The opinion of the court was delivered by: DEBEVOISE
DEBEVOISE, Senior District Judge
Defendants, officials and employees of the New Jersey State Department of Corrections, seek to terminate the Stipulation of Dismissal ("consent decree") agreed to and signed by the parties on April 6, 1984 and entered on May 15, 1984, pursuant to the immediate termination provisions of the Prison Litigation Reform Act ("PLRA"). 18 U.S.C. §§ 3626(b)(2),(3) (1996) (amended 1997). Plaintiffs, representing a class consisting of inmates of the New Jersey prison system, contend that the termination provisions of the PLRA are unconstitutional because they violate the separation of powers doctrine by requiring the reopening of a final judgment, by prescribing a rule of decision in a pending action and by depriving the Court of the ability to provide an effective remedy for violations of Plaintiffs' constitutional rights. Additionally, Plaintiffs argue that the immediate termination provisions violate their right to equal protection.
Because the immediate termination provision of § 3626(b) violates the separation of powers doctrine as articulated in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995), Defendants' motion will be denied.
FACTS AND PROCEDURAL HISTORY
On July 24, 1983, Robert Lee Denike and Kenneth Vespa, inmates at Rahway State Prison, initiated this civil action, pro se, against Defendants. Plaintiffs contended that Defendants, in conducting urine tests of inmates under their custody and control, had violated the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Two other pro se complaints contesting the urine tests were filed with this court by inmates Earl Bennett (Civil Action No. 83-4049) and Clyde Briggs (Civil Action No. 83-4321). The three cases were consolidated in Civil Action No. 83-2737. Subsequently, Plaintiff Vespa withdrew from the action.
Pursuant to Plaintiffs' motion, the court granted an Order certifying the consolidated cases as a class action. The named Plaintiffs were certified to represent the interests of all present and future inmates that have been, are, or will be subjected to urine analysis utilizing an Enzyme Multiple-Immunoassay ("EMIT") test, administered by the Defendants. See Denike, et al. v. Fauver, et al., Civ. No. 83-2737, slip op. (D.N.J. Apr. 6, 1984) (Order Directing Notice of Proposed Settlement).
Subsequent settlement discussions between the parties resulted in the signing of the consent decree on April 6, 1984. After the final hearing conducted on May 14, 1984, the court entered the consent decree on May 15, 1984. The decree set forth detailed procedures governing the circumstances in which urine monitoring could be ordered, the manner in which the tests were to be administered, and the manner in which urine specimens were to be handled and tested. These provisions were designed to permit prison officials to take all necessary steps to investigate and discipline inmates using or distributing illegal drugs and at the same time require fair and reliable procedures. From time to time, inmates have instituted proceedings to enforce one or another provision of the consent decree, but it would appear that since May 15, 1984 until the present time, urine monitoring has been conducted in the New Jersey prisons without interference with prison security and disciplinary requirements and in accordance with procedures that ensured that inmates were treated fairly.
On January 26, 1998, Defendants filed their notice of motion seeking to terminate the consent decree pursuant to the immediate termination provisions of the PLRA. On April 9, 1998, the United States Department of Justice, pursuant to 28 U.S.C. § 2403(a), intervened on the question of the constitutionality of these provisions.
THE PRISONER LITIGATION REFORM ACT
In 1996, President Clinton signed into law the Prison Litigation Reform Act of 1995, the purpose of which is to reduce federal judicial involvement in prison administration. Congress perceived that the federal judiciary had arrogated the authority of states to manage and regulate their own prisons and that the federal courts had usurped this authority to give inmates even greater rights than they were entitled to under the Constitution.
To reduce such judicial involvement, the PLRA entitles defendants in prison condition lawsuits to
immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
18 U.S.C. § 3626(b)(2). This provision is applicable to consent decrees even if they were entered into prior to the PLRA's enactment. 18 U.S.C. § 3626(b)(1)(A)(iii). The PLRA further provides, however, that
prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.
18 U.S.C. § 3626(b)(3), as amended by the Department of Justice Appropriations Act, 1998, Pub.L. No. 105-119, § 123(a)(2), 111 Stat. 2440, 2470 (1997).
On the present motion, Plaintiffs take no formal position regarding whether the requirements of § 3626(b)(2) have been met, or whether the court could, or should, enter findings pursuant to § 3626(b)(3). It is quite apparent, however, that the consent decree does not meet the requirements of § 3626(b)(2).
Plaintiffs contend that notwithstanding that fact, the provisions of § 3626(b)(2) of the PLRA cannot be applied in this case because to do so would violate the separation of powers doctrine by requiring the reopening of a final judgment, by prescribing a rule of decision in a pending case, and by depriving the court of the ability to provide an effective remedy for violations of Plaintiffs' constitutional rights.
A. Cases Dealing with § 3626(b)(2) :
The court is not writing on a clean slate. Two district courts have ruled that the immediate termination provision of the PLRA as applied to final judgments is unconstitutional. See Taylor, 972 F. Supp. at 1239; McClendon v. Albuquerque, Civ. No. 95-24 MV/RLP, slip op. at 7 (D.N.M. Oct. 29, 1996). Six courts of appeals, on the other hand, have upheld the constitutionality of that provision. See Hadix v. Johnson, 133 F.3d 940, 943 (6th Cir. 1998) (prospective equitable relief in consent decrees remains subject to subsequent changes in the law); Dougan v. Singletary, 129 F.3d 1424, 1425 (11th Cir. 1997) (District Court retains jurisdiction to amend consent decrees as significant changes in laws and fact require), petition for cert. filed, (Mar. 2, 1998) (No. 97-8120); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 656 (1st Cir. 1997) (consent decrees mandating forward-looking injunctions are final judgments subject to revision to the extent required by equity), petition for cert. filed, (Feb. 4, 1998) (No. 97-1278); Benjamin v. Jacobson, 124 F.3d 162, 173 (2d Cir. 1997) (termination provision merely limits remedial jurisdiction of federal court), reh'g en banc granted, (Dec. 23, 1997); Gavin v. Branstad, 122 F.3d 1081, 1087 (8th Cir. 1997) (consent decree is an executory form of relief that remains subject to later developments), petition for cert. filed, (Jan. 5, 1998) (No. 97-7420); Plyler v. Moore, 100 F.3d 365, 371 (4th Cir. 1996) (judgment providing for injunctive relief remains subject to subsequent changes in law), cert. denied, 138 L. Ed. 2d 217, 117 S. Ct. 2460 (June 16, 1997) (No. 96-8596).
In a recent opinion, the district court for the Eastern District of Pennsylvania upheld the constitutionality of the termination provision of the PLRA. See Imprisoned Citizens Union v. Milton Shapp, 1998 U.S. Dist. LEXIS 5892, Docket Nos. 70-3054, 70-2545, 71-513, 71-1006 (E.D. Pa. Apr. 27, 1998). The court held that the provision neither required the reopening of final judgments nor dictated a rule of decision in pending cases and thus did not violate separation of powers principles.
Although the Court of Appeals for the Second Circuit ruled that the PLRA's termination provision is not constitutional, that ruling was based upon a saving construction of the statutory language which no other court of appeals has accepted and which both parties in the present case urge the court to reject. See Benjamin, 124 F.3d at 162. The language in question is set forth in § 3626(b)(2) which entitles a defendant or intervenor to "immediate termination of prospective relief" in ...