Rufo v. Inmates of Suffolk County Jail: Perseverance Pays Off in Battle to Modify Consent Decree

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1 Rufo v. Inmates of Suffolk County Jail: Perseverance Pays Off in Battle to Modify Consent Decree I. INTRODUCTION The reality of being confined in a tiny cell with another person for 21 hours each day can be maddening. The idleness and lack of privacy affects all of us mentally, and often leads to depression. Within a space of only five weeks, three separate cellmates of mine have attempted to commit suicide.' In Rufo v. Inmates of Suffolk County Jail, 2 Suffolk County Sheriff Robert Rufo moved to modify a consent decree 3 which prohibited double bunking at the new Nashua Street Jail (Nashua Street).' Nashua Street was the facility that replaced the Charles Street Jail (Charles Street). Although there were discussions throughout the proceedings of constructing replacement facilities, temporary holding facilities or remodeling city prison facilities, this Comment will discuss only two facilities, Charles Street and Nashua Street. The consent decree was the result of litigation which started in 1971 and remained in effect, without modification, for approximately nine years.' 1. Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 682 n.13 (D. Mass. 1973) S. Ct. 748 (1992). 3. A consent decree is a court order that embodies the terms of an agreement by the parties involved disposing of litigation. It is part contract and part judicial decree. Similar to a contract, a consent decree is "arrived at through mutual agreement of the parties." Local 93, International Ass'n of Firefighters v. Cleveland, 478 U.S. 501, 519 (1986); United States v. IT Continental Baking Co., 420 U.S. 223, 236 (1975). It resembles a judicial decree because it is "motivated by threatened or pending litigation and must be approved by the court." 17T Continental Baking, 420 U.S. at 236 n Inmates of Suffolk County Jail v. Keamey, 734 F. Supp. 561 (D. Mass. 1990), aff'd, 915 F.2d 1557 (1st Cir. 1990). 5. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 754 (1992) (remanding case to district court for further proceedings).

2 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 Although the objective of building a new jail was ultimately achieved, the question of whether the consent decree entered in 1979 would be modified was just recently decided. 6 This Comment addresses the application of the flexible standard used by the Supreme Court when considering modification of consent decrees. Section H of this Comment will outline the facts of Rufo v. Inmates of Suffolk County Jail. 7 It will also provide some background on Charles Street and the conditions which provoked this litigation. Section III will explain the procedural history of the case and the Supreme Court's decision. The path it took before finally reaching the United States Supreme Court in 1991 was long and twisted. It is therefore necessary to cover that path in some detail. Section IV will analyze the Rufo decision by discussing the standard for modifying consent decrees and the circumstances under which modification is available.' In Rufo, the Court of Appeals for the First Circuit, upholding the district court, held that the "grievous wrong" standard of United States v. Swift & CoY was the applicable legal standard in deciding whether modification of the consent decree would be permitted. The sheriff argued that the Supreme Court's decision in Bell v. Wolfish, 0 which was decided one week after the consent decree was entered into by the parties," constituted a 6. Subsequent to the Supreme Court's decision in Rufo, three additional opinions have been rendered. Judge Keeton issued his remand decision to the Rufo case in Inmates of Suffolk County Jail v. Rufo, 148 F.R.D. 14 (D. Mass. 1993) (holding that sheriffs insufficient showing of changed circumstances did not warrant modification of consent decree). See infra notes and accompanying text for discussion of remand decisions. Also, the United States Court of Appeals for the First Circuit rendered its opinion on the appeal of Judge Keeton's decision by the Massachusetts Commissioner of Correction in Inmates of Suffolk County Jail v. Rufo, 12 F.3d 286 (lst Cir. 1993). Finally, the district court issued a memorandum and order on the sheriffs renewed motion to modify the consent decree in Inmates of Suffolk County Jail v. Rufo, No REK (D. Mass. filed Jan. 25, 1994) S. Ct. 748 (1992). 8. See infra notes and accompanying text. The Supreme Court adopted a flexible standard holding that "a party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstances." Rufo, 112 S. Ct. at 765. The district court's decision was vacated and the case was remanded for further proceedings consistent with the Court's opinion. Id U.S. 106, 119 (1932) (holding that "[nlothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead... to [a] change [in] what was decreed after years of litigation with the consent of all concerned") U.S. 520 (1979) (holding that double bunking inmates at the Metropolitan Correctional Center was not per se unconstitutional). 11. Rufo v. Inmates of Suffolk County Jail, 112 S. CL 748, 755 (1992); see also

3 19941 RUFO v. INMATES OF SUFFOLK COUNTY JAIL change in law. Thus, it was the sheriffs position that the change in law, coupled with an unforeseen change in facts, required modification of the consent decree. 12 II. BACKGROUND To understand the history of the Rufo case, it is useful to provide background information concerning the conditions at Charles Street prior to the filing of the lawsuit in The Charles Street Jail was built in It was comprised of three wings with five tiers each extending from a mammoth central hall. 15 In the center of each wing was a cell block running from floor to ceiling. 16 The east wing, referred to as the long row, had twelve cells on each side of the five tiers. 17 The north and south wings had four cells on each side of the five tiers. 18 The west wing of the jail housed medical facilities, an auditorium and administrative offices. 19 Catwalks provided access to tiers located above ground level2 Although there were a total of 180 cells, only 142 were used to house inmates. 2 ' The remaining cells were inoperable due to defects.' The cells were approximately eight feet wide by eleven feet long by ten feet high.' The plumbing and electrical systems were Inmates of Suffolk County Jail v. Kearney, No G (D. Mass. filed May 7, 1979). 12. Rufo, 112 S. Ct. at 756. While Nashua Street was under construction, the estimated jail population figures proved to be inaccurate. Id New projections indicated that Nashua Street would subject the sheriff to the same cell space limitations he endured at Charles Street due to an increase in jail population which was unforeseen at the time the parties entered into the decree. Id. 13. Id. at 754 (discussing "numerous deficiencies" and ' malignant neglect"). 14. rd. 15. David Arnold, Locking Up Charles Street Jail's Colorful Past, BOSTON GLoBE, June 18, 1991, at 1. The jail was dedicated in Id. It was located on Charles Street in Boston, Massachusetts. Id. The architect was Gridley J.F. Bryant who is considered the father of "The Boston Granite Style." Id. at Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 679 (D. Mass. 1973). 17. Id. 18. Id. 19. Id. 20. Id. The catwalks resembled "outdoor fire escape[s]." Id. The catwalks on the wings were connected to the catwalks on the long row. Id. 21. Id. at ld. The principal reasons for a cell being rendered inoperable were due to a broken lock or faulty plumbing. Id. 23. Id. The cells had four stone walls, three of which were solid. Id. The fourth wall

4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 antiquated.' The overall condition of the cells was deplorable.' In addition, there was a women's cell block with four tiers on each side.' There were ten cells to each tier, but the entire women's section was not fully operational.' The top two tiers and half of the second were not used.' The population at Charles Street consisted of both pretrial detainees and sentenced inmates." To compound the problem of housing pretrial detainees with sentenced inmates, there were not any classification programs. This forced inexperienced pretrial detainees to share cells with more experienced inmates. This increased the dangers of sexual exploitation, the exposure of some pretrial detainees to more serious criminal behavior, or other forms of physical and emotional abuse." Medical staffing at Charles Street was limited. The entire population was attended by two full-time nurses, as well as one doctor who was on duty between one-half hour to three hours per day." No medical personnel were on duty during weekends. 2 During the 8:00 a.m. to 4:00 p.m. shift there were nine jail officers on duty in a cell block. 3 On the bottom four tiers, the long rows and wings were handled by eight officers, while one officer handled the entire fifth tier.' The two night shifts consisted of four faced the catwalk and had a barred window and a barred door. Id. Most of the floor space was taken up by two cots. Id. There was little room for maneuverability with a toilet and sink added to the cell. Id. 24. Id. at 680. The plumbing system was constantly susceptible to breakdown. Id. Many toilet bowls had no seats; the water level was at the bottom of the bowl; faulty flush valves caused frequent backups resulting in the attraction of various insects; and hot water was nonexistent in the cells. Id. The electrical system rivaled the plumbing system and was also in need of constant repairs. Id. It required a yearly overhaul and was not supported by any type of backup electrical system. Id. In the event of fire, there was no way to simultaneously unlock the cells; each cell had to be unlocked individually. Id. 25. Id. 26. Id. at 681. The women's cell block was annexed to the main jail. Id. Each cell was six feet wide by eleven feet long with the same amenities as the male cells: a cot, toilet, sink, and small table built into a comer of the wall. Id. 27. Id. 28. Id. 29. Id. 30. FREDRcICK W. WARD, JR. Er AL, NATIONAL COUNCIL ON CRIME AND DEUNQUENCY THE SUFFOLK COUNTY, MASSACHUSETS, JAIL: A SURVEY 4.04 (1968). 31. Eisenstadt, 360 F. Supp. at Id. at Id. at Id.

5 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL to five jail officers on duty in a cell block. 5 The deteriorating conditions at Charles Street caused several reports to be made beginning in Each study reached the same conclusion: the jail was too archaic to make substantial changes feasible. 6 Despite these professional recommendations, no action was taken to build a new county jail through 1970.' 7 The issue reached its peak in 1971 when the inmates of Charles Street filed a law suit in the federal district court. 3 " A. The Courts Below Ill. PROCEDURAL HISTORY The issue before the district court was whether incarceration of unsentenced inmates at Charles Street "contravened the Eighth and Fourteenth Amendments [of the United States Constitution], although First and Sixth Amendment violations were also involved." 39 The district court analyzed the case under the Fourteenth Amendment and held that the conditions under which pretrial detainees were incarcerated violated the Due Process Clause of the Fourteenth Amendment.' Prior to the decision rendered on June 20, 1973,41 the parties 35. Id. 36. Id. at 681. The Redevelopment Authority conducted its study in 1946; the City of Boston in 1949; the Governor's Committee in 1962; the Municipal Research Bureau in 1962; the Finance Commission in 1963; the National Council on Crime and Delinquency in 1968; and the Special Legislative Study Commission in Id. 37. Id. 38. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 754 (1992). Named as defendants were the Suffolk County Sheriff, Commissioner of the Massachusetts Department of Correction, the Mayor of Boston, and nine City Councilors. Id. 39. Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 678 (D. Mass. 1973). Under the Cruel and Unusual Punishment provision of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment the relief sought focused on the "alleged constitutional defects in the quality and level of incarceration" specifically focusing on "structural inadequacies, poor plumbing, space limitations, inadequate diet and health care, inadequate exercise and recreation, and inadequate provision for personal hygiene...." Id. According to the plaintiffs, these factors had a "pernicious, deleterious effect upon the physical and mental health of inmates." Id. Under the First and Sixth Amendments plaintiffs sought "greater access to counsel, family and friends, and books, magazines and periodicals." Id. at Id. at 686. The Fourteenth Amendment provides in pertinent part that no state shall "deprive any person of life, liberty, or property without due process of law...." U.S. CONST. amend XIV. 41. Inmates of Suffolk County Jail, 360 F. Supp. at 678. The partial judgments were

6 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 entered into two partial judgments aimed at alleviating some of the conditions that led to the lawsuit. 42 The final order of the district court permanently enjoined the Suffolk County Sheriff and Massachusetts Department of Correction from "(a) housing at the Charles Street Jail after November 30, 1973 in a cell with another inmate, any inmate who is awaiting trial and (b) from housing at the Charles Street Jail after June 30, 1976 any inmate who is awaiting trial."' 3 No appeal was taken of the district court decision. 4 The district court decision took the initiative to alleviate the overcrowding problem at Charles Street.' Nevertheless, Suffolk County officials could not comply with the district court order which mandated that only one inmate per cell could be detained at Charles Street by November 30, 1973.' The district court's deadline could not be met because there were no available facilities to house the excess inmates. 47 As a result, the Commissioner of the Massachusetts Department of Correction soon became involved. entered on June 2, 1972 and July 6, Id. 42. Id. The partial judgments, which were unrelated to the consent decree, were respectively entered into on June 2, 1972, and July 6, Id. The first partial judgment entered into on June 2, 1972, provided the following: the Gatehouse (a building separate from the main jail which was originally constructed as an isolation unit for prisoners with either discipline or alcohol problems) could no longer be used for heavy solitary confinement; the Gatehouse could be used for light solitary only under certain circumstances; anyone in light solitary could receive the same diet furnished to inmates in the general population; daily physical examination by a doctor, a bed and mattress; toiletries; daily exercise; and daily shower. Id. at 692. The second partial judgment entered into on July 6, 1972, provided that defendant Eisenstadt and successors draft an inmate guide listing rights and privileges; draft disciplinary rules and regulations; provide that inmates be advised of their rights regarding commission of punishable offenses while incarcerated; permit those inmates in light solitary confinement to have reading materials and correspondence; prohibit censoring of outgoing mail; allow inmates three visits per week; allow inmates to receive packages subject to inspection by jail personnel; inform incoming inmates of their rights under MAss. GEN. L, ch. 276, 58 (1992 & Supp. 1993); inform inmates that are entitled to bail review petitions upon request; allow individual and private consultation with clergyman; and make efforts to hire more Spanish-speaking personnel. Id. at Id. at Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196 (Ist Cir. 1974). 45. Id. A Memorandum and Supplemental Order was entered on November 12, 1973, requiring the Commissioner of the Massachusetts Department of Correction to transfer all women inmates at Charles Street to other state institutions. Inmates of Suffolk County Jail v. Eisenstadt, No G (D. Mass. filed Nov. 11, 1973). The order also required that male inmates awaiting trial with prior state felony records be transferred to other state correctional facilities in order to create more room at the overcrowded Charles Street Jail. Id. at See id. 47. Eisenstadt, 494 F.2d at 1198.

7 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL Faced with the burden of providing additional cell space, the commissioner, who did not appeal the original action, 4 appealed the district court order on the grounds that "the district court lacked power to order him to make transfers" without showing unconstitutional conduct by the Commonwealth. 49 The Court of Appeals for the First Circuit ruled against the commissioner, holding that he had "general supervision of jails and houses of correction" as well as "major statutory responsibilities." Following the Court of Appeals decision, the district court filed an order on October 20, 1975, which called for closing Charles Street by July 1, ' The closing was further postponed to November 1, After the second postponement, the district court filed a two part order providing that the city prison facility be renovated and that no pretrial detainees or prisoners be admitted to Charles Street after November 1, 1977.' The City Council appealed, and further stays on the second order were granted through March 3 and October 2, ' The district court, however, imposed certain conditions that 48. Inmates of Suffolk County Jail v. Kearney, 573 F.2d 98 (1st Cir. 1978). 49. Eisenstadt, 494 F.2d at Id. at The court stated that the Commissioner actually plays a pivotal role because Charles Street is part of the statewide system of corrections which he oversees. Id. He could not, therefore, claim lack of responsibility for the conditions at Charles Street. Id. See MASS. GEN. L. ch. 124, 1(a) (1992 & Supp. 1993) (providing that the Commissioner has general supervision of jails and houses of correction). See also MAss. GEN. L. ch. 127, 1A (1992 & Supp. 1993) ("Mhe Commissioner shall establish... minimum standards for the care and custody of all persons committed to county correctional facilities."). 51. This order extended the original June 30, 1976 deadline for closing Charles Street. Inmates of Suffolk County Jail v. Eisenstadt, No G (D. Mass. filed Oct 20, 1975). 52. The defendant City Council filed a motion on April 12, 1977 seeking modification of the district court orders. Inmates of Suffolk County Jail v. Eisenstadt, No G (D. Mass. filed April 12, 1977). At this point in the litigation, the parties were still trying to agree on whether Charles Street would be renovated or whether a new facility would be constructed. Accordingly, a master was appointed to hear the parties regarding the various proposals. Inmates of Suffolk County Jail v. Eisenstadt, No G (D. Mass. filed June 30, 1977). Subsequent to the hearing, the master submitted three reports dated November 24, 1976, March 29, 1977, and April 21, The district court accepted the November 24, 1976 report which called for renovation of the city prison facility. Id. 53. The orders were: 1) that defendants "take such steps and expend such sums as are reasonable and necessary to complete the repairs and renovations and to provide the fixtures and furnishings which have been found to be necessary to the proposed use of the city prison facility by November 1, 1977," and 2) "that after November 1, 1977, no pretrial detainees or other prisoners may be admitted to the Charles Street Jail. Prisoners incarcerated there as of November 1, 1977 may be held until criminal charges pending against them have been disposed of by the courts." Inmates of Suffolk County Jail v. Eisenstadt, No G (D. Mass. filed Sept. 2, 1977). 54. Following the stay of the district court's order through March 3, 1978, negotiations

8 CRIINAL AND CIVIL CONFINEMENT [Vol. 20:2 had to be met by the parties. 55 The thrust of these conditions called for a detailed review by the City Council on how to bring Charles Street up to constitutional standards.' Shortly before the October 2, 1978 deadline, the plan that formed the basis for the consent decree, which was eventually considered by the United States Supreme Court, was submitted to the district court The district court held that the defendants had fulfilled the conditions set forth in the Court of Appeals decision of March 17, 1978." The defendants were then ordered to submit modified architectural designs and schedules. 9 On May 7, 1979, the district court entered a formal consent decree.' The consent decree incorporated an exhaustive architectural plan extensively describing the new jail. 6 ' It also provided that the new facility would be comprised of single-bunked cells which would house both male and female detainees.' Although there was a plan for a new facility, construction was further delayed due to an incontinued between plaintiff inmates and defendants. Inmates of Suffolk County Jail v. Kearney, 573 F.2d 98, 99 (1st Cir. 1978). Both parties were to submit a report by March 3, 1978 indicating whether an agreement had been reached. Id. Although the parties failed to reach an agreement, progress was being made toward reaching a decision which would result in a new facility. Id. at 100. The district court order to close Charles Street Jail was therefore modified and extended to October 2, Id. 55. Inmates of Suffolk County Jail v. Kearney, 573 F.2d 98, (1st Cir. 1978). 56. If the City Council's plan was deemed unacceptable, the district court order to close the jail would be enforced. Kearney, 573 F.2d at 100. The First Circuit Court of Appeals also ruled, however, that if the City Council's plan was not acceptable, then "the only alternative that would permit [them] to withdraw the order closing the jail would be the submission of a plan for a new facility.... Id. The plan would have to include funding, agreement on location, target dates for construction and completion, and designs for a new facility that would be "consistent with constitutional standards." Id. 57. Inmates of Suffolk County Jail v. Keamey, No G (D. Mass. filed Oct. 2, 1978). 58. Id. 59. Id. Although the City Council did not submit an architectural design, a written description was submitted. Inmates of Suffolk County Jail v. Kearney, No G (D. Mass. filed Oct. 2, 1978). A final architectural plan would be prepared as soon as possible. Id. It was also included in this order that Suffolk County could continue to house pretrial detainees at Charles Street. Id. 60. See App. to Pet. for Cert. at 15a-22a. Inmates of Suffolk County Jail v. Kearney, No (D. Mass. filed May 7, 1979) or Inmates of Suffolk County Jail v. Rufo, 12 F.3d 286 (1st Cir. 1993) for the consent decree in its entirety; see supra note 3 for a definition of consent decree. 61. Id. The plan was known as the "Suffolk County Detention Center, Charles Street Facility, Architectural Program" [hereinafter Architectural Program]. Id. For a complete copy of the 110-page Architectural Program see Record Appendix, Inmates of Suffolk County Jail v. Keamey, 915 F.2d 1557 (1st Cir. 1990). 62. Id.

9 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL crease in the jail population. 63 This increase, unforeseen at the time the consent decree was entered, resulted in an action brought by the Massachusetts Attorney General in state court.' Attorney General v. Sheriff of Suffolk County resulted in an order requiring the defendants to build a larger jail.' The new facility would have 435 cells subject to modification of the consent decree and approval by the federal district court.' The district court allowed the defendants to increase the size of the new jail, provided the single-bunking provision of the consent decree remained intact. 67 On February 24, 1986, the state court entered an order for the new jail to be built on Nashua Street in Boston and to be completed by March Construction of the new jail began in September 1987 and was completed in the Spring of 1990.' Almost seventeen years after the original order and opinion of the district court, 69 detainees moved into the new jail in May In stark contrast to Charles Street, the new Nashua Street jail is a state-of-the-art facility. 71 Prior to completion, however, it became apparent to the sheriff that even 453 cells in the new jail would be insufficient to house all the inmates committed to his custody due to "an explosion in the jail population." 2 The sheriff, therefore, citing Federal Rule of Civil Pro- 63. Attorney General v. Sheriff of Suffolk County, 477 N.E.2d 361, 363 (Mass. 1985). 64. Id. The Attorney General brought suit in state court seeking an order which would force the sheriff "to accept into his custody all pretrial detainees committed by the courts of the Commonwealth." Id. In response the sheriff sought injunctive and declaratory relief against the city defendants and Commissioner of Correction seeking to enjoin the City Council and Mayor from failing to provide funding for facilities to house Suffolk County detainees. Id. at The sheriff's suit also sought to enjoin the Commissioner from refusing to accept Suffolk County detainees and to declare the obligation of the Mayor and City Council to provide suitable facilities for detainees who could not be held at Charles Street. Id. The actions were consolidated and heard before a single justice who ordered the construction of a seventeen story jail adjacent to Charles Street. Id. at Id. at Id; see also Inmates of Suffolk County Jail v. Kearney, No K (D. Mass. filed Feb. 19, 1985) (plaintiff's motion to modify consent decree). 67. Inmates of Suffolk County Jail v. Kearney, No K (D. Mass. filed April 11, 1985 and April 22, 1985) (orders allowing motion to modify consent decree). 68. See Brief for Petitioner at 7-8; Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992) (No ). 69. Id. at Id. at See infra note 212 for features of the new Nashua Street Jail. 72. Brief for Petitioner at 8, Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992) (No ).

10 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 cedure 60(b), 73 which applies not only to judgments but also to orders and consent decrees, requested a modification to the consent decree in July 1989 due to "his inability to rely on the previously established scheme." '74 Reasoning that the sheriff failed to meet the standard for modification of consent decrees established in United States v. Swift & Co., 75 the district court denied his motion to modify. 6 In considering the sheriff's argument that a flexible standard be adopted, the district court reasoned that "even under the flexible modification standard adopted by other Courts of Appeals, the sheriff would not be entitled to relief because '[a] separate cell for each detainee has always been an important element of the relief sought in this litigation-perhaps even the most important element."' Lastly, the district court rejected the sheriff's argument that "the decree should be modified because the proposal complied with constitutional standards, reasoning that such a rule 'would undermine and discourage settlement efforts in institutional cases."' 78 The sheriff appealed to the Court of Appeals for the First Circuit which affirmed the district court decision. The sheriff's writ for certiorari was granted by the United States Supreme Court on February 19, 1991.' 73. FED. R. Ctv. P. 60(b) provides in its pertinent parts that: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:... (5) the judgment has been satisfied, released, or discharged, or a prior judgment should have been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment... Id. 74. Brief for Petitioner at 9, Rufo (No ) U.S. 106 (1932); see supra note 9 and accompanying text for standard enunciated in Swift. 76. Inmates of Suffolk County Jail v. Kearney, 734 F. Supp. 561 (D. Mass. 1990). 77. Rufo v. Inmates of Suffolk County Jail, 112 S. CL 748, (1992) (quoting Inmates of Suffolk County Jail v. Kearney, 734 F. Supp. 561, 565 (D. Mass. 1990)). See cases cited infra note 92 regarding application of the flexible standard. 78. Rufo, 112 S. CL at 757 (quoting Kearney, 734 F. Supp. at 565). 79. Inmates of Suffolk County Jail v. Kearney, 734 F. Supp. 561 (D. Mass. 1990), afd mem., 915 F.2d 1557 (1st Cir. 1990). 80. Rufo v. Inmates of Suffolk County Jail, 111 S. CL 950 (1992).

11 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL B. The Supreme Court Decision 1. The Majority Opinion The issue before the Court was whether the courts below applied the proper standard in denying the sheriff's motion to modify the consent decree." 1 In a six-to-two opinion, the majority' held that the "grievous wrong" standard articulated in United States v. Swift & Co."s does not apply when modification of a consent decree is sought in institutional reform litigation." In Swift, there was a battle between the meat packing industry and the United States Government.s The parties ultimately entered into a consent decree whereby defendants agreed not to manipulate the meat packing industry and were banned from "manufacturing, selling or transporting any of 114 enumerated food products... '" Ten years later, two of the defendants, Swift & Company and Armour & Company, sought modification of the consent decree." An order modifying the consent decree was entered on July 31, s' The order was appealed,' and the Supreme Court reversed. In the decision, Justice Cardozo framed 81. Rule v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 754 (1992). 82. Id. Justice White delivered the opinion of the Court in which Chief Justice Rehnquist, Justices Scalia, Kennedy, and Souter joined. Id. Justice O'Connor filed a concurring opinion. Id. Justice Stevens filed a dissenting opinion and was joined by Justice Blacknum. Id. Justice Thomas took no part in the decision. Id U.S. 106 (1932). See supra note 9 for standard enunciated in Swift. 84. Rufo, 112 S. CL at United States v. Swift & Co., 286 U.S. 106, 110 (1932). The defendants were the five leading meat packers in the United States. Id. They were Swift & Company, Armour & Company, the Morris Packing Company, the Cudahy Packing Company, and Wilson and Company. Id. The United States brought suit for violations of the Sherman Anti-Trust Act. Id. The allegation was that the defendants successfully eliminated competition in meat products and were seeking to gain control of substituted foods, as well as fish, poultry, cereals, fruits, vegetables, eggs, cheese, and butter handled by both wholesale grocers or produce dealers. Id. 86. Id. at Id. at 113. Of the five original defendants, only Morris & Company discontinued business after selling out to Armour & Company. Id. Wilson and Cudahy did not join the petition but consented to any modification the Court might order provided it applied to the remaining defendants of the original decree equally. Id. 88. Id. at United States v. Swift, 286 U.S. 106, 109 (1932). The order modifying the consent decree was appealed by the United States Government and associations of wholesale grocers. Id. 90. Id. at 114.

12 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 the well-known "grievous wrong" standard." The Supreme Court in Rufo pointed out that a recurring "theme" in cases decided since Swift has been that flexibility is necessary in administering consent decrees. 9 The Court reasoned that the Swift standard did not have to be applied when deciding whether modification would be allowed under Federal Rule of Civil Procedure 60(b). 93 The Court in Rufo adopted a flexible standard placing the burden on the party seeking modification to show that either a significant change in the law or factual circumstances warrants revision of the consent decree. 4 The proposed modification must also be "suitably tailored to the changed circumstance."" The Court held that modification may be warranted ff statutory or decisional law has changed to legalize what the consent decree was designed to prevent.' Also, under Rufo, a decision that clarifies the law could constitute a change in circumstances supporting modification if the parties had entered the agreement based on a misunderstanding of the governing law.' Thus, if the sheriff could establish 91. See supra note Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 758 (1992). See also New York State Ass'n. for Retarded Children, Inc. v. Carey, 706 F.2d 956 (2d Cir. 1983), cert. denied, 464 U.S. 915 (1983) (holding that modification of the consent decree would not be against its primary objective which was to place the occupants of an institution whose conditions were squalid into smaller facilities); System Federation No. 91 v. Wright, 364 U.S. 642 (1961) (holding that a consent decree forbidding union shop agreements between railroads and labor unions must be modified when the law was amended to allow the previously forbidden activity); Board of Education v. Dowell, 498 U.S. 237 (1991) (holding modification of desegregation order in school desegregation case was permissible after applying a flexible test which considered the moving party's prior history and the central purpose of the order); Heath v. DeCourey, 888 F.2d 1105, 1109 (6th Cir. 1989) (adopting a relaxed standard for modification of consent decrees in lawsuit brought by inmates challenging confinement conditions in the Hamilton County Jail). 93. United States v. Swift & Co., 286 U.S. 106, 119 (1932); see supra note 73 for pertinent text of FED. R. CiV. P. 60(b). 94. Rufo, 112 S. Ct. at Id. 96. Id. at 762; see also System Federation No. 91 v. Wright, 364 U.S. 642 (1961) (recognizing Railway Labor Act previously prohibiting union shop agreements between railroads and labor unions was amended thus making legal what had previously been statutorily forbidden); Firefighters Local Union No v. Stotts, 467 U.S. 561, 576 n.9, 583 n.17 (1984) (rejecting argument for modification of consent decree entered to alleviate past hiring practices where the purpose of modification was to ensure that regardless of seniority rules in effect, minorities would not be laid off due to a budgetary crisis). 97. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 763 (1992).

13 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL on remand that the agreement was entered under the belief that single-bunking was mandated by the United States Constitution, this misunderstanding could form a basis for modification." Alternatively, the sheriff's showing of a significant change in factual conditions would also warrant modification of the consent decree.' Justice White, writing for the majority, outlined the following situations that would warrant modification: 1) when the factual change makes compliance with the consent decree more onerous; 2) when the consent decree becomes unworkable due to obstacles unforeseen at the time into which it was entered; 01 and 3) when enforcement without modification proves detrimental to the public interest.y The Court recognized that where institutional reform litigation is involved, consent decrees could remain in effect for a long time The importance of flexibility increases during the administration of the consent decree when significant changes take place." A flexible standard will ensure that the goals of reform litigation are achieved. 1 ) 5 Thus, the Court held that the district court and Court of 98. Id. The language in the consent decree specifically stated that it "sets forth a program which is both constitutionally adequate and constitutionally required." Inmates of Suffolk County Jail v. Kearney, No G (D. Mass. filed May 7, 1979) (emphasis added). 99. Rufo, 112 S. Ct. at Id; see also Inmates of Suffolk County Jail v. Kearney, No G (D. Mass. filed April 11, 1985 and April 22, 1985) (orders allowing modification of consent decree when, due to increasing jail population, plans for new jail did not provide sufficient cell space) Rufo, 112 S. CL at 760; see also New York State Ass'n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 969 (2d Cir. 1983), cert. denied, 464 U.S. 915 (1983) (allowing modification of consent decree to expeditiously place residents of a state school for the mentally retarded into community residences that would provide a higher quality of care); Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d 1114, (3d Cir. 1979), cert. denied, 444 U.S (1980) (allowing modification of consent decree when the state could not find sufficient clients to meet decree targets) Rufo, 112 S. Ct. at 760; see also Duran v. Elrod, 760 F.2d 756, (7th Cir. 1985) (allowing modification of consent decree to avoid pretrial release of violent felons) See, e.g., Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, (3d Cir. 1979), cert. denied, 444 U.S (1980) (ongoing, complex consent decree requiring the state of Pennsylvania to implement a medical screening and outreach program) Rufo, 112 S. Ct. at See New York State Ass'n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 969 (2d Cir. 1983) (allowing modification of a consent decree which would allow placement of patients in larger community residences than had been agreed upon to expedite transfers and improve quality of care); Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d at (allowing modification in complex ongoing case where defendant could not find sufficient number of clients to satisfy amounts specified in the consent decree despite good faith

14 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 Appeals erred by applying such a rigid standard in determining whether the consent decree should be modified." s The Court remanded the case to the district court for a determination on whether the factual changes alleged were significant enough to warrant modification." 7 2. Justice O'Connor's Concurring Opinion Justice O'Connor's concurring opinion focused less on the "substantive outcome" reached by the district court than the "method" used to reach its decision."' 8 Justice O'Connor indicated that where a district court exercises proper discretion in weighing all the circumstances, "then the District Court's judgment will not be an abuse of its discretion, regardless of whether an appellate court would have reached the same outcome in the first instance."'" In the present case, the facts particularly lend themselves to the district court's discretion where the litigation has taken place over a period of years." 0 In Justice O'Connor's opinion, the district court unnecessarily took a narrow view of its discretion in the following three areas."' First, as a "prerequisite to any modification," the district court ruled that "new and unforeseen conditions" under Swift had to be proven."' In Justice O'Connor's view, the district court erred because even though the increase in jail population was foreseeable, modification could still be equitable under Rule 60(b)(5)."' Second, contrary to its ruling, the district court did have authority to consider the sheriff's fiscal limitations in deciding whether to modify the consent decree." 4 Justice O'Connor noted that scarce resources can efforts at compliance) Rufo, 112 S. Ct. at Id. at 765. See infra notes and accompanying text for discussion of remand decisions Rufo, 112 S. Ct. at 765 (O'Connor, J., concurring) Id. (O'Connor, J., concurring); c.f Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) ('In shaping equity decrees, the trial court is vested with broad discretionary power, appellate review is correspondingly narrow:) The consent decree was entered in Judge Keeton of the district court has been supervising the decree since that time. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 765 (1992) (O'Connor, J., concurring) See Rufo, 112 S. Ct. at (O'Connor, J., concurring) Inmates of Suffolk County Jail v. Kearney, 734 F. Supp. 561, 563 (D. Mass. 1990) Rufo, 112 S. Ct. at 766 (O'Connor, J., concurring) (noting that foreseeable overcrowding should not have been a "dispositive factor" in the district court's decision) Id. at 766. The district court held that "[i]t is not a legally supportable basis for

15 19941 RUFO v. INMATES OF SUFFOLK COUNTY JAIL never be an excuse for failing to correct unconstitutional conditions, but "[they] can provide a basis for concluding that compliance with a decree obligation is no longer 'equitable' Finally, Justice O'Connor also felt the district court erroneously applied a standard that would never allow modification of a decree under any circumstance."" Justice O'Connor reasoned that it is unavoidable that modification of a decree must set aside a portion or all of the decree." 7 The district court, however, denied modification because "[tihe type of modification sought here would not comply with the overall purpose of the consent decree; it would set aside the obligations of that decree.. 1. According to Justice O'Connor, applying such an analysis would leave the "flexible standard" without meaning. 119 Once again, the district court unnecessarily restricted its own discretion."r After addressing the unnecessary limitations the district court placed on itself, Justice O'Connor expressed her opinion on the new limitations resulting from the majority opinion. The most significant restriction in the majority opinion was, "[i]f modification of one term of a consent decree defeats the purpose of the decree, obviously modification would be all but impossible. That cannot be the rule. 121 Justice O'Connor reasoned that although "modification of one term of a decree does not always defeat the purpose of the decree... it hardly follows that the modification of a single term can never defeat the decree's purpose, especially if that term is 'the most important element' of the decree."' " A second restriction addressed by Justice O'Connor was the Court's reasoning that the district court should "defer to local govmodification of a consent decree that public officials having fiscal authority have chosen not to provide adequate resources for the sheriff to comply with terms of the consent decree:' Kearney, 734 F. Supp. at 566 (D. Mass. 1990) Rufo, 112 S. CL at 766 (O'Connor, J., concurring). The district court view was that fiscal constraints were only "marginally relevant" with respect to modification. Id. at 764. The Supreme Court, however, reasoned that although financial constraints could not be used to create or perpetuate constitutional violations, but because they are a legitimate concern of defendants, they are "appropriately considered in tailoring a consent decree modification." Id Id. at 766 (O'Connor, J., concurring) Id. (O'Connor,., concurring) Kearney, 734 F. Supp. at Rufo, 112 S. CL at 766 (O'Connor,., concurring) Id. at 766 (O'Connor, J., concurring) Id. at 767 (O'Connor, 3., concurring) Id. (O'Connor, L, concurring) (emphasis added).

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 ernment administrators to resolve the intricacies of implementing a decree modification. ' ' " In this particular case, Justice O'Connor was suspicious of deference to local government where the parties did not have a "model record of compliance." ' l" 3. The Dissenting Opinion Justice Stevens, in his dissenting opinion," 5 agreed with the majority that a flexible standard should be applied, but believed the judgment of the Court of Appeals for the First Circuit denying modification should be affined." Justice Stevens, arguing against modification, wrote that the increase in jail population was foreseeable and that the growth would continue." He also pointed to the "strong public interest in protecting the finality of consent decrees."" 1 a His concern was that if parties were allowed to avoid their obligations after entering consent decrees, "the motivation for particular settlements [would] be compromised, and the entire process [would] suffer." 29 Justice Stevens concluded that the single-bunldng requirement was the "central purpose of the consent decree" and modification would undermine its intention.' 123. Id. (O'Connor, J., concurring) Id. (O'Connor, J., concurring). See supra part D.A for a discussion of the parties' difficulties in complying with court orders Justice Stevens was joined by Justice Blackmun in the dissent. Rufo, 112 S. Ct. at 768 (Stevens, J., dissenting) Id. at 773 (1992) (Stevens, J., dissenting) Id. at Id. at 772 (1992); cf. Teague v. Lane, 489 U.S. 288, (1989); Mackey v. United States, 401 U.S. 667, (1971) (Harlan, J., concurring in part and dissenting in part). Both Teague and Mackey dealt with retroactively applying new law in habeas corpus proceedings. In Teague, the Court held petitioner could not benefit from law decided in one case because his conviction became final before the decision was announced. Teague, 489 U.S. at In Mackey, the Court held that new laws of criminal procedure generally should not be applied retroactively to cases on collateral review. Mackey, 401 U.S. at Two exceptions, however, were noted in Mackey. The first exception held that if the new rule places "certa kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe" it should be applied retroactively. Id. at 692. Secondly, a new rule should be retroactively applied if it requires the observance "of those procedures that.. are implicit in the concept of ordered liberty." Id. at Rufo, 112 S. Ct. at 772 (Stevens, J., dissenting) Id.

17 19941 RUFO v. INMATES OF SUFFOLK COUNTY JAIL IV. ANALYSIS A. Burden on Party Seeking Modification Although the Supreme Court held that a flexible standard should be exercised when considering modification of a consent decree, the Court did not intend for modification to take place in all circumstances."' Under Federal Rule of Civil Procedure 60(b)(5), a party may seek modification when "it is no longer equitable that the judgment should have prospective application." ' The burden is on the party seeking modification to establish that a significant change in circumstances warrants modification.' If this burden is met, the district court then weighs whether the proposed modifications are suitably tailored to the changed circumstances." A party can meet the initial burden by showing either a change in law or a change in factual circumstances Change in Law In Rufo, the sheriff relied on Bell v. Wolfish 36 to show that a change in the law occurred which would legalize what the consent decree was supposed to prevent.137 In Bell, the United States Supreme Court held double-bunking was not unconstitutional in all circumstances." 3 The Bell decision, however, also upheld the constitutionality of single-bunking. 39 ' The Rufo Court opined that the defendants undoubtedly had knowledge of the Bell case when the consent decree was originally entered. Notwithstanding the fact that doublebunking might be ruled constitutional, a consent decree was still entered into which called for single-bunking 1 The sheriff could 131. Id. at See supra note 73 for pertinent text of FED. R. Civ. P. 60(b) Rufo, 112 S. Ct. at Id Id U.S. 520 (1979) (holding that double-bunking is not unconstitutional in all cases) Rufo, 112 S. CL at 762. See also System Federation No. 91 v. Wright, 364 U.S. 642 (1961) (allowing modification of consent decree when previously illegal conduct was made legal when (1) Congress specifically endorsed union shops and (2) the statutory amendment conflicted with the consent decree's prohibition of such clauses) Bell v. Wolfish, 441 U.S. 520, (1979) See id Rufo, 112 S. Ct. at The Court reasoned "it was immaterial... that double-

18 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 not rely on Bell as a change in law requiring modification of the consent decree because Bell "did not directly overrule any legal interpretation on which the 1979 consent decree was based....," The Court viewed Bell as a "clarification" in the law, rather than a change By refusing to rule that clarification alone would be grounds for modification, the Court shut the door on relitigation every time such a clarification affects a consent decree.1 The Court further reasoned, however, that if the parties entered into the consent decree "based on a misunderstanding of the governing law," then this type of clarification could constitute a change in circumstances warranting modification." Under this analysis, the sheriff would have to prove on remand that the consent decree was entered into under the mistaken belief that single-bunking was a mandate of the United States Constitution.1 4. In the alternative, the sheriff could also argue that a significant change in factual circumstances warrants modification.'" The sheriff would then have to prove his proposed modifications to the consent decree were suitably tailored to the changed circumstances. 147 ceiling might be ruled constitutional." Id Inmates of Suffolk County Jail v. Kearney, No K (D. Mass. filed April 9, 1990) Rufo, 112 S. CL at 763 (emphasis added) Id. By eliminating relitigation based on a mere clarification, the Court reasoned that the incentive for parties to negotiate settlements such as the one involved in the present case would be preserved. Id. Otherwise, "'it would make necessary... a constitutional decision every time an effort was made either to enforce or modify the decree by judicial action."' Id. (quoting Plyler v. Evatt, 924 F.2d 1321, 1327 (4th Cir. 1991)) Rufo, 112 S. CL at 763 (emphasis added). See, e.g., Pasadena City Board of Education v. Spangler, 427 U.S. 424, (1976) (holding that when an ambiguous equitable decree was interpreted contrary to the district court's interpretation, and that interpretation was contrary to intervening decisional law, modification should have been made available); Nelson v. Collins, 659 F.2d 420, (4th Cir. 1981) (en bane) (vacating an equitable order based on the assumption that double bunking was per se unconstitutional) Rufo, 112 S. CL at 763. The Court specifically referred to the language of the consent decree which indicated that the program set forth was "both constitutionally adequate and constitutionally required." Id Id. at For a discussion of the sheriff's proposed modifications and whether they are suitably tailored, see infra notes 202, 218, 219 and accompanying text.

19 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL 2. Change in Facts The Court recognized that modification based on a change in facts would be available in three circumstances: 1) when the factual change makes compliance more onerous; 2) when unforeseen obstacles make it unworkable; and 3) when enforcement without modification would be detrimental to the public interest." The following analysis will discuss the first two circumstances together and the third independently. a. Factual changes have created unforeseen obstacles making compliance more onerous and thus unworkable The consent decree had previously been modified to provide more cells in 1985 to "meet the unanticipated increase in jail population and the delay in completing the jail as originally contemplated." 149 The increase in jail population had not declined as the Architectural Program anticipated."' The exact opposite took place-there was a population explosion. During 1985, when the population at Charles Street was anticipated to be 232 pretrial detainees, the daily average actually ranged from 284 to 352 and averaged 326 for the year."' When it became obvious that the number of cells in the original plans was inadequate, both parties negotiated to modify the decree to accommodate the growing population. 52 The parties had the opportunity to incorporate changes into the 148. Id. at Inmates of Suffolk County Jail v. Keamey, No G (D. Mass. filed April 11, 1985 and April 22, 1985) (orders allowing motion to modify consent decree) (emphasis added) Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 761 (1992). The Architectural Program compiled the following population projections: Year Potaon Projections J.A. at 69, Rufo (No ) Brief for Petitioner at 8 n.5, Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992) (No ) Inmates of Suffolk County Jail v. Kearney, No K (D. Mass. filed April 11, 1985 and April 22, 1985) (orders allowing motion to modify consent decree).

20 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 plans for a new jail because construction had not yet begun. When construction began in approximately September of 1987, however, the parties were locked into a final figure of 453 cells. 1 3 The average population for 1986 dipped slightly to 321 before increasing again to 370 in 1987." This figure was still below the number of cells available in the new jail after the consent decree was modified. 55 There was growing cause for concern in 1988 after construction of Nashua Street began. At Charles Street, the population threatened to surpass the number of available cells. 56 At this late stage it was not feasible to keep increasing the number of cells as the population continued to grow. Nevertheless, the sheriff made every effort to comply with the single-bunking provision of the consent decree. One of the early methods used to combat overcrowding was through the "Bail Appeal Project" pursuant to the district court order of 1973.'" Under this project, the sheriff's legal staff was responsible for expediting bail appeals on behalf of detainees in his custody.' All preparatory work and counseling for bail review hearings was supplied by the sheriff's legal staff.' 59 A second tactic used by the sheriff was a scheme known as "musical cells. ' ""e ' On Labor Day weekend in 1987, the inmate population hit a record high of 415 which was 149 detainees more than the court ordered cap of Instead of releasing criminals into the community, or risk legal repercussions by holding the excess inmates at Charles Street, eighty inmates had to be shipped to various jails and prisons throughout Massachusetts. This emergency measure 153. Brief for Petitioner at 8, Rufo (No ) Id. at 8 n.5, Rufo (No ) Id. at 8 n.4. After the Decree was modified in 1985, the number of cells was increased from 309 to 435, of which 405 were for males and 30 for females. Id. The location of the new jail was then changed from Charles Street to the present Nashua Street location. Id. The new structure was also changed from a proposed high rise to a seven story facility. Id. The final number of cells had ultimately increased from 309 in 1985 to 453 at the time construction began. Id. There were 413 cells for males and 40 for females. Id The population in July 1988 exceeded 400. Brief for Petitioner at 9, Rufo (No ) Brief for Petitioner at 6. Rufo (No ) Id Id Peter B. Sleeper, Legislature Faulted for Overcrowded Jails, BOSTON GLOBE, September 20, 1987, at Id Id. Over a period of seven hours, twenty-four jail officers transported the inmates to Massachusetts Correctional Institutions in Concord and Walpole, as well as facilities in

21 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL has been used since 1982 to prevent inmates from being released on personal recognizance." If the entire Massachusetts correctional system were filled to capacity, the only alternative would be to release detainees back into the community." 6 A third device used by the sheriff, in conjunction with the "musical cells" scheme, was the construction of fifty-nine modular cell units in the courtyard at Charles Street." 6 Massachusetts became the first state in, the country to use modular cells.'" 6 The prefabricated modules each contained two or three cells. 67 They were lifted over the jail wall by crane and placed into the courtyard where they were connected in a rectangular shape."e The modular units, at a total cost of $2.3 million, increased Charles Street's capacity from 266 to 325 cells."e A fourth method to battle the overcrowding crisis surfaced in 1989 when the sheriff was given approval by the Supreme Judicial Court of Massachusetts to house eight inmates in a dormitory room at Charles Street."' The sheriff was also given approval to petition Worcester and Cape Cod. Id. The sheriff had authority to employ the 'musical cells" scheme pursuant to MASS. GEN. L. ch. 276, 52A (1992 Supp. & 1993). The sheriff could transfer from Charles Street to state correctional facilities any detainee who had previously served a sentence in a Massachusetts correctional facility. Id. The sheriff was also allowed to send detainees to other county jails on a space available basis. See Brief of the Massachusetts Sheriffs as Amici Curiae at 2, 3, Rufo (No ) Ed Quill, Charles Street Jail To Get 59 Modular Cell Units, BOSTON GLOBE, August 19, 1986, at 18. Since that time the inmate population at Charles Street has consistently exceeded the court imposed limit. Id Ed Quill, With Jail Full, Judge Releases 10 Detainees, BOSTON GLOBE, January 17, 1986, at 4. After Charles Street reached the federal court ordered capacity of 266 inmates, arrangements had to be made for those detainees in the sheriff's custody who have criminal records and have served state sentences, to be transferred to other facilities, space permitting. Id. When these facilities are also full, the only alternative is to release them on personal recognizance. Id Ed Quill, Suffolk County Jail Uses Premade Cells To Ease Overcrowding, BOSTON GLOBE, July 24, 1987, at Id Id. Each cell was seventy-two square feet and had a bed, sink, toilet, table, and seat. Id. The cells were fully operational by July 15, Id Id Quill, supra note 163. The modular cells were used in direct response to the overcrowding problem at Charles Street In addition to the cost of the modular cells, $862,000 had to be allocated to hire twenty-one jail officers, seven support staff, one nurse, one attorney, one legal assistant and three case workers to handle the increase in jail population. Id John H. Kennedy, Suffolk Sheriff Wins OK For More Inmates, BOSTON GLOBE, February 24, 1989, at 13.

22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 for additional housing space in a previously unoccupied jail dormitory room, provided the appropriate number of toilet and washing facilities were installed."' Further permission was granted to consider the possibility of housing up to fifty detainees in alternative buildings." n If, after the previous four methods were utilized, the sheriff still lacked sufficient cell space to hold detainees in his custody, he was authorized to either transfer detainees to "halfway houses"' 7 or release detainees directly into the community. 4 Despite the sheriff's efforts, only seventy-five days after it had opened, the inmate population exceeded cell space at the new Nashua Street facility. 5 The sheriff was forced to return to Charles Street and reopen the modular cell units to house detainees. The detainees could not be housed at Nashua Street due to the single-bunking provision of the consent decree entered into in To say that the unforeseeable increase in population made compliance with the consent decree more onerous is an understatement. The Architectural Program provided a population projection of 226 detainees for the period 1990 through 1994."n As early as 1985, when these figures proved inaccurate, the consent decree was modified to reflect the increasing jail population. 17 Once construction began in 1987, the cell count was fixed at The increase in jail population had also spead beyond Suffolk County, thus having a negative effect on the musical cells scheme employed by the sheriff." Id Id When the number of detainees in the sheriff's custody exceeded the number of available cells, the sheriff was authorized to submit to a Justice of the Superior Court, a list of detainees held on bail. The judge had the authority to reduce bail and release detainees to insecure halfway houses which are operated by private contractors. See Joint Appendix at , Rufo (No ) Id John H. Kennedy, New Jail Full; Charles Street to be Reopened, BOSTON GLOBE, August 10, 1990, at Id See supra note Inmates of Suffolk County Jail v. Kearney, No K (D. Mass. filed April 11, 1985 and April 22, 1985) (orders allowing motion to modify consent decree) See supra text accompanying note Brief for Petitioner at 9, Rule v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992)(No ). Under MASS. GEN. L. ch. 276, 52A (1992 & Supp. 1993), inmates were being transferred to facilities operating at 185% of capacity. Petitioner's Brief at 9, Rufo (No ). Additionally, Suffolk County detainees were being transferred to other county facilities which were also under federal or state ordered population caps. Id.

23 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL To hold the sheriff to the terms of the original consent decree without any allowances for increases in the population placed an undue burden on his office."' This burden was more onerous than the consent decree provided because it forced the sheriff to provide single cells to "all future pretrial detainees, however large the number of such detainees might be. ' ' 82 The Supreme Court has held that a consent decree "is to be read as directed toward events as they then were. It [is] not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be."' 8 In the present situation, when the district court chose to exercise its authority in adopting a consent decree, it did not surrender its power to revoke or modify the consent decree. As Justice Cardozo so aptly stated in United States v. Swift & Co., * "[1]ife is never static."'" Circumstances are in a constant state of flux. Justice Cardozo's words have special significance in the setting of institutional reform litigation. Due to the nature of the litigation, consent decrees often remain in place for extended periods of time without taking variances into account." 6 In Rufo, the consent decree was entered into in 1979." s A flexible standard is necessary, if not essential, to achieve the objectives of institutional reform litigation. Although consent decrees are useful in bringing parties into an enforceable agreement, when changes take place over a period of time and prospective application is no longer equitable, common sense dictates that a flexible approach be maintained in considering modification.' b. Enforcement of the consent decree without modification would be detrimental to the public interest Public interest considerations also play a significant role regarding modification of consent decrees in institutional reform litigation Rufo v. Inmates of Suffolk County Jail, 112 S. CL 748, 761 (1992) Id. at System Federation No. 91 v. Wright, 364 U.S. 642, 651 (1961) (citation omitted) (holding that agreements between railroads and labor unions were no longer prohibited after a change in law allowed such agreements) U.S. 106 (1932) Id. at Rufo, 112 S. Ct. at Id. at Id. at 758.

24 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 In this particular case, denial of modification may adversely affect the public by "impairing the safety of the community." 189 ' Due to overcrowding, the sheriff has been repeatedly forced to transfer Suffolk County detainees to other state facilities. When those facilities are unable to lend assistance due to their own overcrowding problems, the only alternative is to release the detainees on personal recognizance. 9 The overcrowding dilemma is not unique to the sheriff of Suffolk County. Thirteen out of the fourteen counties in Massachusetts are equipped with jails and houses of correction. 9 ' They have cooperated with the sheriff on a voluntary basis in complying with the singlebunking order of the district court. However, five of the sheriffs in those counties have also operated their facilities under court-ordered population caps during the administration of the Rufo case."~ Two of the five institutions, the Middlesex County Jail and the Worcester House of Correction, were specifically prohibited from double-bunking.1 93 Although the sheriff must comply with the single-bunking order, the same does not hold true when detainees in his custody are transferred to other county facilities. The detainees are often doublebunked and sometimes triple-bunked due to overcrowding problems." 9 Ironically, population projections in those counties have proved inaccurate as well. All county sheriffs in Massachusetts encounter cell shortages on a regular basis. The result of the ever increasing jail population illustrates the need for modification to ensure public safety. Due to statewide increases in jail population and a lack of cell space, it is inevitable that detainees, who would otherwise remain incarcerated, will be released. This result is unavoidable if the sheriff is forced to strictly comply with the outdated terms of the 1979 consent decree. In a best case scenario, there would always be adequate cell 189. Brief of the United States as Amicus Curiae at 24, Rufo (No ) See supra note 164 and accompanying text Brief of Massachusetts Sheriffs as Amicus Curiae at 1, Rufo v. Inmates of Suffolk County Jail, 112 S. CL 748 (1992) (No ). Nantucket County does not have a jail. As a result, offenders from that county are sent to the Barnstable Jail. Id Brief of the Massachusetts Sheriffs as Amici Curiae at 2 & n.2, Rufo (No ). Other counties having to deal with their own court ordered population caps are: Hampden County, Worcester County, Essex County, Norfolk County, and Middlesex County. Id Brief of the Massachusetts Sheriffs as Amici Curiae at 3 & n.3, Rufo (No ) Id. at 2, Rufo (No ).

25 19941 RUFO v. INMATES OF SUFFOLK COUNTY JAIL space regardless of increases in jail population. Unfortunately, overcrowding has been and will continue to be what Supreme Judicial Court Chief Justice Paul J. Liacos has coined a "hydra-headed demon. ' 195 No matter what the remedy, a new county jail or prison expansion through capital planning, overcrowding is going to be a daily issue for prison administrators in Massachusetts."' Reality dictates that only so much money can be spent on prison expansion. Nevertheless, Massachusetts has been particularly ambitious in this regard." 9 The legislature has appropriated significant funds in an effort to keep pace with the overcrowding problem. 19 Despite spending large sums of money to increase the number of beds in the prison system, there has not been a positive impact on the crime rate." 9 Jails and prisons continue to be filled as fast as they are built. Coupled with the costs of building new facilities is the added yearly expense of staffing them. This dilemma leaves the legislative branch with the difficult choice between continued funding for prison expansion or for worthwhile social programs."ol B. Proposed Modifications Suitably Tailored to Changed Circumstances and the Remand Decisions If a party is successful in meeting its burden of proving a significant change in circumstances, the district court must then decide whether "the proposed modification is suitably tailored to the changed circumstances." ' There should not be any confusion with 195. Doris Sue Wong, Court Files Last Decree In Charles St. Jail Case, BOSTON GLOBE, November 7, 1990, at 57. Noting that inmate population had risen three percent in one decade, Chief Justice Liacos indicated that the overcrowding problem "[was] not likely to disappear soon." Id Toni LAcy, Weld Prison Plan Criticized On Cost, Concept Little Would Go To Minimum-Security, BOSTON GLOBE, April 29, 1993, at 26. The $565 million capital plan for prisons in Massachusetts calls for construction of 4,200 prison beds. Id Toni LAcy, Weld To Unveil Prison Plan At Hearing On Wednesday Seeks $565M To Ease Overcrowding And Squalor, BOSTON GLOBE, April 25, 1993, at 29. Former Governor Michael S. Dukakis instituted a $769 million capital plan to build new jails in response to the overcrowding crisis. Id Id Chris Reidy, Crime and Punishment: It Costs To Lock 'Em Up But Jailing May Not Pay, BOSTON GLOBE, June 27, 1993, at Id Id Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 763 (1992). The sheriff proposed the following modifications on remand. 1) during the day and evening two officers

26 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 respect to the following: 1. "modification must not create or perpetuate a constitutional violation";' 2. "proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor";' and 3. "the public interest and '[c]onsiderations based on the allocation of powers within our federal system' require that the district court defer to local government administrators, who have the 'primary responsibility for... solving' the problems of institutional reform, to resolve the intricacies of implementing a decree modification." In Rufo, the purpose of the consent decree was to cure a variety of unconstitutional conditions at Charles Street, only one of which was double-bunking.' The Supreme Court reasoned that to relieve the sheriff of the single-bunking requirement "based on changed conditions does not necessarily violate the basic purpose of the consent decree." ' This analysis is supported by the Court's decision in would be assigned to each modular unit and on the midnight to 8:00 a.m. shift a single officer would be assigned; 2) from the control room, an officer would monitor the cells in the modular unit visually and with the intercom system; 3) double-bunked detainees would remain out of their cells hours per day, locked in their cells 8.25 hours per day, and remain in their cells with the door unlocked 1 hour per day; 4) detainees would be doublebunked pursuant to the Suffolk County Jail Classification Program. Inmates of Suffolk County Jail v. Rufo, 148.R.D. 14, 18 (D. Mass. 1993). The Program would review the suitability of detainees for double-bunking based on the following criteria: booking room observations, interviews with social workers, medical history taken by on duty nurses, physical examinations taken by on duty doctors, and probation records. Id. Detainees would not be double-bunked if they had histories of assaultive behavior, were at risk of transmitting infectious diseases, were diagnosed as drug users or suffering from withdrawal, or had indications of mental illness or problems that would increase tensions in a double-bunk environment. Id Rufo, 112 S. CL at 763 (1992) Id. at Id. at 764 (1992) (quoting Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 248 (1991) (holding that a school district no longer requires court supervision for drafting and implementing policies after having been released from an injunction imposing a school desegregation plan) and Brown v. Board of Education, 349 U.S. 294, 299 (1955) (noting that although the district court stayed in control of the case, it was only until the objective of the litigation was achieved and thereafter, the matter was turned back over to the school system)) Id.; see also Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 678 (D. Mass. 1973) Rufo, 112 S. CL at 762.

27 1994] RUFO v. INMATES OF SUFFOLK COUNTY JAIL Bell v. Wolfish 23 which held that double-bunking does not rise to the level of a constitutional violation.' Therefore, if modification were permitted allowing the sheriff to double-bunk, a constitutional violation would not be created or perpetuated. The district court took a narrower view, holding that modifying any aspect of the consent decree would defeat the purpose of the entire decree. 210 Following the district court analysis, modification in the present case would never be permissible. Furthermore, the proposed modifications would not conform to the constitutional floor. 2 " The new facility at Nashua Street, at a cost of $54 million, is one of the most modem facilities of its kind in the country 1 It "includes a variety of functionally distinct spaces to meet the special needs of inmates and operate a correctionally sound pretrial detention facility." ' It contains none of the constitutional violations which spurred the litigation in Rufo Irrespective of the vastly improved conditions, the district court denied the sheriff's request without prejudice for modification of the consent decree in Inmates of Suffolk County Jail v. Rufo because the proposed modifications were not suitably tailored to the changed circumstances. 215 The main deficiencies in the sheriff's argument cited by the dis U.S. 520 (1979) Id Rule, 112 S. CL at See supra note 202 and accompanying text and infra notes 218, 219, regarding the sheriff's proposed modifications The conditions of confinement at Nashua Street are far superior to those at Charles Street. Nashua Street is comprised of modular units each containing 34 to 40 cells. Inmates of Suffolk County Jail v. Rufo, 148 F.R.D. 14, 17 (D. Mass. 1993). The modular units are designed to function independently from the rest of the jail. Id. They each have a common area which includes a day room, a multipurpose quiet room, an exercise area, attorney client meeting rooms, visiting rooms, and counseling rooms for use by caseworkers. Id. They also are equipped with laundry facilities and kitchenettes for serving meals prepared in the jail's main kitchen. Id. Also, for each two modular unit there is an outside recreation area. Id. In addition, Nashua Street also has cells for housing female detainees; administrative and disciplinary segregation cells; infirmary cells; psychiatric observation cells; suicide prevention cells; contact visiting areas; a law library and general library; and classroom space for use by detainees. See generally Record Appendix, Inmates of Suffolk County Jail v. Kearney, 915 F.2d 1557 (1st Cir. 1990) (providing a complete copy of the Architectural Program) Brief for Petitioner at 7, Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992) (No ) See Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 678 (D. Mass. 1973) F.R.D. 14 (D. Mass. 1993).

28 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 trict court on remand were: 1) the sheriff did not offer any alternative plans that would maintain the integrity of the consent decree; 2) the sheriff had not presented any basis for comparing the costs and benefits of physical modifications to Nashua Street against the costs and benefits of developing other facilities; and 3) participation in the decisionmaking by other responsible officials was not shown by the sheriff The sheriff appealed the district court decision, but agreed to stay the appeal pending resolution of a new motion to modify the consent decree. 17 In a revised motion, the sheriff requested that he be allowed to double-bunk male detainees in 161 of the 419 available cells. 218 Although the sheriff's proposed plan contained several flaws, the district court finally agreed to modify the consent decree but not to the extent the sheriff requested. 219 Instead of allowing double-bunking in 161 cells, the district court modified the consent decree by allowing double-bunking in 100 cells.' The order also required that the case 216. Id. at Inmates of Suffolk County Jail v. Rufo, 12 F.3d 286, 289 (lst Cir. 1993) Inmates of Suffolk County Jail v. Rufo, No REK (D. Mass. filed Jan. 25, 1994). Out of the 453 cells, 34 are used for housing female detainees. Id. Allowing the sheriff's motion would result in over 55% of the male detainees being double-bunked. Id. There would also be a 40% increase in the male population with no additional increases in facilities other than bunking. Id One flaw was that the revised plan did not adequately consider aspects of the consent decree other than single-bunking. Id. A second flaw was that the sheriff did not proffer an adequate basis for comparing the costs and benefits of physical modifications to Nashua Street with the costs and benefits of developing other facilities. Id. A third flaw was the failure to show that other responsible officials participated in the decisionmaking process. Id. The fourth flaw was in the amount of cells requested for double-bunking. Id. Although the average number of detainees in excess of cells was 82, the sheriff requested doublebunking in 161 cells. Inmates of Suffolk County Jail v. Rufo, No REK (D. Mass. filed January 25, 1994) The interlocutory order contained the following provisions: The Consent Decree of May 7, 1989 (as modified by the orders of April 11, 1985 and April 22, 1985) is further modified to the extent that, as long as no inmates other than Suffolk County pretrial detainees are assigned to the Nashua Street facility, the Sheriff (1) may alter up to 100 cells to permit double occupancy, and (2) may, at any given time, place two inmates in each of the altered cells to the extent necessary to have space within the Nashua Street facility for all Suffolk County pretrial detainees committed to the Sheriff's care. Id. at 12. It should be noted that Judge Keeton's interlocutory order also contained a provision that if there were not any submissions received prior to February 26, 1994, modification would be ordered. Id. at 20. Prior to that date, a motion for an order was filed by inmates

29 19941 RUFO v. INMATES OF SUFFOLK COUNTY JAIL remain open for five more years to address any potential violations that may result from modifying the consent decree. 2 ' The district court order followed the language offered by the Supreme Court in prior decisions addressing prison administration. The Court indicated that the issue of federalism 22 should be handled carefully where district courts are deeply involved in the administration of consent decrees. As early as 1974 in Procunier v. Martinezm the Court recognized that prison administration is indeed a complex business. The Court noted: "[Ihe problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of the government. For all those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism." ' This language has clear application to the facts of Rufo. Litigation in this case began in Certainly the district court did not envision such an involved role for itself at the outset of the lawsuit.' The various rulings of the Court have been applied in arenas other than prison reform litigation. The Court also addressed the federalism issue in the context of school desegregation in Board of Education v. Dowell.' In Dowell, the federal courts were overseeing a school desegregation order which was implemented to ensure that schools within the affected district were racially balanced.m The Tenth Circuit Court which would require the sheriff to provide additional information on assaultive behavior and infectious diseases. Inmates of Suffolk County Jail v. Rufo, No REK (D. Mass. filed Jan. 25, 1994) (Docket as of Mar. 30, 1994). At the time this article was completed, a decision had not been rendered on the motion Id "Term which includes interrelationships among the states and relationships between the states and the federal government" BLACK's LAW DICTIONARY 612 (6th ed. 1990) U.S. 396 (1974) Id. at The district court indicated that the present case, which has been pending for 22 years, has been consuming resources and time. Inmates of Suffolk County Jail v. Rufo, No REK (D. Mass. filed Jan. 25, 1994) U.S. 237 (1991) Id. at 241. See Dowell v. Board of Education, 338 F. Supp. 1256, afo'd, 465 F.2d

30 CRIMINAL AND CIVIL CONFINEMENT [Vol. 20:2 reversed the district court twice in refusing to terminate the desegregation order." The Supreme Court reversed the Tenth Circuit decision not to terminate the desegregation order. 9 Addressing federalism concerns, the Court indicated that to have the district court remain involved would improperly invade the discretion of state and local school officials resulting in conflicts with important "[c]onsiderations based on the allocation of powers within our federal system." ' The Court further stated that the decree imposed in Dowell was not designed to "operate in perpetuity."" Control over the education of children is properly in the hands of state and local officials who can ensure that school programs satisfy local needs." The message is clear that district courts should carefully consider the extent of their involvement in institutional reform litigation cases (10th Cir.), cert. denied, 409 U.S (1972) (eliminating state-imposed segregation and adopting plan to ensure racially balanced school system) Dowell, 338 F. Supp. at The district court had originally terminated the order in 1977 and the decision was not appealed. Dowell v. Board of Education, No. Civ-9452 (W.D. Okla., Jan. 18, 1977). A request to reopen the case by respondents on the basis that the school district was not racially balanced was refused by the district court. Dowell v. Board of Education, 606 F. Supp (W.D. Okla. 1985) (finding court order must end because integration of the school district had been achieved). The Court of Appeals reversed and remanded the case to the district court to see whether the desegregation order should be lifted or modified. Dowell v. Board of Education, 795 F.2d 1516, cert. denied, 479 U.S. 938 (1986) (noting nothing in the district court's order of 1977 terminated the original desegregation order of 1972). On remand, the district court found the desegregation plan unworkable and decided that the decree should be vacated and control of the school system returned to local officials. Dowell v. Board of Education, 677 F. Supp (W.D. Okla. 1987) (finding that demographic changes made the desegregation plan unworkable and that school district had complied in good faith with the court's orders for more than a decade). The Court of Appeals reversed again, holding that the desegregation order would remain in effect. Dowell v. Board of Education, 890 F.2d 1483 (10th Cir. 1989) (deciding rigid Swift standard must be satisfied before allowing modification of desegregation order). The School Board's petition for certiorari was then granted. Board of Education v. Dowel, 494 U.S (1990) Dowell, 498 U.S. at 244. The Court remanded the case to the district court to see whether two conditions had been satisfied. Id. at 249. First, whether responsible officials complied in good faith with the desegregation order;, and second, whether the constitutional wrong had been adequately remedied. Id. at The Court also rejected the Court of Appeals' application of the rigid Swift standard claiming it would "condemn a school district, once governed by a board which intentionally discriminated, to judicial tutelage for the indefinite future. Neither the principles governing the entry and dissolution of injunctive decrees, nor the commands of the Equal Protection Clause of the Fourteenth Amendment, require any such Draconian result." Id. at 246, 249. See supra note 9 for standard articulated in United States v. Swift & Co Dowell, 498 U.S. at Id Id.

31 1994] RUFO v. 1NMATES OF SUFFOLK COUNTY JAIL In decisions dealing with prison conditions, the Court has repeatedly stated that federal courts must act accordingly where administrative discretion is properly reserved for state and local officials. 3 V. CONCLUSION The Rufo case represents the need for balance when administering consent decrees in institutional reform litigation. Due to the very nature of the litigation, consent decrees more often than not remain in effect for long periods of time. A balance must be struck between the parties entering the decrees and the court's leveling hand which ultimately oversees their implementation. The consent decree in the present case was entered in It was the result of unconstitutional conditions permeating the Charles Street Jail over twenty years ago. In the intervening years there have been many changes. Most significantly, a new state-of-the-art facility, the Nashua Street Jail, has replaced the Charles Street Jail. The squalid conditions that inmates were forced to endure at Charles Street no longer exist. The terms of "the consent decree, however, have endured. As a result, the sheriff was repeatedly forced to do what rapidly became a losing proposition. Due to the single-bunking provision of the consent decree, he had to transfer detainees in his custody to facilities throughout the Commonwealth. Ironically, those detainees often wound up in facilities where they were double-bunked, triplebunked, or sometimes bunked in hallways. In the event that there were no spaces available at these institutions due to their own overcrowding problems, the only alternative was to release certain detainees back into the community. Over the years, admirable efforts have been made to keep pace with the overcrowding dilemma See, e.g., Thomburgh v. Abbott, 490 U.S. 401, (1989) (acknowledging the expertise of prison officials and that the judicial branch is not equipped to deal with prison management); Turner v. Safley, 482 U.S. 78, (1987) (recognizing that running a prison is a massively difficult undertaking requiring the commitment of resources that are within the province of the executive and legislative branches thus requiring judicial restraint); Rhodes v. Chapman, 452 U.S. 337, 351 n.16, 352 (1981) (recognizing that problems in American prisons are complex and not easily resolved by judicial decree); Bell v. Wolfish, 441 U.S. 520, n.23, 547 n.29 (1979) (agreeing that courts should give way to prison administrators because courts are simply not prepared to deal with the problems inherent in running a prison on a daily basis); Preiser v. Rodriguez, 411 U.S. 475, 492 (1973) (noting that states have an interest in not being bypassed in the handling of prison problems as they involve problems peculiarly within state authority and expertise).