's endorsement of a maximum figure, is the holding
that a population exceeding this number of inmates had resulted in
unconstitutional conditions. It is even more plain that the district
court's imposition of a target date, and his order to the Commis-
sioner permanently to comply with NJ. Stat. Ann. 2C.43-10(3)
(West 1982), can be remedied only by removal of the state
prisoners
Other than the provisions of (f), (g) and (h) noted herein. we do
not understand the Commissioner to object to any provision of the
consent judgment
App. 14
Bell v. Wolfish, supra, 441 U.S. at 535 (emphasis added).
Noting that the Government may detain an individual to en-
sure his presence at trial, id. at 536, and that the Govern-
ment traditionally has done so by ‘‘confinement in a facility
which ... results in restricting the movement of a detainee,”
id. at 537, the Court concluded that the necessary inquiry
was whether ‘‘the conditions and restrictions of the deten-
tion facility ... amount to punishment.” /d. at 536-37. In order
to determine whether ‘‘particular restrictions and conditions
accompanying pretrial detention amount to punishment in
the constitutional sense of that word,” id. at 538, the Court
stated that the list of factors identified in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)? would pro-
vide useful guideposts. Focussing particularly upon the last
two of the Mendoza-Martinez factors, the Court concluded
that it ‘must decide whether the disability is imposed for the
purpose of punishment or whether it is an incident of some
other legitimate governmental purpose,” and whether the
disability or restraint ‘‘appears excessive in relation to the
alternative purpose assigned (to it).’’ Bell v. Wolfish, supra,
441 U.S. at 538 quoting Mendoza-Martinex, 372 US. at
9. In Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) the
Court, called upon the determine whether a statutory provision
depriving individuals of citizenship constituted punishment, ar-
ticulated a list of factors ‘‘traditionally applied to determine whether
an Act of Congress is penal or regulatory in character.’ Mendoza-
Martinez, supra, 372 U.S. at 168. These were:
Whether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a punish-
ment, whether it comes into play only on a finding of scienter,
whether its operation will promote the traditional aims of punish-
ment — retribution and deterrence, whether the behavior to
which it applies is already a crime, whether an alternative pur-
pose to which it may rationally be connected is assignable for it.
and whether it appears excessive in relation to the alternative
purpose assigned
ld. at 168-169, 83 S.CT. at 567-68 (footnotes omitted).
App. 15
168-69). The Court stated that, in the event that such a con-
dition or restriction “is not reasonably related to a legitimate
goal — if it is arbitrary or purposeless — a court permissibly
may infer that the purpose of the governmental action Is
punishment." Bell v. Wolfish, supra, 441 U.S. at 539.
Developing this analysis further as it pertained to de-
tainees, the Court stated:
(jn addition to ensuring the detainees’ presence at trial,
the effective management of the detention facility once
the individual is confined is a valid objective that may
justify imposition of conditions and restrictions of pretrial
detention and dispel any inference that such restrictions
are intended as punishment.
Bell v. Wolfish, supra, 441 U.S. at 540 (footnote omitted). The
Court also noted that, in determining whether conditions and
restrictions are reasonably related to such a purpose,
courts must heed our warning that ‘(s)uch considerations
are peculiarly within the province and professional exper-
tise of corrections officials, and, in the absence of sub-
Stantial evidence in the record to indicate that the officials
have exaggerated their response to these considerations,
courts should ordinarily defer to their expert judgment in
such matters.”
Id., 441 U.S. at 540 n. 23 (quoting Pell v. Procunier, 417 U.S.
817, 827 (1974)).
Finally, in applying these constitutional principles to the
facts of the Bell case, the Court articulated the following
standard for determining when untoward conditions of con-
finement are such as to be arguably excessive in relation to
the purpose of managing the facility:
confining a given number of people in a given amount of
space in such a manner as to cause them to endure
App. 16
genuine privations and hardship over an extended period
of time might raise serious questions under the Due Pro-
cess Clause as to whether those conditions amounted to
punishment.
Bell v. Wolfish, supra, 441 U.S. at 542.
Thus, in determining in the present case whether condi-
tions at the Jail are such as to amount to punishment, which
would violate the due process rights of pre-trial detainees,
we must ask, first, whether any legitimate purposes are serv-
ed by these conditions, and second, whether these condi-
tions are rationally related to these purposes. In assessing
whether the conditions are reasonably related to the assign-
ed purposes, we must, further, inquire as to whether these
conditions ‘‘cause (inmates) to endure (such) genuine priva-
tions and hardship over an extended period of time,’’ that
the adverse conditions become excessive in relation to the
purposes assigned for them. /d.
B.
On January 29, 1982, the district court, having before it
motions by the County and the Commissioner to vacate the
consent judgment, a motion by the inmates to hold the
County in contempt of the consent judgment, and the mo-
tion by the County for a preliminary injunction ordering the
Commissioner to remove state prisoners, and with the
benefit of the New Jersey Supreme Court's ruling in Wor-
thington v. Fauver, 88 N.J. 193 (1982). 440 A.2d 1128 (1982),
determined that ‘‘the court is desperately in need of detailed
information on the jail conditions as well as what efforts were
or could have been made to abide by the consent order.”
App. 55a. To acquire this information, the district court
theretipon appointed as Special Master the Honorable Wor-
rall F. Mountain, a former Justice of the New Jersey Su-
App. 17
preme Court’? and a member of Governor Byrne's Task
Force on Prison Overcrowding. App. 56a.
Justice Mountain made a tour of the facility on February 8.
1982, interviewed officials, administrators, corrections of-
ficers, and inmates, took testimony from state correctional
Officials, held discussions with counsel, and considered af-
fidavits and other documents. App. 65a. On March 1, 1982,
he filed a report setting forth proposed findings of fact, con-
clusions of law, and remedial recommendations. App.
63a-98a. The district court, noting that pursuant to Fed. R.
Civ. P. 53(e) the Special Master's findings must be accepted
unless clearly erroneous, Union County, supra, 537 F. Supp.
at 998, adopted them without modification. /d. at 1001.
The Special Master found, App. 80a, and the district court
specifically agreed, ‘that there has been no express intent
to punish the inmates at the UCJ on the part of either the
defendants or the third-party defendant.’’ Union County,
supra, 537 F. Supp. at 1002. This finding has not been ques-
tioned by any of the parties. Thus, we may proceed directly
to the second siep of the two-step Bel/ inquiry, and deter-
mine whether a legitimate purpose or purposes may be
assigned for conditions at the Jail, and whether those condi-
tions are excessive in relation to their purpose or purposes.
The district court held in substance that the effective
management of a detention facility during a statewide prison
overcrowding emergency, along with ‘the interests of loca!
and state governments in not releasing (inmates) onto the
streets,’ Union County, supra, 537 F. Supp. at 1003, were
the two relevant legitimate governmental interests that might
justify conditions at the Jail. /d. at 1002-03.
10. Justice Mountain was a member of the New Jersey Supreme
Court from 1971 until his retirement in June of 1979 App 56a
App 18
It is plain that there is a legitimate governmental interest in
“effective management of (a) detention facility.” Bell v.
Wolfish, supra, 441 U.S. at 540. Yet, as the division of in-
terests in this case between the County and the Commis-
sioner reveals, ‘‘effective management of a detention facility
during a statewide prison overcrowding emergency’ serves
two distinct governmental interests. First, the State of New
Jersey has an interest, validated by the New Jersey
Supreme Court in Worthington v. Fauver, supra, in ‘‘efficient-
ly allocat(ing) inmates of state and county penal and correc-
tional institutions to those institutions having available space
in order to alleviate (statewide) overcrowding.” Worthington
v. Fauver, supra, 88 N.J. at 191; 440 A.2d at 1131 (quoting
Executive Order No. 106 (Byrne)). Second, the County has
an interest in ‘effectively managing the detention facility,”
even though, as the third-party complaint discloses, in some
respects this interest in allocation of space. However, given
that the State has invoked its interest in allocation of space
to require the County to retain state prisoners, the County's
effective management of the Jail must include management
of the resultant overcrowded institution, and the two govern-
mental interests to that extent coincide.
The district court was also correct in concluding that ‘the
interests of local and state governments in not releasing on-
to the streets either pretrial detainees who are not bail wor-
thy or convicted inmates, are legitimate ones.’ Union Coun-
ty, supra, 537 F. Supp. at 1003. See Bell. v. Wolfish, supra,
441 U.S. 539-40.
Thus, the district court properly proceeded to consider
whether the conditions and restrictions of the Jail were ra-
tionally connected to these valid objectives and whether the
conditions and restrictions were excessive in relation to
these objectives. See Bell v. Wolfish, supra, 441 U.S. at 538
The district court found that the overcrowding at the Jail was
rationally connected to the objective of not releasing in-
App 19
mates. It also found that the conditions resulting from over-
crowding were “an unavoidable incident of the jail officials’
efforts to effectively manage the facility during a statewide
prison overcrowding emergency.” Union County, supra, 537
F. Supp. at 1002 (quoting the Special Master's Report).
Thus, in effect, the district court found that the overcrowding
was rationally connected to and served both state and coun-
ty governmental interests. These findings are not questioned
on this appeal.
C.
The only question thus remaining in the Bell inquiry is
whether the conditions and restrictions resulting from inmate
overcrowding can be considered excessive in relation to the
purposes assigned for them. See Bell v. Wolfish, supra, 441
U.S. at 538. In this connection, the Special Master, after
discussion of the Bel/ standard, found
The totality of the overcrowding conditions at the jail, e.g.,
the unsuitable and unsanitary sleeping conditions result-
ing from inmates being forced to sleep on mattresses, the
almost complete absence of recreational facilities, the cut-
backs in visitation, the delays encountered in administer-
ing inmate programs, the inadequate lighting in the cell-
blocks, the inability to provide clean inmate clothing in
accordance with N.J.A.C. 10A:31-3.13(b\5), and the
absence of a medical screening procedure for new in-
mates, amount to ‘genuine privations and hardship.”
App. 81a-82a.
The Special Master recommended that the court hold that
these privations and hardships ‘“‘cannot be justified by the
mere fact that a statewide prision overcrowding problem ex-
ists." App. 82a. The Special Master also recommended that
the court hold that each of six specific conditions at the Jail
constituted punishment,'' when considered in the light of
the totality of the circumstances at the Jail. App. 82a-83a.
By the terms of the order appointing the Special Master,
the parties were given ten days after the filing of his report to
file objections that report. The County filed no objections,
and neither did the inmates. The Commissioner did file ob-
jections, which focussed largely on the Special Master's
refusal to accept certain remedial recommendations of the
Department of Corrections. See App. 100a-101a. The Com-
missioner specifically noted that ‘‘(t)he State does not assert
that it is proper for the County to require inmates to sleep on
mattresses on the floor ... So the Special Master properly
recommended that the floor mattresses practice should be
eliminated."’ App. 122a.
At a hearing which was held on March 25, 1982, the
district court considered the Commissioner's objections.
The Attorney General, representing the Commissioner.
argued that double bunking combined with measures pro-
mised by the County would cure any constitutional violation,
and that the State needed more time to absorb any state
11. These six conditions were:
(1) housing two, three, four or more inmates in detention cells
without adequate sleeping arrangements. for more than a few
days:
(2) requiring detainees to sleep on mattresses laid adjacent to
toilets in single cells, for more than a few days:
(3) requiring detainees to sleep on mattresses laid on the floor
in other parts of the Jail, for more than a few days:
(4) requiring detainees to wear the same clothing for several
weeks, in violation of N.J.A.C. 10A:31-3.13;
(5) failing to screen new inmates for communicable diseases:
(6) depriving detainees of any meaningful opportunity for re-
creation.
App. 82a-83a.
App. 21
Prisoners to be transferred.'? The State's position was that.
if, as the Commissioner proposed. inmates were double
bunked, adequate space and recreational facilities would be
afforded. In that manner, the constitutional standard of Bel!
v. Wolfish would be satisfied.'3
From these rather extended proceedings, which
Culminated in the district court’s order of April 27, 1982. two
conclusions emerge. First, from the positions taken by the
County and the Commissioner, we do not understand either
of them seriously to contest the unconstitutionality, in the
context of overcrowded conditions, of forcing pre-trial de-
tainees to sleep for more than a few days on mattresses
placed on the floor of a 5’ x 7’ cell adjacent to an open toilet
which both cellmates must use. Indeed, the County conced-
ed, at oral argument before this court, that conditions as
found by Justice Mountain were unconstitutional. Thus, the
district court's implicit holding that conditions as found by
the Special Master are ‘excessive in relation to the pur-
poses assigned to them,” is not questioned on this appeal.
Our second conclusion is that, of all the various condi-
tions chalienged as being unconstitutional, the most signifi-
cant, and indeed the only condition not meeting constitu-
tional standards, was the practice of placing a mattress on
the floor for the second occupant of a cell designed for but
12. We understand the term ‘‘double-celling” to mean the con-
finement of two inmates in a single general population cell,
whatever accommodations may be provided. We understand the
term ‘‘double-bunking”’ to mean the confinement of two inmates in
a single general population cell, with each inmate being provided
with a permanent bunk-type bed of his own. The Commissioner has
suggested that the second bunk might be fastened to the cell wall
above the first bunk, ‘‘with a hinge mechanism in order that the top
bunk can be raised vertically until it rests against the cell wall,”’
when not in use. App. 256a.
13. The State of New Jersey asked that the district court order
the County to follow the Commissioner's recommendation to
double-bunk the general population cells, and to reconvert the tem-
porary dormitories to additional recreational areas. App 195a
App. 22
one inmate. It is not surprising, therefore, that the Commis-
sioner focussed on an alleviation of this latter condition by
recommending double-bunking in such cells. The Commis-
sioner contended that if, by providing double bunks, and by
holding the County to its obligations under the consent
agreement, constitutional objections to overcrowding could
be overcome, then the Commissioner's discretion in deter-
mining where state prisoners should be placed, should not
be overridden. We therefore turn to a consideration of the
two-in-a-cell or double-bunking practice, as resolution of that
issue will determine the outcome of this appeal.
D.
The district court held, first, that ‘based solely on con-
siderations of space ... double-bunking at the (Jail) subjects
pretrial detainees to genuine hardships amounting to
punishment,’ Union County, supra, 537 F. Supp. at 1005,
and, second, that, under the totality of circumstances at the
Jail, double-bunking violates the due process rights of
pretrial detainees. /d. at 1006-07.
The Commissioner argued that, if the general population
cells in Jail were equipped with double bunks, then both the
unconstitutional accommodations and the lack of recrea-
tional space would be remedied. App. 178a-79a. The Com-
missioner emphasized that even at the highest recorded
population figure for the Jail less than three quarters of the
218 general population cells would have to be double-
bunked,'* and the district court assumed that one-half of the
14. This calculation assumed that the ‘‘detention cells could
hold two inmates each, the 15 intake area cells could hold one in-
mate each, and the work release/trustee dorms could hold 26 in-
mates.’ The record reveals that the highest recorded population
figure for the Jail was 385 inmates. App 188a. The Commissioner
erroneously concluded that in order for the 322 inmates (those re-
maining after 63 had been accommodated in the detention, intake,
and work release areas) to be placed in the 218 general population
App. 23
cells would need to be double-bunked. Union County. supra.
537 F. Supp. at 1005. The Commissioner noted that if this
were done the temporary dormitories could be removed
from the former recreational areas, resulting in more than
doubling the areas available for recreation. App. 190a. Final-
ly, the Commissioner contended that the County could pro-
vide clean clothing weekly and medically screen all new in-
mates, even with the increased population resulting from
double-bunking. App. 192a-95a'® At oral argument before
this court, the County contended that it had implemented an
adequate medical screening program and that it had under-
taken to procure supplies necessary for meeting the require-
ment for clean clothes. Thus, it would appear that the Com-
missioner’s contention, that the County could provide clean
clothes and medical screening, even with double bunking, is
well founded and not apposed by the County.
cells it would be necessary for 161 of these cells to be double-
celled. /d. In fact, at that population figure, only 104 of the genera!
population cells would need to be double celled (thus holding 208
inmates), and the remaining 114 inmates could be placed singly in
the remaining 114 cells. Thus, at a population figure of 385. slightly
less than half of the general population ceils would have to be
double-bunked. The district court was, therefore, roughly correct in
figuring the spatial impact of double-bunking on the assumption
that one-half of the general population cells would need to be
double-bunked
15. Indeed, at the March 25, 1982 hearing the County contend-
ed that it was able to provide clean clothes weekly to the inmates
then at a population figure of 362. Transcript of Proceedings at
58-60. The County contended, however, that due to the ‘‘popula-
tion explosion” it was unable to give all new inmates a complete
physical check-up before putting them into the genera! population
Id at 57-58. It should be noted. however, that the district court. in
its order of April 27, 1982, required the County, pursuant to the
consent judgment, to ‘implement a medical screening program for
new admittees’ and ‘‘to provide clean clothing weekly and clean
towels daily.’ Union County. supra, 537 F. Supp. at 1015. The
County did not appeal this order
App. 24
However, as noted, the district court rejected this remedial
scheme put forth by the Commissioner on two separate
grounds. first, that conditions would still violate the due pro-
cess rights of detainees because of sheer lack of space, and
second, that conditions would still violate their rights when
the totality of circumstances in the Jail was considered.
Union County, supra, 537 F. Supp. at 1005-07. We will con-
sider these grounds in succession.
The record reveals that, even when double-bunked, the
admittedly rather smal! cells at the Jail provide adequate
space for sleeping, and thus, in the words of Justice Rehn-
quist in Bell v. Wolfish, ‘‘we fail to understand the emphasis
of (the district court) on the amount of walking space in the
‘double-bunked’ rooms."’ Bell v. Wolfish, supra, 441 U.S. at
543 n.26.
With respect to the space available outside the cells the
County was ordered to ‘‘provide at least one hour of recrea-
tion daily to each inmate." Union County, supra, 537 F.
Supp. at 1015. Moreover, on the assumption that cells would
be double-bunked, the former recreation areas were to be
reclaimed. Based on the Special Master's finding, this
reconstituted recreation area would be over 1,700 square
feet in area. App. 68a, 89a. Thus, for at least one hour daily,
inmates would have the use of an enlarged space. As for the
space available to inmates during the remaining waking
hours, the Special Master calculated that the square footage
available per inmate, when one-half of each tier of cells is
double-bunked, would vary from 41 to 45 square feet,
depending on the number of cells. App. 72a. When, as has
been done on several tiers of the Jail, for reasons not ex-
plained in the record, the entire tier has been double-celled,
the available square footage per inmate (Including his share
of his own cell) varies from 31 to 33.5 square feet. /d. This is
indeed a “cramped and overcrowded” space. App. 84a.
(Special Master's description), and very far from ideal. Yet
the mitigating effects of larger recreational space for at
App 25
least an hour a day must also be recognized. See Bell v
Wolfish, supra, 441 U.S. at 543.
With the adoption of these recommendations, it Is ap
parent that inmates would have adequate room for sleeping
and a genuine opportunity for at least an hour of recreation.
In this light, we find the spatial analysis employed by the
district court unilluminating and unconvincing. It may be that
confining detainees to a small space for much of the time
could amount to ‘“‘punishment,’’ but if so, such a conclusion
must be based on a qualitative and not a quantitative
assessment of the resulting environment. Thus, for this
reason we reject the district court's holding of unconstitu-
tional conditions ‘‘based solely on considerations of space. ”
Union County, supra, 537 F. Supp. at 1005.
=
We proceed, therefore, to consider whether, under the
totality of circumstances at the Jail as it would be under the
Commissioner's proposed solution, overcrowding would be
deemed to amount to punishment.’ We recognize that this
question is not an easy one, for although the Supreme Court
held that, under the circumstances described in Bel! v
Wolfish, ‘nothing even approaching (the degree of hardship
which would ‘raise serious questions under the Due Process
Clause’) is shown,”’ Bell v. Wolfish, supra, 441 U.S. at 542,
conditions at the Jail are evidently much worse than at the
relatively spacious and modern facility in question in Bell.
Focussing, however, upon the crucial constitutional findings
of the Special Master, we are convinced that overall the
16. Because ‘‘(t)he restriction or condition at issue in this litiga-
tion is the severe overcrowding of the facility and the impact of the
excess population on the provision of services and programs.”
Union County, 537 F. Supp. at 1002. we agree that the district court
was correct to weigh the ‘‘excessiveness’ of assigned state pur-
poses in light of the totality of circumstances which had in fact
resulted from the overcrowding situation
App. 26
remedial scheme proposed by the Commissioner passes
constitutional muster.
First. and most importantly, providing double bunks will
avoid the unsanitary and humiliating practice of forcing de-
tainees to sleep on mattresses placed either on the floor ad-
jacent to the toilet and at the feet of their cellmates, or
elsewhere in the Jail. Second, double-bunking will avoid the
practice of having more than two detainees without ade-
quate sleeping arrangements in the detention cells. Third,
double-bunking will make it possible for recreational areas at
the Jail to be cleared and dedicated to their original function.
Thus, the remedial scheme put forth by the Commissioner,
combining double-bunking with discharge of the County's
obligations under the consent judgment. would effectively
cure all the conditions that were of particular concern to the
Special Master.'? Moreover, our own review of the record
convinces us that pre-trial detainees are confined at the Jail
“for generally a maximum period of 60 days."’ Bell v.
Woflfish, supra, 441 U.S. at 543.8
17. An undesirable condition remaining would be the admittedly
cramped and overcrowded nature of the space in which detainees
are confined. To a considerable extent this lack of space will be
mitigated by the promised daily hour of recreation, by promised
visitation, and by other programs which the Jail provides and which
enable detainees to be away from their cellblocks for some two
hours a week. App. 12a (complaint € 26). 17a. (answer, admitting ¢
26 of complaint)
18. An analysis of the Jail list as of January 11. 1982, submitted
and relied upon by counsel for the inmates, shows 10 inmates
awaiting disposition of charges before municipal courts, 103 in-
mates awaiting disposition of charges before grand juries, 96 in-
mates awaiting trial on state charges, and 18 inmates adjudged
guilty and awaiting sentencing on state charges. None of the 113
inmates awaiting either disposition of municipal charges or action
by grand juries had been confined for more than 60 days. Fifty-five
of the 96 inmates awaiting trial on state charges had been confined
for more than 60 days. Thus. of the 209 inmates who had not been
App. 27
Thus, although the question is not without difficulty, we
are Satisfied that, if the Commissioner's proposals, describ-
ed above, were fully implemented. conditions at the Jail
would pass constitutional muster. Bel/ v. Wolfish, supra, 441
U.S. at 541-43.
V.
Sentenced Inmates
A.
In Rhodes v. Chapman, 452 U.S. 337 (1981) the Supreme
Court considered ‘for the first time the limitation that the
Eighth Amendment ... imposes upon the conditions in which
a State may confine those convicted of crimes."’ Rhodes v.
Chapman, supra, 452 U.S. at 344-45. The Court stated that
No static ‘test’ can exist by which courts determine
whether conditions of confinement are cruel and unusual,
for the Eighth Amendment ‘must draw its meaning from
the evolving standards of decency that mark the progress
of a maturing society.’ Trop v. Dulles, 356 U.S. 86, 101
(1958) (plurality opinion).
Rhodes v. Chapman, supra, 452 U.S. at 346. The Court went
on to emphasize that Eighth Amendment “ ‘judgment(s)
should be informed by objective factors to the maximum
possible extent.’ "' Rhodes v. Chapman, supra, 452 U.S. at
346 (quoting Rummel v. Estelle, supra, at 274-275, which
quoted Coker v. Georgia, supra, at 592 (plurality opinion)).
found guilty of any charge, only 55, or 26%, had been confined for
more than 60 days. Only 39, or 19% had been confined more than
75 days. Thus, of those detainees confined at the Jail on January
11, 1982, about three-quarters had been confined for less than 60
days. The record does not indicate the percentage of those detain-
ed prior to conviction who are released within 60 days of being
committed to the Jail Cf. Bell v. Wolfish, supra, 441 US. at524n3
App. 28
Noting that the same principles apply “when the condi-
tions of confinement compose the punishment at issue,
Rhodes v. Chapman, supra, 452 U.S. at 347, the Court went
on to characterize the circumstances under which such con-
ditions might be held to constitute cruel and unusual punish-
ment:
Conditions must not involve the wanton and unnecessary
infliction of pain, nor may they be grossly disproportionate
to the severity of the crime warranting imprisonment ... In
Hutto v. Finney, 437 U.S. 678 (1978), the conditions of
confinement in two Arkansas prisons constituted cruel
and unusual punishment because they resulted in un-
questioned and serious deprivations of basic human
needs. Conditions other than those in Gamble and Hutto,
alone or in combination, may deprive inmates of the
minimal civilized measure of life's necessities. Such con-
ditions could be cruel and unusual under the contempor-
ary standard of decency that we recognized in Gambe,
429 U.S. at 103-104. But conditions that cannot be said to
be cruel and unusual under contemporary standards are
not unconstitutional. To the extent that such conditions
are restrictive and even harsh, they are part of the penalty
that criminal offenders pay for their offenses against
society.
Rhodes v. Chapman, supra, 452 U.S. at 347 (emphasis
addeq).
B.
In the present case, the Special Master recommended
that the district court hold conditions at the Jail to be in viola-
tion of the Eighth Amendment in two respects. '?
19. With respect to the “basic human needs’ recognized by
Eighth Amendment cases. see, e.g., Rhodes v. Chapman, supra.
452 U.S. at 348-49 (food, medical care, sanitation, security); Hutto
v. Finney, 437 U.S. 678, 681-83 (sanitation, clothing, security,
food), the Special Master's findings were generally favorable to
defendants.
App. 29
He opined, first. that requiring two or more sentenced in-
mates to sleep for extended periods on mattresses laid on
the floor of the detention cells amounts to ‘‘wanton and un-
necessary punishment,''2° and, second, that requiring
sentenced inmates to sleep on mattresses placed on the
floor “is so reprehensible and dehumanizing a practice
when carried out for extended periods of time’”’ that it
violates the Eighth Amendment by inflicting ‘* ‘unnecessary
and wanton’ physiological and phychological pain.” App.
87a-88a.
The district court also held that requiring sentenced in-
mates to sleep for long periods of time on mattresses placed
on the floor was ‘‘a ‘reprehensible and dehumanizing prac-
tice.’ "’ Not following the Special Master's legal analysis.
however, it went on to hold that such a practice ‘deprives
these inmates of the essential requirement of habitable
shelter,’ and that in consequence this practice violates the
Eighth Amendment. Union County, supra, 537 F. Supp. at
1008.
Going further, however, the district court also held ‘‘that
30 square feet of daytime space or 19.5 square feet of sleep-
ing space fails to meet any contemporary standard of decen-
cy especially in light of the impact overcrowding has had on
visitation, recreation, and time off the tier.”’ Id.2' In conse-
quence, the district cou’. held that conditions even under the
Commissioner's remedial scheme involving double-
bunking, would constitute cruel and unusual punishment.
two sentenced inmates in a single detention cell for substaintial
periods ‘‘if the cells were equipped with two suitable beds.’’ App
87an. 17.
21. The district court did, however, agree with the Special
Master that the detention/isolation cells could constitutionally ac-
commodate two persons if beds were provided. Union County,
supra, 537 F. Supp. at 1008
App. 30
ld. at 1008-09. We Jo not agree.
C.
Here, as in the case of the pre-trial detainees, the Com-
missioner did not defend the constitutionality of forcing
sentenced inmates to sleep on mattresses laid on the floor
next to toilets. Rather, the Commissioner argued, without
qualification. that the court should ‘‘direct the County to
follow the recommendations of the Department to use bunk
type beds in the general population cells and detention cells
and thereby eliminate the use of floor mattresses in the jail.”’
App. 195a. Similarly. on this appeal. the Commissioner, im-
plicitly conceding the undesirability of placing mattresses on
the floor, attacks only the further holding of the district court,
that even double-bunking at the Jail would violate the Eighth
Amendment, and argues that the district court erred by so
holding on the basis of spatial considerations alone. See
Appt. brief 18-19.
Having sustained the constitutionality of the Commis-
sioner'’s remedial scheme, involving double-bunking and the
County's obligations under the consent judgment with
respect to pretrial detainees, a fortion. we must hoid that the
same provisions meet constitutional standards for sentenc-
ed inmates, under the principles of Rhodes v. Chapman. See
Inmates of Allegheny County Jail v. Pierce, 612 F. 2d 754.
762 (3d Cir. 1979) (if Eighth Amendment standard violated.
due process standard applicable to pre-trial detainees must
also be violated). See also Gibson v. Lynch, 652 F. 2d 348.
352 (3d Cir. 1981). Nevertheless, recognizing that the district
court was faced with the necessity of grappling with a dif-
ferent constitutional standard in the context of sentenced in-
mates, we deem it appropriate briefly to consider the
districts court's holding with regard to the “minimal civilized
measure” of “habitable shelter’ under the Eighth Amend-
ment. Union County, 537 F. Supp at 1008.
App. 31
1.
The district court. relying upon Battle v. Anderson. 564 F
2d 388 (10th Cir. 1977) and Ramos v. Lamm, 639 F. 2d 559
(10th Cir. 1980). rested its holding with regard to the basic
necessity of ‘‘shelter’’ solely upon the following considera-
tion:
the stark reality is that 30 square feet of daytime space
or 19.5 square feet of sleeping space fails to meet any
contemporary standard of decency especially in light of
the impact overcrowding has had on visitation, recreation
and time off the tier.
Union County, supra, 537 F. Supp. at 1008.
The test which we must apply in reviewing the district
court's determination that sentenced inmates would be sub-
jected to cruel and unusual punishment under the Commis-
sioner's double-bunking proposal is whether the resulting
“conditions ... alone or in combination. ( ) deprive inmates of
the minimal civilized measure of life’s necessities.” Rhodes
v. Chapman, 452 U.S. at 347. The “necessity” of which the
inmates were held to be deprived in this case is the necessi-
ty of ‘habitable shelter,’’ as measured under “contemporary
Standards of decency,"’22 Union County, supra, 537 F. Supp.
at 1008. The totality of circumstances relevant to this inquiry
22. We note that the Supreme Court has emphasized time and
again ‘that ‘Eighth Amendment judgments should neither be nor
appear to be merely the subjective views’ of judges.’ Rhodes v
Chapman, 452 US. at 346 (Quoting Rummel v. Estelle, 445 US
263, 275 (1980)). See a/so Solem v. Helm US 51
U.S.L.W. 5019, 5023-24 (1983) Among the “‘objective indicia’ of
contemporary standards of decency to which the Court has looked
are ‘history, the action of state legislatures. and the sentencing by
App. 32
comprises all those circumstances that bear on the nature of
tne shelter afforded to sentenced inmates. See Hoptowit v.
Ray. 682 F. 2d 1237, 1247 (9th Cir. 1982).23 We believe that.
just as the district court in Hoptowit erred, in this case the
district court has also erred by ‘‘rely(ing) exclusively on per
capita square footage recommendations." In doing so, it fail-
ed to consider the totality of the corcumstances relevant to
determining whether conditions have fallen to the “‘level at
which the shelter of inmates is unfit for human habitation.’
Hoptowit v. Ray, 682 F. 2d at 124924 Rather, the district court
here, relying upon the holding of the Tenth Circuit in Battle.
Supra, held that “30 square feet of daytime space or 19.5
Square feet of sleeping space’ was constitutionally inade-
NOTE — (Continued)
injuries” as well as basic background facts about the relation bet-
ween inmates and prison authorities. Rhodes v. Chapman. 452
U.S. at 346-47. Because neither the Special Master nor the district
court refers us to such factors. their conclusions undeniably ‘‘ap-
pear to be merely the subjective views of (these) judges.’ See
Rhodes v. Chapman, 452 U.S. at 346
23. The Ninth Circuit in Hoptowit v. Ray, 682 F. 2d 1237 (9th Cir
1982), applied the analysis adopted previously in Wright v
Rushen, 642 F. 2d 1129, 1133 (9th Cir. 1981) (’'a court should ex-
amine each challenged condition of confinement. such as the ade-
quacy of the quarters, food. medical care. etc any condition of
confinement which passes this test is immune from federal in-
tervention. ') See a/so Ruiz v. Estelle, 679 F. 2d 1115. 1139 n 98
(5th Cir. 1982)
24. In Hoptowit, supra. the cstrict court. evaluating conditions
in the Washington state penitentiary, simply corstitutionalized the
minimum standards for space set out by the American Correctional
Association. Although the district court had also found high levels
of violence and deficiencies in medical care at the penitentiary, the
court of appeals remanded for further findings as to what condi-
tions had resulted from the overcrowding. In particular, the court
directed findings as to how much time per day inmates spent in
their cells, whether increased violence was out of proportion to the
increase In population, and what effect overcrowding had had on
other constitutionally required services. 682 F.2d at 1248-49
App. 33
quate as shelter. Union County. 537 F. Supp. at 1008 2° Yet
even the apparently per se rule requiring 60 square feet per
inmate, adopted by the Tenth Circuit in Battle, 564 F.2d at
395, was adopted as a necessary remedial measure in the
face of long-continued conditions of confinement that were
plainly much worse than those facing inmates at the Jail.“
In the instant case, the district court failed to consider that
the sentenced inmates spend much less time at the Jail than
did the prisoners in question in Rhodes, ‘67% of whom
were serving life or other long-term sentences.” Rhodes v.
Chapman, supra, 452 U.S. at 341.27 Yet, as the Supreme
Court, and the courts of appeal have repeatedly recognized
in Eighth Amendment challenges, “the length of confine-
25. We do not regard the district court's inquiry as adequate to
support his conclusion that conditions at the Jail are such as to
‘cause (inmates’) degeneration or threaten (their) mental and
physical well-being."’ Battle v. Anderson, 564 F.2d 388, 403 (10th
Cir. 1977). The cramped and unpleasant conditions at the Jail pale
by comparison to conditions in the Oklahoma penal facilities in
question in Battie, in which inmates, confined in facilities
devastated by riots, were deprived of physical security, medical
care, access to the courts, and other constitutional rights. Thus,
even if we were to adopt the standard employed in Battle, and we
do not, we would still hold that under the totality of conditions at the
Jail sentenced inmates have not been deprived of ‘habitable
shelter."’
26. We note. further, that the emphasis in the Battle case and in
Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980), cert. denied 450
U.S. 1041 (1981), on the amount of space required to provide a
rehabilitative environment, is in any case weakened as precedent
after Rhodes. See Atiyeh v. Capps, 449 U.S. 1312, 1316 (1981)
(Rehnquist, J. opinion in chambers) (granting stay of district court
order pending decision of Rhodes) (criticizing, inter alia, district
court's emphasis on rehabilitative qualities of prison environment).
Rhodes v. Chapman, 452 U.S. at 348-49 (Powell J. for the Court)
We would have to wrench the Eighth Amendment from its
language and history to hold that delay of these desirable aids to
rehabilitation violates the Constitution
27. The Special Master found that on February 15. 1982. 81 of
the 359 inmates of the Jail were awaiting transfer to state prisons
and that 57 of these 81 had been at the Jail for at least 75 days
App
App. 34
ment cannot be ignored in deciding whether the confine-
ment meets constitutional standards.’’ Hutto v. Finney, 437
U.S. 678, 686 (1978).
2.
Further, the overall length of confinement is only one fac-
tor among several that must be considered by a district
court, in evaluating the totality of circumstances relevant to
any alleged constitutional deficiency in shelter. ‘Neither the
number of inmates in one ceil nor the amount of space pro-
vided for an inmate in a dormitory alone determines whether
confinement is cruel and unusual."’ Ruiz v. Estelle, 679 F.2d
1115, 1146 (5th Clr. 1982). Also relevant is how much time
prisoners must spend in their cells each day.** see Hoptowit
v. Ray, 682 F.2d at 1249, the opportunities for inmate ac-
tivities outside of the cells,2° and the general state of repair
NOTE — (Continued)
69a-70a. He made no further findings as to exactly how long these
57 had been at the Jail, or as to how long state prisoners typically
spent at the Jail before transfer. It should also be noted that, after
transfer to state prison, state prisoners will generally be afforded
cells of their own, be allowed to have more personal items in their
possession, and be provided with a wider range of services and
facilities than the Jail offers. The Commissioner defended his dec:-
sion that county facilities rather than state prisons should be
double-celled on the grounds that state prisoners are generally an
aggressive and assaultive type of population’ who will be confined
for much longer, thus making it necessary ‘‘to relieve a lot of
pressures.’ App. 189a-90a (Commissioner's Supplemental Brief
on Double Bunking).
It should also be remembered that, in addition to state prisoners.
there are in the Jail county prisoners. who are being held for the
serving of shorter sentences. The Special Master made no findings
as to the typical length of stay for county prisoners The jail list for
January 11, 1982 showed 28 county prisoners. with sentences
ranging from 30 days to nine months, the majority being in the
three to six month range
28. As we concluded previously, the admittedly small cells
App 35
and function of the facilities provided.”
‘provide more than adequate space for sleeping * Bell v. Wolfish
441 US. at 543. As the Special Master found, the inmates ‘are
locked in their cells between 10pm. and6a.m.,” and ‘at all other
times of the day they are permitted access to the cell corridor
App. 67a. The cell corridor is ‘approximately 5 1/2 feet wide and
varies in length from 40 feet to 70 feet depending upon the number
of cells in a given tier.” id. and “‘(e)ach cell corridor is equipped
with one television set and one telephone." App. 67a-68a
29 Ona twelve-cell tier that was completely double-celled (as it
appears that some were), inmates would for most of the day have a
choice between remaining in their cells or sharing a 5 and 1/2 by 60
foot space with their twenty-three cellblock mates. Although this
common area is not spacious, it does provide adequate space for
such exercises aS push-ups, sit-ups, and even walking
The remedial scheme proposed by the Commissioner con-
templated that the former recreation areas, measuring over 1700
square feet, would be cleared and rededicated to their original use
The district court, pursuant to the consent judgment. also ordered
the County to ‘provide at least one hour of recreation daily to each
inmate,"’ and to “‘reinstitute a program of at least three one-quarter
hour visitation periods per week.’’ Union County. 537 F Supp. at
1015. Further, the inmates themselves alleged, in their complaint,
that inmates who choose to avail themselves of ‘counselling pro-
grams, chapel, educational activities, and related programs ... may
be away from their celibiocks for perhaps an additional two hours
per week."’ App. 12a. Thus, under the Commissioner's proposal, in-
mates may be away from the admittedly crowded cellblock for
some ten hours per week, including seven hours of opportunity for
exercise in the enlarged recreational space.
30. In this case, in contrast to other cases in which federal
courts have found prison conditions unconstitutional, there has
been no finding that basic physical facilities such as plumbing.
heating, ventilation, and showers, are inadequate. Although the
Special Master characterized the Jail as “‘an aging eight story
detention facility located in the heart of Elizabeth, New Jersey ss
App. 66a. it does not appear from the record that the Jail has been
allowed to fall into disrepair in these basic respects. This fact 's
significant both because it indicates a good faith effort on the part
of the County to maintain the facility, and because denial of such
basic physical amenities, and the consequent effect on sanitation
and health. go to the heart of what is meant by ‘habitable shelter’
for the Eighth Amendment purposes. In those cases where federal
App. 36
3.
We therefore conclude that the district court erred in
holding conditions at the Jail, as they would be if the double-
bunking remedial scheme proposed by the Commissioner
were adopted, to be in violation of the Eighth Amendment. If
sentenced inmates were double-celied and provided with
bunk-type beds of their own, and if the County discharged its
duties under the consent judgment, as it was obliged to do,
then there can be no doubt that the resulting conditions
would not ‘‘deprive inmates of the minimal civilized measure
of’ shelter. Rhodes v. Chapman, 452 U.S. at 347.
Vi.
Remedy
“Although a district court has wide discretion in tailoring a
remedial injunction, that discretion is not unconfined.”’ Ruiz
v. Estelle, 679 F.2d at 1144-45. The Supreme Court and the
courts of appeal have articulated several limiting principles
that must guide the district court in fashioning appropriate
relief.
First, and perhaps must importantly, the Eighth Amend-
ment does not give a federal court ‘‘a roving commission to
impose upon the (correctional institutions of New Jersey its)
own notions of enlightened policy.’ Rummel v. Estelle. 445
U.S. 263, 285 (Stewart, J., concurring) (1980). Rather, ‘* ‘the
nature of the violation determines the scope of the remedy.’
Therefore, a court can order only relief sufficient to correct
the violation found."’ Ruiz v. Estelle, 679 F.2d at 1145 (quot-
NOTE — (Continued)
courts have found unconstitutional prison conditions, a decaying
physical plant allowed by disrepair to become virtually inoperable
has almost always provided an important background element
See, e.g.. Ramos v. Lamm, supra: Battle v. Anderson. supra
App. 37
ing Swann v. Charlotte-Meckienburg Bd. of Educ., 402 U.S
1, 16 (1971). Neither may the court “use the totality of all
conditions to justify federal intervention requiring remedies
more extensive than we required to correct Eighth Amena-
ment violations."’ Wright v. Rushen, 642 F.2d 1129, 1133
(9th Cir. 1981).
Second, “the federal courts in devising a remedy must
take into account the interests of state and local authorities
in managing their own affairs, consistent with the Constitu-
tion.”’ Milliken v. Bradley, 433 U.S. 267, 280-81 (1977). What
this means in practice is that ‘state and local authorities
have primary responsibility for curing constitutional viola-
tions."’ Hutto v. Finney, 432 U.S. at 687 n.9. It is when these
‘ ‘authorities fail in their affirmative obligations ... (that)
judicial authority may be invoked.’ ’’ Hutto v. Finney, 432
U.S. at 687 n.9 (quoting Milliken v. Bradley, 433 U.S. at 281).
A.
The district court in this case ordered the Commissioner
“to remove any and all inmates incarcerated at the Union
County Jail who as of fifteen (15) days prior to that date (July
1, 1982) have been sentenced to terms of imprisonment in
State facilities; and ... fully (to) comply with N.J.S.A.
2C:43-10(e) (providing for removal of state prisoners within
fifteen days of sentencing) with respect to persons who are
or shall be incarcerated at the Union County Jail.’’ Union
County, 537 F. Supp. at 1015.
This order is in express contravention of Executive
Orders, issued by Governors Byrne and Kean, that suspend
operation of N.J. Stat. Ann. 2C:43-10(e) (West 1982) and
confer upon the Commissioner discretion to designate the
place of confinement for state prisoners. Relying upon its
authority under the Fourteenth and Eighth Amendment and
the Supremacy Clause, however, the district court held that
(t)he administrative action designating the UCJ as the
place of confinement of state sentenced inmates is void
ard NJSA. 2C:43-10(e) shall be given full force and
effect.
Union County, 537 F. Supp. at 1009. This holding is based,
in turn, upon the district court's conclusion that conditions in
the Jail would violate the Fourteenth and Eighth Amend-
ments even if the double-bunking scheme proposed by the
Commissioner were implemented. For, only if conditions in
the Jail could not be rendered constitutional without reduc-
tion of the population, would removal of the state prisoners
be required as a constitutional remedy.
We have concluded, however, that the district court erred
when it held that the Commissioner's remedial scheme, if
implemented by the County and the State, would not cure
existing Fourteenth and Eighth Amendment violations.
Thus, the crucial constitutional predicate for the court's
order is lacking.
The Commissioner, in the exercise of his ‘‘primary
responsibility for curing constitutional violations,’ Hutto v.
Finney, 437 U.S. at 687 n.9, has in due course and in evr
dent good faith come forward at the earliest opportunity with
a remedial scheme to cure the violations found by the
Special Master. Under the governing standards of Bell v.
Wolfish and Rhodes v. Chapman, the Commissioner's
recommendation, once implemented, would cure the due
process and Eighth Amendment violations that have been
found to exist in the Jail. This is not, therefore, a case in
which “(t)he District Court had given the (Commissioner)
repeated opportunities to remedy the (unconstitutional) con-
ditions in the ... cells.” Hutto v. Finney, 437 U.S. at 687.
B.
It has been argued in support of the district court's order
that the remedy ordered by the district court is actually less
intrusive than the recommendations made by the Commis-
App. 39
sioner. Brief of Plaintiffs-Appellees at 50-52. This is said to
be so because a single order to remove an easily identifiable
group of inmates may be carried out with less interference in
administration of day-to-day operation of the Jail than would
be required to implement the double-bunking scheme urged
by the Commissioner. We emphasize, however, that the in-
trusiveness of an order cannot be assessed apart from its
impact on the state authorities involved. There can be no
question in light of the fundamental ‘interests of state and
local authorities in managing their own affairs,”’ Milliken v.
Bradley, 433 U.S. at 281, that a constitutionally adequate
remedial scheme developed by the responsible officials and
Carried out within the context of existing state institutional
Structures, would be far less intrusive than a remedy impos-
ed on those officials against their own administrative judg-
ment by means of the abrogation of state institutional ar-
rangements.
Vil.
We therefore hold that the district court, in its zeal to cor-
rect what it perceived as unconscionable conditions, im-
properly exercised its discretion by rejecting the Commis-
sioner's proposed remedial scheme and by ordering the
removal of state prisoners from the county facility. Accor-
dingly, we will reverse and remand this case to the district
court with the following directions, with regard to the district
court's order of April 27, 1982. Union County, 537 F. Supp.
at 1014-15. The district court is directed:
|. To vacate paragraph (1) (ordering removal of state
prisoners by July 1, 1982); and
ll. To vacate paragraph (2) (ordering compliance with
N.J. Stat. Ann. 2C:43-10(e) (West 1982) despite suspension
of this fifteen-day removal provision by Executive Order):
and
lll. To vacate paragraph (f) (confirming the “maximum
Capacity” for the Jail), paragraph (g) (giving the Commis-
App. 40
sioner until July 1, 1982 to achieve that population figure),
and paragraph (h) (empowering the County to ‘‘notify the
Department of Corrections to remove any state prisoners
who have remained at the facility beyond the statutory fifteen
(15) day period since sentence was imposed’’) of the Oc-
tober 22, 1981 consent judgment, which paragraphs are in-
corporated into and made part of the April 27, 1982 order.
Union County, 537 F. Supp. at 1015.
As for the remaining portions of the April 27, 1982 order,
we will remand to the district court for reconsideration and
modification, if necessary, in light of our foregoing discus-
sion, and for such other proceedings as are consistent with
this opinion. We point out as well that, because changes not
reflected in the record before us may have occurred in the
time that has elapsed since the district court entered its April
27, 1982 order, the district court, if in its discretion it should
deem necessary, should not regard itself as precluded by
this opinion from supplementing the record. In particular, the
court may wish to develop further the manner, and time, in
which the Commissioner's remedial proposals are to be im-
plemented, and may itself take any other steps it deems
necessary to require compliance with the constitutional
mandates of Bell and Rhodes as we have construed them in
this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
(A.O.U.S. Courts, The Legal Intelligencer, Phila., Pa.)
App. 41
United States District Court
District of New Jersey
Civil No. 81-863
UNION COUNTY JAIL INMATES,
TIMMIE LEE BARLOW, et. al.,
Plaintiffs
V.
JAMES SCANLON, THOMAS
JEFFERSON, etc. et. al., OPINION
Defendants
Vv.
WILLIAM H. FAUVER, Commissioner,
Department of Corrections,
Third-Party Defendant.
BEFORE: HON. HAROLD A. ACKERMAN, U.S.D.J.
APPEARANCES:
STANLEY C. VAN NESS, ESQ.,
New Jersey Public Defender,
By: T. GARY MITCHELL, ESQ.,
Attorneys for the Plaintiffs
ROBERT C. DOHERTY, ESQ.,
County Counsel,
County of Union, N.J.,
Elizabeth, N.J. 07207
Attorney for the Defendants
IRWIN.1. KIMMELMAN, ESQ., (Argued)
Attorney General of New Jersey,
By: JOSEPH T. MALONEY, ESQ.
Deputy Attorney General
Attorney for the Third-Party Defendant
App. 42
ACKERMAN, District Judge”
It is no secret that crime is one of the most serious pro-
blems facing this country. People properly perceive it as a
disease of epidemic proportions affecting the very well-being
of society.’ It is understandable that the public, acting
through its appointed and elected representatives, has at-
tempted to respond forcefully by apprehending, prosecuting,
convicting, and in appropriate circumstances, incarcerating
the perpetrators of crime.
Incarceration, especially for violent criminals, is increas-
ingly considered to be the appropriate response to criminal
behavior.? For this reason, the legislatures of many jurisdic-
tions have reacted to this epidemic through the passage of
new laws significantly stiffening penalties to be meted out to
offenders and adjusting parole guidelines. New Jersey is no
exception. The new criminal code has already had an ap-
preciable impact on the number and length of incarcerative
sentences.
As in inevitable consequence of this war on crime, there
has been an enormous increase in the population of correc-
tional facilities in this country. Again, New Jersey is no ex-
ception.s The erection of new correctional facilities to ac-
comodate the increased jail and prison populations has
been urged by many responsible leaders including Chief
Justice Warren E. Burger. To date, new construction has
not kept pace with the demand for prison space.
Institutions have become not just crowded but overcrowd-
ed. The reduced habitability of correctional facilities has in
turn spawned a flood of lawsuits by prisoners in the federal
courts.” The complaints alleging violations of the United
States Constitution paint an egregious picture of the condi-
tions of confinement in both state and federal institutions.
The allegations implicate the Fifth and Fourteenth Amend-
ments with respect to the confinement of those who stand
accused but who are not free on bail (pretrial detainees).
They raise Eighth and Fourteenth Amendment issues with
App 43
respect to sentenced offenders. These amendments pro-
tect, respectively, pretrial detainees from subjection to
punishment without due process, Bel/ v. Wolfish, 441 U.S.
520 (1979), and sentenced persons from subjection to cruel
and unusual punishment, Rhodes v. Chapman, 452 U.S.
337 (1981). Courts, while being sensitive to the public desire
to incarcerate criminals, must, when called upon, examine
the conditions of incarceration because ‘‘people are sent to
prison as punishment, not for punishment.®
This action involves the overcrowded conditions at the
Union County Jail (““UCJ"’). The plaintiffs, represented by
the New Jersey Public Defender,? brought suit a year ago
against the Union County officials who administer the UCJ
(hereinafter referred to collectively as the ‘‘County’’).'° The
County, alleging that the overcrowded condition of the UCJ
iS Caused in whole or in part by the refusal of the New Jersey
Department of Corrections to remove those UCJ inmates
who have been sentenced to state prison terms, has im-
pleaded as a third-party defendant, William H. Fauver, Com-
missioner of the Department of Corrections. Everyone
agrees that the UCJ is overcrowded. The only issue in this
case is whether the conditions in the jail have fallen below
the standards consitutionally mandated. | find that they
have.
PROCEDURAL HISTORY
This case has taken a unique procedural path. On Oc-
tober 22, 1981, the Public Defender and the County submit-
ted to the Court for its approval a stipulation of settlement
which provided, inter alia, for a population cap in the UCJ of
238.'' The settlement was approved and entered into the
record as a consent judgment. The third-party defendant
was not a party to that settlement. Subsequently, the County
sought a preliminary injunction compelling the Commis-
sioner to withdraw immediately those UCJ inmates sentenc-
ed to state prison terms in order to enable the County to
comply with the settlement agreement. In response to the
App. 44
request, the Commissioner moved to vacate the consent
judgment asserting that the County was without the authori
ty to have entered into it under the terms of Governor
Byrne’s Executive Orders Nos. 106 and 108, dated June 19,
1981 and September 11, 1981. Those Executive Orders
declared a state of emergency in the state prison system
due to overcrowding, suspended the operation of Nu.S.A
2C:43-10(e) which mandated the removal of state sentenced
inmates within 15 days of sentencing, and granted to the
Commissioner authority to designate the place of confine-
ment of any state or county inmate.
In order to avoid a potential confrontation between the
state executive government and the federal judiciary, |
stayed the hearing on the County's order to show cause and
the Commissioner's motion to vacate the consent judgment.
At that time, the appeal of a decision by the Appellate Divi
sion of the Superior Court of New Jersey upholding the
Governor's orders was pending before the New Jersey
Supreme Court. On January 6, 1982, the appeal was decid-
ed. Worthington v. Fauver, 88 N.J. 183 (1982). In Wor-
thington, Justice Pashman, writing for a unanimous court,
held that the executive orders were a valid exercise of power
delegated to the Governor under the Civil Defense and
Disaster Control Act. The Court also held that they did not
violate the state constitutional doctrine of separation of
powers, and that the Commissioner's action in designating
the county jails as the place of confinement of state sentenc-
ed inmates currently housed there was not arbitrary or
Capricious. '@
On January 20, 1982, counsel for all of the parties in this
litigation were heard on the previously stayed motions, as
well as on a motion made by the County to vacate the con-
sent judgment, and on piainfiff's motion that the County be
found in contempt for failure to abide by the terms of the
consent judgment. On January 29, 1982, | denied the third-
party defendant's motion to vacate the consent order. Con-
sideration of the other motions was deferred. At that time, |
determined that a Special Master should be appointed pur-
App. 45
suant to Fed. R. Civ. P. 53 to undertake a thorough ex-
amination of the conditions in the UCJ and to investigate the
extent of the County’s compliance with the consent judg-
ment.'3 The Special Master, the Hon. Worrall F. Mountain,
filed his report with the Court on February 26, 1982.'* Objec-
tions were duly filed by the Commissioner and a hearing
was held on March 25, 1982. | must now decide whether to
accept, reject or modify the Special Master's report. Fed. R.
Civ. P. 53(e) (2). For the reasons which | will articulate infra, |
have determined that his findings of fact should be adopted
| will also accept, with certain specific modifications, the pro-
posed conclusions of law. The remedy outlined by the
Special Master will be followed in all material respects.
FINDINGS OF FACT OF SPECIAL MASTER
Rule 53(e) (2) sets forth the standard of review to be ap-
plied to a master’s findings of fact: ‘In an action to be tried
without a jury the court shall accept the master's findings of
fact unless clearly erroneous.’ See a/so Kyriazi v. Western
Electric Co., 647 F.2d 388, 396 (3d Cir. 1981). The findings of
the Special Master therefore carry a presumption of correct-
ness. The burden is on an objector to overcome that
presumption. See Halderman v. Pennhurst State School and
Hospital, No. 74-1345 (E.0.Pa. Feb. 26, 1982). However,
such a presumption does not apply to the conclusions of law
proposed by the Special Master. | may not abdicate my
responsibility to make a legal determination as to the con-
stitutional significance of the facts as found. See Polin v. Dun
& Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980).
The Special Master's findings of fact show the following:
The UCJ is an aging eight-story facility located in the urban
center of Elizabeth, New Jersey. As a county jail, it houses
pretrial detainees and persons sentenced within the county
to terms of less than one year. N.J.S.A. 2C:43-10(c). Persons
sentenced to terms of one year or more normally may be
housed at the UCU for up to 15 days before they are transfer-
red to a state facility, but under the declared state of
App. 46
emergency, they are being housed at the UCJ until the
Commissioner determines otherwise.
The daily population of the UCJ has averaged well over
300 inmates for the last several months. On February 8,
1982, the date the Special Master toured the facility, there
were 350 inmates housed at the UCJ, of whom 92 were
awaiting transfer to state prisons. On February 15, 1982,
there were 359 inmates, of whom 81 were awaiting transfer.
On February 24, 1982, the total population at the UCJ was
385, of whom 101 were awaiting transfer to state facilities. At
the hearing on the objections to the Special Master's report,
counsel for the County defendants stated that the UCJ
population as of March 24, 1982, was 362 inmates of whom
97 were state sentenced inmates. As of the week of April 19,
1982, the population had risen to 392, of whom 115 were
state sentenced inmates. See Affidavit of Gary Mitchell, filed
April 22, 1982.
It can be calculated from the facts adduced by the Special
Master with respect to the jail population on February 15,
1982, that pretrial detainees account for approximately 57%
of the total population. The duration of confinement of the
persons being housed at the UCJ on that particular date was
in excess of 75 days for 36.5% of the population, more than
45 days but less than 75 days for 18.1% of the population,
and !ess than 45 days for 45.4% of the population. Of those
inmates who had been at the UCJ for more than 75 days as
of February 15, 1982, 53.4% were pretrial detainees. A fur-
ther breakdown of the category of persons who had already
been confined for 45 days indicates that 57% were pretrial
detainees.
The UCJ contains 218 general population cells arranged
on 19 tiers. Each cell is equipped with a single bed and a
combination toilet/sink fixture. All the the general population
cells, with the exception of one each on A and B tiers.
measure approximately 39 square feet. Of this, approx-
imately 22 square feet are taken up by the furnishings. A
corridor fronts the cells on each tier and increases the area
accessible to inmates between 6:00 a.m. and 10:00 p.m. by
App 47
an average of 23 to 28 square feet per inmate, assuming
each cell houses only one person. Each cell gorridor is
equipped with one television set and one telephone. As
" there are no dining rooms at the UCJ, inmates take their
meals on the tiers off trays brought by hot carts. Illumination
for the cell areas comes from lights in the ‘‘officer’s corridor’
which runs parallel to the cell corridors and is separated
from it by iron bars. All parties conceded to the Special
Master that the lighting needs to be improved and the Coun-
ty iS prepared to do so.
There are 10 detention/isolation cells ranging in size from
83 square feet to 113 square feet. These cells house in-
mates guilty of disciplinary infractions or those in need of
medical isolation. Each contains a single bed and some are
equipped with toilet fixtures.
In addition to the general population and detention cells,
there is a ‘‘trustees/work release’ dormitory currently hous-
ing approximately 26 inmates on single and double bunk
beds and providing approximately 42.5 square feet per in-
mate. Two temporary dormitories have also been establish-
ed in order to accommodate the increased population. Ap-
proximately 60% of the men’s recreation area has been
converted into bedspace for 26 to 28 inmates with an
average area of confinement per inmate of 39 square feet. A
second temporary dormitory has been constructed in the
women's recreation area to provide housing for approx-
imately eight more women with an average area of confine-
ment of 47 square feet. Male dormitory inmates are confined
to the dormitory area for substantially the entire day. For
security reasons, the female dormitory inmates are confined
to the women’s tier cell corridor with all of the other women
inmates during the daytime hours.
In spite of the creation of temporary dormitories, the
County has had to resort to double-celling on the general
population tiers in order to house all of the inmates in its
custody. Since there is only a single bunk in a general
population cell, double celling has been accomplished by
placing a mattress on the floor at night. Measuring approx-
App. 48
inmately 16 square feet, the mattress must be placed adja-
cent to the toilet and occupies virtually all of the otherwise
free floor space in the cell. The Special Master found that the
double-celling practice has had its greatest impact on the
pretrial segment of the population.
Double-celling reduces the night space per inmate from
39 square feet to 19.5 square feet, which includes the bed,
the mattress and the toilet/sink fixture. As stated above, the
floor space is nonexistent. The cell corridor space is also
decreased in proportion to the number of ceils on the tier
that are housing two persons. If half the cells on a tier are be-
ing used to house two inmates, the average corridor space
per inmate for daytime use is between 15 and 21 square
feet, depending on the particular tier. If all the cells on a tier
have double occupancy, the corridor space per inmate is on-
ly between 11 and 14 square feet. The cell corridor on the
women's tier is even more crowded when total doubie-
celling occurs because the women in the temporary dor-
mitory are also confined there during the daytime hours.
When the population at the UCJ has surpassed 365,
some inmates have been assigned to mattresses placed on
the floor in the laundry area or law library area. These in-
mates continue to sleep in these areas until the population is
reduced, or until they are released or transferred.
The detention/isolation cells have also been affected by
the overcrowded conditions at the UCJ. Some of these cells
are being used to house as many as four inmates, of whom
three must sleep on mattresses laid out on the floor. Inmates
in these cells are confined there for all but a few hours a
week. Some of the detention cells are equipped with a toilet
fixture and group showers are provided daily.
The Special Master further found that severely overcrowd-
ed conditions at the UCJ have had an adverse impact on the
support services and inmate programs provided. Recrea-
tional opportunity has been especially curtailed due to the in-
creased population and the decreased space available for
recreation. Recreation for male inmates is limited to no more
than one hour periods, twice per week, which time is also
App. 49
used for access to the law library. The recreational equip-
ment available to the men consists of a ping-pong table and
a weight machine. Recreation for the female inmates has
been totally eliminated since that room was converted into
dormitory space. No outdoor exercise area is provided or
feasible because of the UCJ's urban location. The Special
Master stated in his findings with respect to this program:
“Under existing conditions, | find that there is almost no
realistic opportunity for male inmates to enjoy recreation
while confined at the UCJ."’ Special Master's Report
(“SMR”), at 13.
Visitation privileges have also been curtailed as a result of
the severe overcrowding. Formerly, inmates could receive
visitors three times a week for up to one-half hour. Currently,
the visitation period must be limited to five or ten minutes
and even with that adjustment, not all visitors can be
accommodated.
In addition to the impact of the overcrowded conditions on
recreation and visitation, the Special Master found that there
has been some noncompliance with the State regulation re-
quiring that inmates be provided clean clothes weekly and
clean towels daily. Other programs, although they are being
administered, have naturally been overburdened by the
demands of an increased population. The lack of a screen-
ing medical examination during the admission process,
while not a phenomenon related to the overcrowding, was
found to pose a serious health risk to all inmates.
Instances of fighting amongst inmates have increased
due to the overcrowded conditions at the UCJ. Tensior, has
also increased. These present problems could develop into
an extremely serious security problem if the UCJ continues
at its current population levels into the hot summer months.
OBJECTIONS
There have been no fundamental objections raised by the
parties with respect to the Special Master's proposed fin-
dings of fact. The County has not filed any objections to the
App. 50
report. The Commissioner’s objections with respect to the
findings of fact refer only to the Special Master's recom-
mended remedy for alleviating the conditions at the UCJ.
Consideration of these objections will be deferred until |
have discussed the proposed conclusions of law. The Public
Defender has suggested that the proposed findings of fact
as to adequacy of certain services are not erroneous if taken
in tandem with the improvements already promised by the
County, e.g., an increase in the budget for additional
medical and dental services. As the County has represented
that these services will be improved, | do not find that con-
sideration of this objection is necessary.
| have determined that none of the proposed findings of
fact are clearly erroneous, and | shall therefore adopt them
without modification.
CONCLUSIONS OF THE SPECIAL MASTER
Based upon the facts as found, the Special Master con-
cluded that the overcrowded conditions at the UCJ do
amount to punishment of the pretrial detainees, Bell v.
Woflfish, supra., and cruel and unusual punishment of
sentenced inmates, Rhodes v. Chapman. supra. Specificat
ly, he suggested that the total impact of the following cond+-
tions violate the due process rights of the pretrial detainees:
(T)he unsuitable and unsanitary sleeping con-
ditions resulting from inmates being forced to
sleep on mattresses, the almost complete
absence of recreational facilities, the cut-
backs in visitation, the delays encountered in
administering inmate programs, the inade-
quate lighting in the cellblocks, the inability to
provide clean inmate clothing in accordance
with N.J.A.C. 10A:31-3.13 (b) (5), and the
absence of a medical screening procedure for
new inmates, amount to ‘‘genuine privations
and hardships” which cannot be justified by
App. 51
the mere fact that a statewide prison over-
crowding problem exists.
SMR, at 19-20.
With respect to sentenced inmates, the Special Master
applied the Rhodes standard and proposed that “‘the totality
of the conditions currently existing in the UCJ is so severe, in
atleast two respects, that it exceeds contemporary stan-
dards of dignity, humanity and decency and therefore con-
stitutes cruel and unusual punishment.’’ SMR, at 24. Those
two respects are the confinement of more than one inmate
in each detention cell on floor mattresses for more than
several days and the utilization of floor mattresses in the
general population cells, library, and laundry areas, for ex-
tended periods of time.
The Special Master, pursuant to the Order of Reference
dated January 29, 1982, also addressed the issue of the
maximum jail capacity that could be constitutionally accom-
modated. He recommended a rm.aximum capacity of 244
persons which represents single occupancy in each of the
218 general population cells plus the 26 bedspaces in the
‘“trustee/work release’ dormitory.'> He determined that the
temporary male and female dormitories must be
reconverted to recreational space in order to reinstitute daily
recreation. A proposal consisting of certain structural
changes put forward by the third-party defendant was re-
jected primarily because its implementation wouid exacer-
bate the already insufficient recreation opportunity. Secon-
darily, the Special Master found that the ‘benefit’ to be
gained from these proposed temporary solutions was
substantially outweighed by the costs.
Finally, the Special Master recommended as corrective
measures that the County eliminate all uses of mattresses,
reconvert the temporary dormitories to recreation space,
develop a medical screening procedure, and take all steps
necessary to provide clean clothing to inmates in accor-
dance with N.J.A.C. 10A:31-3.13 (b) (5). Furthermore, it was
recommended in the report that both the County and the
Commissioner be given a reasonable period of time in which
App. 52
to reduce the jail population to the 244 cap. The Commis-
sioner should act by removing the state sentenced inmates;
the County should act through the means stipulated to in the
Consent Judgment of October 22, 1981.
OBJECTIONS
Objections have been raised by the third-party defendant
to the legal standards applied by the Special Master and the
legal conclusions drawn therefrom. As stated above,
Fed.R.Civ.P. 53(e) (4) requires the district court to review
the proposed conclusions of law of the master and deter-
mine for itself whether violations exist. | have determined
that the Special Master applied the correct legal principles to
the conditions at the UCJ and drew the correct conclusion
as to the constitutionality of those conditions.
CONSTITUTIONALITY OF CONDITIONS AT THE UCJ
A. Pretrial Detainees
The population at the UCJ consists of both pretrial de-
tainees and sentenced inmates, but pretrial detainees are in
the majority. The Constitution requires different avenues of
inquiry in evaluating the conditions under which these
classes of persons may be confined. Bel/ v. Wolfish, supra.,
441 U.S. at 535. The Court stated in Woffish that pretrial de-
tainees are protected by the Fourteenth Amendment against
the deprivation of liberty without due process of law and they
therefore have a right to be free from punishment prior to an
adjudication of guilt. Thus, the test to be applied to the over-
crowded conditions at the UCJ is whether they amount to
the punishment of this group of inmates. Wolfish, supra., 441
U.S. at 535; see Lareau v. Manson, 651 F.2d 96, 102 (2d Cir.
1981); Lock v. Jenkins, 641 F.2d 488, 491 (7th Cir. 1981); In-
mates of the Allegheny County Jail v. Pierce, 612 F.2d 754,
758 (3d Cir. 1979).
A determination must be made as to whether the condi
tion or restriction is ‘imposed for the purpose of punishment
or whether it is but an incident of some other legitimate
governmental purpose.”’ Wolfish, supra., 441 U.S. at 538.
The Wolfish Court further articulated this standard:
Absent a showing of an expressed intent to
punish on the part of detention facility officials,
that cetermination generally will turn on
“whether an alternative purpose to which (the
restriction) may rationally be connected is
assignable to it, and whether it appears ex-
cessive in relation to the alternative purpose
assigned (to it).’’ Kennedy v. Mendoza-
Martinez, 372 U.S. at 168-69; .
441 US. at 538.
| concur with the Special Master's conclusions that there
has been no express intent to punish the inmates at the UCJ
on the part of either the defendants or the third-party defen-
dant. The determination, then, of whether the conditions at
the UCJ violate the constitutional rights of the pretrial de
tainees confined there must depend analysis of the reasons
for and the reasonableness of those conditions. The Court in
Wolfish considered the operation of a detention facility in a
manageable fashion to be a ‘valid objective that may ...
dispel any interence that (a) restriction (is) intended as
punishment.” 441 U.S. at 540-41 & n.23.
The restriction or condition at issue in this litigation is the
severe overcrowding of the facility and the impact of the ex-
cess population on the provision of services and programs,
especially recreation and visitation. The Special Master
found that ‘the conditions caused by severe overcrowding,
including cutbacks in inmate privileges and services, are an
unavoidable incident of the jail officials’ efforts to ‘effectively
manage’ the facility during a statewide prison overcrowding
emergency.’ SMR at 19. | would add that the interests of
local and state governments in not releasing onto the streets
either pretrial detainees who are not bail worthy or convicted
inmates are legitimate ones that may justify the severely
overcrowded condition at the UCJ. However, the due pro-
cess rights of the pretrial detainees will have been violated
App. 54
by this condition if it is excessive in relation to the legitimate
interest sought to justify it.
Judged by this standard, | have determined that the
Special Master correctly found that the due process rights of
the pretrial plaintiffs have been violated. This conclusion
does not mean that there is a ‘‘one man, one cell’’ principle
engrafted onto the Fourteenth Amendment. Woflfish, supra.,
441 U.S. at 542. It is clear that the Supreme Court has not
adopted a per se rule against double-celling. However, the
Court has also not ruled that double-celling is per se con-
Stitutional.
While confining a given number of people in a
given amount of space in such a manner as
to cause them to endure genuine privations
and hardship over an extended period of time
might raise serious questions under the Due
Process Clause as to whether those condi-
tions amounted to punishment, nothing even
approaching such hardship is shown by this
record.
441 US. at 542.
In Wolfish, a federally-operated short-term custodial facility
in New York City, the Metropolitan Correctional Center
(‘MCC’"’), was the subject of the class action complaint. The
MCC was opened in 1975 and it represented ** ‘the architec-
tural embodiment of the best and most progressive
penological planning.’ '’ 441 U.S. at 525 (quoting the Court
of Appeals). The Court examined the totality of the cir-
cumstances in determining that the pretrial detainees at the
MCC did not endure genuine hardships. ‘The MCC differs
markedly from the familiar image of a jail; there are no bar-
red cells, dank, colorless corridors, or clanging steel gates. It
was intended to include the most advanced and innovative
features of modern design of detention facilities."" 441 U.S
at 525.
The inmates at MCC are double-bunked in rooms
measuring 75 square feet. The cells, while designed for
single occupancy, have been furnished with double bunk
beds in order to accommodate the excess population. While
App. 55
37.5 square feet is an “admittedly rather small sleeping
place’’, several factors brought it within tolerable limits:
(a) imates are confined to the room essentially only during
sleeping hours; (b) during the daytime hours they have free
access to large common areas and hence do not depend
upon the limited amount of space in the cell or exercise;
and, (c) nearly all of the detainees are released within 60
days. Woffish, supra., 441 U.S. at 541-43 & n. 26.
As the Court in Wolfish stated, MCC differs markedly from
traditional jails. The UCJ is a traditional jail. As outlined
above, the cells at the UCJ have a floor space of 39 square
feet inclusive of furniture and fixtures. Double-celling has
been accomplished by placing a second mattress on the
floor of the cell. While inmates are confined to these cells on-
ly during the night hours, during the daytime period they do
not have open access to a large dayroom or common area.
The cell corridors are narrow and necessarily overcrowded
to the same extent that the cells are overcrowded. Recrea-
tion in the dayroom is available only in shifts and with the
population at approximately 350, the staff has not been able
to provide more than two hours of recreation per week.
The Special Master found that under these conditions the
practice b Sepetey was unconstitutional, particularly
because of the use of floor mattresses but also because of
the impact of overcrowding on recreational and visitation op-
portunities. The use of mattresses in the detention cells and
in other areas of the UCJ was also considered to be un-
constitutional by the Special Master. | shall first review his
findings with respect to the use of mattresses. | shall
thereafter consider the impact of overcrowding on recreation
and visitation.
| agree with the Special Master that the use of floor mat-
tresses constitutes punishment without due process of law
in contravention of the rights of pretrial detainees. See
Lareau v. Manson, supra,; Vazquez v. Gray, 523 F. Supp.
1359, 1365 (S.D.N.Y. 1981). The practice is unsanitary,
dehumanizing, and shocking.
In Lareau, 651 F.2d at 105, the Second Circuit held that
App. 56
the use of mattresses placed on the floor of a cell is ‘‘too
egregious to warrant any ... leeway.’ The court considered
the practice to be unconstitutional without regard to the
number of days the practice continues. | do not agree that
the caselaw supports a finding of per se unconstitutionality.
Under the test articulated in Wolfish, supra., 441 U.S. at 542,
the period of time during which an inmate is subjected to ge-
nuine privation and hardship ts relevant to a due process in-
quiry. The clearer the hardship, the shorter the period of
time before it raises serious questions under the Due Pro-
cess Clause.
With respect to the use of floor mattresses in the general
population cells, detention cells or other areas of the UCJ. |
find that such means are permissible only during an
emergency and only if no detainee is so confined for a
period longer than 48 to 72 hours. It would be preferable if
collapsible cots were available at least for use in the library
or laundry areas. If the defendants are confronted with an
“emergency ’’ of longer duration, they are instructed to com-
ply with the other provisions of my order detailed below. (See
Appendix B).
In a footnote, the Special Master restricted his considera-
tion of the constitutionality of confining two detainees to a
cell to the condition of using mattresses to accomplish
“double-celling’ and declined to reach the issue of ‘‘double-
bunking.' The Commissioner, in his objections to the report
of the Special Master, argued vigorously that double-
bunking would remedy the unconstitutional conditions at the
UCJ without the need to reduce the population immediately
through the transfer of state sentenced prisoners. | specially
ordered the parties to address the feasibility and constitu-
tionality of double-bunking at the hearing on March 25,
1982.
The County complied with my request for supplemental
briefing by stating that the bunks presently being used in the
temporary dormitory cannot be utilized in the general
population cells because of the height of the cells. | concur
with the third-party defendant that this information is an in-
App. 57
adequate response to my directions. The feasibility of other
and different forms of bunk beds has not been addressed by
the party most familiar with the structural properties of the
UCJ. However, for purposes of my analysis under the Four-
teenth Amendment, | shall assume that some form of
double-bunking is possible.
There can be no doubt that using a double bunk bed is an
obviously more sensible manner of providing a person with a
place to sleep. However, the issue is still whether this solu-
tion passes muster constitutionally under all the conditions
at the UCJ. In this Court's judgement it does not. In a deten-
tion facility with larger cells, the arguments of the third-party
defendant would be quite plausible. Here, the cell space is,
at most, paltry. While the use of a frame bed does mean that
an inmate is not required to sleep on the floor next to the
urinal, subject to sewage back-up, etc., it does not alter the
Spatial dimensions of living quarters. Furthermore, this Court
must maintain its focus on the issue of whether the UCJ
meets minimum standards of decency.
The stark reality is that, whether provided with bare mat-
tresses or mattresses place on a frame, when the 39 square
feet general population cells are share by two persons, each
person has 19.5 square feet of space inclusive of furniture
and fixtures for the period of lock-up at night. Double-
bunking in the UCJ is therefore roughly equivalent to
quadruple-bunking in the MCC at issue in Wolfish. Such
Spatial starvation cannot pass muster constitutionally. Even
the incarcerated are entitled to something more than a walk-
in closet.
Furthermore, there is no relief during the day from the
adverse effects of overcrowding. As the Special Master
found:
The cell corridors and dormitories where the
inmates spend the overwhelming majority of
their waking hours are cramped, overcrowd-
ed and would allow little opportunity for free
movement or exercise even at normal popula-
tion levels. The pretrial detainees currently
App. 58
housed in general population cells or dor-
mitories at the UCJ can do little more than
watch television from 6:00 a.m. in the morn-
ing to 10:00 p.m. at night.
SMR, at 22. If | assume that only half of the cells on any
one tier are to be double-bunked under the Commissioner's
proposed remedy,'’ the average corridor space per person
for daytime use will be between 15 and 21 square feet. Add-
ed to one person's share of the space of a double-bunked
cell, a pretrial detainee at the UCJ is restricted nearly twenty-
four hours a day to an area which the Court in Woffish ruled
was barely sufficient for sleeping purposes. It falls far short
of the 105 square feet governing new prison construction in
this state. N.J.A.C. 10A:31-2.8 (a) (4), (12).
Other courts have found jails with similar or more
generous spatial dimensions than those in the UCJ un-
constitutional. See Lareau, supra,; Campbell v. Cauthron,
623 F.2d 503 (8th Cir. 1980); Heitman v. Gabriel, 524 F.
Supp. 622 (W.D. Mo. 1981); Vazquez, supra.; Hutchings v.
Corum, 501 F. Supp. 1276 (W.D. Mo. 1980); Benjamin v.
Malcolm, 495 F. Supp. 1357 (S.D.N.Y. 1980). Thus based
solely on considerations of space, | find that doubie-celling
or double-bunking at the UCJ subjects pretrial detainees to
genuine hardships amounting to punishment in violation of
the Fourteenth Amendment.
My decision does not rest upon an incorporation into the
Due Process Clause of the various correction associations’
recommendations with respect to the number of square feet
appropriate for daytime space in a jail such as that contained
in N.J.A.C. 10A:31-2, 8(a). See Wolfish, supra., 441 U.S. at
543-44 n.27. However, the 30 to 40 square feet allotted to a
double-bunked detainee is grossly inadequate in com-
parison to any of these professional standards. '®
Furthermore, overcrowded cells cannot be examined for
constitutionality in isolation from the overall circumstances in
the facility. Wolfish, supra., 441 U.S. at 525. In MCC, the
hardships, if any, which are imposed upon pretrial detainees
by double-bunking are mitigated by the unlimited daytime
App. 59
access to the large common areas. In UCJ, the more
serious privations are aggravated by the overcrowded cor-
ridors, and the lack of meaningful recreation and other
necessities. (For the female inmates, there is a lack of any
recreation.) What the Second Circuit stated in Lareau with
respect to the detention facility in Hartford, Connecticut, is
applicable here: ‘(T)here is no real respite for the double-
bunked inmate from the pressures of overcrowding.” 651
F.2d at 101.
As found by the Special Master, the County has been
unable to provide the inmates with daily recreation off the
tier. This is attributable to two factors. The recreation room
has been reduced from 1,758 square feet to 720 square feet
in order to erect a temporary dormitory for the men during
the overcrowding emergency. In addition, the sheer size of
the population has overburdened the staff and necessitated
a shortening of the recreation time available to each inmate.
Yet, recreation, as testified to by Gary Hilton, Assistant Com-
missioner of Corrections, before the Special Master, is one
of the most important programs in a county jail setting for
alleviating physical and mental stress.'? Even if all of the
tiers were single-celled, Mr. Hilton recommended that a
committment should be made by the County to improve the
off-tier recreation facilities.
The Commissioner proposes that elimination of the tem-
porary dormitories for the men and women in conjunction
with the establishment of a double-bunking practice would
remedy any unconstitutional condition at the UCU. | find this
proposal to be unsatisfactory. It is doubtful that recreation
will improve so long as the population is as high as it has
been for several months even if the size of the recreation
room is returned to its normal dimensions. The third-party
defendant, in effect, is proposing a trade-off of one “genuine
privation”’ for another. Either the pretrial detainees suffer in-
creased crowding in the cells in order to enjoy slightly im-
proved recreation opportunity or they suffer with the present
recreation situation in order to enjoy siightly less crowded
celis.2
App. 60
Nor is access to a crowded corridor an adequate substitu-
tion for real exercise and recreation. The Special Master
found the corridors sufficient only for passive activities, such
as watching television. At the hearing, the Attorney General
on behalf of the third-party defendant suggested, ‘The best
recreation is walking. You can read that in every newspaper
article about health and fitness.’’ Transcript at 17. Yet, the
Eighth Circuit in Campbell v. Cauthron, 623 F.2d 503, 507
(1980), in considering the constitutionality of the Sebastion
County Jail, stated: “Merely allowing the inmates to walk
around in the narrow corridor between cells does not provide
adequate exercise.’ | agree, and it is evident that Assistant
Commissioner Hilton does as well. While | appreciate the
Salutory effect of walking as an exercise, walking in the
cramped corridors of the UCJ cannot satisfy the requirement
of providing an inmate with a “healthy habilitative environ-
ment.” Battle v. Anderson, 564 F.2d 388, 395 (10th Cir
1977). By any reasonable standard, the provision for recrea-
tion and exercise at the UCJ at the present population level!
is woefully inadequate.
The overcrowded condition of the UCJ is the cause not
only of inadequate recreation by also, as found by the
Special Master, of reduced visitation privileges. This, too,
aggravates the tensions already present because of double-
bunking. As testified to by Assistant Commissioner Hilton,
visitation has a very significant impact on the mental well-
being of an incarcerated person.2' Under the present cir-
cumstances, visits have been limited to five to ten minutes, if
not indirectly discouraged altogether .22
| have determined that double-bunking at the UCJ violates
the due process rights of pretrial detainees. It constitutes
“confining a given number of people in a given amount of
space in such a manner as to cause them to endure ge
nuine privations and hardships over an extended period of
time.’ Wolfish, supra., 441 U.S. at 542
B. Sentenced Inmates
In addition to pretrial detainees, there are confined at the
App. 61
UCJ inmates already sentenced to county or state terms of
imprisonment. Because these persons have been con-
victed, the Constitution does not protect them from ail
punishment but only from cruel and unusual punishment.
Rhodes v. Chapman, supra. The Special Master found that
the practice of sleeping sentenced inmates on mattresses in
the general population cells, in the detention/isolation cells.
and on the library or laundry floors violated the Eighth
Amendment rights of those persons. He also found that
sentenced inmates were deprived of adequate recreational
opportunity to the same extent as pretrial detainees. See
Miller v. Carson, 563 F.2d 741, 750 (5th Cir. 1977).
In Rhodes, supra., the Court set forth the yardstick to be
applied in measuring a prison condition under the Eighth
Amendment:
Today the Eighth Amendment prohibits
punishments which, although not physically
barbarous, ‘involve the unnecessary and
wanton infliction of pain,” ... or are grossly
disproportionate to the severity of the crime ...
No static ‘‘test’’ can exist by which courts
determine whether conditions of confinement
are Cruel and unusual, for the Eighth Amend-
ment “must draw its meaning from the evolv-
ing standards of decency that mark the pro-
gress of a maturing society.”’
452 U.S. at 346. (citations omitted).
At issue in Rhodes was the Southern Ohio Correctional
Facility (““SOCF"’), a modern maximum-security state prison.
The Court reviewed the findings of the district court and con-
Cluded that they did not substantiate its ultimate finding of
unconstitutionality. The cells of SOCF are 63 square feet
and contain a bunk bed, night stand, sink with hot and cold
running water, a sanitary toilet, and a wall-mounted shelf,
cabinet and radio. They are heated and ventilated, and
some even have a window that inmates can open and close.
452 U.S. at 341. In sum, as the Court stated, “though small,
the cells at SOCF are exceptionally modern and functional."’
ld. at 349 rn. 13.
App. 62
As a result of double-celling at SOCF, job and educational
opportunities had diminished ‘marginally’. Rhodes, supra.,
452 U.S. at 348. However, it “had not reduced significantly
the availability of space in the day rooms or visitation
facilities."’ /d. at 342. In light of these findings, Justice
Powell, writing for the Court concluded:
The double celling made necessary by the
unanticipated increase in prison population
did not lead to deprivations of essential food,
medical care, or sanitation. Nor did it increase
violence among inmates or create other con-
ditions intolerable for prison confinement.
Id. at 348.
Conditions at the SOCF obviously do not mirror conditions
in older prisons which the Court stated “have justly been
described as ‘deplorable’ and ‘sordid.’ Bell v. Wolfish, 441
U.S. at 562."" Rhodes, supra., at 352. When such conditions
“alone or in combination ... deprive inmates of the minimal
civilized measure of life's necessities,” /d. at 347, and can
be said to be cruel and unusual under contemporary stan-
dards of decency, federal courts must ‘discharge their duty
to protect constitutional rights.’ © /d. at 352.
The conditions of overcrowding and doubie-celling are not
to be reviewed in isolation. Rather, provision of space must
be viewed against the totality of conditions. Rhodes, supra.,
452 U.S. at 363 & n.10 (Brennan, J., concurring). See also.
Stewart v. Winter, 669 F 2d 328, 335-36 (5th Cir. 1982); Ruiz
v. Estelle, 666 F.2d 854, 858 (5th Cir. 1982); Madyun v.
Thompson, 657 F.2d 868, 874 (7th Cir. 1981); Hendrix v.
Faulkner, 525 F. Supp. 435, 524 (N.D. Ind. 1981).
| agree with the Special Master that requiring sentenced
inmates to sleep for long periods of time on mattresses post
tioned on the floor constitutes cruel and unusual punish-
ment. It is a “reprehensible and dehumanizing’ practice
SMR, at 25. The practice deprives these inmates of the
essential requirement of habitable shelter. As stated by the
Tenth Circuit, shelter is a core area of concern under the
Eighth Amendment and it goes beyond having a solid roof
over one’s head:
App. 63
In Battle v. Anderson, supra., we upheld the
district court's conclusion that “‘(i)t is incum-
bent on the incarcerating body to provide the
individual with a healthy habilitative environ-
ment.’’ 564 F.2d at 395. In affirming in Battle,
we upheld the finding that 60 square feet of
living space was the minimum amount of
square footage which the Eighth and Four-
teenth Amendments require that a state pro-
vide an inmate. /d. at 395, 397, 403. ... In
short, a state must provide an inmate with
shelter which does not cause his degenera-
tion or threaten his mental and physical well
being. Battle v. Anderson, supra.,564 F. 2d at
403.
Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980), cert.
denied, 450 U.S. 1041 (1981).
Even considering the incremental improvement in living
conditions at the UCJ that would occur upon substituting
bunk beds for mattresses, the stark reality is that 30 square
feet of daytime space or 19.5 square feet of sleeping space
fails to meet any contemporary standard of decency
especially in light of the impact overcrowding has had on
visitation, recreation, and time off the tier, as detailed above.
See, e.g., Lareau, supra,; Ramos, supra.; Ruiz, supra,; Smith
v. Fairman, 528 F. Supp. 186 (C.D. Ill. 1981). With regard to
the detention/isolation cells, | agree with the Special Master
that the cells can constitutionally accommodate two persons
if each is provided with a bed. But the practice of Housing
three or four inmates on mattresses is deplorable and can-
not be countenanced.
Although the standard against which the court must judge
conditions imposed upon sentenced offenders is more str-
ingent than that which guides the analysis of conditions of
confinement of pretrial detainees, | find that the conditions at
the UCJ are too egregious to satisfy either standard. Double-
bunking, as practiced at the UCJ or as proposed, except in
the detentiorvisolation cells, violates the Eighth Amendment
as well as the Fourteenth Amendment.
App. 64
In sum, | will accept the proposed conclusions of law of
the Special Master, as modified by my consideration of the
constitutionality of a double-bunking practice at the UCU. |
must now turn my attention to fashioning an appropriate
remedy for these constitutional violations.
REMEDY
| am very mindful of the delicate balance established by
the Constitution between federal and state governments.
See Rizzo v. Goode, 423 U.S. 362, 378 (1976); see also
O’Connor, Trends in the Relationship Between the Federal
and State Courts from the Perspective of a State Court Judge,
22 Wm. & Mary L. Rev. 801 (1981). Especially in the area of
prison administration, judicial restraint is necessary in order
to ensure that the business of operating a state corrections—
system stays in the hands of persons most able to ac-
complish this difficult task. Bell v. Wolfish, supra., 441 U.S. at
562.
These admonitions give a federal court pause to consider
the implications of interfering in a local jail problem. Never-
theless it is a solemn duty of a district court to
““scrupulously”’ observe whether there has been a constitu-
tional failing in a challenged jail facility. Wolfish, supra.; Pro-
cunier v. Martinez, 416 U.S. 396 (1974). In Procunier, supra.,
416 U.S. at 405-06, the Court said:
But a policy of judicial restraint cannot encom-
pass any failure to take cognizance of valid
constitutional claims whether arising in a
federa! or state institution. When a prison
regulation or practice offends a fundamental
constitutional guarantee, federal courts will
discharge their duty to protect constitutional
nights.
As | have determined that the UCJ as it is presently
operated offends the fundamental guarantees of the Eighth
and Fourteenth Amendments, | must complete the task re
quired of me by the Constitution.
App. 65
It has been noted previously that all the parties agree that
the UCJ Is seriously overcrowded and that the single most
pervasive cause for this condition is the continued presence
of state sentenced inmates. The confinement of state in-
mates in the UCJ is caused, in turn, by the valid and
reasonable exercise of powers vested in the Commissioner
under the Governor's Executive Orders. Worthington v.
Fauver, supra., 88 N.J. at 198. Consequently, the over-
burdened Union County facility, as detailed above has suc-
Ccumbed to other egregious conditions, such as the lack of
meaningful recreation and visitation, and the lack of ade
quate living space, which undermine its habitability.
| have concluded on this basis that the environment at the
UCJ is so degenerative and unhealthy as to be constitu-
tionally impermissible. As the Executive Orders have con-
tributed substantially to this unconstitutional situation, under
the Supremacy Clause of the Constitution the Executive
Orders as applied to the UCJ must yield. U.S. Const. Art. VI,
cl.2. See also Jacobson v. Massachusetts, 197 U.S. 11, 25
(1905). The administrative action designating the UCS as the
place of confinement of state sentenced inmates is void and
NJSA 2C:43-10(e) shall be given full force and effect.
This Court, however, is not unmindful of the good faith ef-
forts of this administration and the previous administration to
find a solution to the problem of overcrowding. See, e.g..,
Report of the Governor's Task Force on Prison Over-
crowding, December 3, 1981. Governor Kean has taken
special note of this crisis. He indicated in his budget
message, delivered on March 15, 1982, the State’s role and
its responsibility in the matter of insufficient county jail
bedspaces:
Our state problems have been passed down
to the counties and in some cases even to our
municipal jails. Go, as | have, to jails in coun-
ties like Essex, Passaic and Camden and you
will see the results of our neglect. This budget
provides us with the money to start to rectify
this problem and place state prisoners into
state custody where they rightfully belong.
App. 66
It is obvious that the Chief Executive of the State is aware of
the problem.
One of the measures which the Governor is taking in
response to this emergency, in addition to seeking ap-
propriations for new prison construction, is the execution of
a lease with the United States Army for the use of the
stockade at Fort Dix. At my request, Commissioner Fauver
submitted an affidavit outlining the timetable for the transfer
of inmates to Fort Dix, to be designated as the Mid-State
Correctional Facility:
| anticipate that | would be able to arrange for
the placement of state inmates in the Mid-
State Correctional Facility, commencing May
15 to May 31, at the rate of 80 per week, until
the facility is filled with 500 inmates on or
about approximately July 10.
Affidavit of William H. Fauver, filed April 5, 1982 §11.
Hopefully this facility will go some of this distance toward
rectifying the State's ‘‘neglect”’.
| ar persuaded by the good faith representations of the
third-party defendant that at least a temporary solution to the
UCJ situation can feasibly be arranged by approximately
June 15, 1982. Insofar as the State is acting with reasonable
alacrity in this matter, | will stay the operation of N.J.S.A.
2C:43-10(e) as applied to the UCJ until July 1, 1982, rather
than impose an overnight remedial order upon the parties.
The stay will provide the State with sufficient leeway to
enable it to administer the transfer of state sentenced in-
mates from the UCJ. Whether the measures proposed by
the administration will suffice beyond the immediate mo-
ment and solve the long-run crisis of a burgeoning prison
population should give the public pause, but it is not an issue
properly before this Court. Nor does this Court have jurisdic-
tion to order alternative relief in the form of, e.g., parole
guideline revisions. That clearly is the duty of the state
legislature. My duty is to order speedy but fair relief for the
plaintiffs to remedy the constitutionally impermissible condi
tions under which they are confined before the hot summer
months ignite this tinderbox.
App. 67
| have also determined that the County, which is primarily
responsible for providing a constitutional jail, is not to be
relieved of the consent judgment it voluntarily entered into
except in one respect. Fed.R.Civ.P. 60(b\6). That rule pro-
vides in pertinent part:
On motion and upon such terms as are just.
the Court may relieve a party of his legal
representatives from a final judgment, order
or proceeding for ... (6) any reasons justifying
relief from the operation of the judgment.
On the motion to set aside the consent order, the County
has the burden of proving that the order is too burdensome
under circumstances that have significantly changed since
the settlement was entered into. See United States v. Swift &
Co., 286 U.S. 106 (1932). Although Swift was decided prior
to the enactment of the federal rules, it continues as the
standard for equitable relief from a judgment. In Swf, the
Court stated:
There is need to keep in mind steadily the
limits of inquiry proper to the case before us.
We are not framing a decree. We are asking
ourselves whether anything has happened
that will justify us now in changing a decree.
The injunction, whether right or wrong, Is not
subject to impeacthiment in its application to
the conditions that existed at its making. We
are not at liberty to reverse under the guise of
readjusting. Life is never static, ... The inquiry
for us is whether the changes are so impor-
tant that dangers, once substantial, have
become attenuated to a shadow. No doubt
the defendants will be better off if the injunc-
tion is relaxed, but they are not suffering hard-
ship so extreme and unexpected as to justify
us in saying that they are the victims of op-
pression. Nothing less than a clear showing of
grievous wrong evoked by new and unfore-
seen conditions should lead us to change
App. 68
what was decreed after years of litigation with
the consent of all concerned.
286 U.S. at 119.
The order being entered as a result of this decision
relieves the County of a substantial burden. It in effect grants
to the County the injunction on the third-party complaint
Sought by it prior to my appointment of the Special Master.
Furthermore, circumstances have not changed significantly
since the County entered into the stipulation of settlement.
As stated by Judge Lasker in the Southern District of New
York in a similar State prison-County jail context: ‘Moreover.
the only circumstance which has changed - an increase in
the population of the State's prison population - was entirely
foreseeable in (October), 1981, and had been for a long
period before that date."’ Benjamin v. Malcolm, 528 F.Supp.
925, 929 (1981).
Because | believe that the provision in the consent order
requiring the County to close the doors to the UCJ as a
“last-resort” measure is an unnecessarily intrusive and
disruptive one, | will relieve the County of complying with it.
In its stead, the County is directed to exhaust in good faith all
other avenues of relief set forth in that order and then to
seek relief in this Court.
As the County has not filed any objections to the report of
the Special Master and as | have concurred in all material
respects with the findings and conclusions of that report, the
County shal! be ordered to implement a medical screening
program, to reinstate the recreation and visitation programs
to prior levels, and to comply with N.JA.C. 10A:31-3.13 (b)
(5) regarding clean clothes and towels. | note the representa-
tions made by the County to the Special Master that lighting
on the tiers will be improved and that additional medical and
dental personne! will be hired.
One final remedial measure must be established: a max-
imum population capacity. While the Second Circuit has
preferred a more flexible mechanism, see Lareau. supra.,
the circumstances of the UCJ make it more appropriate to
use a ‘cap’. In this case, all the parties have either con-
App 69
sented to or admitted that the capacity of the UCJ is 238.
See Letter from William H. Fauver to Judge DiBuono, dated
February 20, 1981, SMR Appendix at 224. | find that the
facts support a capacity figure of 259: 218 single general
population cells, 26 in the “trustee/work release’ dormitory,
and 15 new intake cells. The detention/isolation cells with a
double bunk in each are not included in the capacity
because they are reserved for special administrative pur-
poses. In light of my order directing the Commissioner to
remove the state sentenced inmates by July 1, 1982, | find
that the County should have until July 1, 1982, to implement
the ‘‘cap” as a reasonable accommodation of all interests.
| will retain jurisdiction in order to monitor compliance with
the order being entered on this decision. The Special Master
is to report to the Court every sixty days until discharged.
Defendant Colletti is to report on the County’s actions pur-
suant to this order every sixty days until ordered otherwise.
The report is to be served upon the parties, the Special
Master, the Court, the County Prosecutor, the Board of
Chosen Freeholders, and the assignment and criminal
assignment judges of the County.
An order in conformance with this opinion has been filed
by the Court.
Dated: April 27, 1982
FOOTNOTES
1. As reported by the Federal Bureau of Investigation,
Uniform Crime Reports: Crime in the United States,
September 10, 1981, at 38:
The volume of Crime Index offenses in 1980
increased 18 percent over 1976 figures and
55 percent above those for 1971 ... From
1976 to 1980, violent crimes were up 33 per-
cent and property crimes rose 16 percent.
App. 70
Footnotes (Cont'd)
2. One very able spokesperson for this viewpoint is James
Q. Wilson, Thinking About Crime, 172-73 (1975):
(W)e would view the correctional system as
having a very different function - namely, to
isolate and to punish. It is a measure of our
confusion that such a statement will strike
many enlightened readers today as cruel,
even barbaric. It is not. It is merely a recogn+
tion that society at a minimum must be able to
protect itself from dangerous offenders and to
impose some costs (other than the stigma
and inconvenience of an arrest and court ap-
pearance) on criminal acts; it is also a frank
admission that society really does not know
how to do much else.
The purpose of isolating - or, more accurately,
closely supervising - offenders is obvious:
Whatever they may do when they are releas-
ed, they cannot harm society while confined
or closely supervised. The gains from merely
incapacitating convicted criminals may be
very large ... If much or most serious crime is
committed by repeaters, separating repeaters
from the rest of society, even for relatively
brief periods of time, may product major
reductions in crime rates.
3. 23% more incarcerative sentences were imposed dur-
ing the first six months of 1981 than during the comparable
period in 1980. Steelman, ‘‘Overcrowding in New Jersey: No
Easy Answers to a Crisis in Corrections”, National Council
on Crime & Delinquency 16 (1981).
4. The National Institute of Justice reports that the number
of persons confined for more than one year increased
almost 50% between 1972-1978. 2 National Institute of
Justice, American Prisons and Jails 11 (1980).
App. 71
Footnotes (Cont'd)
5. The population projections for the New Jersey prison
complex show an increase of 38% from 1981 to 1982, and
and increase of 150% from 1981 to 1985. By January 1990,
14,400 persons could be populating the state facilities.
6. After society has spent years and often a
modest fortune to put just one person behind
bars, we become bored. The media lose in-
terest and the individual is forgotten. Our
humanitarian concern evaporates. In all but a
minority of the States we confine the person
in an overcrowded, understaffed institution
with little or no library facilities, little if any
educational program or vocational training. |
have visited American prisons built more than
100 years ago fc 800 prisoners, but with two
thousand crowded today inside their ancient
walls.
Remarks of Warren E. Burger, Annual Report to the
American Bar Association (Feb. 8, 1981).
7. See Rhodes v. Chapman, 452 U.S. 337, 354 n.2 (1981)
(Brennan, J. concurring) citing 3 National Institute of Justice,
American Prisons and Jails 34 (1980).
8. N.Y. Times, Mar. 25, 1982, §A, at 16, col. 1, quoting
Frank W. Wood, Warden of Minnesota Correctional Facility
in Oak Park Heights.
9. The Office of Inmate Advocacy, counsel to the plaintiffs,
was established as a part of the Office of the Public
Defender, N.J.S.A. 52: 27E-10. The Public Defender has
discretion to decide what clients the Office of the Inmate Ad-
vocacy will represent. N.J.S.A. 52:27E-12.
App. 72
Footnotes (Cont'd)
10. The plaintiffs also included as defendants several
judges of the New Jersey Superior Court. On August 5,
1981, the complaint was dismissed as against these defen-
dants on the grounds that comity considerations precluded
granting relief against judges who were not alleged to have
directly and personally engaged in unconstitutional conduct.
519 F. Supp. 770 (D.N.J. 1981).
11. The stipulation of settlement sets the maximum capaci-
ty of the jail at 238 and allows the County defendants .J
days in which to implement the agreement. The measures
to be taken whenever the capacity is exceeded include
notification to municipal police agencies for retention of per-
sons presently confined in the local lock-up facilities,
notification to the Department of Corrections for removal of
State sentenced inmates, and notification to this Court for a
hearing. Pending a determination or other action to reduce
the population, the jail administrators were required to refuse
to admit persons brought to them.
12. On January 20, 1982, Governor Kean, in one of his first
acts in office, extended the emergency executive action for
an additional four months. Executive Order No. 1
13. See Appendix A infra
14. Hon. Worrall F. Mountain is a retired justice of the New
Jersey Supreme Court. He served on that bench from 1971
umtil his retirement in June of 1979. Justice Mountain recent-
ly participated as a member of Governo
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