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April 27, 1982

UNION COUNTY JAIL INMATES, Timmie Lee Barlow, et al., Plaintiffs,
James SCANLON, Thomas Jefferson, etc. et al., Defendants, v. William H. FAUVER, Commissioner, Department of Corrections, Third-Party Defendant

The opinion of the court was delivered by: ACKERMAN

It is no secret that crime is one of the most serious problems facing this country. People properly perceive it as a disease of epidemic proportions affecting the very well-being of society. *fn1" It is understandable that the public, acting through its appointed and elected representatives, has attempted to respond forcefully by apprehending, prosecuting, convicting, and in appropriate circumstances, incarcerating the perpetrators of crime.

Incarceration, especially for violent criminals, is increasingly considered to be the appropriate response to criminal behavior. *fn2" For this reason, the legislatures of many jurisdictions have reacted to this epidemic through the passage of new laws significantly stiffening penalties to be meted out to offenders and adjusting parole guidelines. New Jersey is no exception. The new criminal code has already had an appreciable impact on the number and length of incarcerative sentences. *fn3"

 As an inevitable consequence of this war on crime, there has been an enormous increase in the population of correctional facilities in this country. *fn4" Again, New Jersey is no exception. *fn5" The erection of new correctional facilities to accommodate the increased jail and prison populations has been urged by many responsible leaders including Chief Justice Warren E. Burger. *fn6" To date, new construction has not kept pace with the demand for prison space.

 Institutions have become not just crowded but overcrowded. The reduced habitability of correctional facilities has in turn spawned a flood of lawsuits by prisoners in the federal courts. *fn7" The complaints alleging violations of the United States Constitution paint an egregious picture of the conditions of confinement in both state and federal institutions. The allegations implicate the Fifth and Fourteenth Amendments with respect to the confinement of those who stand accused but who are not free on bail (pretrial detainees). They raise Eighth and Fourteenth Amendment issues with respect to sentenced offenders. These amendments protect, respectively, pretrial detainees from subjection to punishment without due process, Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), and sentenced persons from subjection to cruel and unusual punishment, Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981). Courts, while being sensitive to the public desire to incarcerate criminals, must, when called upon, examine the conditions of incarceration because "people are sent to prison as punishment, not for punishment." *fn8"

 This action involves the overcrowded conditions at the Union County Jail ("UCJ"). The plaintiffs, represented by the New Jersey Public Defender, *fn9" brought suit a year ago against the Union County officials who administer the UCJ (hereinafter referred to collectively as the "County"). *fn10" The County, alleging that the overcrowded condition of the UCJ is caused in whole or in part by the refusal of the New Jersey Department of Corrections to remove those UCJ inmates who have been sentenced to state prison terms, has impleaded as a third-party defendant, William H. Fauver, Commissioner of the Department of Corrections. Everyone agrees that the UCJ is overcrowded. The only issue in this case is whether the conditions in the jail have fallen below the standards constitutionally mandated. I find that they have.


 This case has taken a unique procedural path. On October 22, 1981, the Public Defender and the County submitted to the Court for its approval a stipulation of settlement which provided, inter alia, for a population cap in the UCJ of 238. *fn11" The settlement was approved and entered into the record as a consent judgment. The third-party defendant was not a party to that settlement. Subsequently, the County sought a preliminary injunction compelling the Commissioner to withdraw immediately those UCJ inmates sentenced to state prison terms in order to enable the County to comply with the settlement agreement. In response to the request, the Commissioner moved to vacate the consent judgment asserting that the County was without the authority to have entered into it under the terms of Governor Byrne's Executive Orders Nos. 106 and 108, dated June 19, 1981 and September 11, 1981. Those Executive Orders declared a state of emergency in the state prison system due to overcrowding, suspended the operation of N.J.S.A. 2C:43-10(e) which mandated the removal of state sentenced inmates within 15 days of sentencing, and granted to the Commissioner authority to designate the place of confinement of any state or county inmate.

  In order to avoid a potential confrontation between the state executive government and the federal judiciary, I stayed the hearing on the County's order to show cause and the Commissioner's motion to vacate the consent judgment. At that time, the appeal of a decision by the Appellate Division of the Superior Court of New Jersey upholding the Governor's orders was pending before the New Jersey Supreme Court. On January 6, 1982, the appeal was decided. Worthington v. Fauver, 88 N.J. 183, 440 A.2d 1128 (1982). In Worthington, Justice Pashman, writing for a unanimous court, held that the executive orders were a valid exercise of the power delegated to the Governor under the Civil Defense and Disaster Control Act. The Court also held that they did not violate the state constitutional doctrine of separation of powers, and that the Commissioner's action in designating the county jails as the place of confinement of state sentenced inmates currently housed there was not arbitrary or capricious. *fn12"

 On January 20, 1982, counsel for all of the parties in this litigation were heard on the previously stayed motions, as well as on a motion made by the County to vacate the consent judgment, and on plaintiffs' motion that the County be found in contempt for failure to abide by the terms of the consent judgment. On January 29, 1982, I denied the third-party defendant's motion to vacate the consent order. Consideration of the other motions was deferred. At that time, I determined that a Special Master should be appointed pursuant to Fed.R.Civ.P. 53 to undertake a thorough examination of the conditions in the UCJ and to investigate the extent of the County's compliance with the consent judgment. *fn13" The Special Master, the Hon. Worrall F. Mountain, filed his report with the Court on February 26, 1982. *fn14" Objections were duly filed by the Commissioner and a hearing was held on March 25, 1982. I must now decide whether to accept, reject or modify the Special Master's report. Fed.R.Civ.P. 53(e)(2). For the reasons which I will articulate infra, I have determined that his findings of fact should be adopted. I will also accept, with certain specific modifications, the proposed conclusions of law. The remedy outlined by the Special Master will be followed in all material respects.


 Rule 53(e)(2) sets forth the standard of review to be applied to a master's findings of fact: "In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous." See also Kyriazi v. Western Electric Co., 647 F.2d 388, 396 (3d Cir. 1981). The findings of the Special Master therefore carry a presumption of correctness. The burden is on an objector to overcome that presumption. See Halderman v. Pennhurst State School and Hospital, 533 F. Supp. 661 (E.D.Pa.1982). However, such a presumption does not apply to the conclusions of law proposed by the Special Master. I may not abdicate my responsibility to make a legal determination as to the constitutional significance of the facts as found. See Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980).

 The Special Master's findings of fact show the following: The UCJ is an aging eight-story facility located in the urban center of Elizabeth, New Jersey. As a county jail, it houses pretrial detainees and persons sentenced within the county to terms of less than one year. N.J.S.A. 2C:43-10(c). Persons sentenced to terms of one year or more normally may be housed at the UCJ for up to 15 days before they are transferred to a state facility, but under the declared state of emergency, they are being housed at the UCJ until the Commissioner determines otherwise.

 The daily population of the UCJ has averaged well over 300 inmates for the last several months. On February 8, 1982, the date the Special Master toured the facility, there were 350 inmates housed at the UCJ, of whom 92 were awaiting transfer to state prisons. On February 15, 1982, there were 359 inmates, of whom 81 were awaiting transfer. On February 24, 1982, the total population at the UCJ was 385, of whom 101 were awaiting transfer to state facilities. At the hearing on the objections to the Special Master's report, counsel for the County defendants stated that the UCJ population as of March 24, 1982, was 362 inmates of whom 97 were state sentenced inmates. As of the week of April 19, 1982, the population had risen to 392, of whom 115 were state sentenced inmates. See Affidavit of Gary Mitchell, filed April 22, 1982.

 It can be calculated from the facts adduced by the Special Master with respect to the jail population on February 15, 1982, that pretrial detainees account for approximately 57% of the total population. The duration of confinement of the persons being housed at the UCJ on that particular date was in excess of 75 days for 36.5% of the population, more than 45 days but less than 75 days for 18.1% of the population, and less than 45 days for 45.4% of the population. Of those inmates who had been at the UCJ for more than 75 days as of February 15, 1982, 53.4% were pretrial detainees. A further breakdown of the category of persons who had already been confined for 45 days indicates that 57% were pretrial detainees.

 The UCJ contains 218 general population cells arranged on 19 tiers. Each cell is equipped with a single bed and a combination toilet/sink fixture. All of the general population cells, with the exception of one each on A and B tiers, measure approximately 39 square feet. Of this, approximately 22 square feet are taken up by the furnishings. A corridor fronts the cells on each tier and increases the area accessible to inmates between 6:00 a.m. and 10:00 p.m. by an average of 23 to 28 square feet per inmate, assuming each cell houses only one person. Each cell corridor is equipped with one television set and one telephone. As there are no dining rooms at the UCJ, inmates take their meals on the tiers off trays brought by hot carts. Illumination for the cell areas comes from lights in the "officer's corridor" which runs parallel to the cell corridors and is separated from it by iron bars. All parties conceded to the Special Master that the lighting needs to be improved and the County is prepared to do so.

 There are 10 detention/isolation cells ranging in size from 83 square feet to 113 square feet. These cells house inmates guilty of disciplinary infractions or those in need of medical isolation. Each contains a single bed and some are equipped with toilet fixtures.

 In addition to the general population and detention cells, there is a "trustees/work release" dormitory currently housing approximately 26 inmates on single and double bunk beds and providing approximately 42.5 square feet per inmate. Two temporary dormitories have also been established in order to accommodate the increased population. Approximately 60% of the men's recreation area has been converted into bedspace for 26 to 28 inmates with an average area of confinement per inmate of 39 square feet. A second temporary dormitory has been constructed in the women's recreation area to provide housing for approximately eight more women with an average area of confinement of 47 square feet. Male dormitory inmates are confined to the dormitory area for substantially the entire day. For security reasons, the female dormitory inmates are confined to the women's tier cell corridor with all of the other women inmates during the daytime hours.

 In spite of the creation of temporary dormitories, the County has had to resort to double-celling on the general population tiers in order to house all of the inmates in its custody. Since there is only a single bunk in a general population cell, double celling has been accomplished by placing a mattress on the floor at night. Measuring approximately 16 square feet, the mattress must be placed adjacent to the toilet and occupies virtually all of the otherwise free floor space in the cell. The Special Master found that the double-celling practice has had its greatest impact on the pretrial segment of the population.

 Double-celling reduces the night space per inmate from 39 square feet to 19.5 square feet, which includes the bed, the mattress and the toilet/sink fixture. As stated above, the floor space is nonexistent. The cell corridor space is also decreased in proportion to the number of cells on the tier that are housing two persons. If half the cells on a tier are being used to house two inmates, the average corridor space per inmate for daytime use is between 15 and 21 square feet, depending on the particular tier. If all the cells on a tier have double occupancy, the corridor space per inmate is only between 11 and 14 square feet. The cell corridor on the women's tier is even more crowded when total double-celling occurs because the women in the temporary dormitory are also confined there during the daytime hours.

 When the population at the UCJ has surpassed 365, some inmates have been assigned to mattresses placed on the floor in the laundry area or law library area. These inmates continue to sleep in these areas until the population is reduced, or until they are released or transferred.

 The detention/isolation cells have also been affected by the overcrowded conditions at the UCJ. Some of these cells are being used to house as many as four inmates, of whom three must sleep on mattresses laid out on the floor. Inmates in these cells are confined there for all but a few hours a week. Some of the detention cells are equipped with a toilet fixture and group showers are provided daily.

 The Special Master further found that the severely overcrowded conditions at the UCJ have had an adverse impact on the support services and inmate programs provided. Recreational opportunity has been especially curtailed due to the increased population and the decreased space available for recreation. Recreation for male inmates is limited to no more than one hour periods, twice per week, which time is also used for access to the law library. The recreational equipment available to the men consists of a ping-pong table and a weight machine. Recreation for the female inmates has been totally eliminated since that room was converted into dormitory space. No outdoor exercise area is provided or feasible because of the UCJ's urban location. The Special Master stated in his findings with respect to this program: "Under existing conditions, I find that there is almost no realistic opportunity for male inmates to enjoy recreation while confined at the UCJ." Special Master's Report ("SMR"), at 13.

 Visitation privileges have also been curtailed as a result of the severe overcrowding. Formerly, inmates could receive visitors three times a week for up to one-half hour. Currently, the visitation period must be limited to five or ten minutes and even with that adjustment, not all visitors can be accommodated.

 In addition to the impact of the overcrowded conditions on recreation and visitation, the Special Master found that there has been some noncompliance with the State regulation requiring that inmates be provided clean clothes weekly and clean towels daily. Other programs, although they are being administered, have naturally been overburdened by the demands of an increased population. The lack of a screening medical examination during the admission process, while not a phenomenon related to the overcrowding, was found to pose a serious health risk to all inmates.

 Instances of fighting amongst inmates have increased due to the overcrowded conditions at the UCJ. Tension has also increased. These present problems could develop into an extremely serious security problem if the UCJ continues at its current population levels into the hot summer months.

 There have been no fundamental objections raised by the parties with respect to the Special Master's proposed findings of fact. The County has not filed any objections to the report. The Commissioner's objections with respect to the findings of fact refer only to the Special Master's recommended remedy for alleviating the conditions at the UCJ. Consideration of these objections will be deferred until I have discussed the proposed conclusions of law. The Public Defender has suggested that the proposed findings of fact as to adequacy of certain services are not erroneous if taken in tandem with the improvements already promised by the County, e.g., an increase in the budget for additional medical and dental services. As the County has represented that these services will be improved, I do not find that consideration of this objection is necessary.

 I have determined that none of the proposed findings of fact are clearly erroneous, and I shall therefore adopt them without modification.


 Based upon the facts as found, the Special Master concluded that the overcrowded conditions at the UCJ do amount to punishment of the pretrial detainees, Bell v. Wolfish, supra, and cruel and unusual punishment of sentenced inmates, Rhodes v. Chapman, supra. Specifically, he suggested that the total impact of the following conditions violate the due process rights of the pretrial detainees:

(T)he unsuitable and unsanitary sleeping conditions resulting from inmates being forced to sleep on mattresses, the almost complete absence of recreational facilities, the cutbacks in visitation, the delays encountered in administering inmate programs, the inadequate lighting in the cellblocks, the inability to provide clean inmate clothing in accordance with N.J.A.C. 10A:31-3.13(b)(5), and the absence of a medical screening procedure for new inmates, amount to "genuine privations and hardships" which cannot be justified by the mere fact that a statewide prison overcrowding problem exists.

 SMR, at 19-20.

 With respect to sentenced inmates, the Special Master applied the Rhodes standard and proposed that "the totality of the conditions currently existing in the UCJ is so severe, in at least two respects, that it exceeds contemporary standards of dignity, humanity and decency and therefore constitutes cruel and unusual punishment." SMR, at 24. Those two respects are the confinement of more than one inmate in each detention cell on floor mattresses for more than several days and the utilization of floor mattresses in the general population cells, library, and laundry areas, for extended periods of time.

 The Special Master, pursuant to the Order of Reference dated January 29, 1982, also addressed the issue of the maximum jail capacity that could be constitutionally accommodated. He recommended a maximum capacity of 244 persons which represents single occupancy in each of the 218 general population cells plus the 26 bedspaces in the "trustee/work release" dormitory. *fn15" He determined that the temporary male and female dormitories must be reconverted to recreational space in order to reinstitute daily recreation. A proposal consisting of certain structural changes put forward by the third-party defendant was rejected primarily because its implementation would exacerbate the already insufficient recreation opportunity. Secondarily, the Special Master found that the "benefit" to be gained from these proposed temporary solutions was substantially outweighed by the costs.


 Objections have been raised by the third-party defendant to the legal standards applied by the Special Master and the legal conclusions drawn therefrom. As stated above, Fed.R.Civ.P. 53(e)(4) requires the district court to review the proposed conclusions of law of the master and determine for itself whether violations exist. I have determined that the Special Master applied the correct legal principles to the conditions at the UCJ and drew the correct conclusion as to the constitutionality of those conditions.


 A. Pretrial Detainees

 The population at the UCJ consists of both pretrial detainees and sentenced inmates, but pretrial detainees are in the majority. The Constitution requires different avenues of inquiry in evaluating the conditions under which these classes of persons may be confined. Bell v. Wolfish, supra, 441 U.S. at 535, 99 S. Ct. at 1871. The Court stated in Wolfish that pretrial detainees are protected by the Fourteenth Amendment against the deprivation of liberty without due process of law and they therefore have a right to be free from punishment prior to an adjudication of guilt. Thus, the test to be applied to the overcrowded conditions at the UCJ is whether they amount to the punishment of this group of inmates. Wolfish, supra, 441 U.S. at 535, 99 S. Ct. at 1871; see Lareau v. Manson, 651 F.2d 96, 102 (2d Cir. 1981); Lock v. Jenkins, 641 F.2d 488, 491 (7th Cir. 1981); Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754, 758 (3d Cir. 1979).

 A determination must be made as to whether the condition or restriction is "imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose." Wolfish, supra, 441 U.S. at 538, 99 S. Ct. at 1873. The Wolfish Court further articulated this standard:

Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on "whether an alternative purpose to which (the restriction) may rationally be connected is assignable to it, and whether it appears excessive in relation to the alternative purpose assigned (to it)." Kennedy v. Mendoza-Martinez, 372 U.S. (144) at 168-169 (83 S. Ct. 554 at 567, 568, 9 L. Ed. 2d 644) ...

 441 U.S. at 538, 99 S. Ct. at 1873.

 I concur with the Special Master's conclusions that there has been no express intent to punish the inmates at the UCJ on the part of either the defendants or the third-party defendant. The determination, then, of whether the conditions at the UCJ violate the constitutional rights of the pretrial detainees confined there must depend on analysis of the reasons for and the reasonableness of those conditions. The Court in Wolfish considered the operation of a detention facility in a manageable fashion to be a "valid objective that may ... dispel any inference that (a) restriction (is) intended as punishment." 441 U.S. at 540-41 & n.23, 99 S. Ct. at 1874-75 & n.23.

 The restriction or condition at issue in this litigation is the severe overcrowding of the facility and the impact of the excess population on the provision of services and programs, especially recreation and visitation. The Special Master found that "the conditions caused by severe overcrowding, including cutbacks in inmate privileges and services, are an unavoidable incident of the jail officials' efforts to "effectively manage' the facility during a statewide prison overcrowding emergency." SMR at 19. I would add that the interests of local and state governments in not releasing onto the streets either pretrial detainees who are not bail worthy or convicted inmates are legitimate ones that may justify the severely overcrowded condition at the UCJ. However, the due process rights of the pretrial detainees will have been violated by this condition if it is excessive in relation to the legitimate interest sought to justify it.

 Judged by this standard, I have determined that the Special Master correctly found that the due process rights of the pretrial plaintiffs have been violated. This conclusion does not mean that there is a "one man, one cell" principle engrafted onto the Fourteenth Amendment. Wolfish, supra, 441 U.S. at 542, 99 S. Ct. at 1875. It is clear that the Supreme Court has not adopted a per se rule against double-celling. However, the Court has also not ruled that double-celling is per se constitutional.

While confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process Clause as to whether those conditions amounted to ...

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