Prison Overcrowding in the United States: Judicial and Legislative Remedies

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1 Prison Overcrowding in the United States: Judicial and Legislative Remedies I. INTRODUCTION Prison overcrowding in the United States has reached overwhelming proportions.' The problems resulting from overcrowding are numerous. 2 This Note first examines the main thrust motivating the states and courts to alleviate prison overcrowding - the constitutional violation of the fifth and eighth amendments. This will be followed by a discussion of the federal court's most effective response to overcrowding - early release of prisoners. Third, this Note reviews state and city-wide responses to overcrowding - long and short term appropriation of beds. II. UNCONSTITUTIONALITY OF PRISON OVERCROWDING The fifth amendment to the United States Constitution states in part that "[n]o person shall... be deprived of life, liberty, or property, without due process of law." 3 The eighth amendment of the Constitution provides in part that no "cruel and unusual punishments [shall] 1. Since 1980, the population in the federal system has doubled to 41,000 and will increase to 67,000 by Statistics from the National Institute of Justice (NI]) show that while there were 330,000 people in state prisons in 1980, by the end of 1985, that number rose to 503,601. Furthermore, these increases do not appear to be slowing down. More stringent laws and more serious terms of imprisonment will likely accelerate these rates of increase. According to the NIl, America needs 400 new jail beds and 800 prison beds each week in order to meet these projections. Sevick, Constructing Correctional Facilities: Is There a Role for the Private Sector?, BROOKINGS DIALOGUES ON PUB. POL'Y 1-2 (1987). 2. Id. at 2. Some problems include increased stress on prisoners, limitation of participation in rehabilitation programs, mixing of minor offenders with hard core criminals thus creating schools of crime and constitutional violations of the Bill of Rights. Id. 3. U.S. CONST. amend. V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Id.

2 68 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 be inflicted" upon persons. 4 Prison overcrowding could result, then, in the violation of either the eighth or the fifth amendments, depending upon the status of the individuals involved.' Where the individual is a pretrial detainee 6 (a person who has been charged with a crime but has not yet been tried), the due process clause prohibits punishment prior to an adjudication of guilt. 7 However, where the individual is a sentenced inmate, the eighth amendment prohibits cruel and unusual punishment.' A. Pretrial Detainees The case of Bell v. Wolfish 9 established the test which correctional facilities must meet when housing pretrial detainees. 10 This case involved pretrial detainees housed in the Metropolitan Correctional Center in New York. The detainees sought to alleviate various constitutional violations, including overcrowding conditions." The Court first looked to the government's justification in detaining such individuals. It found that the government may detain an individual charged with a crime to ensure his presence at trial; it "may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution."' 2 "Loss of freedom of choice and privacy are inherent [in a prison environment]."' 3 Detention interferes with a person's desire to live as "comfortably as possible and with as little constraint as possible," but such confinement does not amount to punishment as prescribed by the fifth amendment.' 4 Finally, the Bell Court concluded that "ff a particular condition or restriction of pre- 4. U.S. CONST. amend. VIII. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Id. 5. Note, Releasing Inmates from State and County Correctional Institutions: The Propriety of Federal Court Release Orders, 64 TEx. L. REv. 1165, (1986) [hereinafter Note, Releasing Inmates]. 6. Bell v. Wolfish, 441 U.S. 520, 523 (1979). 7. Id. at Id. at 535 n U.S. 520 (1979). 10. Note, Releasing Inmates, supra note 5, at Bell, 441 U.S. at 527. Other alleged statutory and constitutional violations included "undue length of confinement, improper searches, inadequate recreational, educational, and employment opportunities, insufficient staff, and objectionable restrictions on the purchase and receipt of personal items and books." Id. 12. Id. at A person in pretrial detention has not been found guilty of any crime. There has merely been a "judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest." Id. at 536 (quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)). 13. Id. at Id.

3 1990] PRISON OVERCROWDING trial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment.' 15 ]f a restriction or condition is not reasonably related to [some] legitimate [government interest] - if it is arbitrary or purposeless - a court... may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon [pretrial] detainees ',16 The Bell Court, having set forth the reasonable relation standard, found no constitutional violation with double-ceiling pretrial detainees in rooms intended for one inmate. 1 7 However, the Court admitted that such a practice over an extended period of time might cause inmates to endure genuine privations and hardships. 1 8 Such a situation might amount to punishment and violate the due process clause. 19 B. Sentenced Prisoners The case of Rhodes v. Chapman 20 established the test that correctional facilities must meet when housing sentenced prisoners. 21 This case involved the Southern Ohio Correctional Facility and two prisoners' attempts to alleviate double-ceiling of inmates there. 22 The prisoners contended that such state practices violated the Constitution. 23 The eighth amendment is applicable to the states through the fourteenth amendment 24 and imposes conditions upon a state when it confines persons convicted of crimes. 25 Clearly, "'[c]onfinement in a prison... is a form of punishment subject to scrutiny under the 15. Id. at 539 (footnote omitted). The Court made clear that detention facility officials can never justify punishment of pretrial detainees. They can show however, that what appears to be punishment, is merely "an incident of a legitimate nonpunitive governmental objective." Id. at 539 n Id. at 539 (citation omitted). 17. Id. at 543. Here, the pretrial detainees' situation boiled down to having to share a toilet and minimal sleeping space for a maximum of sixty days. Id. 18. Id. at 542. The Court disagreed with the district court's and the court of appeal's construction of a "one man, one cell" principle. Id. 19. Id. at U.S. 337 (1981). 21. Note, Releasing Inmates, supra note 5, at Rhodes, 452 U.S. at Id. at 340. Their complaint asserted that double celling inmates confined prisoners too closely. In addition, double celing was overcrowding the institution and overwhelming the prison's facilities and staff. Id. 24. Id. at See generally Robinson v. California, 370 U.S. 660 (1962) (California statute making the status of narcotic addiction a criminal offense held to be a violation of the fourteenth amendment, as well as cruel and unusual punishment violating the eighth amendment). 25. Rhodes, 452 U.S. at 340.

4 70 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 Eighth Amendment standards.' "26 The Court in Rhodes interpreted the eighth amendment as prohibiting punishment which involves the unnecessary and wanton infliction of pain. 2 7 In addition, such punishment cannot be grossly disproportionate to the severity of the crime. 28 The majority opinion of the Rhodes Court found that no static test existed for courts to use in determining eighth amendment violations. The majority instead stated that the eighth amendment "'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' "29 The Court's concurring opinion, however, set forth a specific test for others to use in determining eighth amendment violations. It found that such determinations must be made by: (1) examining the totality of the circumstances; and (2) applying realistic, yet humane standards to the conditions observed. 3 0 "When 'the cumulative impact of the conditions of incarceration threatens the physical, mental, and emotional health and well-being of the inmates and/or creates a probability of recidivism and future incarceration,' the court must conclude that the conditions violate the Constitution." 3 " The Rhodes Court, however, found that the conditions at the Southern Ohio Correctional Facility did not violate the eighth amendment under these standards. 3 2 Correctional authorities, faced with the possibility that overcrowding may result in violations of the Constitution, are hard pressed to avoid overfilling their prisons. Regardless of whether prisons house pretrial detainees or sentenced inmates, the possibility that overcrowding will violate the fifth and eighth amendments remains the same. The major difference is the threshold which must be reached before 26. Id. at 345 (quoting Hutto v. Finney, 437 U.S. 678, 685 (1977)). 27. Id. at 346. The eighth amendment also limits what can be made criminal and punishable. Id. at n Id. at 346 (citing Coker v. Georgia, 433 U.S. 584, 592 (1977)). 29. Id. (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Such standards of decency are not "'to be merely the subjective view of judges... [They] should be informed by objective factors to the maximum possible extent.'" Id. (quoting Rummel v. Estelle, 445 U.S. 263, (1980)). 30. Id. at 363 (Brennan, J., concurring) (footnote omitted). In examining the totality of the circumstances, Justice Brennan recommended that a "court must be open to evidence and assistance from many sources" in getting information about prison conditions. Such sources include "expert testimony and studies on the effect of particular conditions on prisoners." Id. In addition, "the assistance of experts can be of great value to courts when evaluating standards for confinement." Id. at 364 n Id. at 364 (Brennan, J., concurring) (quoting Laaman v. Helgemoe, 437 F. Supp. 269, 323 (D.N.H. 1977)). 32. Id. at 352.

5 1990] PRISON OVERCROWDING the constitutional violation materializes. With pretrial detainees, the tolerated level of overcrowding appears to be lower than with sentenced inmates. The rationale is that pretrial detainees have not been convicted and therefore may not be subjected to genuine punishment. 33 Presumably, while double-celing pretrial detainees and sentenced inmates in and of itself does not violate the fifth or eighth amendments, the practice might rise to an unconstitutional level. In the case of pretrial detainees, an extended period of time of doubleceling may amount to a constitutional violation. 3 " In the case of sentenced inmates, more than extended periods of overcrowding is necessary. Only when the totality of the circumstance of imprisonment "'threatens the physical, mental, and emotional health and well-being of the inmates and/or creates a probability of recidivism' " may prison conditions be deemed unconstitutional. 35 Unfortunately, the authorities themselves have been unable to cope with bursting prison populations. Attempts at remedying overcrowding by those concerned, whether they be the courts, the state, or the city officials, have met with varying success. III. FEDERAL COURT RESPONSES One of the first cases where federal courts have become involved with county jail overcrowding was Gross v. Tazewell County Jail. 36 This case involved the overcrowding of a county jail designed for forty-three prisoners. 37 The court found that while it was not uncommon for the jail population to rise to fifty inmates, at times the population reached as many as ninety. 38 Here, the court stated that "overpopulation of such proportion and effect impose[s] conditions of confinement which are inhumane, shocking to the conscience, and constitutionally unacceptable." 39 The Gross court's dilemma, as they saw it, was the formulation of adequate relief and the identification of the parties responsible for the 33. Bell v. Wolfish, 441 U.S. 520, (1979). 34. Rhodes, 452 U.S. at Id. at 364 (Brennan, J., concurring) (quoting Laaman v. Helgemoe, 437 F. Supp. 269, 323 (D.N.H. 1977)). 36. Gross v. Tazewell County Jail, 533 F. Supp. 413 (W.D. Va. 1982). The plaintiffs here brought this case into the federal courts under a 42 U.S.C civil rights claim challenging the conditions of their confinement at the Tazewell County Jail. Id. at Id. at 416. Two of the jail's eight cell blocks were reserved for women and juveniles, leaving the actual capacity for adult males at only thirty-three. Id. 38. Id. During these periods of high population, adult males were housed in the jail's recreational dayroom. Mattresses covered the dayroom's floor, effectively eliminating any recreation and movement for which the room was designed. Id. 39. Id. at 417.

6 72 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 problems. 4 First, the court turned to the latter task of identifying the parties responsible for the overcrowding. Essentially, it discovered that the sheriff who was responsible for the daily operation of the Tazewell County Jail, was totally without power to alleviate the situation. 4 1 His powerlessness arose out of the fragmented authority exercised over him. First, the County Board of Supervisors controlled the size and capacity of local jails; the sheriff had no say in these matters. 42 Second, the jail housed pretrial detainees and post-trial inmates on the one hand, and sentenced inmates awaiting incarceration in the state correctional system on the other. The former group of prisoners awaited action by the local judicial officers while the latter group of prisoners anticipated assignment to state prisons by the State Department of Corrections. 43 Therefore, the sheriff had no power to control the influx and departure of prisoners.' Therein lied the crux of the problem. With this in mind, the court fashioned the appropriate remedy. It entered an order directing the sheriff to house no more prisoners than the jail's design capacity, unless the jail was enlarged to accommodate a greater number of inmates. 45 If this number could not be met, the order further provided that the sheriff notify the Department of Corrections to remove all or as many state inmates present in the jail as necessary to reduce the population to forty-three. 4 ' If such prisoners were not removed within the following fifteen day period, the sheriff was to then notify the court who would release as many state prisoners as necessary to reduce the population to forty-three. 47 If the jail population still exceeded its design capacity, the sheriff was to notify the 40. Id. The case was initially turned over to a U.S. Magistrate who conducted evidentiary hearings and prepared a report on the conditions at the prison. Id. at 415. The court adopted his findings of overcrowding. Id. at 416. Nor did any of the defendants contest that the jail was overcrowded; all women and juveniles had been relocated to provide additional space but even this step was wholly inadequate. It was obvious however, that more extensive relief was needed. Id. 41. Gross, 533 F. Supp. at 416. The sheriff brought the matter to the attention of local and state government officials and urged support for a regional jail facility, but with no success. Id. 42. Id. at Id. The sheriff had no choice but to accept any prisoners charged to his custody. State law provided that if the sheriff refused to accept any prisoner, he would be guilty of a class two misdemeanor, under VA. CODE ANN (1950). Id. 44. Id. 45. Id. at 420. Apparently, county officials were considering some sort of expansion of the jail to accommodate more prisoners. Id. at 420 n Id. 47. Id. at 420. The court reserved the right to determine the sequence of prisoners released. Id.

7 1990] PRISON OVERCROWDING County Board of Supervisors. 4 " If the Board failed to make appropriate accommodations to reduce the numbers of pretrial detainees and post-trial sentences within fifteen days, the sheriff was again to notify the court. 49 The court would then release such prisoners until the forty-three inmate capacity was reached. 50 In effect, the court provided the sheriff with adequate power to deal effectively with those authorities who had some control to alleviate prison overcrowding. Federal intervention through release of prisoners was reserved until the County and State officials clearly failed to meet the court's mandate. The court then pronounced several clear standards for dealing with prison overcrowding. First, look to the type of facility involved - is it a county jail, a state or a federal facility? Second, determine the type of prisoners housed there - pretrial detainees, post-trial sentencees or sentenced prisoners. Third, prioritize which type of prisoners to relocate first. Here, there was a county facility. The court recognized that the purpose of such a facility is to house prisoners awaiting trial or sentencing. Therefore, when the court next considered the type of prisoners detained at the facility, it was able to quickly determine that the sentenced inmates should be relocated first. Their proper place was in the state correctional system. If relocation of state prisoners and, if necessary, county prisoners did not alleviate the overcrowded situation, only then did the court require release of prisoners. Release of prisoners would occur in the same order as relocation. Other courts have taken a similar approach in dealing with prison overcrowding. The case of Duran v. Elrod ' I involved a class action suit of pretrial detainees asserting that their eighth and fourteenth amendment rights were being violated. 52 After extensive discovery and negotiations between the parties, a comprehensive consent decree was entered by the district court. 5 " The defendant County officials failed to meet this decree and the facility in question remained grossly 48. Id. 49. Id. 50. Id. Again, the court reserved the right to determine which inmates would be released in what order. Id. 51. Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983), cert denied, 465 U.S (1984). 52. As in Gross v. Tazewell County Jail, 533 F. Supp. 413, 415 (W.D. Va. 1982), this case was brought in federal court pursuant to 42 U.S.C Duran, 713 F.2d at Duran, 713 F.2d at 293. A consent decree within the meaning of this case, is a decree entered by a court with the consent of both parties. It "is in the nature of a solemn contract... of the parties, made under the sanction of the court." BLACK'S LAW DICTIONARY 370 (5th ed. 1979). This decree called for: renovation and modernization of jail facilities; increasing staff personnel; improvement in food service and provision of personal hygiene supplies; increased access to the law library; more physical exercise periods and increased hours for visitation. Duran, 713 F.2d at 293.

8 74 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 overpopulated. 54 In response, the court ordered a cap on the population of prisoners in the correctional system to 4, When the Department of Corrections failed to meet this cap, it ordered the release of low bond pretrial detainees in an amount sufficient to meet the established cap.1 6 In this light, the Duran court devised a plan of reduction similar to the one developed by the court in Gross. 5 7 As this was a county facility housing county prisoners, all that was left to do was prioritize which of the county prisoners would be relocated first. Because there was no additional space available, the court prioritized the order of release of the county prisoners. So in both cases, once it was determined that only the release of prisoners would remedy overcrowding, a system of prioritization was formulated by which the most "appropriate" types of prisoners would go free. The court stressed that it had given the appropriate state agencies every opportunity to remedy the situation themselves. 8 Furthermore, the court pointed out that the primary and direct responsibility of remedying prison problems is that of the state and county agencies. 9 This author, however, disagrees. While certainly the state courts have a primary responsibility over the federal courts to remedy state prison problems, they are not the sole state branch of government charged with responsibility over state prison systems. While the state courts have a more immediate ability to act in prison overcrowding disputes, the state legislatures should play a contemporaneous role in developing and implementing suitable prison policies to alleviate overcrowding. In any event, the Duran court kept in mind at least two recurring concerns with federally-ordered releases: (1) federal court 54. Duran, 713 F.2d at Id. This court's initial approach to solving overcrowding was somewhat different than the approach used by the court in Gross v. Tazewell County Jail. Instead of devising a plan of relocation and release, the court merely imposed a cap on the population. Apparently, this is because all the inmates were under the jurisdiction of the county and none were prisoners awaiting transfer to a state or otherwise non-county institution. In effect, most of the prisoners there had no where else to go. 56. Duran, 713 F.2d at 297. The order permitted the release of low bond pretrial detainees. These persons were in the preliminary stages of adjudication but were unable to make bail. Thus, none of those released were convicts nor were they subject to serious state bail requirements. Id. at Gross v. Tazewell County Jail, 533 F. Supp. 413 (W.D. Va. 1982). 58. Duran, 713 F.2d at 298. Indeed, the court conditioned the release pending any alternate method of reduction fashioned by an Illinois state court of competent jurisdiction. Id. 59. Id. at 297. The only rationale stated in this decision for placing the responsibility on the state courts is that both the litigants and the lower court who ordered the release agreed that this is where it belonged. Id.

9 1990] PRISON OVERCROWDING interference with state-run facilities; and (2) the danger posed to society by releasing convicts. Similar concerns preoccupied the minds of other federal courts to follow. Two other such federal cases ordering release of inmates were Inmates of Allegheny County Jail v. Wecht and Mobile County Jail Inmates v. Purvis. 61 The courts that issued these two release orders were concerned with two issues: (1) deference to state authorities in problem solving; and (2) limiting release to low-bond pretrial detainees. Inmates of Allegheny County Jail v. Wecht concerned an overcrowded county jail in Pennsylvania. Here, the court first set jail population limits for the appropriate authorities to meet. 62 Predictably, the cap was not met. 63 As in the case of Gross,' the court then looked to those responsible for dealing with the problem. 5 It found that despite their best efforts, the County Commissioners were unable to follow the order. 66 Likewise, the county courts attempted to assist but were undermanned and unlikely to provide any help. 67 Consequently, the court required jail authorities to release on their own recognizance, those prisoners who were being held in default of the lowest amount of bail, until the population limits were met. 68 In doing so, however, the court noted that it exercised its power with great reluctance but found it necessary in light of the fact that the appropriate authorities were unable to remedy the situation Inmates of Allegheny County Jail v. Wecht, 573 F. Supp. 454 (W.D. Pa. 1983). 61. Mobile County Jail Inmates v. Purvis, 581 F. Supp. 222 (S.D. Ala. 1984). 62. Allegheny, 573 F. Supp. at 455. In a six month period between July 1983 and January 1984, the jail population of males was to be cut from 650 to 500 while the female population was to be cut from 60 to 30. Id. 63. Id. 64. Gross v. Tazewell County Jail, 533 F. Supp. 413 (W.D. Va. 1982). 65. Allegheny, 573 F. Supp. at Id. The City Council of the City of Pittsburgh suddenly determined that beds for inmates procured at various non-profit organizations throughout the city violated the occupancy permits for these various organizations. Id. 67. Id. at 456. Apparently, these courts were literally "overwhelmed with the sheer volume of criminal cases." Consequently, no direction could be expected from these courts. Id. 68. Id. This jail facility housed federal, state and county prisoners. The federal prisoners who were on trial were permitted to remain at the jail. The rest had to be relocated to other jails pursuant to the United State's option of putting them in other facilities throughout the twenty-six counties in the Western District of Pennsylvania. As to the county and state prisoners, the court simply drew an arbitrary line by releasing the lowest bond detainees, without regard to their county or state status. Id. 69. Id. at 457. It was also careful to point out that release was not a solution to the problem but "should be recognized as a final, albeit temporary, effort to ameliorate the [overcrowding] situation." Id.

10 76 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 The court in Mobile County Jail Inmates v. Purvis displayed a like concern. Here, after protracted litigation, the district court found that the totality of circumstances and conditions of confinement at the Mobile County Jail violated the eighth and fourteenth amendments. 70 It concluded that "overcrowding was the basic problem contributing to the deplorable and unacceptable conditions at the jail." 71 The court, in response, among other remedies, issued an injunctive order to reduce the population of the jail. 72 After the date for compliance passed, and several extension dates were granted and also passed, the court held the defendants in contempt of court and fines were imposed. 7 " With the fines the court created the "Prison Overcrowding Relief Fund" and appointed a jail monitor to ensure that the jail population would be brought in line with the previously ordered caps. 74 The Fund was used to pay bail bonds for certain low bond detainees who could not make bail. 7 ' Thereafter, they were released. The court justified its order as follows. First, although the defendants were given every opportunity to comply with the caps and were repeatedly urged to formulate new short and long term solutions, they were still far from compliance. 76 Second, most of those released were pretrial detainees awaiting trial for non-violent, non-drug related offenses. 77 Third, using contempt fines and paying bail for such persons substantially reduces prison overcrowding with minimal intrusion into the administration of the jail by county and state authorities. 78 The court was also careful to point out that while it may exercise remedial powers in the face of constitutional violations, the state should provide the details for any remedial measure. 79 It noted 70. Mobile County Jail Inmates v. Purvis, 581 F. Supp. 222 (S.D. Ala. 1984). This case started in federal court as a class action suit filed pursuant to 42 U.S.C Id. 71. Mobil County Jail, 581 F. Supp. at Id. The court also required significant change in the facility's supervision and health care indicating again the far reaching effects overcrowding has on institutions. Id. 73. Id. at 223. The contempt order called for a $5, fine for each day that the jail remained overcrowded but allowed for the County to purge themselves of contempt by complying with the population limit by a certain date. Id. 74. Id. at Id. Most of these prisoners were non-state pretrial detainees awaiting trial for nonviolent, non-drug related offenses. They were in jail only because they could not afford to pay a fee for a bail bond. By releasing these individuals, the court hoped to ease fears from the community that dangerous persons would again be threatening society. Id. at Id. at 225. The court gave the defendants over two years to comply with its orders and over two million dollars in fines for failing to comply. Id. 77. Id. Over 90% of the non-state inmates were pretrial detainees. Id. 78. Id. 79. Id. at 224. The court reiterated its view that it is "'ill-equipped to involve itself intimately in the administration of prison systems.'" Id. (quoting Newman v. State of Alabama, 683 F.2d 1312, 1320 (1lth Cir. 1982)).

11 1990] PRISON OVERCROWDING also that deference to state authorities is the most appropriate measure when local and state jails are at issue. 80 Not all federal courts, however, have ordered releases. They have rejected the idea on various grounds, the major reason being a concern over federal interference with state administration of jails. The case of Lareau v. Manson 1 1 involved the unconstitutional overcrowding of the Hartford Community Correctional Center. 2 In order to alleviate the overcrowding the court imposed a cap on the population 3 as did the aforementioned courts. This, however, is as far as the court went. It emphasized that "state and local authorities have [the] primary responsibility for curing constitutional violations in correctional institutions." 4 Furthermore, the specific means the defendants use to comply with the ordered cap was not for the court to determine. 8 5 In response to the defendant's claim that compliance may only be achieved through prisoner release, the court stated that it would "ndither order [nor] expect the release of inmates who may pose a danger to the community." 8 6 The responsibility of such a release rests squarely on the shoulders of the state officials who carry out the release of potentially dangerous inmates into the community. 8 7 In Newman v. State of Alabama, 8 the court reversed a district court's order for release on similar grounds. There, the court affirmed its ill-equipped status to involve itself intimately in the administration of a prison system, claiming deference should be given prison authorities especially when state penal authorities were involved. 9 It gave several reasons for reversing the district court's release order. First, it found that by ordering the Department of Corrections to release prisoners, an area under the exclusive province of the Board of Pardons according to Alabama state law, the district court overrode the divi- 80. Id. at 225. The defendants had a number of ways to comply with the population cap according to the court and the choice of solution should be left to them. Id. 81. Lareau v. Manson, 507 F. Supp (D. Conn. 1980). 82. Id. at The court held that the overcrowded conditions violated pretrial detainees' rights under the due process clause and subjected the inmates serving sentences to cruel and unusual punishment in violation of the eighth amendment. Id. 83. Id. at Id. at The defendants here actually requested the court to fashion a comprehensive plan through which they could administer the order. Id. at 1196 n Id. at The court suggested however that all relevant branches of the state government assist in meeting the target population. Id. at Id. at According to the court, there were many options within the reach of state officials through which they could remedy the situation. Id. 87. Id F.2d 1312 (11th Cir. 1982). 89. Newman, 683 F.2d at 1320.

12 78 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 sion of authority between the two agencies and intruded upon Alabama parole policy. 9 Second, the court decided that a previous consent decree setting limits on inmate populations in jail, provided "complete relief without unnecessarily entangling the district court in the administration of the prison and parole systems." 91 Third, the consent decree struck a proper "balance between the duty of the district court to remedy constitutional violations and the right of the state to administer its prison and parole systems." 92 Finally, the consent decree put the responsibility of maintaining constitutionally sound prisons where it belonged: in the hands of the state. 93 No one disagrees with the Lareau and Newman courts' belief that the primary responsibility of maintaining constitutionally sound prisons lies with the state involved. 94 However, as we have seen, rarely have local officials been able to meet population caps set by the federal courts. 95 Therefore, it appears that local and state officials lack the skills, knowledge and funds to carry out federal orders by themselves. Consequently, in most cases, a simple cap on population would appear inadequate to solve most of the widespread prison overcrowding evident today. In another federal case, Badgley v. Varelas, 96 the court refused a release order in the unconstitutionally overcrowded Nassau County Correctional Center. In determining the proper remedy, the Badgley 90. Id. Alabama law of parole provides that: [n]o prisoner shall be released on parole... [unless] the board of pardons and paroles is of the opinion.., that such prisoner [if released] will live and remain at liberty without violating the law and that his release [will not be]... incompatible with the welfare of society. Id. at n Id. The court believed that where less intrusive actions are available, the district courts should avoid overly broad solutions. Id. 92. Id. at Id. It was recognized by the court that this responsibility is large and that decisions to be made were "tough, even agonizing." Id. 94. The factors pointing to the belief that the state has primary responsibility in this area include: the fact that the prisons exist under state law and are subject thereto; the prisoners are mostly all state and county prisoners; state authorities are in the "business" of running prisons whereas the federal courts lack the intimate involvement that develops this expertise. 95. Id. See Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983), cert. denied, 465 U.S (1984) (county department of corrections fails to meet population cap of 4500); Inmates of Allegheny County Jail v. Wecht, 573 F. Supp. 454 (W.D. Pa. 1983) (county jail population exceeded proscribed caps over the six month period within which population was to be decreased); Mobile County Jail Inmates v. Purvis, 581 F. Supp. 222 (S.D. Ala. 1984) (county jail repeatedly exceeded population limit proscribed by injunctive order, resulting in contempt order). 96. Badgley v. Varelas, 729 F.2d 894 (2d Cir. 1984).

13 1990] PRISON OVERCROWDING court recognized that although court ordered releases have been made, federal courts should hesitate before ordering local and state officials to release inmates. 97 Here, the court found that a ban on intake into the facility would sufficiently alleviate the overcrowding because the facility had a high turnover rate; thus, a ban would reach the desired result of a rapid reduction in the population. 98 In doing so, the court indicated that it would not do (release prisoners) what is the responsibility of the state to do (find more space for them). 99 Federal court responses on the whole, therefore, have fallen roughly into two categories: first, release of prisoners and second, mere imposition of a population cap. In the first group, the federal courts establish the population limits of a jail, usually according to their design capacity. When the populations continue to exceed target levels, these courts authorize release of prisoners, usually in some order of prisoner prioritization. Where the facility is a county jail and the population is homogeneous in that all prisoners are permanently under county detention, the courts first require release of prisoners who represent the least threatening element to society: pretrial detainees charged with non-violent crimes. Where the facility is a county jail housing both county and state prisoners awaiting relocation, the courts require the state prisoners to be relocated; release occurs only if the population still exceeds capacity. If the release of state prisoners fails to remedy overcrowding, county prisoners are then relocated and/or released. In the second group of federal courts, population caps are set, again according to the facility's design capacity. The only further step these courts take is to admonish the state and county officials to face the challenge before them. Unlike the federal courts in the first group, these courts deny that they have the necessary expertise to deal with the administration of prison systems. Further, they encourage county and state officials to develop alternatives to bring prison populations in line with the established caps. This split in federal court decisions does not create a great rift in their general approach to prison overcrowding. Clearly, these courts all acknowledge the importance of addressing overcrowding in light of the possible constitutional violations. Their basic initial remedy is the establishment of population caps and the encouragement' of county and state officials to meet these goals. Release has only been ordered 97. Id. at Id. at 902. In this case, a ban on intake alone might be effective because of the high rate that the inmates were released from the facility. Some pretrial detainees were released on bail and many sentenced prisoners served very short terms. Indeed, "56% of those [serving terms] served forty days or less." Id. 99. Id.

14 80 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 where overcrowding was extreme in numbers and persistent over time. As such, the federal courts treat prison overcrowding uniformly. They seek the most non-intrusive methods of reduction first, ordering release only in the most drastic of overcrowding cases." IV. STATE RESPONSE TO OVERCROWDING Individual state and local responses to prison overcrowding are fueled by a desire to conform with constitutional requirements prohibiting cruel and unusual punishment.1 In adopting different remedies, however, the lower courts also constantly point to the threat of federal court-ordered releases. In this light, federal release orders, at the very least, provide great impetus in encouraging states to accept their responsibility and correct prison overcrowding, thereby avoiding federal court intervention. New York City has responded particularly well to the release threat. It has sought out various alternatives for additional prison beds including a former Navy brig,12 expansion of existing facilities" 3 and the conversion of barges." In doing so, New York City's biggest problem has been to overcome objections for its failure to file the proper environmental impact applications. In Gerges v. Koch,"' New York City sought to convert a former Navy brig into a medium security prison facility The conversion was part of a short term emergency construction program to increase prison beds. 107 This necessity arose due to an increase in pretrial detainees and the length of their stay in confinement In order to expedite the conversion, the City's Commissioner of Corrections 100. For a sober endorsement of federal court intervention, see generally Note, Releasing Inmates, supra note In the two states presented here, litigation began and remained in the state courts. Unlike the federal cases previously discussed where inmates brought civil rights suits against prison officials for overcrowded prisons, the New York suits that follow, involve an entirely different legal basis and concern. Here, suits against New York City were spawned from the City's independent attempts to deal with prison overcrowding. Most involve suits by private citizens not entirely excited about a new prison next to where they live Gerges v. Koch, 101 A.D.2d 201, 475 N.Y.S.2d 118 (1984) Hart Island Comm. v. Koch, 137 Misc. 2d 521, 520 N.Y.S.2d 977 (1987) Silver v. Koch, 137 A.D.2d 467, 525 N.Y.S.2d 186 (1988) Gerges, 101 A.D.2d at 201, 475 N.Y.S.2d at Gerges, 101 A.D.2d at 202, 475 N.Y.S.2d at Gerges, 101 A.D.2d at 202, 475 N.Y.S.2d at 119. The conversion was a crucial part of New York City's short-term emergency construction program to increase bed space in city jails by Id Gerges, 101 A.D.2d at 202, 475 N.Y.S.2d at 119. The number of pretrial detainees rose from 4400 in 1977 to an average of 7000 in This number plus sentenced prisoners brought New York City's average prison population in 1983 to about 10,000. Id.

15 1990] PRISON OVERCROWDING declared an emergency pursuant to section 4, paragraph h, of the City Environmental Quality Review Procedures. 0 9 The petitioners here challenged the validity of this declaration and the project was temporarily enjoined by the Special Term; the court however found that the Special Term erred in its action." It cited several reasons for its decision. First, an agency may continue work on a project prior to the completion of environmental review procedures where there is an emergency threatening life, health, property or natural resources."' Second, the Commissioner of Corrections correctly classified prison overcrowding as an emergency given the critical shortage of jail capacity and renewed expansion of jail populations." 2 Such a declaration was not "irrational, arbitrary or capricious."" ' 3 Third, the city did not seek a total exemption from the environmental procedure and had already secured a negative declaration from the agencies responsible for conducting such procedures. 114 Finally, in the course of its decision, the court acknowledged the threat of the recent federal court ordered releases.' Accordingly, the conversion project continued, providing much needed, additional prison beds. In the case of Hart Island Committee v. Koch,"I 6 the Supreme Court 109. Gerges, 101 A.D.2d at 204, 475 N.Y.S.2d at 120. Section 4 (h) provides that "an agency may commence work on a project prior to completion of environmental review procedures where such actions are immediately necessary on a limited emergency basis for the protection or preservation of life, health, property or natural resources." Id. at 204, 475 N.Y.S.2d at Gerges, 101 A.D.2d at 204, 475 N.Y.S.2d at Id Id. at 204,475 N.Y.S.2d at 121. Presumably, shortage ofjail capacity and increased expansion of jail populations together would threaten the life and health of prisoners Gerges, 101 A.D.2d at 204, 475 N.Y.S.2d at Id. at 205, 475 N.Y.S.2d at 120. A "negative declaration" from the City's lead environmental agencies indicate that there would be no significant impact on the environment from the proposed project. In contrast, if the lead agencies issue a "positive declaration" an environmental impact study would be required. The court pointed out that: negative declarations have been upheld in the past as to the conversion of a psychiatric facility to a secure juvenile facility (Matter of Harlem Val. United Coalition v. Hall, 80 A.D.2d 851, 436 N.Y.S.2d 764, aff'd, 54 N.Y.2d 977) of a psychiatric facility to a medium security prison (Matter of Cohalan v. Carey... [88 A.D.2d 77, 452 N.Y.S.2d 639, appeal dismissed, 57 N.Y.2d 672, 439 N.E.2d 886, 454 N.Y.S.2d 77]), and of secure juvenile and drug rehabilitation facilities to correctional facilities (New York Moratorium on Prison Constr. v. New York State Dept. of Correctional Servs., 91 Misc. 2d 674). Id. at 205, 475 N.Y.S.2d at Gerges, 101 A.D.2d at 202, 475 N.Y.S.2d at Misc. 2d 521, 520 N.Y.S.2d 977 (1987). As mentioned at the outset, most of

16 82 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 of New York County displayed similar reasoning in favor of further expanding the prison facilities on Hart Island. As in Gerges, the city sought to begin expansion plans of the facility without first filing the proper environmental review procedures applications. 17 It did so again, claiming exemption due to an emergency pursuant to a state statute 1 18 similar to that used by the city in Gerges under the City Environmental Quality Review Procedures Act. In finding for the City of New York, the court concluded that there was no question that the shortage of prison beds constituted an emergency. 119 It pointed to the 1983 federal court order releasing over 600 detainees and reasoned that in order to avoid another such release and to preserve the prisoner's constitutional rights, "action, with some dispatch," was required.' 2 Accordingly, prison overcrowding fell within the meaning of an emergency and warranted special treatment as provided for in the regulations. 2 1 As in Gerges, expansion of the Hart Island Facility continued, the only requirement being that the environmental quality review procedure be completed prior to the transfer of prisoners to the new facilities.' 22 In another case, Silver v. Koch,I 23 New York City sought to utilize a barge as a prison, mooring it temporarily off a pier by permit from the these suits were brought by concerned citizens. Here, a neighborhood committee brought suit to enjoin the construction of the facility. Id. at 521, 520 N.Y.S.2d at Hart Island Comm., 137 Misc. 2d at 522, 520 N.Y.S.2d at 978. Specifically, the plaintiffs here claimed the defendants: 1) failed to file an Environmental Impact Statement in violation of the State Environmental Review Act and the City Environmental Quality Review Procedure; 2) failed to comply with the City Uniform Land Use Review Procedure and; 3) were operating a septic system in violation of the federal Clean Water Act of Id. at 522, 520 N.Y.S.2d at State statute 6 NYCRR (q)(4) provides: "[e]mergency actions which are immediately necessary on a limited and temporary basis for the protection or preservation of life, health, property or natural resource, provided that such actions are directly related to the emergency and are performed to cause the least change or disturbance, practicable under the circumstances, to the environment... Hart Island Comm., 137 Misc. 2d at 524, 520 N.Y.S.2d at Hart Island Comm., 137 Misc. 2d at 522, 520 N.Y.S.2d at 980. The court pointed out that although this was not the type of emergency that would result in imminent disaster, it was an emergency that over time could result in the violation of prisoners' constitutional rights. Id. at 525, 520 N.Y.S.2d at Hart Island Comm., 137 Misc. 2d at 525, 520 N.Y.S.2d at Id. at 527, 520 N.Y.S.2d at 981. "It is prudent that at times government be able to act promptly when faced with a condition that cannot await the completion of the [application] process." Id. at 527, 520 N.Y.S.2d at Hart Island Comm., 137 Misc. 2d at 528, 520 N.Y.S.2d at 982. The court actually enjoined the transfer of any prisoners until the processes required by law were completed. Id. at 528, 520 N.Y.S.2d at A.D.2d 467, 525 N.Y.S.2d 186 (1988).

17 1990] PRISON OVERCROWDING Commissioner of the Department of Ports. 24 Again, the city did so without going through the usual environmental quality review procedure, invoking exemption due to the overcrowding emergency.1 25 In a short opinion in favor of the city, the court found that mooring the barge off the pier was "an emergency taken to ameliorate the Correction Department's urgent need for additional beds to comply with the orders of the Federal District Court."' 26 The emergency declaration fully withstood the irrational and capricious standard of review applied.' 2 7 Finally, the court concluded that in view of the need for additional beds and the desire to avoid another court ordered release, it would be an abuse of discretion not to make immediate use of the prison barge, despite the lack of approval of the environmental quality review procedure. 128 It is clear from the New York City experience that the federally ordered releases provide great impetus for local authorities to resolve their own overcrowding problems. In view of the previous three cases, the state courts appear quite willing to assist such initiatives in order to avoid federal court interference. Certainly, such assistance is welcomed. In comparison to other states' attempts to alleviate prison overcrowding, New York City has taken the initiative in finding alternate bed space. This is precisely the sort of local participation the federal courts expect. Local prison officials, together with the backing of the state courts have successfully anticipated and provided viable alternatives, showing that such actions are possible through cooperation. One state, however, has gone even further. The Michigan legislature passed the Prison Overcrowding Emergency Powers Act. 129 The Act, 124. Silver, 137 A.D.2d at 467, 525 N.Y.S.2d at 187. The temporary mooring was designed to alleviate prison overcrowding elsewhere in the city. Id Silver, 137 A.D.2d at 469, 525 N.Y.S.2d at 188. The plaintiffs here claimed the city failed to file the proper applications as required by the Uniform Land Use Review Procedure, the State Environmental Quality Review and the City Environmental Quality Review. Silver, 137 A.D.2d at 467, 525 N.Y.S.2d at Id. at 469, 525 N.Y.S.2d at Id. The question for the court was not whether a limited emergency existed but whether the Commissioner of Correctional Services' determination that an emergency existed was irrational or capricious. Here, the court reasoned that given the large influx of inmates into prisons already filled to capacity, the Commissioner did not act irrationally in an effort to avoid future prison violence which had occurred in the past. Id Silver, 137 A.D.2d at 471, 525 N.Y.S.2d at 189. In November of 1983, 613 detainees were released from city detention facilities. Id. at 421, 525 N.Y.S.2d at MICH. COMp. LAWS (1980); MICH. STAT. ANN (3) (Callaghan 1986) states: The commission shall request the governor to declare a state of emergency in the state's prisons whenever the population of the prison system exceeds the rated design capacity for 30 consecutive days. In making the request, the

18 84 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 although repealed in 1987,130 permitted the Corrections Commission to request the Governor to declare an emergency whenever prison populations exceeded available bed space for thirty consecutive days. 3 If the Governor declared an emergency within fifteen days thereafter, the Director of the Department of Corrections reduced the minimum terms of the prisoners who had established minimum terms, by ninety days. 32 The legislation was described as a last resort measure to be used to reduce prison populations to their rated capacities. 133 The task force 134 which recommended the legislation, found that continually overcrowded prisons aggravate the normally high tension levels found in prison facilities.' 35 Furthermore, the task force justified the legislation by resounding the familiar fear of judicial intervention.1 36 The cases of New York and Michigan show clearly that federally ordered releases are not necessarily the panacea for all instances of prison overcrowding. In these states, legislative initiative has proven effective in supplying the means through which more beds are created. commission shall certify the rated design capacity and current population of the prison system and that all administrative actions consistent with applicable state laws and the rules promulgated under those laws have been exhausted in an attempt to reduce the prison population to the rated design capacity. Id. MICH. COMP. LAWS (1980), MICH. STAT. ANN (4) (Callaghan 1986) states: Unless the governor finds within 15 calendar days of the commission's request under section 3 that the commission acted in error, the governor shall declare a prison overcrowding state of emergency within the 15 days and the minimum sentences of all prisoners who have established minimum prison terms shall be reduced by 90 days by the direction of the department of corrections. Id People v. Fleming, 428 Mich. 408, , 410 N.W.2d 266, (1987) Oakland Cty. Pros. Atty. v. Michigan, 411 Mich. 183, 188, 305 N.W.2d 515, (1981) Id. at , 305 N.W.2d Reductions of this type would continue until the population was reduced to 95% of its capacity. Id. at , 305 N.W.2d at Id. at 187, 305 N.W. 2d at Id. at 183, 305 N.W.2d at 515. "[T]he Joint Legislative/Executive Task Force on Prison Overcrowding... was convened by the Governor, the Speaker of the House, and the Senate Majority Leader... in recognition of the fact that 'Michigan [was] in the midst of a crisis in its prison system... ' " Id. at 183, 305 N.W.2d at 515 (footnote omitted) Id. at 187, 305 N.W.2d at 516. "'Michigan's prisons had been continuously overcrowded by as many as 2000 prisoners over the system's rated capacity. As a result, prisoners were housed in areas not designed for housing... ' " Thus, rehabilitative and diversionary activities were restricted. Id. at 187, 305 N.W.2d at 516 (quoting the Joint Legislative/Executive Task Force on Prison Overcrowding) Id. at 187, 305 N.W.2d at 516. Also considered important by the task force was the most dangerous and costly implication of prison overcrowding, prison riots and disruptions. Id. at 187, 305 N.W.2d at 516.

19 1990] PRISON OVERCROWDING In New York, local and state officials, by classifying prison overcrowding as an emergency, have taken advantage of legislative provisions which permit the expansion or conversion of prison facilities without the normal protracted procedure. In Michigan, state officials have gone as far as legislating an emergency procedure through which prison populations could be lowered when they exceeded design capacity. Both cases point out that prison overcrowding can be controlled through local and state efforts alone, thereby lending credence to the belief of the federal courts that the responsibility for state prison systems lies primarily with the states. Massachusetts, though not going as far as New York or Michigan, has legislated the monitoring of prison overcrowding. In 1985, the Massachusetts legislature enacted section 21 of Chapter 799 directing the Commissioner of Corrections to report quarterly on the status of overcrowding. 137 According to the April 1987 Prison Overcrowding Progress Report, 138 an interagency policy group 13 9 was formed to develop plans to end prison overcrowding."4 In order to implement its ambitious plans, the Massachusetts legislature appropriated $490 million. 141 The ultimate goal was to increase the then present capacity from 7,129 beds to 11,574 beds county and state wide. 142 However, Massachusetts' projections for prison population growth proved to be underestimated As a result, Massachusetts sought the 137. Massachusetts Department of Corrections, Quarterly Report on the Status of Prison Overcrowding, for the Second Quarter of 1988 (July 1988) (available from the Massachusetts Department of Corrections). Ch. 799, sec.21 provides that: Such report shall include, by facility, the average daily census for the period of the report and the actual census on the first and last days of the report period. Said report shall also contain such information for the previous twelve months and a comparison to the rated capacity of each such facility. Id. at Executive Office of Human Service, Prison Overcrowding: A Progress Report (April 1987) Id. at Foreword. The group includes key personnel from the Executive Office of Human Service, the Department of Correction, the Massachusetts Parole Board, the Executive Office of Administration and Finance, the Division of Capital Planning and Operations, the Governor's Office and the Massachusetts Committee on Criminal Justice. Id See generally Executive Office of Human Service, Prison Overcrowding: A Progress Report, I (April 1987). The major features of the plan include: (1) the accelerated construction of new facilities; (2) the expansion of existing facilities; (3) the establishment of immediate beds to relieve present overcrowding; (4) the provision of state assistance to overcrowded county jails and; (5) the development of alternatives to incarceration. Id Id. The legislature also substantially expanded prison annual operating funds. It was hoped that through these two sources, a comprehensive approach to dealing with the immediate and long-term needs of state and county corrections could be developed. Id Id Id. at 6. Basically, the state estimated that the prison population would peak at

20 86 CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 help of the National Institute of Crime to correct these projections." As if to console itself, the 1987 report went on to say that Massachusetts was not alone in its search for more prison space. 145 Furthermore, the report pointed to past court orders to alleviate prison overcrowding through release when populations exceeded capacity."4 Clearly, Massachusetts, like the other states mentioned in this Note, continues to feel the threat of federally ordered releases. Despite this ever present threat, Massachusetts, with its interagency policy group, has yet to come to terms with prison overcrowding. The Department of Corrections Second Quarterly Report for 1988 bears that truth out The report concluded that such growth represents serious problems for the safe and humane operations of prisons One plan Massachusetts is developing to alleviate overcrowding concerns the conversion of a former school into a 500 bed prison. 49 The proposed site occupies 782 acres in the small rural community of New Braintree which the Commonwealth plans to acquire through an eminent domain proceeding. 50 However, the Commonwealth faces stiff opposition to any such proposal. New Braintree, in response, has filed two suits against the Commonwealth in an effort to thwart the conversion.' 51 The main thrust of the first suit lies in terms of the environmental harm that will come to the community. The town claims its only water supply may be polluted by a 500 bed prison discharging its waste through a septic system. 152 Further, New Braintree asserts 10,069 in 1987 and would decline every year thereafter. However, at the time of the April 1987 report, the population already exceeded this figure. Id Id Id. "Jails and prisons throughout the United States are burgeoning with inmates, outstripping the capacities of their institutions." Id Id. It concluded that court-ordered prison release when populations exceed capacity is a growing trend. Id Quarterly Report on the Status of Prison Overcrowding, for the Second Quarter of 1988, supra note 137, at 1. By the end of the second quarter of 1988, the Department of Corrections operated a prison system with a population of 6,644 inmates; its design capacity, however, is 3,984. The county figure reflected similar overcrowding - 5,162 inmates contained in prisons designed for 3,537. Id Id. at Worcester Telegram, Sept. 22, 1988, at 1, col Evening Gazette, Sept. 22, 1988, at 1, col Telephone Interview with Dorothea Thomas Vitrac, Selectwoman of New Braintree (Feb. 9, 1989). The people of New Braintree are obsessed with the idea of maintaining their rural character. It is not uncommon to see farm tractors tying up traffic in the middle of town. The people ask, is this the appropriate place for a prison? They feel that the character of New Braintree will be ruined forever. Id Id. New Braintree obtains all of its water from an aquifer nearby the proposed site and utilizes septic systems only. The town argues that waste from the prison would leach through to a nearby hospital dump (now closed) and contaminate the town's only water

21 1990] PRISON OVERCROWDING that it lacks sufficient town infrastructure to support such a development. The second suit involves a claim that Massachusetts has failed to plan comprehensively for the continued development of a fair and efficient prison system. 153 It cites several proposals for prisons throughout the Commonwealth which have been fully funded yet nevertheless remain far from complete. 54 The town's major contention is that the Commonwealth, with regard to the New Braintree proposal, has not developed a complete feasibility study justifying New Braintree as the most appropriate site for a prison, as required by law. 55 At present, the first environmental suit remains completely unresolved while the second suit has been decided in favor of Massachusetts. 156 However, New Braintree is presently appealing the second count of the decision dealing with the feasibility study. In any event, the proposed site is still privately held; New Braintree has been successful in postponing the Commonwealth's eminent domain proceedings. 157 New Braintree, in its effort to redirect state plans, demonstrates the problem that has been the major cause of prison overcrowding throughout the United States: the lack of comprehensive, long term planning with regard to prison administration. 5 The efforts of New York, Michigan and Massachusetts could have been avoided, perhaps altogether, if a more far-sighted, informed approach was taken to provide much needed prison beds. Instead, states are faced with a crisis situation. Typically, responses to crisis situations call for short term solutions to avoid the most immediate threats: prison overcrowding and the federal court's response of inmate release. V. CONCLUSION The federal courts, the state courts, prison authorities, state legislatures and local governments all play a role in responding to the problem of prison overcrowding in the United States. The United States supply. Telephone interview with Dorothea Thomas Vitrac, Seleetwoman of New Braintree (Feb. 9, 1989) Id In 1979, M.C.I. Gardner, a former mental hospital, was chosen for a prison conversion. However, only by 1986 did actual work begin. Also, the proposal and funding for a prison in Concord went as far as the model. Still, no action has been taken. Id Ware River News, Sept. 15, 1988, at 1, col Telephone Interview with Dorothea Thomas Vitrac, Selectwoman of New Braintree (Feb. 9, 1989) Id See generally M.R. MONTILLA & N. HARLOW, CORRECTIONAL FACILITIES PLANNING (1979).

22 88 - CRIMINAL AND CIVIL CONFINEMENT [Vol. 16:1 Supreme Court's primary role has been to determine the effect overcrowding has on prisoners' constitutional rights. By establishing that the fifth and eighth amendments prohibit the overcrowding of pretrial detainees and sentenced prisoners, respectively, the Supreme Court enunciated the standards by which lower federal courts and state courts must measure any given overcrowded prison. In turn, the lower federal courts have responded to overcrowding by establishing population caps with which prisons must comply. In some cases, these courts have ordered the release of prisoners. However, the federal courts most effective response has been to encourage the states to take charge of their own prison systems. State courts and state legislatures have responded well to this encouragement. In the cases shown in this Note, they have repeatedly upheld any rational attempt their respective state officials have made in providing more prison space. In doing so, these state courts have acknowledged their role in this process, even if one of the major reasons is to avoid federal court intervention. DAVID A. SEMANCHIK