I shall thereafter consider the impact of overcrowding on recreation and visitation.
I agree with the Special Master that the use of floor mattresses constitutes punishment without due process of law in contravention of the rights of pretrial detainees. See Lareau v. Manson, supra; Vazquez v. Gray, 523 F. Supp. 1359, 1365 (S.D.N.Y.1981). The practice is unsanitary, dehumanizing, and shocking.
In Lareau, 651 F.2d at 105, the Second Circuit held that the use of mattresses placed on the floor of a cell is "too egregious to warrant any ... leeway." The court considered the practice to be unconstitutional without regard to the number of days the practice continues. I do not agree that the caselaw supports a finding of per se unconstitutionality. Under the test articulated in Wolfish, supra, 441 U.S. at 542, 99 S. Ct. at 1875, the period of time during which an inmate is subjected to genuine privation and hardship is relevant to a due process inquiry. The clearer the hardship, the shorter the period of time before it raises serious questions under the Due Process Clause.
With respect to the use of floor mattresses in the general population cells, detention cells or other areas of the UCJ, I find that such means are permissible only during an emergency and only if no detainee is so confined for a period longer than 48 to 72 hours. It would be preferable if collapsible cots were available at least for use in the library or laundry areas. If the defendants are confronted with an "emergency" of longer duration, they are instructed to comply with the other provisions of my order detailed below. (See Appendix B).
In a footnote, the Special Master restricted his consideration of the constitutionality of confining two detainees to a cell to the condition of using mattresses to accomplish "double-celling" and declined to reach the issue of "double-bunking."
The Commissioner, in his objections to the report of the Special Master, argued vigorously that double-bunking would remedy the unconstitutional conditions at the UCJ without the need to reduce the population immediately through the transfer of state sentenced prisoners. I specially ordered the parties to address the feasibility and constitutionality of double-bunking at the hearing on March 25, 1982.
The County complied with my request for supplemental briefing by stating that the bunks presently being used in the temporary dormitory cannot be utilized in the general population cells because of the height of the cells. I concur with the third-party defendant that this information is an inadequate response to my directions. The feasibility of other and different forms of bunk beds has not been addressed by the party most familiar with the structural properties of the UCJ. However, for purposes of my analysis under the Fourteenth Amendment, I shall assume that some form of double-bunking is possible.
There can be no doubt that using a double bunk bed is an obviously more sensible manner of providing a person with a place to sleep. However, the issue is still whether this solution passes muster constitutionally under all the conditions at the UCJ. In this Court's judgment it does not. In a detention facility with larger cells, the arguments of the third-party defendant would be quite plausible. Here, the cell space is, at most, paltry. While the use of a frame bed does mean that an inmate is not required to sleep on the floor next to the urinal, subject to sewage back-up, etc., it does not alter the spatial dimensions of the living quarters. Furthermore, this Court must maintain its focus on the issue of whether the UCJ meets minimum standards of decency.
The stark reality is that, whether provided with bare mattresses or mattresses placed on a frame, when the 39 square feet general population cells are shared by two persons, each person has 19.5 square feet of space inclusive of furniture and fixtures for the period of lock-up at night. Double-bunking in the UCJ is therefore roughly equivalent to quadruple-bunking in the MCC at issue in Wolfish. Such spatial starvation cannot pass muster constitutionally. Even the incarcerated are entitled to something more than a walk-in closet.
Furthermore, there is no relief during the day from the adverse effects of overcrowding. As the Special Master found:
The cell corridors and dormitories where the inmates spend the overwhelming majority of their waking hours are cramped, overcrowded and would allow little opportunity for free movement or exercise even at normal population levels. The pretrial detainees currently housed in general population cells or dormitories at the UCJ can do little more than watch television from 6:00 a.m. in the morning to 10:00 p.m. at night.
SMR, at 22. If I assume that only half of the cells on any one tier are to be double-bunked under the Commissioner's proposed remedy,
the average corridor space per person for daytime use will be between 15 and 21 square feet. Added to one person's share of the space of a double-bunked cell, a pretrial detainee at the UCJ is restricted nearly twenty-four hours a day to an area which the Court in Wolfish ruled was barely sufficient for sleeping purposes. It falls far short of the 105 square feet governing new prison construction in this state. N.J.A.C. 10A:31-2.8(a)(4), (12).
Other courts have found jails with similar or more generous spatial dimensions than those in the UCJ unconstitutional. See Lareau, supra; Campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980); Heitman v. Gabriel, 524 F. Supp. 622 (W.D.Mo.1981); Vazquez, supra; Hutchings v. Corum, 501 F. Supp. 1276 (W.D.Mo.1980); Benjamin v. Malcolm, 495 F. Supp. 1357 (S.D.N.Y.1980). Thus based solely on considerations of space, I find that double-celling or double-bunking at the UCJ subjects pretrial detainees to genuine hardships amounting to punishment in violation of the Fourteenth Amendment.
My decision does not rest upon an incorporation into the Due Process Clause of the various correction associations' recommendations with respect to the number of square feet appropriate for daytime space in a jail such as that contained in N.J.A.C. 10A:31-2.8(a). See Wolfish, supra., 441 U.S. at 543-44 n.27, 99 S. Ct. at 1876-77 n.27. However, the 30 to 40 square feet allotted to a double-bunked detainee is grossly inadequate in comparison to any of these professional standards.
Furthermore, overcrowded cells cannot be examined for constitutionality in isolation from the overall circumstances in the facility. Wolfish, supra, 441 U.S. at 525, 99 S. Ct. at 1866. In MCC, the hardships, if any, which are imposed upon pretrial detainees by double-bunking are mitigated by the unlimited daytime access to the large common areas. In UCJ, the more serious privations are aggravated by the overcrowded corridors, and the lack of meaningful recreation and other necessities. (For the female inmates, there is a lack of any recreation.) What the Second Circuit stated in Lareau with respect to the detention facility in Hartford, Connecticut, is applicable here: "(T)here is no real respite for the double-bunked inmate from the pressures of overcrowding." 651 F.2d at 101.
As found by the Special Master, the County has been unable to provide the inmates with daily recreation off the tier. This is attributable to two factors. The recreation room has been reduced from 1,758 square feet to 720 square feet in order to erect a temporary dormitory for the men during the overcrowding emergency. In addition, the sheer size of the population has overburdened the staff and necessitated a shortening of the recreation time available to each inmate. Yet, recreation, as testified to by Gary Hilton, Assistant Commissioner of Corrections, before the Special Master, is one of the most important programs in a county jail setting for alleviating physical and mental stress.
Even if all of the tiers were single-celled, Mr. Hilton recommended that a commitment should be made by the County to improve the off-tier recreation facilities.
The Commissioner proposes that elimination of the temporary dormitories for the men and women in conjunction with the establishment of a double-bunking practice would remedy any unconstitutional condition at the UCJ. I find this proposal to be unsatisfactory. It is doubtful that recreation will improve so long as the population is as high as it has been for several months even if the size of the recreation room is returned to its normal dimensions. The third-party defendant, in effect, is proposing a trade-off of one "genuine privation" for another. Either the pretrial detainees suffer increased crowding in the cells in order to enjoy slightly improved recreation opportunity or they suffer with the present recreation situation in order to enjoy slightly less crowded cells.
Nor is access to a crowded corridor an adequate substitution for real exercise and recreation. The Special Master found the corridors sufficient only for passive activities, such as watching television. At the hearing, the Attorney General on behalf of the third-party defendant suggested, "The best recreation is walking. You can read that in every newspaper article about health and fitness." Transcript at 17. Yet, the Eighth Circuit in Campbell v. Cauthron, 623 F.2d 503, 507 (1980), in considering the constitutionality of the Sebastion County Jail, stated: "Merely allowing the inmates to walk around in the narrow corridor between cells does not provide adequate exercise." I agree, and it is evident that Assistant Commissioner Hilton does as well. While I appreciate the salutory effect of walking as an exercise, walking in the cramped corridors of the UCJ cannot satisfy the requirement of providing an inmate with a "healthy habilitative environment." Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977). By any reasonable standard, the provision for recreation and exercise at the UCJ at the present population level is woefully inadequate.
The overcrowded condition of the UCJ is the cause not only of inadequate recreation but also, as found by the Special Master, of reduced visitation privileges. This, too, aggravates the tensions already present because of double-bunking. As testified to by Assistant Commissioner Hilton, visitation has a very significant impact on the mental well-being of an incarcerated person.
Under the present circumstances, visits have been limited to five to ten minutes, if not indirectly discouraged altogether.
I have determined that double-bunking at the UCJ violates the due process rights of pretrial detainees. It constitutes "confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardships over an extended period of time." Wolfish, supra, 441 U.S. at 542, 99 S. Ct. at 1875.
B. Sentenced Inmates
In addition to pretrial detainees, there are confined at the UCJ inmates already sentenced to county or state terms of imprisonment. Because these persons have been convicted, the Constitution does not protect them from all punishment but only from cruel and unusual punishment. Rhodes v. Chapman, supra. The Special Master found that the practice of sleeping sentenced inmates on mattresses in the general population cells, in the detention/isolation cells, and on the library or laundry floors violated the Eighth Amendment rights of those persons. He also found that sentenced inmates were deprived of adequate recreational opportunity to the same extent as pretrial detainees. See Miller v. Carson, 563 F.2d 741, 750 (5th Cir. 1977).
In Rhodes, supra, the Court set forth the yardstick to be applied in measuring a prison condition under the Eighth Amendment:
Today the Eighth Amendment prohibits punishments which, although not physically barbarous, "involve the unnecessary and wanton infliction of pain," ... or are grossly disproportionate to the severity of the crime .... No static "test" can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
452 U.S. at 346, 101 S. Ct. at 2398. (citations omitted).
At issue in Rhodes was the Southern Ohio Correctional Facility ("SOCF"), a modern maximum-security state prison. The Court reviewed the findings of the district court and concluded that they did not substantiate its ultimate finding of unconstitutionality. The cells at SOCF are 63 square feet and contain a bunk bed, night stand, sink with hot and cold running water, a sanitary toilet, and a wall-mounted shelf, cabinet and radio. They are heated and ventilated, and some even have a window that inmates can open and close. 452 U.S. at 341, 101 S. Ct. at 2396. In sum, as the Court stated, "though small, the cells at SOCF are exceptionally modern and functional." Id. at 349 n. 13, 101 S. Ct. at 2400 n. 13.
As a result of double-celling at SOCF, job and educational opportunities had diminished "marginally". Rhodes, supra, 452 U.S. at 348, 101 S. Ct. at 2399. However, it "had not reduced significantly the availability of space in the day rooms or visitation facilities. " Id. at 342, 101 S. Ct. at 2396. In light of these findings, Justice Powell, writing for the Court concluded:
The double celling made necessary by the unanticipated increase in prison population did not lead to deprivations of essential food, medical care, or sanitation. Nor did it increase violence among inmates or create other conditions intolerable for prison confinement.
Id. at 348, 101 S. Ct. at 2399.
Conditions at the SOCF obviously do not mirror conditions in older prisons which the Court stated "have justly been described as "deplorable' and "sordid.' Bell v. Wolfish, 441 U.S. at 562, 99 S. Ct. at 1886." Rhodes, supra, 452 U.S. at 352, 101 S. Ct. at 2401. When such conditions "alone or in combination ... deprive inmates of the minimal civilized measure of life's necessities," id. at 347, 101 S. Ct. at 2399, and can be said to be cruel and unusual under contemporary standards of decency, federal courts must "discharge their duty to protect constitutional rights.' " Id. at 352, 101 S. Ct. at 2401.
The conditions of overcrowding and double-celling are not to be viewed in isolation. Rather, provision of space must be viewed against the totality of conditions. Rhodes, supra, 452 U.S. at 363 & n.10, 101 S. Ct. at 2407 & n.10 (Brennan, J., concurring). See also, Stewart v. Winter, 669 F.2d 328, 335-36 (5th Cir. 1982); Ruiz v. Estelle, 666 F.2d 854, 858 (5th Cir. 1982); Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir. 1981); Hendrix v. Faulkner, 525 F. Supp. 435, 524 (N.D.Ind.1981).
I agree with the Special Master that requiring sentenced inmates to sleep for long periods of time on mattresses positioned on the floor constitutes cruel and unusual punishment. It is a "reprehensible and dehumanizing" practice. SMR, at 25. The practice deprives these inmates of the essential requirement of habitable shelter. As stated by the Tenth Circuit, shelter is a core area of concern under the Eighth Amendment and it goes beyond having a solid roof over one's head:
In Battle v. Anderson, supra, we upheld the district court's conclusion that "(it) is incumbent on the incarcerating body to provide the individual with a healthy habilitative environment." 564 F.2d at 395. In affirming in Battle, we upheld the finding that 60 square feet of living space was the minimum amount of square footage which the Eighth and Fourteenth Amendments require that a state provide an inmate. Id. at 395, 397, 403.... In short, a state must provide an inmate with shelter which does not cause his degeneration or threaten his mental and physical well-being. Battle v. Anderson, supra, 564 F.2d at 403.