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November 20, 1989

ESSEX COUNTY JAIL INMATES, et al., Plaintiffs,
NICHOLAS AMATO, County Executive, et als., and WILLIAM H. FAUVER, Commissioner, New Jersey Department of Corrections, Defendants

Ackerman, United States District Judge.

The opinion of the court was delivered by: ACKERMAN

This litigation has had a painful and protracted history. This class action has been brought on behalf of the inmates of the Essex County jail against various Essex County officials and the New Jersey Commissioner of Corrections. Plaintiffs have sought relief from overcrowding and other objectionable conditions of confinement which have arisen as a result of the overcrowding. The parties come before the Court now on plaintiffs' application for an order to show cause as to why the defendants should not be held in contempt for violating the terms of the Third Supplemental Consent Order ("SCO3") which is an order of this Court.

 I note that as an initial matter, the fact that SCO3 is a consent decree does nothing to minimize the obligation of the parties to adhere to the Court's decision. In fact, in stipulating to the terms under which sanctions are to be imposed, the county unequivocally acknowledged that conditions at the Essex County jail and annex are unconstitutional and that the remedies which plaintiffs seek to have imposed are appropriate ones. In an analogous situation, the United States Court of Appeals for the Second Circuit found that

The respect due the federal judgment is not lessened because the judgment was entered by consent. The plaintiff's suit alleged a denial of their constitutional rights. When the defendants chose to consent to a judgment, rather than have the district court adjudicate the merits of the plaintiffs' claims the result was a fully enforceable federal judgment that overrides any conflicting state law or state court order. The strong policy encouraging the settlement of cases requires that the terms of a consent judgment, once approved by a federal court, be respected as fully as a judgment after trial.

 Badgley v. Santacroce, 800 F.2d 33, 38 (2nd Cir. 1986), cert. denied, 479 U.S. 1067, 107 S. Ct. 955, 93 L. Ed. 2d 1003 (1987). This Appellate Court observance informs my decision today. Before detailing that decision, it is necessary to restate the action's background and the nature of the current application before me.


 In 1982, pursuant to Federal Rule of Civil Procedure 53, I appointed two special masters to whom I referred this matter for an evaluation of the conditions at the Essex County Jail. Their reports as well as the parties' stipulations reveal a facility that was, and still is, taxed to the breaking point. For nearly every day of 1982 to the present, the County defendants have housed substantially more than the 594-inmate cap. Overcrowding has caused these inmates to be housed in the dayrooms and has cut into the defendants' ability to provide the hour of exercise mandated by the terms of the consent order. Smoke detectors and alarms are inoperable. Mattresses are unsanitary and no longer fire-retardant, they are often cracked and torn. Inmates are not receiving weekend visits of at least 20 minutes in duration. A number of inmates fail to receive a physical examination within 72 hours of admission, a situation which also leads to housing of these unexamined inmates with the general population. Reliable logs of housing assignments are not maintained. Consequently, it is often difficult, if not impossible, to find inmates once they have entered the system or for the jail to receive accurate, timely information as to their bail status.

 The initial agreement, which was presented to this Court on October 18, 1982 set a maximum inmate capacity of 594 effective July 1 1983. It is this population cap agreed to over six years ago which has still not been met, and which is a focus of today's proceeding. In the 1982 accord, the County also agreed to provide certain services pertaining to the conditions indicated above.

 On February 4, 1985, the County defendants, admitting that the facilities and services were "insufficient to meet the terms" of the original consent judgment, was given until May 1, 1985 to develop and implement a plan to provide additional housing and improve services at the jail.

 As a result of the County's failure to comply with the terms of these orders, and after several days of hearings, the parties reached an agreement which was ultimately incorporated into a second supplemental consent order, entered on April 27, 1987. The County was again given time, until January 1, 1988, to meet the 594-inmate population cap. Under the agreement, the County agreed that violations of the cap would trigger automatic sanctions.

 In 1987, the plaintiffs asserted that the defendants had yet to comply with the above-described orders. After further hearings and an on-site inspection of the Essex County facility by the special masters (but prior to the Court's decision regarding the masters' July 26, 1988 recommendation that the County defendants be held in contempt and sanctioned), the parties entered into the Third Supplemental Consent Order which was filed on December 27, 1988. In that order, as in its two forerunners, the County defendants acknowledged that "inmate housing and services continue to be insufficient to meet the terms of the previous consent orders."

 In light of this admission, the plaintiffs agreed to defer prosecution of the contempt application to permit the County to implement measures to finally reduce the population to 594-inmates and to achieve substantial compliance with the other provisions of the prior orders of this Court. SCO3 specifically reserved plaintiffs' right to pursue a contempt application and seek sanctions if the jail population was not reduced to 700 inmates by February 15, 1989, 650 inmates by April 15, 1989 and 594 inmates by June 1, 1989. The precise language is as follows:

 SCO3 para. 1.

 The County defendants, recognizing that promises to the plaintiff class have been "long delayed" and would be further delayed by SCO3, were "on notice" that alternatives to the jail initiative, the County's own program to reduce overcrowding, must be contemplated in order to reach and maintain the population cap. See para. 2-4 SCO3. The County defendants specifically recognized that "prompt proceedings to impose and compel payment of sanctions" would ensue if the County's noncompliance was not rectified.

 In fact, SCO3 sets forth a specific agenda regarding fines, and the County defendants waived any right to be heard on whether or not sanctions should be imposed, except in situations where the County was faced with an emergency such as a fire, a disaster, or a riot. Specifically excluded from SCO3 are any fluctuations in the inmate population associated with, e.g., criminal justice practices, prosecutional policies, law enforcement activities, changes in sentencing plans, or the reduction or termination of County program concerning pretrial release or noncustodial disposition alternatives. The County defendants also agreed not to contest the specific figures that the masters recommend. See para. 20 SCO3.

 As indicated above, the 594-inmate population cap was to be achieved through a series of interim reductions. In April 1989, the masters filed a report and recommendation addressed to plaintiff's allegations that the County had still not fulfilled the population or recreation requirements -- in other words, that the terms of the SCO3 were not being met. On May 10, 1989, this Court found that "defendants had failed to meet the timetable for the population reduction" and pursuant to para. 20 of SCO3 the Court imposed sanctions. At that time I stated, "I find that sanctions are particularly appropriate in light of defendants' repeated violation of the orders of the court" (p.17 Opinion). As defendants and plaintiffs both know, the sanction money has been used to create a bail fund program pursuant to the terms of para. 22(b) of SCO3.

 On May 10, I declined to impose sanctions for the defendants' failure to comply with the recreation requirements of the December 1988 order, see para. 19b(1) & (2) of the SCO3 which states,

 b. Exercise and recreation

(1) Schedule -- By Feb. 1, 1989, the County shall submit to plaintiffs' counsel and the Special Masters a proposed gym schedule that will fulfill its obligations under prior orders to provide each inmate at the jail with access to an exercise and recreation area for a minimum of one hour each day. The County shall take all steps necessary to implement this schedule so that inmates shall receive the required daily opportunity for exercise by April 15, 1989, including but not limited to physical construction of facilities, acquisition of equipment, and hiring of additional staff.
(2) Supplemental Exercise Equipment Outside Dayrooms -- Within 30 days of the date of this agreement, the County shall obtain the items of exercise equipment previously required by paragraph 12(c) (3) of the SCO1.

 I took judicial notice at that time of the County's failure to comply with the recreation schedule to which both parties had agreed. In so doing, I stated that "failure to obtain the equipment within 30 days may result in sanctions." I further ordered defendants to begin to comply with the gym schedule immediately and to "establish a record-keeping system for monitoring availability and usage of the recreation program" (see pgs. 19 & 20 of Order May 10). I concluded my discussion of the recreation issue by saying that, "failure to establish such a system by June 1, 1989 will result in sanctions" (p.20 opinion, emphasis added).


 Regrettably, the matter is once again before this Court upon plaintiffs' Application for an Order to Show Cause as to why the most recent report of the masters regarding the population at the facility and the provision of recreational opportunities should not be adopted by the Court. The masters' report, dated September 19, 1989, was filed in response to plaintiff's application to hold the County and State defendants in contempt.

 The masters found that the County's violations of the Consent Order were "massive," and that defendants have confronted this Court with virtually the same kind of noncompliance with the terms of the SCO3 that necessitated my May 10th decision and the concomitant sanctions.

 In their report, the masters observed that the County defendants have failed to meet the population reduction, both with regard to the overall inmate population and the population within certain housing units. Further, the masters reported that the defendants have not contended that this failure is due to an emergency situation. In short, per the masters, defendants have failed to identify any circumstances that would constitute a defense to this breach.

 According to the masters, the parties have stipulated to the fact that the County defendants have violated the 594-inmate population cap every single day from June 1, 1989 through October 13, 1989 for a total of 14,768 prisoner days over the cap. See para. 6 of SCO3 which states

for nearly every day of 1988 to the present, the County defendants have housed substantially more than ...

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