Suffolk County Jail v. Commonwealth of MA ( 1993 )


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  • USCA1 Opinion












    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 93-1460

    INMATES OF THE SUFFOLK COUNTY JAIL, ET AL.,

    Plaintiffs, Appellees,

    v.

    ROBERT RUFO, SHERIFF OF SUFFOLK COUNTY, ET AL.,

    Defendants, Appellants.

    __________

    COMMONWEALTH OF MASSACHUSETTS, ET AL.,

    Defendants, Appellants.
    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Robert E. Keeton, U.S. District Judge]
    ___________________

    ____________________

    Before

    Torruella, Circuit Judge,
    _____________

    Campbell, Senior Circuit Judge,
    ____________________

    and Boudin, Circuit Judge.
    _____________

    ____________________

    Douglas H. Wilkins, Assistant Attorney General, with whom Scott
    ___________________ _____
    Harshbarger, Attorney General, and Thomas O. Bean, Assistant Attorney
    ___________ ______________
    General, were on brief for appellants.
    Max D. Stern with whom Lynn Weissberg and Stern, Shapiro,
    ______________ _______________ ________________
    Rosenfeld & Weissberg were on brief for appellees.
    _____________________

    ____________________

    December 21, 1993
    ____________________















    CAMPBELL, Senior Circuit Judge. The Commissioner
    _____________________

    of Corrections for the Commonwealth of Massachusetts (the

    "Commissioner"), defendant-appellant, brought a motion in the

    United States District Court for the District of

    Massachusetts to vacate a consent decree of May 7, 1979 (as

    modified by the orders of April 11, 1985, and April 22,

    1985)1 entered into by the Sheriff of Suffolk County (the

    "Sheriff"), the Commissioner, and others with the inmates of

    the Suffolk County Jail (the "Inmates"),2 the plaintiff-

    appellee class. The district court denied the Commissioner's

    motion. Inmates of the Suffolk County Jail v. Rufo, 148
    _____________________________________ ____

    F.R.D. 14 (D. Mass. 1993). The Commissioner appeals,

    arguing, inter alia, that the district court mistakenly
    __________

    treated his motion to vacate as if it were a motion to modify

    the consent decree. We affirm.

    I.

    This appeal is part of an ongoing saga involving

    the construction and the operation of the new Suffolk County

    Jail on Nashua Street in Boston, Massachusetts (the "Nashua

    Street Jail"), which replaced the old Suffolk County Jail on

    Charles Street (the "Charles Street Jail"). The early


    ____________________

    1. A copy of the original consent decree is included as an
    appendix to this Opinion.

    2. The Inmates are those individuals, male and female, in
    the custody of the Sheriff of Suffolk County, who are
    awaiting trial on criminal charges, and who have either been
    denied bail or who are unable or unwilling to post bail.

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    chapters of this drama, which began in 1971, need not be

    repeated. They are fully set out in published opinions.

    See, e.g., Inmates of the Suffolk County Jail v. Kearney, 928
    ___ ____ __________________________________ _______

    F.2d 33 (1st Cir. 1992); Inmates of the Suffolk County Jail
    ___________________________________

    v. Rufo, 148 F.R.D. 14 (D. Mass. 1993); Inmates of the
    ____ _______________

    Suffolk County Jail v. Kearney, 734 F. Supp. 561 (D. Mass.),
    ___________________ _______

    aff'd mem., 915 F.2d 1557 (1st Cir. 1990), vacated, Rufo v.
    __________ _______ ____

    Inmates of the Suffolk County Jail, ___ U.S. ___, 112 S. Ct.
    __________________________________

    748, 116 L. Ed. 2d 867 (1992); Inmates of the Suffolk County
    ______________________________

    Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff'd,
    ____ __________ _____

    494 F.2d 1196 (1st Cir.), cert. denied, 419 U.S. 977, 95 S.
    ____________

    Ct. 239, 42 L. Ed. 2d 189 (1974). We pick up the story in

    July 1989, approximately ten years after the consent decree

    was entered.

    "In July 1989, while the [Nashua Street Jail] was

    still under construction, the [S]heriff moved to modify the

    consent decree to allow the double bunking of male detainees

    in 197 cells, thereby raising the capacity of the [Nashua

    Street Jail] to 610 male detainees."3 Rufo v. Inmates of
    ____ __________


    ____________________

    3. The Sheriff's motion was brought pursuant to Fed. R. Civ.
    P. 60(b)(5) and (6), which state:

    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 upon which it is
    based has been reversed or otherwise vacated, or it
    is no longer equitable that the judgment should

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    the Suffolk County Jail, ___ U.S. ___, ___, 112 S. Ct. 748,
    ________________________

    756, 116 L. Ed. 2d 867 (1992). "The Sheriff argued that

    changes in law and fact [constituted new and unforeseen

    circumstances that] justified the modification." Rufo, 148
    ____

    F.R.D. at 16. "The asserted change in law was [the Supreme

    Court's] 1979 decision in Bell v. Wolfish, 441 U.S. 520, 99
    ____ _______

    S. Ct. 1861, 60 L. Ed. 2d 447 (1979), handed down [shortly]

    after the consent decree was approved by the District

    Court.4 The asserted change in fact was the increase in the

    population of pretrial detainees." Rufo, 112 S. Ct. at 756
    ____

    (footnote not in original).

    The district court denied the Sheriff's request to

    modify the consent decree. Inmates of the Suffolk County
    _______________________________

    Jail v. Kearney, 734 F. Supp. 561 (D. Mass.), aff'd mem., 915
    ____ _______ __________


    ____________________

    have prospective application; or (6) any other
    reason justifying relief from the operation of the
    judgment.

    The district court found that the Sheriff relied initially on
    the provision of Fed. R. Civ. P. 60(b)(5) that authorizes the
    modification of a judgment if "it is no longer equitable that
    the judgment should have prospective application." According
    to the district court, "[t]his portion of the rule codifies
    the standard set out in United States v. Swift & Co., 286
    _____________ ____________
    U.S. 106, 119, 52 S. Ct. 460, 464, 76 L. Ed. 999 (1932),
    which dealt with a court's inherent power to modify."
    Kearney, 734 F. Supp. at 563. In Swift, the Supreme Court
    _______ _____
    held that "[n]othing less than a clear showing of grievous
    wrong evoked by new and unforeseen conditions should lead us
    to change what was decreed after years of litigation with the
    consent of all concerned." Swift, 286 U.S. at 119.
    _____

    4. "In Bell, the [Supreme Court] held that double-bunking
    ____
    was not in all circumstances unconstitutional." Rufo, 148
    ____
    F.R.D. at 16.

    -4-















    F.2d 1557 (1st Cir. 1990). It held that the Sheriff had

    failed to meet the standard for the modification of consent

    decrees imposed by United States v. Swift & Co., 286 U.S.
    ______________ ____________

    106, 119, 52 S. Ct. 460, 464, 76 L. Ed. 999 (1932).5 The

    district court also "stated that, even under the flexible

    modification standard adopted by other Courts of Appeals, the

    [S]heriff 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.'" Rufo, 112 S. Ct. at 756-57
    ____

    (quoting Kearney, 734 F. Supp. at 565) (footnote omitted).
    _______

    As a final matter, the district court "rejected the 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.'" Id. at 757 (quoting Kearney, 734 F.
    ___ _______

    Supp. at 565).

    This court affirmed the district court's decision.

    Inmates of the Suffolk County Jail v. Kearney, 915 F.2d 1557
    ___________________________________ _______

    (1st Cir. 1990). Thereafter, the Supreme Court granted

    certiorari, 498 U.S. 1081, 111 S. Ct. 950, 112 L. Ed. 2d 1039

    (1991), and, after hearing, vacated the decision below and

    remanded for further proceedings consistent with its opinion.

    Rufo, 112 S. Ct. at 765. The Supreme Court ruled that the
    ____


    ____________________

    5. For a description of this standard, see supra note 3.
    _____

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    district court had erred in applying the rigid "grievous

    wrong" standard of United States v. Swift to the Sheriff's
    _____________ _____

    motion to modify the consent decree. Id. at 757-58 (holding
    ___

    that Fed. R. Civ. P. 60(b) does not intend that

    "modifications of consent decrees in all cases [are] to be

    governed by the standard actually applied in Swift . . . [but
    _____

    rather] permits a less stringent, more flexible standard").

    The Court observed that "[t]he experience of the district and

    circuit courts in implementing and modifying such decrees has

    demonstrated that a flexible approach is often essential to

    achieving the goals of [institutional] reform litigation."

    Id. at 758. Against this backdrop, the Court held that "a
    ___

    party seeking modification of a consent decree bears the

    [initial] burden of establishing that a significant change in

    circumstances warrants revision of the decree." Id. at 760.
    ___

    To meet this initial burden, a party seeking modification of

    an institutional reform consent decree may show "either a

    significant change in factual conditions or in law." Id.
    ___

    Once the party seeking modification meets this standard, "the

    court should consider whether the proposed modification is

    suitably tailored to the changed circumstance."6 Id.
    ___




    ____________________

    6. The standard announced by the Rufo Court applies only to
    ____
    motions to modify institutional reform consent decrees. The
    ______
    Court did not have before it the "question [of] whether [in
    whole or in part] the . . . decree should be vacated." Rufo,
    _______ ____
    112 S. Ct. at 763 n.12 (emphasis added).

    -6-















    On remand, the district court reconsidered the

    Sheriff's motion to modify the consent decree to permit the

    double-bunking of inmates in 197 of the 322 regular male

    housing cells at the Nashua Street Jail. The court also

    considered two other motions filed after the case was

    remanded, one of which was the Commissioner's present motion

    to vacate the consent decree altogether.7 See Rufo, 148
    ___ ____

    F.R.D. at 15. The district court denied all three motions.

    The district court explained its denial of the

    Sheriff's motion for modification to allow double-bunking of

    pretrial detainees at the Nashua Street Jail in a

    comprehensive opinion, concluding that "the Sheriff's

    proposed modification [was] not suitably tailored to changed

    circumstances shown by the record." Id. at 24. According to
    ___

    the district court, the Sheriff had not "made [a] showing of

    reasoned exploration of other feasible alternatives that

    would maintain rather than impair the integrity of the

    consent decree." Id. Nevertheless, the district court ruled
    ___

    that, "[t]hough [it] ha[d] rejected the Sheriff's request to

    double-bunk, . . . it does not follow that no acceptable

    alternative could be fashioned for a modified use of the

    Nashua Street facility in a way that would meet the


    ____________________

    7. The third motion was a "motion of the Sheriff to modify
    the consent decree to hold up to forty Suffolk County female
    pretrial detainees at the Suffolk County House of Correction
    at South Bay, Boston, Massachusetts." Rufo, 148 F.R.D. at
    ____
    15.

    -7-















    objectives of the consent decree, including protection

    against abuse and undue risk of contagion." Id. Therefore,
    ___

    the district court did "not foreclose consideration of

    another proposal submitted promptly, with evidentiary support

    that justifies a finding that it is suitably tailored to

    changes in circumstances, beyond the control of the

    defendants after due effort, from the circumstances existing

    when the decree was entered (or from circumstances existing

    when it was modified)." Id. The Sheriff appealed from the
    ___

    district court's denial of his two motions, but agreed to

    stay his appeal pending further proceedings on a new motion

    to modify filed in the district court. We were told at

    argument that proceedings regarding this motion are in

    progress in the district court.

    In explaining its denial of the Commissioner's

    separate motion to vacate the consent decree, the district

    court began by stating that the Commissioner did not support

    the Sheriff's proposal for modification because the

    Commissioner felt that "the plan would require unnecessary

    judicial involvement in the day-to-day administration of the

    jail." Id. at 23. The district court noted that the
    ___

    Commissioner objected to being forced by orders in this case

    to accept from the Sheriff the overflow from the Nashua

    Street Jail. The district court went on to say:

    Rather than submitting his own plan
    for modification, . . . the Commissioner


    -8-















    challenges the consent decree and this
    court's jurisdiction over the case,
    arguing that it is no longer equitable
    for the consent decree to have
    prospective effect. . . .

    * * *

    The Commissioner's proposed way of
    avoiding undue involvement of the court
    in day-to-day implementation of the
    consent decree is an unacceptable
    extreme simply let the Sheriff have
    unfettered discretion to order double-
    bunking without any constraints or
    limitations as to criteria regarding
    associated conditions of confinement.
    The Commissioner contends not only that
    the court should not require that single-
    bunking be maintained but also that the
    court should not require that any other
    safeguards be instituted in lieu of
    single-bunking to carry out the
    objectives of the decree as fashioned by
    consent. This hard-line approach is
    plainly incompatible with this court's
    obligation, under the order of remand, to
    consider whether any proposed
    modification of the consent decree is
    suitably tailored to changed
    circumstances. The Commissioner of
    Corrections' position must be rejected.
    His motion, accordingly, is denied.

    Id.
    ___

    II.

    On appeal, the Commissioner argues that the

    district court applied the wrong legal standard when ruling

    on his motion to vacate the consent decree. The Commissioner

    asserts that the district court mistakenly applied the

    Supreme Court's Rufo standard, which he says relates only to
    ____

    motions to modify, not to vacate, institutional reform
    ______ ______



    -9-















    consent decrees. According to the Commissioner, a district

    court that rules upon a motion to vacate an institutional

    reform consent decree must consider only whether the

    defendants are in present compliance with constitutional

    requirements and whether the effects of the original

    violation have abated. Maintaining that these conditions

    have been met, the Commissioner contends that the district

    court erred in refusing to vacate the decree, and he seeks a

    remand so that the court can reconsider the issue.

    Although we agree with the Commissioner that

    motions to vacate consent decrees and motions to modify them

    involve somewhat different analytical frameworks, we find the

    Commissioner's proposed standard inadequate. We also think

    that, whatever the weaknesses of its stated rationale, the

    lower court properly declined to vacate the consent decree

    under the present circumstances and at the present time.

    III.

    As an initial matter, "[w]e note that [describing]

    the appropriate legal standard [to be applied by district

    courts to motions to vacate institutional reform consent

    decrees] presents a pure question of law, subject to de novo
    _______

    review." Societe des Produits Nestle, S.A. v. Casa
    ____________________________________ ____

    Helvetia, Inc., 982 F.2d 633, 642 n.9 (1st Cir. 1992); see,
    ______________ ___

    e.g., Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st Cir.
    ____ _______ ____________

    1992). Moreover, even should we find that the district court



    -10-















    applied an incorrect legal standard to the Commissioner's

    motion to vacate the consent decree, we may, in appropriate

    circumstances, affirm the district court's denial of the

    Commissioner's motion if we are satisfied that the district

    court's decision was correct. See, e.g., Knight v. Mills,
    ___ ____ ______ _____

    836 F.2d 659, 661 n.3 (1st Cir. 1987) ("It is proper for an

    appellate court to affirm a correct decision of a lower court
    _______

    even when that decision is based on an inappropriate ground."

    (emphasis in original)). In determining the propriety of the

    district court's decision, we may affirm on any independently

    sufficient ground supported by the record, see Willhauck v.
    ___ _________

    Halpin, 953 F.2d 689, 704 (1st Cir. 1991), and we review the
    ______

    district court's resolution of mixed questions of law and

    fact under a clearly erroneous standard, United States v.
    _____________

    Rule Indus., 878 F.2d 535, 542 n.7 (1st Cir. 1989).
    ___________

    IV.

    In Board of Education v. Dowell, 498 U.S. 237, 111
    ___________________ ______

    S. Ct. 630, 112 L. Ed. 2d 715 (1991), and more recently in

    Freeman v. Pitts, ___ U.S. ___, 112 S. Ct. 1430, 118 L. Ed.
    _______ _____

    2d 108 (1992), the United States Supreme Court described the

    standard for district courts to apply when deciding whether

    to dissolve injunctive orders previously entered in school

    desegregation cases. While the desegregation cases have a

    special history and context all their own, many of the same

    considerations would appear to be relevant to other types of



    -11-















    institutional reform litigation. This circuit has cited to

    Dowell's principles in cases involving consent decrees
    ______

    pertaining to conditions at correctional facilities and to

    the treatment of mentally ill or retarded persons. See,
    ___

    e.g., In re Pearson, 990 F.2d 653 (1st Cir. 1993) (petitioner
    ____ _____________

    sought writ of mandamus to halt the district court's efforts

    to evaluate, by the appointment of a special master, the

    continuing need for, or the possible modification of, consent

    decrees affecting the operation of a state institution, the

    Massachusetts Treatment Center for Sexually Dangerous

    Persons); Consumer Advisory Bd. v. Glover, 989 F.2d 65 (1st
    ______________________ ______

    Cir. 1993) (Consumer Advisory Board and a group of residents

    and outpatients of Pineland Center, a state institution for

    the mentally retarded, brought action on behalf of Center

    residents and outpatients against the Commissioner of Mental

    Health and other state officials, seeking enforcement of

    rights created under a 1978 consent decree).

    In Dowell, the Supreme Court stated that
    ______

    desegregation decrees should not exist forever. See Dowell,
    ___ ______

    498 U.S. at 248 ("[I]njunctions entered in school

    desegregation cases . . . are not intended to operate in

    perpetuity."). This circuit has invoked this principle in

    other kinds of institutional reform cases. See Pearson, 990
    ___ _______

    F.2d at 658 ("In institutional reform litigation, injunctions

    should not operate inviolate in perpetuity."); Glover, 989
    ______



    -12-















    F.2d at 68 ("[I]nstitutional reform decrees need not endure

    forever."). In all types of institutional reform litigation,

    federalism concerns dictate that any "intrusion by a federal

    court into the affairs of local government should be kept to

    a bare minimum and not be allowed to continue after the

    violation has abated and its pernicious effects have been

    cured." Mackin v. City of Boston, 969 F.2d 1273, 1276 (1st
    ______ _______________

    Cir. 1992), cert. denied, 113 S. Ct. 1043, 122 L. Ed. 2d 352
    _____________

    (1993).

    In Dowell, 498 U.S. at 247, 249-50, as supplemented
    ______

    by Freeman, 112 S. Ct. at 1446, the Supreme Court indicated
    _______

    that there are two conditions that must be met before a

    district court is essentially obliged to terminate a

    litigated decree and return the institution or programs under

    court supervision to the governance of state or local

    authorities.

    First, the district court must determine that the underlying

    constitutional wrong has been remedied, either fully or to

    the full extent now deemed practicable. See Dowell, 498 U.S.
    ___ ______

    at 247, 249-50; Glover, 989 F.2d at 69. Second, there must
    ______

    be a determination that the authorities have complied with

    the decree in good faith for a reasonable period of time

    since it was entered. See Freeman, 112 S. Ct. at 1446;
    ___ _______

    Dowell, 498 U.S. at 249-50.
    ______





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    Implicit in these requirements is the need for the

    district court, before terminating the decree entirely, to be

    satisfied that there is relatively little or no likelihood

    that the original constitutional violation will promptly be

    repeated when the decree is lifted. See Dowell, 498 U.S. at
    ___ ______

    247 ("[A] finding . . . that the Oklahoma City School

    District was being operated in compliance with the commands

    of the Equal Protection Clause of the Fourteenth Amendment,

    and that it was unlikely that the Board would return to its
    _____________________________________________________________

    former ways, would be a finding that the purposes of the
    ____________

    desegregation litigation had been fully achieved." (emphasis

    added)). Whether authorities are likely to return to former

    ways once the decree is dissolved may be assessed by

    considering "[t]he defendants' past record of compliance and

    their present attitudes toward the reforms mandated by the

    decree." Lloyd C. Anderson, Release and Resumption of
    ____________________________

    Jurisdiction Over Consent Decrees in Structural Reform
    _____________________________________________________________

    Litigation, 42 U. Miami L. Rev. 401, 411 (1987) (citing
    __________

    Morgan v. McDonough, 689 F.2d 265, 280 (1st Cir. 1982)). Of
    ______ _________

    possible further relevance is the way that demographic,

    economic, and political forces may be expected to influence

    local authorities and the institution once the shelter of the

    decree has been lost.

    Obviously, there can be no perfect certainty that

    the original constitutional violation will not be repeated.



    -14-















    No one can demand such an assurance too far into the future.

    But it would be a travesty of the two requirements just

    stated that the violation be eliminated and that the

    officials have shown their commitment to obey the law if a

    decree could be terminated in the face of substantial

    evidence that the same underlying violation would then be

    resumed.

    These general statements leave many questions

    unanswered. One, as already mentioned, is the extent to

    which they can be extended from the school desegregation

    cases, in which the statements were made, to all other

    institutional reform decrees including those involving

    prisons. Our tentative view, as said, is that they probably

    can be so extended, although the point need not be decided

    definitively. Another question, perhaps more perplexing, is

    whether there ought to be any difference in treatment between

    a litigated decree and a consent decree when it comes to

    standards for termination; arguments can be made on both

    sides and, again, we need not definitely resolve the

    question. Finally, there is the question of whether and to

    what extent the "extra" remedial protections of the decree,

    at least if embodied in a bargained-for consent decree, ought

    to remain relevant when the underlying federal violations

    have entirely ceased and are not likely to recur. As with





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    the others, there are plausible arguments on both sides of

    this question.8

    We see no need, however, to resolve these issues at

    this time. For purposes of the present appeal, it is enough

    to assume arguendo that the proper standard for decree
    ________

    termination is the one most favorable to the Commissioner

    that we can imagine being adopted by the Supreme Court. On

    this view of the law, the Commissioner would arguably be

    entitled to termination of the decree if the Commissioner

    could show: that the federal violations of the type that

    provoked the original action have been entirely remedied or

    remedied to the full extent feasible;9 that a reasonable


    ____________________

    8. The plaintiffs, for instance, argue that the purposes and
    requirements of the consent decree continue to deserve weight
    ______________
    even if it is assumed that a defendant has come into
    compliance with the bedrock obligations imposed by the
    Constitution. Thus, the plaintiffs would argue that the
    Commissioner's and the Sheriff's announced intention to
    abandon single-celling a requirement of the consent decree
    but not necessarily of the Constitution is enough to
    demonstrate that the time is not yet ripe to vacate the
    decree. The Supreme Court's decision in Rufo itself lends
    ____
    some support to the plaintiffs' position in this regard,
    where the issue before the court was the proposed
    modification of a consent decree, a proposal that may well be
    ____________
    made even when the ongoing constitutional violations have not
    been entirely extirpated. See Rufo, 112 S. Ct. at 762-64.
    ___ ____

    9. The Commissioner asserts, and there appears to be no
    dispute, that the Nashua Street Jail, constructed in
    accordance with the decree, presently meets constitutional
    standards and has done so since it opened in May of 1990.
    The district court found that "[t]he Nashua Street [J]ail is
    a modern, seven-story structure of steel, concrete, and brick
    construction. It provides conditions of confinement far
    superior to those at the former Charles Street Jail, which
    had been determined to be below constitutionally mandated

    -16-















    period of time has passed during which such compliance has

    been achieved;10 and that it is unlikely that the original

    violations will soon be resumed if the decree were

    discontinued. Under this standard (a view we neither adopt

    nor reject), the Commissioner on this record has not made a

    showing adequate to oblige the district court to terminate

    the decree.

    Unlike the standard just described, the

    Commissioner's proposed formula for vacating the consent

    decree which we find too restrictive by any measure

    assumes that the district court is obliged to terminate

    whenever the existing constitutional violation has ceased.

    This approach gives insufficient weight to the problem of

    recurrence. To the extent that recurrence is taken into

    account, the Commissioner brushes the issue aside by

    proclaiming that the Supreme Court has made clear that

    double-celling is not a constitutional violation even for

    pretrial detainees. There are a number of flaws in his

    analysis.

    We accept entirely the proposition, established by

    the Supreme Court, that double-celling is not automatically



    ____________________

    standards." Rufo, 148 F.R.D. at 17.
    ____

    10. The consent decree was entered in 1979, and was modified
    in 1985. The Commissioner's motion to vacate was filed in
    April of 1992, nearly two years after the Nashua Street Jail
    was opened to receive prisoners.

    -17-















    unconstitutional for pretrial detainees. See Bell v.
    ___ ____

    Wolfish, 441 U.S. 520 (1979); see also Rhodes v. Chapman, 452
    _______ ________ ______ _______

    U.S. 337 (1981) (similarly as to convicted prisoners). But

    this is a far cry from the implicit position of the

    Commissioner that whatever double-celling may be contemplated

    by the Sheriff in the foreseeable future at the Nashua Street

    Jail is therefore clearly constitutional. We may assume that

    the housing of two detainees in a cell providing a large

    amount of space, with appropriate security measures to

    protect against inmate assaults, would be constitutional; but

    we think it obviously apparent that double-celling in very

    small quarters, with lack of security against assaults, and

    possibly other threats (e.g., disease) could violate due
    ____

    process. And it is far from clear on the record before us

    that the immediate plans proposed by the Sheriff are

    constitutional, let alone any prospective next steps that

    might follow from the complete vacation of the consent

    decree.

    Looking only to the immediate future, we have here

    a prison facility that was expressly constructed under the

    consent decree on the assumption that it would house only one

    detainee per room unit. The size and security arrangements

    were specifically designed with that in mind, and certain of

    the "amenities," such as the use of a solid door with the

    small peep hold instead of bars, may increase the risk that



    -18-















    assaults on inmates would go undetected (double-celling

    resumed). Moreover, the rooms just meet the minima for

    single occupancy that are recommended by standard setting

    agencies.11 The district court also made findings that the

    risk of tuberculosis spreading in these close quarters, if

    double-celling were permitted, is a factor of importance.

    This is not to say that the Sheriff's double-celling plans

    for the Nashua Street Jail, or others that are proposed, may

    not yet be found constitutional. We say merely that whether

    they will be constitutional remains currently undecided

    and the answer is pivotal to whether vacating the decree will

    result in a recurrence of unconstitutional conditions, given

    that both the Commissioner and Sheriff are committed to

    double-celling unless otherwise ordered.

    Other longer term prospects of vacating the decree

    also give us pause. Even if the district court were to find

    that modification of the decree to accept the Sheriff's



    ____________________

    11. The court below found that:

    The present cells in the Nashua Street Jail
    were explicitly designed for single-bunking. They
    are slightly smaller in area than the cells in the
    old Charles Street facility. The contemporaneous
    views of expert consultants who participated in
    recommendations for design of the Nashua Street
    facility were that cells of this size were
    acceptable only because they were meant for single
    occupancy.

    Rufo, 148 R.F.D. at 21; see also Rufo, 112 S. Ct. at 755 n.3
    ____ ________ ____
    (listing state and national design standards).

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    proposed double-celling arrangements in certain cells

    satisfies constitutional minimums, it is by no means clear

    that the district court would also find that there is no

    likelihood that unconstitutional crowding would occur if the

    decree were entirely terminated. As we have said, even on

    the reading of the law that we think most favorable to the

    Commissioner, the district court would hardly be obliged to

    terminate the decree if it had substantial reason to fear

    that the constitutional conditions would be recreated soon

    after judicial oversight had been eliminated.

    It is a notorious fact that prisons are now

    desperately crowded and that the willingness of legislatures

    to fund new prison construction is limited by competing

    social needs and public resistance to increased taxes.

    Without knowing far more than this record reveals about the

    likelihood that the Sheriff would be in a position to resist

    such unconstitutional overcrowding, it is hardly possible to

    make a clear determination that the Dowell standard could be
    ______

    satisfied in this case.

    One further consideration bears on our sense that

    the district court was entitled, at this stage, not to order

    termination of the decree. The district court did not wholly

    foreclose the possibility of double-celling; to the contrary,

    it invited the Sheriff, who is not a party to this appeal, to

    make a further showing with respect to his own double-celling



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    plans and alternatives to them. The Sheriff has made clear

    that he intends to do so.12 It appears certain that in

    such a proceeding further light would be cast on the impact

    of the Sheriff's proposal on the lives and conditions of the

    detainees.

    It seems to us that, where the constitutional

    status of the proposal is uncertain, the district court could

    reasonably consider first the lesser remedy of decree

    modification before definitively deciding whether the decree

    should be irreversibly terminated. A decision by the

    district court to allow some double-celling might satisfy the

    Commissioner despite his doctrinal objections to continued

    court supervision; but far more important, the district court

    could conclude on a more careful look at the Sheriff's

    embellished proposal that it would produce

    unconstitutional conditions, a conclusion that would provide
    ________________

    an a fortiori basis for refusing to terminate the decree.
    __________

    After all, if the Sheriff by his own admission is planning to

    introduce changes that the district court finds recreate the

    unconstitutional crowding violation, then one can hardly say

    that future violations are unlikely.


    ____________________

    12. The Commissioner is involved in this litigation not
    because he manages the Nashua Street Jail (that is the
    Sheriff's responsibility), but because he must assist the
    Sheriff in lodging surplus pretrial detainees who cannot be
    accommodated at the Nashua Street Jail. See Inmates of the
    ___ ______________
    Suffolk County Jail v. Eisenstadt, 494 F.2d 1196 (1st Cir.
    ____________________ __________
    1974).

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    We recognize that the district court's reasons for

    refusing to terminate may be based on a reading of a

    governing law that is quite different from the arguendo
    ________

    position we have described as the most favorable that the

    Commissioner could achieve. It could have been the district

    court's view that the termination was improper merely because

    it would frustrate an important object of the original decree

    single-celling or because the kind of considerations

    pertinent to decree modification (e.g., exploration of other
    ____

    alternatives, financial stringency) have not been shown to

    favor the Commissioner. Still, we see no reason to grapple

    either with these matters or with related unsettled questions

    of governing law where, as here, the immediate outcome in the

    ongoing case appears to us correct and the issues that we

    leave to another day are difficult ones not clearly settled

    by Supreme Court precedent.

    Accordingly, whatever the district court may have

    intended, our affirmance of the court's refusal to terminate

    rests upon and is limited to the grounds we have just

    discussed: first, the absence of an adequate record to

    justify a complete decree termination at this time; and,

    second, the prospect of further proceedings in which

    additional light may be shed, not only on the basis for

    decree modification but also on issues that would clearly

    bear upon the decree's termination. On this basis, and with



    -22-















    these clarifications, we affirm the judgment of the district

    court.

    So ordered.
    __________















































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