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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