The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
Opinion on Defendant's Application for a Downward Variance as a Federal Detainee Housed in Passaic County Jail
Franz Copeland Sutton is arguing for a lower sentence on the basis that the overcrowding in Passaic County Jail, where he has spent seven months, is so bad that to do otherwise would be excessive punishment. Having heard his testimony, and that of the warden of the Jail and highly placed municipal and state officials, I firmly believe that Franz Copeland Sutton's case forces the question of how long we continue to turn a deaf ear, mine included.
It has become a tired fact of life in these courtrooms that Passaic County Jail is overcrowded, is breaking down, and is a very rough place to serve time. "Tired" because these observations come up so often, and alternative resources are so scarce, that the reaction has been a shrug that there is nothing one can do. But the Office of the Public Defender, through AFPD Peter Carter and the power of subpoena, has brought together the Warden of Passaic County Jail, the Fire Inspector of the City of Paterson, and the Coordinator of the Bureau of County Services for the state Department of Corrections into this courtroom to answer hard questions about what this overcrowding really means. None of these men were evasive, and all were unanimous in demonstrating that overcrowding in Passaic County Jail has made conditions unacceptable. And so, as a federal detainee sent by this Court to Passaic County Jail for seven months, Sutton has demanded, with reason, that attention must be paid.
First, some background about how federal detainees are housed, keeping in mind there is no federal detention center in New Jersey, which has placed a great burden on the United States Marshals Service (USMS). In order to house federal prisoners, the USMS has entered into an Intergovernmental Agreement with several of New Jersey's county jails. Most of the county jails that have an Agreement with the USMS hold a handful of USMS prisoners on request. The county jails where the Intergovernmental Agreement is most utilized are Salem, Hudson, and Passaic. Passaic County Jail houses between four and eight times the numbers at the other two facilities, currently housing about 400 federal detainees. To be specific, these numbers refer to prisoners who are in the custody of the USMS, not the Department of Homeland Security. To illustrate: when Franz Copeland Sutton was arrested by officials of Immigration and Customs Enforcement, he was detained at Hudson County Jail along with other ICE prisoners. When he was indicted for illegal re-entry, he was transferred to Passaic County Jail because he went into USMS custody and that is where there was a bed available for him. When he pleaded guilty to the charge, he remained in USMS custody and was returned to Passaic County Jail to await sentence.
Sutton's shift between county jails as a consequence of which agency had custody of him, and his detention awaiting disposition of the charges and ultimately his sentencing, are commonplace; frankly, the length of time he has been in custody could be called relatively brief because on average, federal detainees stay longer awaiting disposition of their cases than local or state prisoners. As confinement goes, Sutton drew the wrong straw - again, not surprising since the chances were four times greater he would go to Passaic as opposed to Hudson County Jail. The 54 by 40 foot dorm-style room, 2G-4, where he lived with 64 other federal detainees is identical in population and setup to the other dorm-style units in the jail. Precisely because the outside markers of his case are so familiar, their import gets lost until you look long and hard at what the over-incarceration of human beings in this particular structure is costing.
First, there is the cost in dollars. Through the Intergovernmental Agreement, the federal government pays into the general treasury of Passaic County between $12 and $14 million per year. That is broken down as $87 per day for between 350 and 400 federal prisoners, with the average count usually on the high side. At those numbers, federal prisoners account for approximately 20% of the jail population of over 2,000 inmates. But Passaic County Jail has a design capacity, according to Warden Charles Meyers, of 896 prisoners, male and female. One could say, then, that by the time the first federal prisoners are added to the local and state inmate population, Passaic County Jail's population is at nearly two times its design capacity. And one must keep in mind that jails are not spacious to begin with, so operating at full design capacity is already an overcrowded situation.
Then there is the human cost in maintaining and perpetuating this aging structure. Warden Meyers testified that any public building should be replaced after 25 years, and Passaic County Jail is over 50 years old. For months standing water plagued the jail until a new roof was put on. There are 30 maintenance employees detailed solely to keep the building functioning. Focusing on Sutton's unit, 2G-4, which housed exclusively federal detainees, Sutton testified to sewage backup that flooded the shower area after the shower drains clogged up, not once but five or six times. One of the three showers in 2G-4 never worked during Sutton's time there. There is no air-conditioning and temperatures reach 100 degrees, according to Warden Meyers, in the summer; and in the winter, Sutton testified, it is so cold that prisoners can see their breath and there is ice crystallizing on the walls. In order to provide ventilation, prisoners in 2G-4 utilize a primitive red light/green light blower system whereby the red light brings in air from outside and the green light pulls out the internal air. But however putrid the inside air becomes (more on that below), Sutton testified that bringing in the outside air actually makes things worse because of what gets dumped into the room: "Just a big cloud of fiber, white dust, dirt, fiber. And whoever's bunk was directly under it, they would have to take everything off the bunk and shake everything out." There is mold covering the bathroom area and shower area, and no ventilation or fan nearby.
Then there is the greatly increased risk of loss of life should there be a fire. There is no sprinkler system in any of the prisoner units. The fire alarm panel, at the time that the city Fire Inspector testified, had a blinking "trouble" light. He did not know if the alarm system could actually send a signal to the fire department in an emergency. Passaic County Jail has not been in compliance with municipal fire regulations for years and as of the hearing in Sutton's case, despite seven extensions of time to come up to code, it was still in violation. The city seems never to have imposed a sanction.
City of Paterson Fire Inspector Samuel Gaita was particularly effective in describing the problems unique to safeguarding a correctional facility from being destroyed in a fire. In an emergency, unlike other public buildings, a jail or prison goes into lockdown so that corrections staff can assess and control the situation. If a fire breaks out, the public safety consideration behind the lockdown needs to be reconciled with the rescue of staff and inmates. So fire regulations require a "passive" fire protection system that uses an alarm coupled with a sprinkler system and does not need human effort to function. But in Passaic County Jail only the offices and the medical unit have sprinklers; Fire Inspector Gaita testified that elsewhere fire safety is addressed by a fire watch (a corrections officer assigned each shift to patrol unoccupied areas), a manual hose system, and fire extinguishers placed in various areas. This directly violates the requirement of a passive fire system, and has been the subject of regular interaction between jail personnel and the Paterson Fire Department since 2002, the year a fire broke out in the basement of the jail.
As for response to the threat of fire under the present circumstances, Warden Meyers testified that 2G-4, with its population of 64 men, is identical to three other dorm-style units that form a quadrangle around a guard station manned by one corrections officer. Another corrections officer patrols the catwalk around the guard station that borders the four prisoner units. In a fire, Fire Inspector Gaita noted that smoke would make evacuation and response very difficult. He said he asked officials during his inspection for the occupancy load of the building, and was not given the information or the occupancy certificate. He was specific that overcrowding in his opinion increased the risk of fire; he also testified that no risk assessment had been done concerning fire safety at Passaic County Jail.
So, crumbling structure, fire safety violations, and little value received for the millions of dollars paid into county revenues. How has Passaic County Jail managed to avoid sanctions from the Department of Corrections (DOC) when it is housing more than twice the number of prisoners it was designed to hold, and, according to Warden Meyers, has done so for decades? This is how: by means of a regular series of waivers issued by the DOC on the strength of promises that the facility would be expanded or replaced. This disturbing history was the subject of testimony from Joseph Hartmann, the Coordinator of the Bureau of County Services, based on his experience of over two decades with the Department of Corrections.*fn1
Hartmann's growing frustration with Passaic County Jail was evident during his testimony, as he described a dispiriting song and dance that has gone on for years that suggested, but never made, actual progress. In a nutshell, the Department of Corrections inspects the facility annually, and inevitably finds, because too many people are crammed together, violations of the administrative code; then Passaic County asks for and is granted a temporary rule exemption to excuse the violations. Rather than being a temporary remedy the practice has been ongoing for Passaic County Jail, it appears, since the incarceration boom that began in the 1970s. Hartmann testified that of all county jails in New Jersey, only Passaic County Jail has been living on waivers. The DOC does appear ready to step off the dance floor from recent documents subpoenaed by Sutton that show some movement from the talking to the planning stage for a new facility. But that small progress is as much a product of the fact that the DOC will no longer grant the two-year exemptions and, lately, through Hartmann pressing the issue, has put Passaic County Jail on a six-month schedule. That said, from Hartmann's testimony, any new facility is years away assuming approval. There appears to be no assurance that a new facility would gain the political support necessary to be approved.
Hartmann attributed the unwillingness to apply the immediate remedy of "depopulation" (i.e., doing what other counties have done and refusing to take USMS prisoners because to do so would create unacceptable overcrowding) to Passaic County's reliance on the revenue stream from housing non-local prisoners, which he has characterized as "corrections for profit." Hartmann noted that the county has progressed no further than conducting a suitability review, which examines the current facility to determine if a new facility is needed because the old one is no longer suitable. That such an unnecessary measure is seriously being undertaken is appalling, suggesting as it does that Passaic County Jail could ever be suitable given the over-incarceration there. But this tepid reaction to a massive problem would doubtless be deemed typical by Warden Meyers, who when asked if he has brought the problems in the jail to the attention of county management, replied with some force: "I do indicate at every given opportunity, that the facility is aged and deteriorating and overcrowded, and the county is relying upon the revenue generated by housing [state and federal] prisoners and that revenue could be at risk if at any time someone were to order that the inmates would be removed. And I do say that when that happens, not if that happens."
It was plain from the testimony of those "in the know" that they are fed up, and fully aware of the indignities and failures that Sutton has complained about. This recognition is important, and undermines the United States Attorney's arguments that something special must befall Sutton as a predicate for sentencing relief.*fn2 The government relies on United States v. Stevens, 223 F.3d 239 (3d Cir. 2000) and United States v. Luna, 2002 U.S. Dist. LEXIS 6207 (E.D.Pa. Apr. 10, 2002) for the proposition that this Court can only consider pretrial confinement conditions where a defendant suffered deprivations beyond what other similarly situated inmates faced. But in Stevens, the Third Circuit declined to disturb the lower court's determination that it had the legal authority to grant a departure based on substandard pretrial conditions affecting the inmates generally. Stevens, 223 F.3d 247-49. And Luna relies on United States v. Pacheco, 67 F. Supp. 2d 495, 498 (E.D.Pa. 1999), which relied on United States v. Sutton, 973 F. Supp. 488 (D.N.J. 1997). But both the Luna court and Pacheco district court decisions overstate the holding ...