# Petition — Di Buono v. Fauver > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1154%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1102 ## Text flice Supreme FILLE s Or, v Db 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 overc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1154%3A1. Public record. Not legal advice.