Petition for Writ of Certiorari — Sterrett v. Taylor

LIBRAr? reyry

4 t- Tvti COURT, Us &

zis at : NOV 133 1974

In The

Supreme Court of The United States

OCTOBER TERM, 1974

No. _G4- 57 6 .

W.L. STERRETT, et al..

Petitioners,

V.

JOSEPH TAYLOR, et al.,

Respondents.

CLARENCE JONES, et al.,

Petitioners.

v.

JULIUS D. PERRY, et al.,

Respondents.

Petition fora Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

~

EARL LUNA & THOMAS V. MURTO III

1002 Dallas Federal Savings Bldg.

Dallas, Texas 75201

Attorneys for Petitioners

COMPTON PRINTING COMPANY — GARLAND. TEXAS — (214) 276-3223

\>

INDEX

Page

EPR TEE ET ECTTT CRTC TE ETE TTe ii

SR NT ic sks dewey isn cs ncccarscasessensersenns 2

aac de ankne nh en ebnceesbaeeees 2

Questions Presented for Review ...............0.e005 2,3

Constitutional Provisions and Statutes Involved.......... 3

RE OE TDs ov sac e dees scdnencanavcseses 3-9

Reasons for Granting the Writ ................... 9— 21

EP, CT TT eE TCT ETT TT eee eee 20 — 21

OEP ET UTE TT TEETER CELE CUL ETE TET 22

Appendix A — Opinion and Order of the

PGS Ga ARASHARA RAD NAN SR Ga SanneD A-1 — A-6

Appendix B — Opinion and Order of the

SEE RE Soc cncn acne ssaeseconacneens B-1 — B-29

Appendix C — Constitutional Provisions

| APSE CTT ECTECR TET TET ETe C-1 — C-7

ii List of Authorities

Cases Page

Battle v. Anderson, 376 F. Supp. 402, (E. D. Okla. 1974) ...... 18

Coleman v. District of Columbia Commissioners, 234

Fs Me WEc SUED b ca cvaconacccavevenceerexes 16

Coun ae, Ge ies RTE hc eka oeseveaeescadevons 15, 16

Furman v. Georgia, 408 U.S. 238 (1972) .........-.ee ee ee eens 17

Holt v. Sarver, 309 F.Supp. 362 (E.D. Ark. 1970) ............. 13

Morales v. Schmidt, 340 F. Supp. 544 (W.D. Wisc.

1972). revs'd and remanded, 489 F.2d 1335 (7th

Cir. 1973), opinion on rehearing en banc, 494 F.2d

IN oe Fcc ucauau care eteeniir eis on deste 17

Morris v. Travisono, 310 F.Supp. 857 (D.R.I. 1970) ........... 11

Pell v. Procunier, U.S. 94 S.Ct. 2800 (1974) ....... 17

Railroad Commission v. Pullman Company, 312 U.S.

MINEE S555 voceNeet rereeeeer crak ea ca es 19

Rhem v. Malcolm, 371 F. Supp. 594 (S.D. N.Y. 1974).......... 13

San Antonio School District v. Rodriguez, 411 U.S. 1 (1973) .13, 15

Simmons v. Jones, 478 F.2d 321 (5th Cir. 1973) ............... 19

Sinclair v. Henderson, 331 F.Supp. 1123 (E.D.La. 1971)....... 11

Theriault v. United States, 481 F.2d 1193 (5th Cir.

EE ert rr re TT Per sy ee ye Ts ee ee ee 12

Other Authorities

Louis N. Robinson, Penology in the United States,

ate G. VEN, SHEE: 6c a cvive dba scervsecncewecinns 9-10

National Advisory Commission on Criminal Justice

Standards and Goals, Report on Corrections,

(U.S. Government Printing Office 1973) ....... 10, 11, 15, 18

Task Force on Corrections, Task Force Report: Cor-

rections (U.S. Government Printing Office 1967) ......... 14

Texas Legislature Council, Statutory Standards and

Present Conditions in Texas Jails, Report to 63rd

Legislature, (Report No. 62-2, January, 1973)............ 19

U.S. Law Enforcement Assistance Administration,

National Jail Census 1970 (U.S. Government Print-

i gs Reerer rer yer eer rT ee re rrr es 31, 12, 13, 14

U. S. Law Enforcement Assistance Administration and

U.S. Bureau of the Census, Local Jails (U. S.

Government Printing Office 1973)..............00065 12, 13

In The

Supreme Court of The United States

OCTOBER TERM, 1974

No.

W. L. STERRETT, et al.,

Petitioners,

V.

JOSEPH TAYLOR, et al.,

Respondents.

CLARENCE JONES, et al.,

Petitioners,

V.

JULIUS D. PERRY, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

Your Petitioners! respectfully pray that a writ of

1. The Petitioners consist of W. L. Sterrett, Mel Price, Joe Rich,

Jim Tyson and Roy Orr, members of the Commissioners Court

of Dallas County, Texas, (Joe Rich has succeeded John

Whittington and Roy Orr has succeeded Denver Seale on the

Commissioners Court); Clarence Jones, Sheriff of Dallas

County, Texas (succeeding James E. Decker); Allen Sweatt,

Chief Jailer (succeeding E. L. Holman); and J. N. Pickard,

County Health Officer; individually and in their official

capacities in Dallas County, Texas. The Respondents are

Joseph Taylor, James Douglas Thompson, Charles William

Bruce, John Henry Woods, Jr., Julius Dwain Perry, Sr., James

Edward Clayton, and George Byron Hamlet, individually and

on behalf of all others similarly situated.

certiorari issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit, entered in the above

entitled case on August 19, 1974.

OPINIONS BELOW

The opinion of the United States Court of Appeals is

reported in 499 F.2d 367 (5th Cir. 1974), a copy of which is

attached hereto as Appendix A.

The opinion of the United States District Court for the

Northern District of Texas, which was affirmed in part and

vacated in part and remanded by the United States Court of

Appeals for the Fifth Circuit, is repcrted at 344 F.Supp. 411

(N.D. Tex. 1972), a copy of which is attached hereto in

Appendix B.

GROUNDS FOR JURISDICTION

The judgment sought to be reviewed was entered by the

United States Court of Appeals for the Fifth Circuit on

August 19, 1974. Appendix A. The judgment affirmed in

part and vacated in part and remanded the judgment of the

United States District Court for the Northern District of

Texas entered June 5, 1972.

The statutory provisions believed to confer on the United

States Supreme Court jurisdiction to review the judgment in

question by writ of certiorari is 28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED FOR REVIEW

1. Should the district court have abstained from inter-

preting Article 5115 of the Texas Revised Civil Statutes or,

3

in the alternative, did the district court make, and the court

of appeals affirm, an erroneous interpretation?

2. What are the constitutional requirements proscribed

by the Eighth Amendment for conditions and facilities in ~

local jails?

3. Does a single judge district court have jurisdictional

authority to affirmatively enjoin state officials to provide

facilities for jails in excess of those designated by statute?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The pertinent constitutional provisions are the Eighth and

Fourteenth Amendments to the United States Constitution.

The pertinent statutes are Article 5115, 5116 and 5117 of |

the Texas Revised Civil Statutes and Article 2.18 of the

Texas Code of Criminal Procedure. These constitutional

provisions and statutes are set out in Appendix C.

STATEMENT OF THE CASE

The Respondents, inmates in the county jail of Dallas

County, Texas, initiated this class action suit in federal

district court seeking injunctive relief from conditions and

practices that allegedly violated the prohibitions against

cruel and unusual punishments of the Eighth Amendment to

the United States Constitution. Jurisdiction of the district

court was invoked through 28 U.S.C. § 1343 and 42 U.S.C. §

1983 on the basis that the civil rights of the inmates were

involved. The Respondents further urged the district court

to consider non-federal claims under its ancillary jurisdic-

tion.

Immediately prior to trial, the case of Perry v. Decker

was consolidated with Taylor v. Sterrett. The Perry

co..plaint focused upon the adequacy of medical services in

the jail, while the Taylor complaint covered a much wider

scope of conditions, practices and policies in the jail.

After a personal tour of the jail facilities and a trial on

the merits, the court made the following relevant findings of

fact.

The county jail is located in two buildings referred to as

the old jail and the new jail. The new jail is located in the

new County Government Center and was designed to

accommodate 1220 inmates. The quarters in use in both

buildings at the time of the trial, June, 1972, had a design

capacity of 1370 inmates. The number of inmates actually

held generally exceeded the design capacity. During the

first half of May, 1972, the average peak number of inmates

per day averaged 1589. During 1971 the average daily

number per month varied from 1446 to 1814. The women’s

section of the jail located on one floor of the new jail

consisted of 25 cells containing 198 bunks. On the day of the

trial there were 92 female inmates. Excess bunks in the

women’s section could not be used to house male inmates

due to design limitations not permitting segregation of male

and female inmates within that area.

Most of the inmates were assigned to cells each with 8 to

12 bunks which open into a ‘‘day room.’’ These entire

areas, which are referred to as “tanks,” vary in design

capacity from 24 to 36. In addition to ten tanks, there were

168 cells without a day room, opening into a corridor, each

containing several bunks. The tanks were overcrowded, at

the time of the trial, having approximately 15 more inmates

than bunks. Those inmates not assigned a bunk slept on

mattresses in the day room. The hospital ward for men was

also overcrowded. It has 48 beds and on the day of the

judge's visit had 62 inmates admitted. Persons without beds

slept on mattresses on the floor.

The jail also has a number of solitary cells. They have

dimensions of 4°3" x 5°11", 6°11" x 51", and 7'1" x 6’. Only

four had running water; none drinking fountains. The toilet

facilities in the solitary cells consisted of a hole in the floor

which could be flushed from the outside of the cell. Light

was provided 24 hours a day by an electric globe. There

were no bunks in the solitary cells, but prisoners were

given mattresses.

The jail medical facilities consisted of a hospital ward for

men with 48 beds and one for women with 18 beds. A nurse

was on duty 24 hours each day and a doctor was on call

throughout the day. Upon entrance, inmates were tested for

tuberculosis and venereal disease. At the time of trial,

dental care included both filling and tooth extraction.

Recreation for the inmates consisted of reading and

playing cards and dominos. There was no designated area

or program for exercise. However, the court made no

finding that calisthenics or in place exercises were prohib-

ited or insufficient. There was exposure to sunlight in the

new jail through translucent windows.

There was no general program of rehabilitation or

education at the jail. The jail performed exclusively a

custodial function. Some months before the trial a Chaplain

had begun a small pilot program of teaching selected

prisoners some rudimentary educational subjects.

At the time of the trial, the inmate population of (ne jail

consisted of arrestees, persons awaiting trial, persons

convicted of misdemeanors serving their sentence, and

convicted felons awaiting transfer to the Texas Department

of Corrections or a decision on appeal. At that time there

was no attempt to segregate the various classes of

prisoners; however, the Sheriff was beginning to institute a

classification system based upon maximum, medium and

minimum security risk. Pre-trial detainees were not permit-

ted to participate in the limited educational program nor

obtain a trusty iob within the jail.

The court noted that the Sheriff testified that the lack of

adequé te supervisory personnel was a major restriction on

providing meaningful programs for the inmates. There were

a total ef 99 guards divided into three shifts. Each shift had

to supervise five floors of the new jail and the old jail,

housing a total of more than 1500 inmates. The role of the

guards was limited to housexeeping and security measures.

The court also made other findings not relevant to this

application regarding mail censorship, policies on books

and periodicals, and disciplinary procedures.

The court began its analysis of the applicable law by

holding that Article 5115 of the Texas Revised Civil Statutes

provided statutory design minimums which the Dallas

County jail did not meet. Article 5ii5 provides, among other

things, that solitary cells shall have a minimum of 40 square

feet and that larger cells must have a minimum of 18 square

feet per person. Sanitary facilities, consisting of a water

closet and combination lavatory and drinking fountain must

be provided in each solitary cell and in the larger cells for

each twelve inmates or fraction thereof. Bunks must be

provided for all prisoners. Tanks should be designed for a

maximum of twenty-four prisoners each, and thirty per cent

of all prisoners should be in single cells. Although the court

held that certain design features of the Dallas County jail

dic not conform to the provisions of Article 5115, it

con..dered overcrowding as the major factor in complaints

about the physical facilities.

After reviewing the charges of the inmates that the

conditions of the jail subjected them to a cruel and unusual

punishment, the court stated, ‘Rehabilitation must be the

overriding goal of our correctional institutions."’ The court

further held that the lack of any program of recreation or

exercise was an important deficiency, noting that other

courts had considered lack of exercise “in the context of

being cruel and unusual punishment.” The court did hold

that use of the solitary cells would be cruel and unusual

punishment. The court made other holdings with regard to

disciplinary procedures not significant here.

Although the new jail was only opened in 1966, the court

concluded that the county jail was in ‘‘desperate need of

upgrading and expansion."' The court therefore enjoined

the Commissioners Court from violating Article 5115 and

required that certain specific steps be taken immediately to

include the provision of sufficient cells with a design

capacity equal to the highest number of inmates in the jail

during any one day in 1972. The court also directed the

Commissioners Court to plan a new jail facility with

recreational, educational and chapel facilities, and in the

interim to provide recreational facilities for the present jail.

(A suggestion was made that the roof of the County

Government Center building be converted for interim

recreational facilities.) The court directed that the Sheriff

not place inmates in a cell of less than forty square feet, in a

solitary cell without the required sanitary facilities, or in a

cell already filled to its design capacity. The Commission-

ers Court was directed to hire additional jail guards. The

court also made other directions relating to access of

investigators to the inmates, mail censorship, periodical

policies, medical examinations of food handlers, and

discipline procedures not applicable to this application.

The Petitioners appealed to the Fifth Circuit. The Fifth

Circuit after an extensive delay, affirmed the district

court's orders concerning the building of a new jail facility

meeting the specifications of Article 5115, implementing

interim specified expansion of the present facilities, re-

quiring the provision of outdoor recreational, educational

and chapel facilities, restricting where the Sheriff can

place prisoners and requiring medical examinations of food

handlers, as enforcement of the applicable state law. The

Fifth Circuit also affirmed the district court's orders

regarding reading material policies and practices. The

circuit court vacated and remanded the trial court’s orders

on mail, disciplinary procedures, and the limitation on the

access of the district attorney's investigators to inmates.

9

The Fifth Circuit made no explicit ruling on the district

court's order that the Commissioners Court hire more

guards.

REASONS FOR GRANTING THE WRIT

The Court should grant a review on writ of certiorari of

the judgment of the United States Court of Appeals for the

Fifth Circuit because portions of the decision of that court

decide importaat questions of federal law which have not

been, but should be, settled by the Supreme Court.

Furthermore, portions of the Fifth Circuit’s decision con-

flict, at least in principle, with decisions of this Court and

prior decisions of the Fifth Circuit. Finally, the district

court's unprecedented interpretation of Texas law, af-

firmed by the Fifth Circuit, has a momentous impact on

Texas jails, condemning in essence all but five of over 247

county jails in Texas.

In the past few years prisoners in local community jail

facilities have been initiating extensive litigation attacking

the physical conditions and practices in jails for allegedly

violating the Eighth Amendment's prohibition against cruel

and unusual punishments. In light of the importance of jails

in the correctional system throughout the United States, it is

essential that there be a pronouncement by the Supreme

Court as to the requirements these facilities must meet to

comply with the Eighth Amendment.

The important position of the jail in the national correc-

tional picture has long been recognized.

“From many points of view, the jail is the most

important of all our institutions of imprisonment. The

10

enormous number of jails is alone sufficient ... to

make [one] realize that the jail is, after all, the typical

prison in the United States. ...From two-thirds to

three-fourths of all convicted criminals serve out their

sentence in jails. But this is not all. The jail is, with

small exception, the almost universal detention house

for untried prisoners. The great majority, therefore, of

penitentiary and reformatory prisoners have been kept

for a period varying from a few days to many months

within the confines of a county or municipal jail. Then,

too, there is the class, not at all unimportant in

number, of individuals, who, having finally established

their innocence, have been set free after spending

some time in the jail awaiting trial. Important witnes-

ses also are detained in jail, and it is used at times for

still other purposes, even serving occasionally as a

temporary asylum for the insane. The part, therefore,

which the jail plays in our scheme of punishment

cannot be overestimated. Whether for good or for evil,

nearly every criminal that has been apprehended is

subjected to its influence."” Louis V. Robinson, Penol-

ogy in the United States. 32 (John C. Winston, 1921).

In the fifty years that have passed since that assessment

was written, the significance of the jail has not lessened.

There are more jails than any other type of correctional

institution in the United States. The jail serves as the intake

point for the entire criminal justice system. Indeed, the

National Advisory Commission on Criminal Justice Stand-

ards and Goals predicts that a current trend toward the

decreased use of major state institutions for confinement

will increase the size and scope of the burden the jails bear.

National Advisory, Commission on Criminal Justice Stand-

ards and Goals, Report on Corrections, 274 (U.S. Govern-

ment Printing Office 1973) (hereafter cited as Advisory

Commission, Corrections).

11

A 1970 census disclosed that there were 4,037 jails in the

United States at that time. A jail being defined as any

individual facility for the detention of those persons

convicted or suspected of crimes operated by a local

government unit with detention authority for at least 48

hours. These institutions employed an equivalent of 28,911

full-time employees and had an inmate population of

160,863 on March 15, 1970. U.S. Law Enforcement Assist-

ance Administration, National Jail Census 1970 (U.S.

Government Printing Office 1971). The average number of

inmates in local jails approaches that in the major

correctional facilities of all fifty states, which was an

average number of 195,910 for approximately the same time

period. Advisory Comm'n, Corrections, at 344, Table 11.2.

In the instant case the district court held that the Eighth

Amendment required the local authorities responsible for

the jail of Dallas County, Texas, to provide inmates with

outdoor recreational facilities, educational facilities and a

chapel? The only authorities cited by the district court for

these requirements were Sinclair v. Henderson, 331 F.

Supp. 1123 (E.D.La. 1971) and Morris v. Travisono, 310

F.Supp. 857 (D.R.I. 1970), with regard to the issue of

recreational facilities. Neither of those cases directly

compares to the instant case. Both of those cases concerned

2. The Fifth Circuit mistakenly assumed that this portion of the

district court's order, paragraph 2, was specified by state

law. However, a reading of Article 5115, the Texas statute

covering design of jail facilities, fails to disclose any require-

ment for an outdoor exercise facility, educational facilities or

a chapel. Furthermore, the trial coust clearly recognized that

it was imposing additional requirements and, therefore, used

a separate paragraph in its order to require these facilities.

12

a major state correctional institution, which had exercise

facilities which were denied to a certain group of inmates.

The courts in those cases merely ordered that arrange-

ments be made for those groups of inmates to be given the

opportunity to use the same facilities already available. In

contrast, the Dallas County jail is located in the downtown

area of Dallas, a major metropolitan area, with no

recreational yard in existence nor with the possibility of

obtaining one without enormous expense.

In conflict with this holding of the court below is that in

Theriault v. United States, 481 F.2d 1193 (5th Cir. 1973)

where the conditions of the city jail of Mobile, Alabama,

were held not to violate the Eighth Amendment. Yet, the

1970 Jail Census discloses that the Mobile city jail has no

recreation or educational facilities. U.S. Law Enforcement

Assistance Administration and U. S. Bureau of the Census,

Local Jails, 162 (U. S. Government Printing Office, 1973).

Indeed the 1970 census of local jails disclosed that only

13.6% of local jails for cities and counties with more than

25,000 population have any recreational facilities. National

Jail Census 1970 at 18. In Texas, of 322 jails for cities and

counties with more than 25,000 population, only seven have

any recreational facilities. Significantly, five of those seven

facilities have an average daily inmate population of sixteen

or less inmates. The only two facilities providing recreation

that handle a sizable number of inmates are a specially

built rehabilitation center and a rehabilitation farm. Local

Jails, at 293-304. The assessment that these jails provide

recreational facilities was made by the local jail adminis-

trators. National Jail Census 1970. at 8. There is no

13

assurance that the institution’s assessment that it provides

recreational facilities will satisfy the requirements for

recreational facilities some lower courts place on local

jails. The Manhattan House of Detention for Men is one of

the 13.6% of the jails reporting that it has recreational

facilities. Local Jails, at 259. Its recreational facilities are

located on the roof of the building (similar to the suggestion

of the trial court in the instant case as a temporary solution

to its direction to provide an outdoor recreation area). The

Manhattan inmates spent 50 minutes a week on the roof (an

analysis of the roof-top exercise area proposed for the

Dallas County jail resulted in comparable times that Dallas

County jail inmates would be able to utilize a roof-top

exercise area). The trial court in Rhem v. Malcolm. 371

F.Supp 594 (S.D. N.Y. 1974) held that such limited outdoor

exercise periods constituted a cruel and unusual punish-

ment in violation of the Eighth Amendment. That district

court held that the difficulty of providing space for exercise

in central New York City was unacceptable as a justifica-

tion for not providing considerably more exercise time for

inmates. Hence it appears that possibly more than 90% of

all local jails in the United States could not meet this

criteria, if it is indeed a constitutional requirement.

In support of its educational facilities requirement, the

trial court in the instant case cited /Holt v. Sarver. 309

F.Supp. 362 (E.D. Ark. 1970). The direction of the court that

educational facilities be provided to inmates of the Dallas

County jail conflicts in principle with the holding of this

Court in San Antonio School District v. Rodriguez, 411 U.S.

1 (1973) that, although education is perhaps the most

14

important function of state and local governments, there is

no constitutional right to an education. It would be strange

indeed if convicted inmates of correctional institutions have

additional constitutional rights to state provided educa-

tional opportunities that school aged children do not have!

Furthermore, once again the holding that prisoners have a

constitutional right to educational facilities would have a

tremendous impact on American correctional facilities.

Only 10.8% of the jails for cities and counties with more

than 25,000 population report any educational facilities.

National Jail Census 1970, at 18. Also, there is the

additional question of how many of those jails that do have

some facilities actually have sufficient facilities to provide

meaningful educational opportunities to all inmates. The

ratios of one academic teacher to 1,333 inmates and one

vocational teacher to 1,031 inmates provided by a 1965

national survey indicates that the opportunities are severe-

ly limited. Task Force on Corrections, Task Force Report:

Correction, 75, Table 5 (U. S. Government Printing Office

1967).

The trial court cited no authority for directing that a

chapel be provided for use by the inmates. The court's

decision to order that chapel facilities be provided is

unprecedented. Unlike prior cases dealing with a prisoner's

practice of his religion, there is no question involved here

about discriminatory practices toward persons of a partic-

ular religion. The court found that the inmates do not have

the privilege of attending religious services. Since the court

obviously felt that such might have some rehabilitating

effect on the inmates, it ordered the Petitioners to provide

15

chapel facilities in a new jail facility. Again the lack of

chapel facilities in the Dallas County jail is similar to the

vast majority of jails throughout the United States. {dvisurv

Comm’n, Corrections, at 276. While it may be constitu-

tionally permissible for a county, in its discretion, to

provide a chapel for jail inmates, it is a far different matter

for a court to hold that the county's decision not to provide a

chapel violates the inmates’ constitutional rights. Aritcle

5115 providing for “safe and suitable jails’’ makes no

provision for chapels. Therefore, the district court must

have relied upon a constitutional right of the inmates to

chapel facilities in order to direct the Commissioners’ Court

to provide such facilities. Such a holding is difficult to

reconcile with the holding in San Antonio School District v.

Rodriguez, supra. If a school age child has no constitutional

right to an education, although the Supreme Court recog-

nizes that “education is perhaps the most important

function of state and local governments,” /d.. at 29, it is

difficult to perceive how a jail inmate has a constitutional

right to chapel facilities, when the First Amendment

prohibits governmental establishment of religion. Indeed,

the lower court’s order conflicts in principle with prior

pronouncements from this Court and other lower courts. As

Jusiice Rehnquist has stated:

“Presumably prison officials are not obligated to

provide facilities for any particular denominational

service within a prison, although once they undertake

to provide them for some they must make only such

reasonable distinctions as may survive analysis under

the Equal Protection Clause.” Cruz v. Belo. 405 U.S.

319, 324 (1972) (Rehnquist, J., dissenting).

16

The lower court's order contrasts also with the holding in

Coleman v. District of Columbia Commissioners, 234 F.

Supp. 408 (E.D. Va. 1564), that prisoners were not entitled

to have a minister of their own choosing or have institution

officials provide them with free copies of religious books

and periodicals or medals. Once the Dallas County jail

starts providing facilities and religious material, however,

it will find itself in an enormous administrative problem

providing comparable service to inmates of differing re-

ligions.

The district court's opinion makes the basis of the above

requirements quite clear. ‘‘Rehabilitation must be the

overriding goal of our correctional institutions. Unless

society subordinates all of the correctional purposes to the

goal of rehabilitation, it faces the paradox of promoting the

production rather than the reduction of crime.’ (emphasis

added). There may be great wisdom in the district court's

philosophy, but the court lost sight of the fact that it was

sitting to enforce constitutional rights of all persons

including prisoners, but not to supervise prisons no matter

how well the court is qualified or capable of doing so. Cruz

v. Beto, supra, at 321. Several lower courts, including the

district court in the instant case, have utilized the Eighth

Amendment as a vehicle to impose their concepts of

correctional theory upon the persons charged with provid-

ing and operating correctional institutions. In doing so,

these courts have attempted to raise the goal of rehabilita-

tion, one of the goals in correctional theory, to a constitu-

tional level. One district court has even intimated that

imprisonment per se is unconstitutional because it is not

17

sufficiently rehabilitative. Morales v. Schmidt, 340 F.Supp.

544 (W.D. Wisc. 1972), revsd aiid remanded, 489 F.2d 1335

(7th Cir. 1973), opinion on rehearing en banc, 494 F.2d 85

(1974). This approach runs counter to the recognition by the

majority of the members of this Court in Furman v. Georgia,

408 U.S. 238 (1972), that other goals, including retribution,

are constitutionally permissible in the imposition of punish-

ment. Just recently the Court also recognized deterrence of

crime and quarantine of offenders as important functions of

the corrections systems. Even more significantly it stated

that ‘‘central to all other correctional goals is the institu-

tional consideration of internal security within the correc-

tions facilities themselves.” Pell v. Procunier. U.S. ‘

94 S.Ct. 2800, 2804 (1974). Indeed, it appears from the

separate opinions in Furman that a majority of the members

of this Court reject the idea that any treatment of convicted

persons must be supported by the goal of rehabilitation to

be constitutionally permissible, for the rehabilitative conse-

quences of the death penalty are nil. In seeking to

implement their own theories of penology, these courts have

stepped beyond the proper realm of constitutional interpre-

tation into the field of legislation and administration.

It is imperative that the Supreme Court define the

constitutional minimums required for local jail facilities by

the Eighth Amendment. If the trial court is correct in that

the Eighth Amendment requires that local jails have

adequate recreational, educational and chapel facilities,

then approximately ninety per cent of the jails in the United

States are unconstitutional. On the other hand, if the

Petitioners are correct in their contentions that the lack of

18

those facilities does not constitute cruel and unusual

punishment, several lower courts will impose, without the

constitutional right and authority, tremendous financial

and administrative burdens upon local governmental units

by demanding that the court's concepts of corrections be

followed. An indication of what a huge burden may be

placed upon local communities is that during the same time

frame, the Dallas County jail was required to house

approximately the same number of prisoners as those hele!

in the main penitentiary in Oklahoma: in fact, the number

was roughly sixty per cent of the average daily number of

persons incarcerated in the entire Oklahoma prison system.

See Battis vo Inderson, 376 F.Supp. 402 (E.D. Okla. 1974).

Furthermore, there are much fewer resources available to

provide facilities in a local jail than in a state-wide

penitentiary system. It has been long recognized that in

most instances the local area cannot bear the burden of

financing large and well staffed jails. Advisory Comm'n.

Corrections, at 274. Jail facilities must compete with other

important community demands, such as schools, hospitals,

police activities, fire departments, welfare, and road

maintenance to mention just _@ few items. The local

governmental entities are entitied to balance competing

demands and place priorities for meeting the needs in all

fields.

Another reason the court should grant the writ is that the

district court should have abstained from interpreting

whether Article 5115 of the Texas Revised Civil Statutes

provides general guidelines for jail construction or mini-

mum standards. In this suit the inmates were seeking to

19

have a federal court interpret a state statute and then

enforce the court's interpretation of that statute. However.

the role of the federal court is not one of enforcing state

statutes. Summons v. Jones, 478 F.2d 321 (5th Cir. 1973). The

statute itself specifically provides that the Texas State

Department of Health has charge of the enforcement of

Article 5115. Furthermore, the statute has internal ambigu-

ities. For example, the statute specifies that a cell for one

prisoner only should be at least 40 square feet, but all other

cells should have 18 square feet per inmate. Taken literally.

the statute permits cells for two inmates with only 36

square feet. Due to the lack of any Texas interpretation of

the statute, the court should have abstained from interpret-

ing it. See Railroad Commission v. Pullman Company, 312

U.S. 496 (1941). That the trial court's decision to proceed

with its own interpretation of Article 5115 and enforce its

interpretation was an error of judgment, is highlighted by a

subsequent report to the Texas Legislature. A 1973 report

by the Texas Legislative Council states that Article 5115

“establishing jail standards is completely unrealistic.’ The

report further notes that only five county jails of 247

inspected by the State Department of Health met the

provisions of Article 5115. Texas Legislative Council.

Statutory Standards and Present Conditions in) Texas Jails.

Report to 63rd Legislature, 34 {Report No. 62-2, January.

1973). Furthermore, by interpreting Article 5115 in the

manner it did, the district court posed an impossible

dilemma for the Sheriff. It ordered the Sheriff not to place

any more inmates in a cell than it was designed to hold (at

the same time requiring that cells designed to hold more

20

persons than specified as a maximum in Article 5115 not be

filled to designed capacity), but at the same time the Sheriff

is also required by statute to hold all state and federal

prisoners committed to him. Texas Revised Civil Statutes,

Articles 5116 and 5117, and Texas Code of Criminal

Procedure, Article 2.18. Thus the Sheriff is faced with

violating either the district court's order or the state

statutes.

Finally, the court should grant the writ to determine

whether the district court should have been a three-judge

court to enter the relief it did. The district court held that

Article 5115 estabished Statutory design requirements for

county jails. However, the court's positive injunction that

the Commissioners Court provide educational, recreational

and chapel facilities is not specified by Article 5115.

Therefore the court has in essence ordered the county to

build jails not in accordance with the state statute but with

the court's own more extensive design requirements. If

those more extensive requirements are constitutionally

required, Article 5115 is constitutionally defective and the

court has in reality enjoined implementation of Article 5115.

CONCLUSION

For the reasons stated above, a writ of certiorari should

issue to review the judgment and opinion of the Fifth

Circuit.

<- cecmmrem amend

21

a

THOMAS V. MURTO III

1002 Dallas Federal

Savings Building

Dallas, Texas 75201

214-747-1582

Attorneys for Petitioners

22

PROOF OF SERVICE

STATE OF TEXAS

COUNTY OF DALLAS

BEFORE ME, the undersigned Notary Public in and for

Dallas County, Texas, on this day personally appeared

EARL LUNA, who being by me duly sworn, upon oath

stated: I, EARL LUNA, am a member of the Bar of the

Supreme Court of the United States and am one of the

attorneys of record for petitioners herein.

I further state upon oath that upon the// Ry of November

1974, I served copies of the foregoing Petition for Writ of

Certiorari on the Respondents, Joseph Taylor, et al., by

depositing the same in the United States Mail, with first

class postage prepaid, addressed to the following counsel of

record in the courts below, at the address indicated, to-wit:

Mr. John F. Jordan, 2818 Maple, #103, Dallas, Texas;

Ms. Sylvia Demerest, Dallas Legal Services Founda-

tion, Ind., 912 Commerce Street, Dallas, Texas;

Mr. Robert L. Byrd, 201 E. Belknap, Ft. Worth, Texas;

Mr. Stanley A. Bass, 10 Columbus Circle, New. York,

New York 10019 (airmail).

COL~

EARELUNA

SUBSCRIBED — SWORN to before me by the said

A-1

APPENDIX A

Joseph TAYLOR et al., Plaintiffs-Appellees,

v.

W. L. STERRETT et al., Defendants-Appellants.

Julius Dwain PERRY, Sr., et al., Plaintiffs-Appellees,

Vv.

James E. (Bill) DECKER et al., Defendants-Appellants.

Joseph TAYLOR et al., Plaintiffs-Appellees,

Vv.

W. L. STERRETT et al., Defendants-Appellants.

Nos. 72-2443, 72-3689.

United States Court of Appeals,

Fifth Circuit.

Aug. 19, 1974.

Appeals from the United States District Court for the

Northern District of Texas.

Before COLEMAN and SIMPSON, Circuit Judges, and

RUBIN, District Judge.

COLEMAN, Circuit Judge.

This litigation concerns conditions in the Dallas County,

Texas, jail. The opinion of the District Court is reported,

Taylor v. Sterrett, 344 F.Supp. 411 (1972). We affirm and

remand in part; we also vacate and remand in part for the

further consideration of the District Court in light of

intervening Supreme Court decisions and the ongoing

circumstances of the case.

A-2

The District Court properly declined to apply the doctrine

of abstention to this case, Procunier v. Martinez, — U.S.

—, 94 S.Ct. 1800, 40 L.Ed.2d 224.

In the exercise of its pendent jurisdiction, associated with

the federal constitutional claims hereinafter mentioned, the

Court ordered steps to insure compliance with the laws of

Texas with reference to local prison facilities. The ex-

ercise of pendent jurisdiction in this area was correct,

Hagans v. Lavine, — U.S. — , 94 S.Ct. 1372, 39 L.Ed.2d

577 (1974): Mobil Oil Corporation v. Kelley, 5 Cir., 1974, 493

F.2d 784.

As to the enforcement of state laws applicable to this jail

{Paragraphs 1, 2, 11 and 12 of the District Court order, 344

F.Supp. 422-423], we have recently vacated a stay original-

ly entered here pending appeal. It was specified that this

action was without prejudice to the rights of the appellants

to seek any justifiable modification in the District Court. It

could hardly be expected that a United States District

Court, in the exercise of appropriate pendent jurisdiction,

would decline the enforcement of laws which the state, of

its own volition, had enacted for the improvement of prison

conditions within its jurisdiction. The decree of the District

Court on these topics is affirmed. The case is nevertheless

remanded to enable the Court to enter such modifications, if

any, as ought to be had in the light of the ongoing

circumstances.

Equity never seeks the impossible nor orders the unrea-

sonable — its orders are adapted to the exigencies of the

case. The criticisms which appellants level against the

A-3

decree with reference to state requirements at this jail are

acordingly left to the sound judicial discretion of the trial

court, with full power to assay the merits of these criticisms

and decree accordingly.

Paragraphs 5 and 6 of the District Court order prohibiting

the unnecessary destruction of prisoner reading matter,

etc., is affirmed as a reasonable provision for the protec-

tion of First Amendment rights.

As to Paragraph 7 of the District Court order, relating to

rules of conduct of inmates, we are informed by the briefs,

and there is no suggestion of dispute about it, that the

Sheriff has, in fact, filed such rules with the District Court.

We therefore consider this issue as substantially moot, but

the District Court will be free to enter any modifications or

amendments as may appear appropriate within the teach-

ings of Wolff v. McDonnell, post, or any other applicable

decision of this or of the Supreme Court.

This brings us to Paragraph 8 of the District Court order,

which reads as follows:

“The Sheriff is directed not to allow persons to see

prisoners except with the consent or request of the inmates.

This has particular reference to ‘copout’ men, who have

had free access to the jail.”

As a general proposition we agree that prisoners should

be left free of unwanted visitors, contacts, or importunities.

Yet. we are of the view that the provisions of Paragraph 8

are too restrictive, especially since the primary jurisdiction

of the federal courts in this area is limited to the vindication

of rights guaranteed by the federal constitution. Conceiva-

A-4

bly, the order would eliminate visits from official investiga-

tors engaged in efforts to solve crimes or to perform other

legitimate duties. As to prisoners who choose not to be

represenied by counsel or who, as indigents, are charged

with such misdemeanors as not to require counsel, this

order could block efforts to bring their cases to a speedy

resolution, Santobello v. New York, 404 1.5. 257, 92 S.Ct.

495, 30 L.Ed.2d 427. Upon remand we suggest that an effort

be made specifically to limit this requirement to the evil it is

intended to extirpate, if that evil does, in fact, rise to

constitutional dimensions.

With reference to Paragraph 9 of the District Court,

order, concerning classifications as to pretrial detainees

and convicted inmates, we are similarly advised that since

the decision of the court below the State of Texas has

enacted appropriate legislation by which those convicted of

felonies are now held within the state prisons pending

appea!. Upon remand, the District Court will reconsider

this portion of its order in light of the realities of the case.

Paragraph 10 of the District Court order reads as

follows:

‘The Sheriff is enjoined from using inmates as corridor

bosses to enforce rules and preserve discipline.”’

We note the key language, *‘to enforce rules and preserve

discipline’’. We construe this to mean that the use of

unarmed trusty prisoners for other functions is left undis-

turbed.

Since there are guards who could see to enforcing rules

and preserving discipline, leaving unarmed trusties to

A-5

perform duties affording no real opportunity to mistreat

and abuse their fellow prisoners in violation of their

constitutional rights, we do not regard this provision as an

abuse of equity discretion within the four corners of this

case.

Being aware, as we were, that some of the problems

raised by this appeal, such as abstention on the state law

issues, were pending on writs of certiorari in the Supreme

Court of the United States, (and in keeping with our usual

practice) we deferred decision in order that we might

thereafter act with the guidance of that Court. One

important issue below involved the censorship and opening

of prisoner mail, Paragraph 4 of the District Court order,

344 F.Supp. 422. This portion of the District Court order is

vacated and remanded for further consideration in light of

the decisions of the Supreme Court in Wolff v. McDonnell,

— U.S. — ,94S.Ct. 2693, 41 L.Ed.2d — , and Procunier v.

Martinez, supra.

Massive precedent in the matter of state prison operation

reflects the long maintained attitude of this Court to avoid

unnecessary intervention in and interference with the

internal administration of state penal institutions, subject

to one paramount principle, the Court never hesitates to

vindicate the federally guaranteed constitutional rights of

those imprisoned therein. We have sought to consider and

decide this case within those guidelines.

In the respects indicated, the judgment of the District

Court is affirmed and remanded. In others, as set forth, the

judgment is vacated and remanded for further proceedings

not inconsistent herewith.

A-6

With these provisos, the entire cause will now be

remanded to the District Court for the exercise of a retained

jurisdiction.

A-7

Anited States Court of Appeals

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1972

No. 72-3689

D. C. Docket No. CA 3-5220

JOSEPH TAYLOR, et al.,

Plaintiffs-A ppellees,

versus

W. L. STERRETT, et al.,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Texas

Before COLEMAN and SIMPSON, Circuit Judges, and

RUBIN, Districi Judge.

JUDGMENT

This cause came on to be heard on the transcript of the

record from ‘the United States District Court for the

Northern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the order of the District

Court appealed from, in this cause be, and the same is

hereby, affirmed in part and vacated in part; and that this

cause be, and the same is hereby remanded to the said

District Court in accordance with the opinion of this Court.

August 19, 1974

Issued as Mandate: SEPTEMBER 10, 1974

|

B-1

Ar eit SE BQ 2

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

_ DALLAS DIVISION

Abend

CIVIL ACTION 3-5220-B

JOSEPH TAYLOR, et al.,

Plaintiffs,

vs

W. L. STERRETT, et al.,

Defendants.

CIVIL ACTION 3-4138-C

JULIUS DWAIN PERRY, SR.., et al.,

Plaintiffs,

vs

JAMES E. (BILL) DECKER, et al.,

Defendants.

MEMORANDUM OPINION AND JUDGMENT

This civil rights suit considers conditions of life experi-

enced by prisoners at the Dallas County jail. The plaintiffs,

Joseph Taylor, James Douglas Thompson and John Henry

Woods, Jr., are inmates at the Dallas County jail. They have

brought this action for themselves and as representatives of

‘+ a Class comprising all the inmates of the jail.

The defendants are Dallas County officials charged with

responsibility for the maintenance and supervision of the

B-2

jail: W. L. Sterrett, County Judge; Mel Price, John Whitting-

ton, Jim Tyson, and Roy Orr, members of the Commissioners

Court; Clarence Jones, Sheriff; Carl Rowland, Chief Jailer;

and J. N. Pickard, M.D., Dallas County Health Officer. The

Court acquired jurisdiction over this action pursuant to 28

U.S.C. 1343 which authorizes a federal district court to

hear actions under 42 U.S.C. 1983 to redress any depriva-

tion, under color of state law, of any right, privilege or

immunity secured by the Constitution. The plaintiffs seek

declaratory and injunctive relief under 28 U.S.C. 2201

against certain acts, practices, policies and conditions at

the Dallas County jail.

Prior to the hearing on the merits of the complaint, this

Court issued a permanent injunction concerning the prac-

tice of censorship of the mail by jail officials. The Court

ordered the Sheriff to cease opening or censoring mail

transmitted between inmates of the jail and the following

persons; courts, prosecuting attorneys, probation and

parole officers, governmental agencies, lawyers and the

press.

Also during the pendency of this suit, the Court entered a

preliminary injunction against the jail officials enjoining

them from destroying certain reading materials to which

the prisoners attached importance and which they do not

wish to surrender, provided that the prisoners maintain the

material in good condition and do not create a fire or health

hazard. These materials included law books, legal materi-

als, legal documents, books, magazines and newspaper

clippings.

B-3

Before the trial on the merits, the Court visited the

facilities of the Dallas County jail with the chief jailer and

counsel for the plaintiffs and defendants. During these

visits the Court became acquainted with the areas which

are the subject of this suit. The Court's familiarity with the

physical condition of the jail permits it to take judicial

notice of certain matters presented during the trial.

Immediately prior to trial the case of Perry v. Decker,

C.A.3-4138-C was consolidated with Taylor v. Sterrett. The

Perry case complained of inadequacy of medical services

and was brought by Julius Duane Perry an inmate of jail, for

himself and as representative of the class of inmates

similarly situated.

The plaintiffs have alleged in their complaint a long list of

deprivations which they contend constitute individually and

collectively a violation of their rights protected by the first,

eighth and fourteenth amendments of the Constitution. In

addition, the plaintiffs declare that the defendants have

failed to comply with State law regarding the operation and

supervision of the county jail. The constitutional questions

raised by the complaint are substantial and require the

intervention of the Court to assess the charges and to

redress any infringement on the rights of the class. The

Court takes cognizance of the strong pressures on it to

abstain from reviewing matters involving prison adminis-

tration and policy. “It is a rule grounded in necessity and

common sense, as well as authority, that the maintenance

of discipline in a prison is an executive function with which

the judicial branch, ordinarily will not interfere."’ Sewell v.

Pegelow, 291 F.2d 196, 197 (4th Cir-1961). Although the

_—>

B-4

federal courts are reluctant to interfere with the internal

operation of jails, the claims made by the plaintiffs in the

present case do not involve mere matters of preference or

convenience concerning administrative practices. The alle-

gations raise basic questions of constitutionally protected

rights.

Thé Court recognizes that the plaintiffs are prisoners

held either for conviction of a crime or under charge of a

crime. Although the courts have acknowledged that pri-

soners have obvious limitations placed on their privileges

and rights, ‘‘it is well established that prisoners do not lose

all their constitutional rights and that the Due Process and

Equal Protection Clauses of the Fourteenth Amendment

follow them into prison and protect them there from uncon-

stitutional action on the part of prison authorities carried

out under color of State law.’ Washington v. Lee, 263 F.

Supp. 327. 331 (N.D. Ala.), aff'd sub nom., 389 U.S. 967

(1967). Furthermore, when the rights of those prisoners

who are held as pretrial detainees are in question the

courts have subjected the cases to even closer scrutiny.

Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971).

PHYSICAL FEATURES — CROWDING

The Dallas County jail is located in two buildings referred

to as the old jail and the new jail. The new jail is located in

the new County Government Center. It was designated to

accomodate 1220 inmates at capacity. The quarters now in

use in the two buildings has a total capacity for 1370

inmates. During the first fourteen days of May 1972, the

—-

* nd

B-5

peak number per day varied from 1491 on May 6th to 1693

on May 4th. The average peak number for the fourteen days

was 1589. During 1971 the average daily number housed

during three months of the year was more than 1700 and

one month was more than 1800. The women’s section

located on one floor of the new jail consists oi 25 cells

containing 198 bunks. On the day of the trial there were 92

female inmates, leaving more than 100 bunks unoccupied.

The failure to use all the bunks on this floor results from

design problems which do not provide adequate segregation

of male and female prisoners. The vacancies on the

women’s floor increases the crowding of the cells reserved

for men.

Most of the inmates are lodged in cells each with 8 to 12

bunks which open into a ‘‘day room.” The entire area is

referred to as a “tank”, the capacity of a tank varying from

approximately 24 to 36. In addition to ten tanks there are

168 cells without a day room each containing several bunks.

These open into a corridor.

All tanks for men are overcrowded having approximately

15 more inmates than the number of bunks. Those not

assigned to bunks sleep on mattresses in the day room. The

hospital ward for men is likewise overcrowded and it is

common for men to sleep on mattresses in place of beds. Its

capacity is 48. On the day of the Court's visit there were 62

persons who had been admitted.

At the time the new jail was built in 1966 the old jail was

abandoned and became unusable for the detention of

prisoners. It soon became apparent that the new jail was

B-6

inadequate, but no steps were taken to repair or remodel

the facilities in the old jail until 1971. Early in 1972 a part of

the old jail was opened and some prisoners transferred to

it. Presently 150 inmates are lodged there. By remodeling

and removing stored items an additional 550 men could be

housed. In addition to the possibility of use of all quarters in

the old jail the Sheriff reported that the 100 extra bunks in

the women’s section could be used for men by changing the

floor plan.

In addition to the tanks and cells without day rooms the

jail has a number of solitary cells, which are completely

inadequate, used for punitive segregation and insane

prisoners. Six have dimensions of 4°3" x 5'1". The rest

measure 611" x 5'1"’ and 7°1"’ x 6’. Only four have running

water. None have drinking fountains. The only facility for

excrement is a hole in the floor which is rarely flushed.

There is no outside light, the inside electric globe burning

24 hours a day. Mattresses are used in place of bunks. The

only place to sit is on the floor or mattresses. Insane

persons are placed in the solitary cells without the benefit

of padding on the walls or a Hammock for sleeping.

MEDICAL FACILITIES

The medical care facilities consist of an infirmary for

men with 48 beds and one for women with 18 beds. There is

provision for a nurse to be on duty 24 hours each day. In

addition there is a doctor on call throughout the day.

Previous requests by inmates for the nurse have been

ignored, but recently a policy has been inaugurated of

sending a note, termed a “kite’’, to the nurse immediately.

Until recently the only dental care has been tooth extrac-

Sie:

B-7

tion. The program has now been expanded to include filling.

Examination of inmates is not adequate — when admitted

they are tested only for tuberculosis and for venereal

disease if suspected. Food handlers receive no examina-

tion.

PRACTICES, POLICIES and PROCEDURES

Censorship

Prior to the filing of this suit, the chief jailer enforced a

policy of opening and reading each item of mail which was

transmitted between prisoners and the outside. The stated

purpose of this procedure was to insure security and to

prevent the transmission of contraband. The jailer in -

charge of this procedure would read all of the inmate mail

and had authority to refuse to send those letters which he

found unacceptable for outside mailing. If there was matter

in the letters which did not meet his approval, the jailer

returned the letter to the inmate for rewriting. All letters

had to be submitted to the jailer unsealed.

The first action taken in the present case was the enjoin

the Sheriff from continuing this procedure as it applies to .

certain categories of mail. The inspection of the mail

between the inmates and the persons or agencies set out in

the order is now limited to superficial examination for

possible contraband.

The testimony of Chief Rowland revealed that since the

first of the year his department has stopped the censorship

of all mail and has limited its inspection to merely discovery

B-8

of money or contraband which could be transmitted. In his

opinion, the practice of censorship of the mail has little

impact on the security of the jail.

Reading Matter

The inmates of the jail have access to periodicals and

books by purchasing them off the commissary cart and

through mail subscriptions. The reading matter sold from

the cart is limited to a list of items approved by the Sheriff.

The alleged criteria for the periodicals are (1) that they

contain no pictures of nude persons and (2) that there be no

pictures of weapons. The Sheriff or the chief jailer has the

sole authority to decide what books or periodicals are

admitted to the jail.

The plaintiffs presented at trial evidence of magazines

which are sold from the cart, yet do not conform to the

stated policy of the jail. There were several with pictures of

nude women and guns and stories of crime. Furthermore,

inmates have been refused permission to have magazines

which do not violate the two criteria.

Jail Rules and Discipline

Previously there have been no written rules relating to

conduct in the jail and inmates were not advised of any

unwritten rules. Infraction of rules was punished by a

supervisor on complaint of a guard or of a corridor boss

who is merely an inmate chosen by the supervisor. It was

not required that the inmate be advised of the charge and

he could be placed in solitary, without a hearing, for an

indefinite time. There was no provision for review.

B-9

The Sheriff testified that new rules have been promul-

gated and will be posted in each tank and in the corridors.

New prisoners will likewise be given a copy. As of the date

of the trial the rules had not been posted and even the Chief

Jailer was unaware of their existence.

The Sheriff has likewise proposed a formal procedure for

handling infractions of the rules. Under this procedure the

guard or other jail personnel who witnesses the infraction

must submit a written statement of the offense which is

directed to a supervisor who reviews the report and then

assesses the punishment. The prisoner is presented with a

copy of the charge and the disposition made by the

supervisor. On the back of the report the Sheriff has listed

an appeals procedure which the prisoner may initiate after

the supervisor has acted. There is no provision for notice of

.the charge prior to action by the supervisor and one

member of the Appeals Board is the Jail Supervisor taking

the punitive action. As of the trial this new procedure had

not been put into effect.

Recreation & Exercise .

There is no area or program for exercise and recreation

for inmates in the jail. The prisoners are confined to their

cells for the duration of their sentences or until their trial.

While a prisoner is waiting on post conviction appeals, he

remains in the jail and it is not uncommon for prisoners to

be in jail for several years while the appeal is being

considered.

When a person is placed in jail he is forced to remain in a

cell with no opportunity to engage in recreational activities

B-10

other than reading and playing cards and dominos. The

prisoners have no exposure to either sunlight or fresh air.

In the new jail, the only outside light is transmitted through

translucent windows. Artificial light is so poor that reading

presents difficulties. The overcrowded cells, poor ventila-

tion, poor lighting and lack of exercise all contribute to the

physical deterioration of the inmates and these factors also

tend to heighten their frustrations and anxieties. There is

no opportunity to burn off surplus energy other than by

mischievous conduct.

Rehabilitation and Counseling

Prior to the filing of this suit, there was no program of

rehabilitation or education at the jail. There is no effort to

influence the lives of the inmates in any positive manner.

The county performs an exclusively custodial function of

placing the accused and the convicted into crowded cells

and letting them vegetate until their release. The county

officials have completely ignored the rehabilitative role the

jail should play in the criminal justice system.

In the past months the Chaplain has begun a small pilot

program of teaching selected prisoners some rudimentary

educational subjects. There is, however, no established

program of evaluating the needs of the inmates and then

providing them with education, vocational training or

counseling.

There are no trained counselors for the inmates other

than the voluntary work done by the chaplains. Men do not

have the privilege of attending religious services. The only

religious service available is for the chaplain to come into

te ndeaenaans eb A a Bee 1

NY

’

‘

‘

B-11

the tank and speak. The practice of the jail is totally devoid

of any constructive measures which might act on an

individual prisoner to influence him to become a contri-

buting member of society. The inmates are relegated to the

dehumanizing existence of idle isolation in a cage. The

fundamental objective of correctional institutions, that of

rehabilitation, has been subordinated to the limited goal

of punishment and security.

Classification and Segregation of Prisoners

The inmate population of the Dallas County jail consists of

arrestees, persons convicted of misdemeanors serving their

sentence, convicted felons awaiting either a decision on

appeal or transfer to the Texas Department of Corrections,

and federal prisoners awaiting trial. The jail officials,

however, have not made any attempt to segregate the

various classes of prisoners in any meaningful way. The

Sheriff testified that he was instituting a system of classi-

fication based on a maximum, medium, and minimum

security risk standard. At the present time, however, this

program has not been implemented. The inmates of the jail

are assigned to cells on the basis of their name, that is, by

alphabetical order.

The pretrial detainees in most instances experience

treatment similar to that accorded convicted criminals, but

in some respects they are in a worse position. They are not

permitted to engage in the limited educational program at

the jail, and they are not allowed to work in the relative

freedom of the trusty job. Ironically, when one compares

the opportunities for education, recreation, and training at

B-12

the Texas Department of Corrections to the total lack of any

programs at the Dallas jail, the obvious conclusion is that

these technically innocent individuals suffer worse punish-_

ment in the jail than the convicted in the penitentiary.

Ostensibly, the chief purpose of placing the arrestee in jail

is to guarantee his appearance at trial. His incarceration

is, in most instances, because he cannot afford to pay a

bondsman. The result is that pretrial detainees are sub-

jected to the demanding confinement in the jail without trial

solely because they lack money.

The plaintiffs have alleged that the jail officials enforce a

policy of racial segregation of the prisoners. The Sheriff

denies that there is a policy of racial segregation, but he

admitted that there are a number of tanks which are all

black or all white. In the visit of the Court to the jail, there

was almost complete segregation of blacks and whites.

Guards

The Sheriff testified in the trial that one of the major

restrictions on providing any meaningful programs for the

inmates is the lack of adequate supervisory personnel.

There are 99 guards divided into three shifts. While the

guards are on duty, they supervise the five floors of the new

jail and the old jail which together house rmore than 1500

persons. On account of the high ratio of prisoners to guard

the role of the guard is limited to housekeeping and to

security measures such as controlling inmate conduct and

preventing escapes. According to the Sheriff, the small

staff has resulted in restrictions being placed on the

privileges of inmates to use telephones and on coordinating

eer ke tad

B-13

visiting sessions and has likewise prevented and develop-

ment and coordination of recreational, educational, and

vocational training programs.

The Cop-out System

During the trial of this action, the plaintiffs raised a

constitutional question regardimg the practice of admitting

investigators into the jail to interview the inmates concern-

ing their plea on the charges for which they are held. The

investigators, called cop-out men, are individuals hired by

the District Attorney and assigned to particular State

courts. Their chief role is to work out an agreeable

recommendation for punishment to be presented by the

District Attorney if the inmate pleads guilty. As a matter of

policy, the investigators will not discuss a plea or punish-

ment with an inmate who has a lawyer ualess the lawyer

is present. If the inmate has no lawyer, the cop-out man

interviews him, regardless of whether the inmate has

requested the interview. Although the investigators are not

part of the Sheriff's staff, they are given relatively free

access to the jail and the inmates. The plaintiffs have asked

that the Sheriff be enjoined to restrict the access of cop-out

men to the prisoners except when the prisoner makes a

specific request for an interview.

APPLICABLE LAW

This action is primarily a class action. While there was

testimony relating to individual grievances this memoran-

dum opinion and judgment relates only to the abuses and

deprivations common to all inmates.

B-14

Texas Statutory Requirements

The Texas legislature has provided for certain miminum

standards for county jail facilities.’

In the statutes, the legislature has charged the Commis-

sioners Court with the ultimate responsibility for providing

“safe and suitable jails... The laws also state that the

sheriff is to be the keeper of the jail, with the right to

delegate the responsibility to a jailer who will be under his

supervision and control.

The statute requires that the jail provide for adequate

segregation for the prisoners. The county must separate

“first offenders awaiting trial, from all classifications of

convicted prisoners.” As heretofore stated there is no

segregation of pretrial detainees from other inmates in the

Dallas jail. Although there is some segregation of those

suspected of insanity from other inmates, the facilities for

housing do not comply with the statute.

Article 5115 sets down the minimum standards on the

dimensions and capacities of the cells in county jails.

Solitary cells are to have a minimum of 40 square feet, and

larger cells must have a minimum of 18 square feet per

prisoner. The law. prescribes that 24 is the maximum

number of prisoners which may be placed in a “tank.”

The sanitation and health requirements for jails include

the provision of at least one water closet and combination

lavatory and drinking fountain for each 12 prisoners or

fraction thereof. In addition, the law requires that there be

a shower for each 12 prisoners and another water closet

B-15

and fountain for each day room. Each inmate must be

provided a bunk.

The defendants have been quite candid in their admission

that the county does not provide facilities which conform to

article 5115. Furthermore, they do not contest the pendent

_ jurisdiction of this Court to adjudicate the State law

question. The failure to provide’ the necessary space to

house the prisoner population is one of the chief Causes of

the deprivations which the inmates experience. Living in

the overcrowded cells with less than minimal sanitary

facilities has a dehumanizing effect on the persons subject

to these conditions. Already this year the Dallas jail has

witnessed a riot of inmates protesting the substandard and

' inhumane conditions.

The charges of inadequate medical treatment and the use

of the solitary cells arise in large part from the deficiencies

in the physical facilities. The overcrowding of the infirmary

prevents the treatment of many who should be admitted and

the lack of space makes the proper care impossible. The use

of the solitary cells is one of the significant challenges of the

plaintiffs. The plaintiffs have charged that confinement in

the small cells with no Sanitary facilities or running water

. constitutes cruel and unusual punishment and a violation of

due process. By the defendants’ own admission, the cells do

not meet the minimum requirements of the State statute.

The Court therefore, is not compelled to apply subjective

criteria such as “unnecessary cruelty,"2 “standards of

fairness and justice,”3 and “evolving standards of de-

cency’’4 to decide the question of cruel and unusual punish-

ment. The statute provides an objective basis. for judging

B-16

the jail facilities, and the Dallas jail does not withstand the

test of the local law.

The County Health Officer testified that the inmates

working in the kitchen did not have health certificates.

Article 705d of the Texas Penal Code requires that food

handlers have an examination by a licensed physician to

detect the presence of communicable diseases.

Eighth Amendment

In addition to violating State statutes, the plaintiffs

contend that the county officials subject them to cruel and

unusual punishment prohibited by the eighth amendment

because of the imposition of the following conditions:

overcrowded cells and tanks necessitating sleeping in day

rooms and corridors; the use of inadequate and unsanitary

solitary cells; unclassified assignment to tanks and cells;

lack of physical exercise and of a rehabilitation program;

supervision of inmates by other inmates called corridor

bosses; inadequate medical facilities; the lack of rules of

conduct and rules for discipline procedures.

In the past the courts limited tneir review under the

eighth amendment to isolated incidents involving physical

brutality.5 The focus has been on a particular practice and

not on a broad view of the system as the cause of the

punishment. Rucently the courts have expanded their

examination of the charges of cruel and unusual punish-

ment giving consideration to the effect of a “‘combination of

circumstances’ upon the contested act, practice or

system.6

B-17

They have placed emphasis on the role of the eighth

amendment as it applies to overall prison conditions which

have been found detrimental to the mental and moral well

being of inmates as well as being physically debilitating.”

As early as 1910 the Supreme Court in Weems v. United

States, 217 U.S. 349, held that the eighth amendment “. . .

is not fastened to the obsolete but may acquire meaning as

public opinion becomes enlightened by a humane justice.”

Id 378. The Court declared further that it was the intent of

the drafters of the amendment that it cover “*. . . exercises

of cruelty by laws other than those which inflicted bodily

pain or mutilation.” Id 372. In Robinson v. California, 370

U.S. 660 (1962) the Court concluded that the eighth

amendment applies to the states.

The emphasis on nonphysical concepts of cruel and

unusual punishment gained impetus in the courts as it is

applied in a correctional context in the case of Jackson v.

Bishop, 404 F.2d 571 (8th Cir. 1968). Although this case

considered the use of physical punishment on inmates, the

Court condemned such punishment because of its lack of

rehabilitative potential.

“Corporal punishment generates hate toward the

keepers who punish and toward the system which

permits it. . . It frustrates correctional and rehabilita-

tive goals ... Whipping creates other penological

problems and makes adjustment to society more

difficult." Id. at 580.

The trend toward examining programs for rehabilitation in

conjunction with physical abuses and inhumane treatment

has been articulated in the decisiun of Holt v. Sarver, 309 F.

B-18

Supp. 362 (E.D. Ark. 1970). which declared the entire

Arkansas prison system violative of the eighth amendment

constituting cruel and unusual punishment.

The Arkansas prison system displayed shocking prac-

tices of brutality and injustices perpetrated on prisoners.

The Court was confronted with numerous practices which

even in isolated use would have constituted cruel and

unusual punishment. In spite of the obvious cruelty in the

practices, the Court also placed emphasis on them in the

context of the system's failure to offer any program of

rehabilitation and to prepare inmates for release. In this

connection it stated:

“The absence of an affirmative program of training

and rehabilitation may have constitutional significance

where in the absence of such a program conditions and

practices exist which actually militate against reform

and rehabilitation . . . The absence of rehabilitation

services and facilities ... remains a factor in the

overall constitutional equation . . .”” 309 F. Supp. 379.

Holt v. Sarver is a recognition of one of the most widely

regarded theories of penology that restraint and retribution

have a tendency to produce recidivism in the inmates upon

their release. The report of the President’s Commission on

Law Enforcement and Administration of Justice; The

Challenge of Crime in a Free Society (1967) had this to say

with reference to our penal institutions:

“Life in many institutions is at best barren and futle,

at worst unspeakably brutal and degrading. To be

sure, the offenders in such institutions are incapaci-

tated from committing further crimes while serving

ates

B-19

their sentences, but the conditions in which they live

are the poorest possible preparation for their success-

ful reentry into society, and often merely reinforces

in them a pattern of manipulation or destructiveness.”

Id. 159.

Rehabilitation must be the overriding goal of our correc-

tional institutions. Unless society subordinates all of the

correctional purposes of the goal of rehabilitaton, it faces

the paradox of promoting the production rather than the

reduction of crime.

Another important deficiency in the Dallas jail program is

the lack of any program for recreation or exercise. The

Chief Justice of the Supreme Court. Warren E. Burger, has

stated that recreation is a necessary concommitant with

education in our prisons. He recognized that one of the

more pervasive evils in our correctional institutions is

idleness and gave this admonition concerning the lack of

programs in our jails:

“Playing cards, watching television or an occasional

movie (the Dallas jail has no video recreation), with

nothing more, is building up to an expensive accounting

when these men are released — if not before. Such

crude recreation may keep quiet for the time, but it is a

quiet that is ominous for the society they will try to

reenter.''8

The lack of physical exercise has been considered by the

Courts in the context of being cruel and unusual punish-

ment. In Sinclair v. Henderson, 341 F. Supp. 1123 (E.D.

La. 1971), the Court reviewed the charge that the failure to

afford inmates confined on Death Row an opportunity for

exercise was a violation of the eighth amendment. It noted

B-20

the decision in Morris v. Travisono, 310 F. Supp. 857 (D.R.1.

1970), which required the State to provide outdoor exercise

to prisoners and concluded that ‘‘[c]onfinement for long

periods of time without the opportunity for regular outdoor

exercise does, as a matter of law, constitute cruel and

unusual punishment. . .”’ 331 F. Supp. at 1131.

The plaintiffs have challenged the use of the punitive

segregation cells as a violation of the eighth amendment. As

heretofore stated in the discussion of the State law, most of

the cells do not conform to the standards provided in the

statute. In Novak v. Beto, 452 F.2d 661 (5th Cir. 1971)

rehearing denied en banc, No. 31116 (5th Cir., Mar. 8,

1972), the Court considered the propriety of the use of

solitary confinement at the Texas Department of Correc-

tions. In that case the facility in queston conformed to the

physical requirements of the statute. In upholding the use of

the solitary cells, the majority placed great weight on the

fact that the cells were sanitary and there was no

“deprivation of the basic elements of hygiene.” Id. at 665.

The Novak case is clearly distinguishable from the situation

at the Dallas jail. Here there are no sanitary facilities, the

cells are smaller than the statutory requirement and there

has been in the recent past the practice of placing the

inmate in the cell nude and on bread and water diet. The

use of the substandard facilities at the Dallas jail for

punitive segregation or any other purpose would constitute

cruel and unusual punishment.

Fourteenth Amendment

The plaintiffs have asserted that the practices and

policies of the jail in relation to discipline for infraction of

herr SP Sohail

B-21

the rules, particularly with reference to pretrial detainees

infringes on their civil rights protected by the fourteenth

amendment. There are several recent cases bearing on this

subject.

In Landman v. Royster, 333 F. Supp. 621 (E.D. Va. 1971)

inmates of a Virginian prison complained of the manner in

which punishment was inflicted. The Court held that

inadjudicatory proceedings ‘‘certain due process rights are

both necessary and will not unduly impede legitimate prison

functions."’ Id. 653. Two of these requirements the Court

declared were: ‘First, the decision must be made by an

impartial tribunal — Second, there shall be hearing." Id.

653.

Sinclair v. Henderson, 341 F. Supp. 1123 (E.D. La. 1971)

was a Case involving discipline of prisoners on death row in

a Louisiana prison. The Court held (1) there must be rules

officially promulgated and communicated to the prisoner (2)

the prisoner must be given official written notice of the

specific charge against him (3) before serious punishment.

such as punitive segregation, can be imposed, the prisoner

must be given a hearing at which he shall have an opportu-

nity to be heard (4) the imposition of punishment should be

made by one other than the accusing guard.

These two cases deal with convicted felons confined in

prison. The inmates of the Dallas jail in addition to those

serving sentences for misdemeanors includes pretrial de-

tainees and men whose sentences are on appeal. All are

entitled to due process in the assessment of punishment.

B-22

It is, however, not necessary that the procedure for

inmates in all institutions to receive exactly the same

treatment in order for their rights to be protected. There is

no question in this case or in Landman and Sinclair of the

power of the person in charge to discipline the inmates. The

proper operation of the institution requires order. It is

recognized that when rules are violated there is need to act

quickly and in a way that will not disrupt the security of the

jail and the safety of the other inmates. It seems reasonable

to place inmates in solitary for short periods of time without

a hearing in case of certain violations and such action

would not be a violation of rights under certain circum-

stances.

The procedure rules for discipline promulgated by the

Sheriff appear to be reasonable except that an inmate who

is confined in a solitary cell for more than three days should

have a hearing and if an appeal is taken the person

charging the inmate should not be on the Board. The Sheriff

is likewise to be complimented for limiting the maximum

time in solitary to fifteen days when heretofore it has been

unlimited.

The recent en banc decision of Anderson v. Nosser, .......

ae (5th Cir. 1972) holds that confinement of

arrestees under the conditions existing in a Mississippi

prison were a violation of due process. Here conditions are

not similar and we do not hold that the mere confinement of

the inmates in the Dallas County jail is a failure of due

process.

B-23

CONCLUSION

The correctional programs and facilities of the Dallas

County jail are in desperate need of upgrading and

expansion. The county does not provide the minimum

facilities required by law. The policy of the county has been

to confine the accused and the convicted as inexpensively

as possible thereby preventing their circulation in society.

Punishment results from the inadequate facilities and

unpleasant experience. The present jail system serves no

other purpose.

The local jail performs the unique role of being a misde-

meanant institution, that is, an institution for persons

charged with petty crimes with short sentences. The local

jail is the only correctional institution to which the

misdemeanant is associated, but the term correctional is a

euphumism. Dallas County has shown complete _indif-

ference to its responsibility to attempt rehabilitation of

those offenders charged to its care.

The Sheriff and chief jailer in recent months made an

effort to change some of the deficient conditions at the jail.

For these efforts they are to be commended. The county has

begun renovating the old jail: medical and dental programs

have been upgraded: censorship of mail has been limited:

punitive segregation has been limited to 15 days: the dis-

ciplined prisoner is not deprived of his clothing: a pilot

remedial education program is underway: and the inmates

have increased telephone and visitation privileges.

The Sheriff has stated that he is prepared to initiate more

programs and to improve the jail, but he is handicapped by

B-24 .

a smal! staff and small budget. There is no quantitative

statement of the costs which the necessary improvements

will require. This Court recognizes that enlarging the jail

will be costly, but “inadequate resources can never be an

adequate justification for depriving any person of his

constitutional rights."’ Hamilton v. Love, 328 F.Supp. 1182

(E.D. Ark. 1971).

.

The injunctive order provided herein is, of course, only

the minimal action which is required. The Court is

encouraged by the apparent good faith and interest of the

Sheriff's Department in providing a ‘safe and suitable jail."’

Although this Court does not invite judicial review of jail

administration, it is hoped that public attention to jail

conditions which this action has produced will stimulate

interest in the community to do something about our jails.

The recent events at Attica. New York and the disturbance

at the Dallas jail should be warnings of the need to

re-examine and upgrede correctional programs. The costs

for making the changes may be substantial. But the

consequences of inaction are greater.

In view of the foregoing conditions at the Dallas County

jail. it is the Judgirent of this Court:

1. The Commissioners Court is enjoined from further

violating the provisions of Article 5115 of the Texas Revised

Civil Statutes and is directed to provide immediately as

follows:

a. Sufficient cells and tanks to accommodate a number of

inmates equal to the largest number in the Dallas County

jail during 1972 in any one day.

oe

we Sn ee)

B-25

b. Solitary cells of not less than 40 sq. feet, provided with

a bunk, water closet and a combination drinking fountain

and lavatory.

c. The capacity of the hospital ward for men shall be

increased and bunks provided for all patients confined

therein.

d. Padded cells with hammocks for insane persons.

It is suggested in this connection that the old jail be

renovated and the women’s floor in the new jail be

redesigned to accommodate both male and female inmates.

A reasonable time for the completion of these improvements

in the opinion of the Court is six months. Even with such

remodeling and repairs the provisions of Article 5115 will

not be wholly complied with. The Court directs that the

Commissioners Court make immediate plans for full compli-

ance within a reasonable time. A Regional Jail is a possible

answer to the complete fulfillment of these requirements

but plans for a Regional Jail are not sufficient reason for the

failure to implement all the statutory provisions for a ‘‘safe

and suitable” jail as required by Article 5115.

2. The Commissioners Court is directed to provide an

outdoor area for exercise and a rehabilitative program of

recreation. As a temporary arrangement it is suggested

that the roof of the jail be remodeled to provide for such

facilities, the possibility for which was suggested by the

Sheriff. In a permanent plan for new facilities, quarters

should be provided for chapel services and educational

programs.

B-26

3. The Commissioners Court is directed to provide jail

guards sufficient for security for jail facilities without the

use of inmate assistance.

4. The permanent injunction heretofore issued relating

to censorship of mail is affirmed and carried forward in this

judgment. The Sheriff is directed not to open or censor mail

transmitted between inmates of the jail and the following

persons: courts, prosecuting attorneys, probation and

parole officers, governmental agencies, lawyers end the

press.

5. The preliminary injunction, heretofore issued relating

to the destruction of rvading matter belonging to inmates is

made a permanent injunction and the Sheriff and other jail

officials are enjoined from destroying law books, legal

materials, legal documents, books, magazines and news-

paper clippings provided such material is maintained in

good condition and does not create a fire or health hazard.

6. While this Court will not interfere in the standards set

up by the Sheriff for inmates receiving magazines or books,

it appears that the policy has not been adhered to and the

Sheriff is directed to see that greater care is exercised in

determining the books\and magazines made available to in-

mates so as to permit inmates to have reading material not

prohibited and to re&trict the receipt by inmates of

prohibited material.

7. The Sheriff is directed to make effective the new

policy relating to rules of conduct of inmates. These rules

must be communicated to the inmates apprising them of

what conduct can subject them to discipline, the penalty for

B-27

infraction and the procedure bby which such a determina-

tion will be made. Before any jpunishment for confinement

of more than 3 days in solitary is inflicted hearings should

be held. In case of the appeal of any sentence the officer

charging or sentencing the inmate should not be a member

of the Board of Appeals.

8. The Sheriff is directed mot to allow persons to see

prisoners except with the consent or request of the inmates.

This has particular reference tto ‘cop-out’ men, who have

had free access to the jail.

9. The Sheriff is directed to inaugurate a classification

system taking into consideration security, integration and

status of inmates as to whether they are pretrial detainees

or convicted inmates.

10. The Sheriff is enjoined from using inmates as

corridor bosses to enforce rules and preserve discipline.

11. The Sheriff is directed not to use any cell of less than

40 square feet, not to place more inmates in cells and tanks

than those such facilities are designed to accommodate, nor

to place anyone in solitary celll unless it is provided with

a bunk, water closet and a combination fountain and

lavatory.

12. The Sheriff is directed to have employees and

inmates handling food examined by a licensed physician to

detect the presence of communicable diseases as required

by Article 705d of the Texas Penal Code.

Attorneys fees are denied. Costs are taxed against

Defendants.

B-28

While this opinion closes this case it may be reopened

within a reasonable time on application of the plaintiffs

contending that Defendants are not making a diligent, good ,

faith effort to comply with the order of this Court.

SARAH T. HUGHES

United States District Judge

1. Article 5115 of the Texas Revised Civil Statutes Annotated

provides in pertinent part as follows:

The Commissioners Court shall provide safe and suitable jails

for their respective counties, and shall cause the same to be

maintained in good sanitary condition at all times, properly

ventilated, heated, and lighted . . .

SUITABLE SEGREGATION

The term “‘safe and suitable jails,” . . . shall be construed to

mean jails which provide adequate segregation facilities .. .

separating . . . first offenders, awaiting trial, from all classifica-

tions of convicted prisoners. . .

[Flor ... temporary holding of each person suspected of

insanity, or who has been legally adjudged insane, there shall be

provided a special enclosure or room, not less than forty (40) .

square feet .. . Furthermore, the floor and the walls of such

enclosure shall be provided with a soft covering designed to

protect a violent person, temporarily held a, from self-

injury or destruction .

SUITABLE SECURITY AND SAFETY

For the purpose of this Act, the term “safe and suitable jails” is

further defined to mean jails which provide adequate security .

and safety facilities by having separate cells or compartments,

dormitories and day rooms, of varying dimensions and capacities

for prisoners confined therein, except that, if practicable, no one

such cell or compartment shall be designed for confining two (2)

prisoners only. Cells or compartments: shall be designed, to

accommodate from one (1) to eight (8) prisoners each, and

furthermore, such dormitories and day rooms shall be designed

to accommodate not more than twenty-four (24) prisoners each

. All cells, compartments and dormitories for sleeping

B-29

purposes, where each such cell, compartment or dormitory is

designed to accommodate three (3) or more prisoners, shall be

accessible to a day room to which prisoners may be given access

during the day. Cells for one (1) prisoner only shall have a

minimum floor area of forty (40) square feet and all other cells,

compartments, dormitories and day rooms ... shall have

minimum floor area equal to eighteen (18) square feet for each

prisoner to be confined therein.

SUITABLE SANITATION AND HEALTH

The term ‘safe and suitable jails” is further defined to mean

jails which provide adequate facilities for maintaining, proper

standards in sanitation and health. Each cell designed for one (1)

prisoner only shall be provided with a water closet and a

combination lavatory and drinking fountain, table and seat. Each

cell, compartment or dormitory designed for three (3) or more

prisoners, shall be provided with one (1) water closet and one (1)

combination lavatory and drinking fountain for each twelve (12)

prisoners or fraction thereof to be confined therein. Further-

more, all such cells, compartments and dormitories shall be

provided with one (1) bunk, not less two (2) feet, three (3) inches

wide and six (6) feet, three (3) inches long, for each prisoner to

be confined therein. Furthermore, each day room for the confine-

ment of three (3) or more prisoners shall be provided with one (1)

water closet, one (1) combination lavatory and drinking fountain

and one (1) shower bath for each twelve (12) prisoners, or

fraction thereof, to be confined therein. Furthermore, each day

room shall be otherwise suitably furnished.

2. Wilberson v. Utah, 99 U.S. 130, 136 (1878).

3. Louisiana ex rel. Francis v. Resweber, 329 U.S. 470 (1947)

(Frankfurter, J, concurring).

4. Trop v. Dulles, 356 U.S. 86, 101 (1958).

5. See, e.g., Wiltsie v. California Dep't of Corrections, 406 F .2d

515 (9th Cir. 1968); Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.

Cal. 1966); Talley v. Stephens, 247 F. Supp. 683 (ED Ark 1965)

6. See Novak v. Beto, 453 F.2d 661, 675 (5th Cir. 1971) (Tuttle, J..

concurring in part and dissenting in part).

7. See, e.g., Jackson v. Bishop, 401 F.2d 571 (8th Cir. 1968); Holt

v. Sarver, 309 F. Supp. 362 (E.D. Ark 1969), aff'd. 442 F.2d 304

(8th Cir. 1971).

8. Address by Chief Justice Warren E. Burger, National Con-

ference on Corrections, Dec. 7, 1971.

C-1

APPENDIX C

CONSTITUTIONAL PROVISIONS AND STATUTES

CONSTITUTION OF THE UNITED STATES

EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

FOURTEENTH AMENDMENT

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

TEXAS STATUTES

TEXAS REVISED CIVIL STATUTFS

Art. 5115 Jails provided

The Commissioners Court shall provide safe and suitable

jails for their respective counties, and shall cause the same

to be maintained in good sanitary condition at all times,

properly ventilated, heated and lighted; structurally sound,

fire resistant and kept in good repair. Furthermore, they

C-2

shall cause the jails in their respective counties to be kept in

a clean and healthy condition, provided with water of safe

quality and ample quantity and sewer disposal facilities in

accordance with good sanitary standards, and provided

with clean, comfortable mattresses and blankets, sufficient

for the comfort of the prisoners, and that food is prepared

and served in a palatable and sanitary manner and

according to good dietary practices and of a quality to

maintain good health.

SUITABLE SEGREGATION

The term ‘‘safe and suitable jails,’ as used in this Act,

shall be construed to mean jails which provide adequate

segregation facilities by having separate enclosures,

formed by solid masonry or solid metal walls, or solid walls

of other comparable material, separating witnesses from

all classifications of prisoners; and males from females;

and juveniles from adults; and first offenders, awaiting

trial, from all classifications of convicted prisoners; and

prisoners with communicable or contagious diseases from

all other classifications of prisoners. Furthermore, the term

“safe and suitable”’ jails shall be construed to mean jails

either now or hereafter constructed, except that, in lieu of

maintaining its own jail, any county whose population is not

large enough to justify building a new jail or remodeling its

old jail shall be exempt from the provisions of this Act by

contracting with the nearest available county whose jail

meets the requirements set forth in this Act for the

incarceration of its prisoners at a daily per capita rate

equal to the cost of maintaining prisoners in said jail, or at a

daily rate mutually agreed to by the contracting counties.

C-3

No person suspected of insanity, or who has been legally

adjudged insane, shall be housed or held in a jail, except

that such a person who demonstrates homicidal tendencies,

and who must be restrained from committing acts of

violence against other persons, may be held in a jail for a

period of time not to exceed a total of seven (7) days.

Furthermore, for such temporary holding of each person

suspected of insanity, or who has been legally adjudged

insane, there shall be provided a special enclosure or room,

not less than forty (40) square feet and having a ceiling

height of not less than eight (8) feet above the floor.

Furthermore, the floor and the walls of such enclosure shall

be provided with a soft covering designed to protect a

violent person, temporarily held therein, from self-injury or

destruction. One hammock, not less than two (2) feet, three

(3) inches wide and six (6) feet, three (3) inches long, made

of elastic or fibrous material shall be provided in each such

special enclosure.

SUITABLE SECURITY AND SAFETY

For the purpose of this Act, the term ‘‘safe and suitable

jails is further defined to mean jails which provide

adequate security and safety facilities by having separate

cells or compartments, dormitories, and day rooms, of

varying dimensions and capacities for prisoners confined

therein, except that, if practicable, no one such cell or

compartment shall be designed for confining two (2)

prisoners only. Cells or compartments shall be designed to

accommodate from one (1) to eight (8) prisoners each, and

furthermore, such dormitories and day rooms shall be

designed to accommodate not more than twenty-four (24)

4 Lae Le '

7

C-4

prisoners each. Furthermore, in each such jail there shall

be provided individual one-man or one-woman cells to

accommodate not less than thirty per cent (30%) of the total

designated prisoner capacity of the jail and dormitory-type

space may be provided to accommodate not more than forty

per cent (40%) of the total designated prisoner capacity of

the jail. All cells, compartments and dormitories for

sleeping purposes, where each such cell, compartments or

dormitory is designed to accommodate three (3) or more

prisoners, shall be accessible to a day room to which

prisoners may be given access during the day. Cells for one

(1) prisoner only shall have a minimum floor area of forty

(40) square feet and all other cells, compartments, dormi-

tories and day rooms (including safety vestibule area) shall

have a minimum floor area equal to eighteen (18) square

feet for each prisoner to be confined therein. The ceiling

height above finished floor shall be not less than eight (8)

feet for any cell, compartment, dormitory or day room

where prisoners are confined.

The term ‘safe and suitable jails,"’ as used in this Act, is

further defined to mean that, for reasons of safety to

officers and security, the entrance and/or exit to each

group of enclosures forming a cell block or group of cells

and/or compartments used for the confinement of three (3)

or more prisoners shall be through a safety vestibule having

one (1) or more interior doors in addition to the main outside

entrance door to such cell block, all arranged to be locked.

unlocked, opened or closed by control means located

outside of any such enclosure or cell block. Furthermore,

that all such enclosures or cell blocks, for the confinement

C-5

of prisoners, shall be separated from the building wall on at

least one (1) side, by a corridor not less than three (3) feet

wide and so designed that no prisoners in confinement

areas shall have direct access to windows in the walls of

the building.

SUITABLE SANITATION AND HEALTH

The term “safe and suitable jails” is further defined to

mean jails which provide adequate facilities for maintain-

ing proper standards in sanitation and health. Each cell

designed for one (1) prisoner only shall be provided with a

water closet and a combination lavatory and drinking

fountain, table and seat. Each cell, compartment or

dormitory designed for three (3) or more prisoners, shall be

provided with one (1) water closet and one (1) combination

lavatory and drinking fountain for each twelve (12) pri-

soners or fraction thereof to be confined therein. Further-

more, all such cells, compartments and dormitories shall be

provided with one (1) bunk, not less in size than two (2) feet,

three (3) inches wide and six (6) feet, three (3) inches long,

for each prisoner to be confined therein. Furthermore, each

day room for the confinement of three (3) or more prisoners

shall be provided with one (1) water closet, one (1)

combination lavatory and drinking fountain and one (1)

shower bath for each twelve (12) prisoners, or fraction

thereof, to be confined therein. Furthermore, each day

room shall be otherwise suitably furnished.

The provision of this Act shall become applicable to all

jails hereafter constructed, upon its effective date, and to

existing jails within four (4) years from its effective date.

Sy DeglY Ge REAR AS By:

AR ae

C-6

The Texas State Department of Health shall have general

charge and supervision of the enforcement of the provisions

of this Act, and it is hereby made the duty of the Texas State

Department of Health or any Inspector or Agent of the

Texas State Department of Health to make periodic inspec-

tion of the aforesaid jails and issue an advisory manual

setting forth the principles of safe and healthful provisions,

which shall be distributed to Commissioners Courts and/or

custodians of jails and, furthermore, to officially notify

County Commissioners Courts, in writing to comply fully

with the provisions of this Act.

Act July 22, 1876, p. 52; G.L. vol. 8, p. 888. Amended by

Acts 1957, 55th Leg., p. 637, ch. 277, § 1.

Art. 5116 Sheriff and jailer

(a) Each sheriff is the keeper of the jail of his county. He

shall safely keep therein all prisoners committed thereto by

lawful authority, subject to the order of the proper court,

and shall be responsible for the safe keeping of such

prisoners.

(b) The sheriff may appoint a jailer to take charge of the

jail, and supply the wants of those therein confined; but in

all cases the sheriff shall exercise a supervision and control

over the jail.

(c) The commissioners court of Bexar County, Texas may

appoint a jail administrator who shall exercise all authori-

ty. supervision, and control over the jail, as well as all other

statutory duties of the sheriff with respect to the jail.

Amended by Acts 1973, 63rd Leg.. p. 520, ch. 224, § 1, eff.

June 11, 1973.

C-7

Art. 5117. Marshal may use jail

Sheriffs and jailers shall receive into their jails such

prisoners as may be delivered or tendered to them by any

United States Marshal or his deputy for any district of

Texas, and shall safely keep such prisoners until they are

demanded by such marshal or deputy, or are discharged by

due course of law. The marshal by whose authority such

prisoners are received and kept shall be directly and

personally liable to the sheriff or jailer for the jail fees and

all other expenses of the keeping of such prisoners, such

fees and expenses to be estimated according to the laws

regulating the same in other cases.

Act May 12, 1846, p. 268; G.L. vol. 2, p. 1574; Act August

26, 1856, p. 88; G.L. vol. 4, p. 506.

TEXAS CODE OF CRIMINAL PROCEDURE

Art. 2.18 Custody of prisoners

When a prisoner is committed to jail by warrant from a

magistrate or court, he shall be placed in jail by the sheriff.

It is a violation of duty on the part of any sheriff to permit a

defendant so committed to remain out of jail, except that he

may, when a defendant is committed for want of bail, or

when he arrests in a bailable case, give the person arrested

a reasonable time to procure bail; but he shall so guard the

accused as to prevent escape. Acts 1965, 59th Leg., vol. 2,

p. 317. ch. 722.