King v. Class of 48 + 1 ( 1997 )


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  •               United States Court of Appeals
    For the First Circuit
    Nos. 95-1812
    97-1278
    MITCHELL G. KING, ET AL.,
    Plaintiffs, Appellees,
    v.
    MILTON GREENBLATT, M.D.,
    COMMISSION OF THE DEPARTMENT OF MENTAL HEALTH FOR THE
    COMMONWEALTH OF MASSACHUSETTS, ET AL.,
    Defendants, Appellees.
    CLASS OF 48 + 1 AND DONALD PEARSON, ET AL.,
    Plaintiffs, Appellants.
    No. 95-1813
    HAROLD G. WILLIAMS, M.D.,
    COMMISSION OF THE DEPARTMENT OF MENTAL HEALTH FOR THE
    COMMONWEALTH OF MASSACHUSETTS, ET AL.
    Plaintiffs, Appellees,
    v.
    MICHAEL LESIAK, ET AL.,
    Defendants, Appellees.
    NORMAN KNIGHT,
    Plaintiff, Appellant.
    No. 96-1649
    HAROLD G. WILLIAMS, ET AL.,
    Plaintiffs, Appellees,
    v.
    MICHAEL LESIAK, ET AL.,
    Defendants, Appellees.
    SHERMAN MILLER, PATTON FLANNERY, DAVID M. MARTEL,
    EDWARD NADEAU, MICHAEL WOODWARD, EDWARD GALLAGHER,
    JAMES LEBLANC AND PHILIP PIZZO,
    Appellants.
    No. 97-1021
    MITCHELL G. KING, ET AL.,
    Plaintiffs, Appellees,
    v.
    MILTON GREENBLATT, M.D.,
    COMMISSION OF THE DEPARTMENT OF MENTAL HEALTH FOR THE
    COMMONWEALTH OF MASSACHUSETTS, ET AL.,
    Defendants, Appellees.
    CLASS OF 48 + 1 AND DONALD PEARSON, ET AL.
    AND SHERMAN MILLER, ET AL.,
    Plaintiffs, Appellants.
    No. 97-1057
    HAROLD G. WILLIAMS, ET AL.,
    Plaintiffs, Appellees,
    v.
    MICHAEL LESIAK, ET AL.,
    Defendants, Appellees.
    SHERMAN MILLER, DAVID M. MARTEL, EDWARD NADEAU,
    MICHAEL WOODWARD, EDWARD GALLAGHER AND
    JAMES LEBLANC.
    Appellants.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. A. David Mazzone, Senior U.S. District Judge]
    Before
    Selya, Circuit Judge,
    Coffin and Campbell, Senior Circuit Judges.
    Anthony A. Scibelli with whom Robert D. Keefe, David R. Geiger,
    Jeffrey S. Follett, Charles Donelan, and Jonathan I. Handler were
    on brief for appellants Class of 48 + 1 and Donald Pearson and
    Sherman Miller, et al.
    Jeffrey S. Follett with whom David R. Geiger was on brief for
    appellants Pearson, et al.
    Charles Donelan for appellants Sherman Miller, et al.
    William L. Pardee, Assistant Attorney General, with whom Scott
    Harshbarger, Attorney General of Massachusetts, and Leo Sorokin,
    Assistant Attorney General, were on brief for appellees.
    James R. Pingeon and Beth Eisenberg on brief for the Center for
    Public Representation, amicus curiae.
    July 7, 1998
    COFFIN, Senior Circuit Judge.  This opinion is a continuation
    of King v. Greenblatt ("King II"), 
    127 F.3d 190
    (1st Cir. 1997),
    which is the latest judicial discussion in a group of cases dating
    back to 1972, concerning a resident population of civilly committed
    sexually dangerous persons in the Treatment Center at the
    Massachusetts Correctional Institute in Bridgewater, Massachusetts
    (Center).  A reference to prior cases is contained in the opinion
    just cited.  Our present review concerns the proposed
    modifications, granted by the district court, of two longstanding
    consent decrees, the Original Decree and the Supplemental Decree.
    The Original Decree had provided that the Center would be
    treated as a facility of the Department of Mental Health (DMH),
    with primary authority to be exercised by DMH and custodial
    personnel to be controlled by the Department of Correction (DOC).
    Patients were to have "the least restrictive conditions necessary
    to achieve the purpose of commitment."  Both DMH and DOC were to
    "take steps jointly" to improve physical conditions, carry out a
    meaningful work program, and have "a system of differing security
    for different categories of patients" to permit less restrictive
    conditions for those patients not requiring maximum security.
    In an earlier opinion we considered challenges to proposed
    modifications of that decree.  See King v. Greenblatt ("King I"),
    
    52 F.3d 1
    (1st Cir. 1995).  We addressed the significance of the
    recently enacted 1993 Mass Acts. ch. 489, which gave DOC exclusive
    jurisdiction of the care, treatment, rehabilitation and   an added
    statutory goal   custody of civilly committed sexually dangerous
    persons in the Center.  We held that this statute met the first
    prong of Rufo v. Inmates of Suffolk County Jail, 
    502 U.S. 367
    , 384
    (1992) (i.e., it was a significant change of law impacting an
    existing consent decree, warranting modification of such decree),
    but remanded the case to the district court to consider whether the
    proposed modifications met the second Rufo prong, 
    id. (i.e., whether
    the modifications were "suitably tailored" to the new law).
    See King 
    I, 52 F.3d at 7
    .
    Upon remand, the district court found that the proposed
    modifications to the Original Degree were "suitably tailored" to the
    new law; the court also determined that the proposed modifications
    to the Supplemental Decree met both prongs of Rufo as they were
    "sufficiently related" to the change in state law and "suitably
    tailored."  The case was then appealed to us.  We remanded it to
    the district court to address only issues relevant to the
    Supplemental Decree, and reserved our "suitable tailoring" review
    and all other issues relating to the Original Decree.
    We recognized that the proposed modifications in the
    Supplemental Decree went beyond a transfer of exclusive authority
    to DOC and would effect substantive changes in disciplinary
    policies, allowing the imposition of sequestration for punishment
    purposes (except for acts underlying commitment) and deleting a ban
    on all discipline and punitive procedures in the treatment of
    inmates civilly committed.  See King 
    II, 127 F.3d at 195
    .  We
    opined that the link between a change in administration and
    sequestration policy was too tenuous, at least without further
    development.  
    Id. We also
    held that neither Chapter 489, "at least
    without further explanation," nor our speculation, standing alone,
    that the Massachusetts legislature had apparently accepted a
    preference for behavior modification over mental health treatment
    would constitute a "significant change in law" affecting
    sequestration policy.  
    Id. We therefore
    sent back the proposed modifications of the
    Supplemental Decree to the district court for further
    consideration, leaving it to the court to decide whether additional
    factual or opinion evidence was needed.  The court has since
    complied with our directive and, after hearing and submissions, has
    determined both that the change in control managed by Chapter 489
    is a significant change in the law affecting the Supplemental
    Decree and that the modifications were suitably tailored.  We now
    address this determination and all outstanding issues relating to
    both decrees.
    This litigation, now in its twenty-seventh year, involving
    half a dozen district judges, magistrate judges, and many
    conferences, hearings briefings, and appeals, has accomplished much
    in a troubled and complex field of custody and treatment of
    institutionalized sexually dangerous persons.  During this period,
    changes have occurred in conditions of confinement and treatment,
    in the problems confronted, and in the institutional setting.
    After exhaustive briefings and argument from capable counsel, we
    conclude that the district court acted sensitively and
    appropriately in conducting the proceedings below, upholding the
    proposed modifications of both the Original Decree and the
    Supplemental Decree, and signaling its readiness to exercise its
    oversight when occasion warrants.  While we cannot expect "closure"
    of tensions and problems, we may hope for problems of smaller
    dimension capable of systematic resolution without the necessity of
    heroic effort.
    We first address several issues relating to the Original
    Decree.
    I.     The Original Decree.
    A.  Denial of Discovery and Evidentiary Hearing.
    Plaintiffs repeatedly requested the opportunity to engage in
    discovery and an evidentiary hearing.  They sought to discern
    whether DOC intended to provide "meaningful treatment under the
    Plan" and whether its treatment plan was consistent with the "least
    restrictive conditions" requirement of the Original Decree.
    Plaintiffs proposed accomplishing this by exploring DOC's past
    behavior, present behavior, and expressions of future intent.
    Plaintiffs' proposal contemplates interviews with all residents,
    examination of new procedures, expert testimony interpreting the
    Plan, investigation of current practices, inquiry into internal
    memos relating to the Plan and the persons instrumental in
    formulating it, and depositions of DOC officials and Joint Resource
    Institute (JRI) personnel responsible for treatment.  As much as
    six months of time would be needed.
    The basic response of the court in denying discovery requests
    was:
    It may be that the plan won't work, but the Court of
    Appeals . . . [told me not to] prejudge the plan, but
    they told me . . . I should have a hearing, inquire into
    the DOC plan, giving significant weight to the local
    government.
    *     *     *
    . . . [W]hat would DOC do under this plan?  And then I
    should use my judicial oversight, primarily rely on my
    judicial oversight, to insure that the DOC is complying
    with the decrees.  So it seems to me that that's a very
    clear blueprint.
    This was an accurate precis of our directives "to give
    significant weight to the views of local government officials" and
    to "rely primarily on its jurisdictional oversight to ensure DOC's
    compliance with the decrees."  King 
    I, 52 F.3d at 7
    .  Moreover,
    even absent these directives, a trial court is vested with broad
    discretion in granting or denying discovery.  8 Charles A. Wright
    et al., Federal Practice and Procedure   2006, at 91 (1994).
    The task of the district court, following our directives, was
    to determine whether DOC, which had been given authority under
    state law, was likely to manage the Center without doing violence
    to the substantive portions of the Original Decree.  In the words
    of the Special Master appointed by the court, the inquiry being
    undertaken was "whether DOC is approaching the control of the
    institution with a treatment modality."
    In support of its proposal for extensive discovery and
    hearing, plaintiffs relied principally on the extensive procedure
    which the trial judge adopted on remand in Inmates of the Suffolk
    County Jail v. Rufo, 
    844 F. Supp. 31
    (D. Mass. 1994).  But it does
    not follow from the fact that a judge allowed discovery and
    evidentiary hearing in one case that a denial of discovery in a
    different case is an abuse of discretion.
    Appellants' basic interest in discovery was to elicit views
    and evidence of DOC's sincerity.  To test the viability of this
    goal in the particular posture in which the district court found
    itself, we venture the following scenario.  Assume that a number of
    witnesses testified in deposition or at a hearing that DOC
    officials were insincere and had no intention of carrying out the
    Plan as written.  If the court found the witnesses credible, would
    it then deny DOC's request to modify?  The consequence would be
    that the Center would then revert to the earlier dual management,
    despite the passage of Chapter 489.  Or, would the court craft, as
    amicus argued, its own solution, substituting the Clinical Director
    for DOC, creating the bizarre situation of an employee of an entity
    under contract with DOC holding powers denied to DOC?  In either
    case DOC would have no future opportunity to demonstrate its
    fitness to manage.
    It seems clear to us that had the court pursued either course,
    it would not have accorded "significant weight to the views of
    local government officials."  Indeed, it would have rejected them
    in their entirety on the ground of insincerity.  This would violate
    not only our guidance but that of the Supreme Court in 
    Rufo, 502 U.S. at 392
    n.14.  It would also violate our directive to rely
    primarily on continuing oversight.
    We think it therefore reasonable, at the proposed
    modifications stage, that the district court declined to allow an
    extensive investigation as to whether DOC was acting in good faith.
    We are not saying that the court would have abused its discretion
    had it chosen to allow some kind of discovery and evidentiary
    hearing, but certainly it did not abuse its broad discretion in
    denying such.
    B.  Delayed Appointment of Counsel.
    Among the interests represented in the cluster of lawsuits now
    collected under the King v. Greenblatt tent are those raised in
    Williams v. Lesiak, 
    822 F.2d 1223
    (1st Cir. 1987).  In that case,
    the plaintiffs had focused on treatment issues at the Center,
    particularly the absence or inferior quality of work, job training,
    and educational programs.  On May 27, 1994, the district court
    reopened Williams and consolidated it with King.  Although the
    remaining Williams plaintiffs requested counsel on a number of
    occasions, counsel was not appointed for them until August 17,
    1995.  This delay, they contend, constituted an abuse of discretion
    and is reason for reversal.
    Here again the review threshold is high.  This being a civil
    case, there is no constitutional right to counsel and the statutory
    authority, 28 U.S.C.  1915, is discretionary.  See Cookish v.
    Cunningham, 
    787 F.2d 1
    , 2 (1st Cir. 1986).  Moreover, we may find
    reversible error only if "exceptional circumstances were present
    such that a denial of counsel was likely to result in fundamental
    unfairness impinging on [plaintiffs'] due process rights."
    DesRosiers v. Moran, 
    949 F.2d 15
    , 23 (1st Cir. 1991).
    Our review of the evaluation of this complex and multi-faceted
    litigation during the fifteen months of delay reveals court actions
    which manifested a sensitivity to the interests of Williamsplaintiffs and a total absence of recognizable unfairness.  The
    first stage during this period began on May 27, 1994, with the
    reopening of Williams and the court's denial of the Commonwealth's
    motion to modify the Original Decree.  At this time the court,
    having recently appointed counsel for a different group of patients
    intervening in King, the "Class of 48 + 1," expressed the hope that
    such counsel would "look at the global picture."  The court also
    indicated that it might look for another person who would represent
    only the Williams plaintiffs.  In December 1994, appointed counsel
    for the "Class of 48 + 1" plaintiffs informed a Williams party that
    he was not representing his interests.  From this time, therefore,
    until August 17, 1995, the Williams plaintiffs knew they were
    unrepresented.
    Any lack of representation during this period, however, was
    without any practical effect.  As the district court denied the
    Commonwealth's motion to modify at the hearing on May 27, 1994, the
    Williams plaintiffs suffered no disadvantage at that time.  We did
    not issue an opinion on the Commonwealth's appeal of that denial
    until April 6, 1995.  The appeal concentrated on the significance
    of the enactment of Chapter 489, and did not raise any Williamsissue.  Our opinion, after holding that the statute had indeed
    constituted a significant change of law, meeting Rufo's first
    prong, simply remanded the case to the district court to consider
    whether the second Rufo prong had been met.  Again, there was no
    opportunity for harm to the Williams plaintiffs' interests in the
    appeal.  In the interim period between the denial of the motion to
    modify and our decision on the appeal, DOC submitted its Management
    Plan for the Administration of the Treatment Center (Plan), views
    were exchanged between a Special Master and DOC, and settlement
    discussions took place.  These discussions generally resulted in an
    impasse.  Moreover, during much of this time, the interests of all
    residents were identical, since the original motion to modify
    sought only a change in administrative control.
    In May 1995, the court denied discovery, 
    see supra
    , resolving
    to confine its efforts to a close scrutiny of the Plan itself.
    Thus, neither side was allowed to investigate or receive additional
    documentation on or deposition of the other.  And although on
    November 11, 1994, the Commonwealth filed a renewed motion to
    modify, seeking a change in the Supplemental Decree, no action was
    taken by the district court until June 29, 1995.  At that time, the
    district court granted the renewed motion, but it also stayed four
    important parts of the Plan, including the Community Access Plan
    (CAP), involving issues prominent in Williams.  Six weeks later, on
    August 17, 1995   before any action was taken on the stayed
    provisions of the Plan, or on any other area concerning which the
    Williams plaintiffs had expressed concern   counsel was appointed.
    On this record, not only have counsel been unable to point to
    any prejudice stemming from the delay in appointing counsel for the
    Williams plaintiffs, but we see no possibility, as the case
    progressed through its various stages, of any prejudice or
    "fundamental unfairness."  We are satisfied that their interests
    were adequately protected by the appointment of counsel in August
    1995.
    C.  "Suitable Tailoring" of Modifications.
    The second prong of Rufo requires that a consent decree be
    changed no more than necessary to resolve the problems created by
    the change of circumstances.  The proposed modifications must not
    defeat the core purpose of the consent decree nor, of course,
    create a constitutional violation.  See 
    Rufo, 502 U.S. at 391-92
    .
    Superficially, one might say that the changed circumstance is
    simply the vesting of all authority over the Center in DOC and that
    the proposed modifications for the Original Decree merely parrot
    Chapter 489 by substituting DOC for joint mention of DOC and DMH.
    Such a literal approach, however, obscures the reality that the
    Massachusetts legislature, in vesting unitary control in DOC, was
    also recognizing that DOC's views of the policies best suited to
    balance the two objectives of the Center   effective treatment of
    the sexually dangerous persons and the security and safety of the
    patient/inmate and the population as a whole   differed from those
    which had guided DMH during much of the previous quarter of a
    century.  Legislative emphasis on the goal of security and safety
    is evidenced by the addition of "custody" in the Chapter 489
    amendment to the previous formulation of goals in Mass. Gen. Laws.
    ch. 123A  2 of "care, treatment and rehabilitation."  Accordingly,
    the change in control contemplated change in operations and
    embraced the grant of some degree of flexibility and initiative to
    DOC.
    Similarly, the proposed modifications cannot be limited to the
    simple change in authority, since, as we have just noted, that
    change is inevitably overlaid with some expectation of change in
    some policies and practices.  This does not mean that DOC has carte
    blanche to do anything it wishes, for the Original Decree remains
    unmodified in its requirement that "patients at the Treatment
    Center should have the least restrictive conditions necessary to
    achieve the purposes of commitment."
    This provision is the substantive essence of the Original
    Decree.  The decree does not embrace all the policies and practices
    that have been relied on in the past by DMH to achieve effective
    treatment under the least restrictive conditions.  By the same
    token, as the district court realized, the "proposed modifications"
    are not the host of provisions in the 138-page Plan, which simply
    sets forth ways in which DOC aspires to fulfill the requirements of
    the Original Decree.
    The task of conducting a "suitable tailoring" analysis
    therefore requires trying to determine if the basic thrust of the
    new authority is likely to violate "least restrictive conditions"
    or constitutional requirements.  While the Commonwealth has the
    burden to demonstrate "suitable tailoring," we have also instructed
    the district court, as we have noted, to give significant weight to
    the views of local officials and to rely "primarily" on continuing
    judicial oversight to rectify violations.  King 
    I, 52 F.3d at 7
    .
    Accordingly, unless a demonstrably inadequate or erroneous policy
    undercutting the Original Decree appears from an anticipatory
    scrutiny of the Plan, DOC should be allowed to proceed.
    The district court had before it not only the Plan but two
    volumes of appendices, exhibits, and affidavits, comments from the
    plaintiffs and the Special Master, and responses by DOC.  The Plan
    has seven sections:  (1) management and staffing; (2) clinical
    treatment program; (3) educational and vocational treatment; (4)
    behavior management; (5) resident management and operations; (6)
    CAP; and (7) integration of the Center with the prison program for
    sex offenders.  The district court reviewed in some detail behavior
    management provisions (specifically, the Behavior Review Committee,
    the Minimum Privilege Unit, and Transfer Board policies), CAP, and
    resident management and operations (specifically, the restriction
    of privileges).
    The court found that the Plan was "a permissible and detailed
    proposal" addressing both the increased emphasis on security and
    treatment concerns.  With respect to security, the court stated,
    "security concerns in the Treatment Center have always been viewed
    as legitimate."  As to treatment, the court took note of the fact
    that treatment was to be provided by JRI, which had been under
    contract with DMH since 1992, and that its employee, Dr. Barbara
    Schwartz, the Center's Treatment Director, affirmed that DOC would
    retain the clinical, educational, vocational and rehabilitation
    programs initiated by JRI.  It therefore approved the proposed
    modifications, concluding that the Plan "appears to properly
    balance the competing goals of treatment and security and
    adequately protects the rights of the residents."
    The court refused, however, to vacate the Decrees, as the
    Commonwealth requested, stating:
    While the Plan details the provision of treatment and the
    ability of DOC to address security concerns, at bottom,
    the potential for conflict between these interests
    continues to exist.  The confusing and conflicting roles
    of DMH and DOC have been resolved.  It is DOC's sole
    responsibility to provide treatment in a secure setting.
    The Plan provides them with the rules to accomplish this.
    The Plan does not, and no plan can, provide the
    willingness and commitment in doing so.
    Thus recognizing that only future performance would administer the
    Plan in harmony with the essence of the Decrees, the court denied
    the motion to vacate without prejudice to review it for one year;
    following that period, during which the court would monitor Plan
    implementation, it would reconsider the motion.
    On appeal, appellants first level the general charge that DOC
    "has essentially turned the Treatment Center into a prison and
    fundamentally altered the therapeutic community."  It is, of
    course, true that the added emphasis on security and safety,
    together with a new approach to behavior management, featuring
    definite sanctions for defined unacceptable behavior, will
    inevitably effect some retreat from a more permissive atmosphere.
    But appellants' sweeping condemnation cannot stand without more
    precise identification of serious defects in the many provisions
    regarding varieties of treatment, the extent of clinical
    supervision, and the safeguards of individual rights.
    Appellants turn specifically to four areas.  The first is CAP,
    where the participants have shrunk from fifty-six in 1988 to two in
    1997.  They also criticize the application process that must be
    completed by an patient/inmate before being accepted for release
    into the community.  Under the Plan, the patient/inmate must
    initiate his own program proposal, then must face review with the
    prospect that, if once denied acceptance, he must begin again after
    a six month delay.  Appellants also say that the Community Access
    Board should, under Youngberg v. Romeo, 
    457 U.S. 307
    (1982), be
    entirely composed of clinicians.
    The Plan devotes some forty-four pages to CAP.  This has
    obviously been a subject of intense rethinking.  Under a change in
    the statute, a resident is no longer eligible for participation if
    he is still serving a sentence; he must now have completed serving
    any criminal sentence.  The introductory section observes that the
    prior policies did not adequately emphasize public safety and
    states, "Recent events and improvements in the understanding of
    both the dynamics of sexual offenses and the realistic objectives
    for treatment, as well as legislative change to Chapter 123A, have
    lead [sic] to the development of a revised program."  The Plan
    adopts a cautious approach which recognizes that "sexually
    dangerous persons" will "never cease to be 'at risk.'"
    Accordingly, whereas access to the community had earlier been
    approved prior to the designing of a program, careful, even
    meticulous, planning must now precede approval of access.  The
    process of plan review and approval is indeed a daunting,
    attenuated one.  But we cannot at this juncture rule the new
    program out of bounds.  In this most sensitive area of tension
    between safety and treatment, and between the individual and the
    community, we cannot say that CAP is not the least restrictive
    feasible response.
    The shrinkage in numbers of participants must be viewed
    against the background that a substantial number of residents, many
    of whom are serving very lengthy sentences, simply refuse to
    participate in or apply to treatment programs.  Moreover, a JRI
    analysis reveals that in 1996, three of the ninety-one eligible
    residents of a total population of 202 submitted applications and
    proposed plans.  As of January 1997, two remained in the program
    while twelve resided in the less restrictive Community Transition
    House in a "pre-transition" program.  This does not, in our opinion,
    point to any obvious constitutional failure.  Further adjudication
    will have to await events.
    As for the Youngberg argument that the entire Community Access
    Board should consist of clinicians, we refer to our discussion,
    infra, in relation to a similar criticism of decision making in the
    behavior management area.
    Another area of specific criticism is the Transfer Board and
    its policies.  The Transfer Board is a creation of Chapter 489,
    enacting a new section 2A of Chapter 123, which provides that a
    resident who is serving under an unexpired criminal sentence may be
    transferred from the Center to a correctional institution.  The
    factors that may be considered are "unamenability to treatment,"
    "unwillingness to follow treatment recommendations, lack of
    progress in treatment, danger to other residents or staff, [and]
    security."  Appellants say the policies fail to identify treatment
    and the criteria for "unamenability of treatment."  They also
    contend that the Board is insufficiently clinical in composition,
    and that there are no criteria defining when a patient may be
    eligible for return to the Center.
    We preface our consideration of appellants' contentions by
    recalling the basic rationale that prompted the new statutory
    provisions.  As Dr. Schwartz explained in her affidavit, the
    earlier transfer provisions allowed transfer only for threat of
    harm or escape.  She observed that some residents refuse treatment;
    they "cannot profit from treatment simply because of the length of
    their underlying sentences."  Instead of these residents occupying
    limited places at the Center, it makes "far more sense" to allow
    "new and motivated admissions."
    We find adequate assurances of treatment.  In the first place,
    the Plan indicates that in placing a resident, the classification
    process will attempt to identify an institution where sex offender
    treatment is available.  Additionally, the statute itself states
    that DOC "shall make available a program of voluntary treatment
    services."  Finally, a member of the Center's treatment team will
    be liaison to prison staff.  As for vagueness of "amenability" and
    "security," regulations have fleshed out the terms, the former being
    defined as failure to participate or make progress in six months
    and the latter as consisting of danger of physical harm to others
    manifested through threats or assaults.
    With respect to appellants' claim that the criteria for return
    to the Center are undefined, we think that the Plan properly
    addresses the need for criteria.  It specifically contemplates the
    establishment of guidelines, stating, "the Transfer Board will
    suggest minimum criteria for consideration of the resident's future
    return to the Treatment Center."  The provision charges those
    persons responsible for transferring inmates to the Center   and
    therefore those persons most knowledgeable about the risks and
    responsibilities accompanying the return of inmates   with
    determining how best to accommodate the needs of the inmates, the
    Center and DOC.
    We have also reviewed appellants' arguments that the transfer
    policies violated due process, double jeopardy and the ex post
    facto clause.  The first claim is based on the assumption, which we
    have stated is unfounded, that suitable treatment will not be
    available to any transferred resident.  The last claims rest on the
    assumption that a transferred resident will suffer a belated
    increase in his sentence.  We find it unnecessary to elaborate on
    the district court's opinion resolving these issues as we are
    satisfied with the judge's analysis and conclusion that, on the
    record before him, there was no evidence of such increase.
    With respect to clinical participation, the district court
    noted in its opinion that
    The Commonwealth has agreed to modify the composition of
    the Board so that the Clinical Director of Treatment, the
    Deputy Superintendent of Programs and the Director of
    Security will be equally represented . . . . In other
    words, the decision will be made by a vote of the
    professionals charged with the operation of the Treatment
    Center.
    Appellants continue to assert that the only "professionals" who
    could fulfill the requirement of Youngberg are mental health
    professionals.  We discuss this issue in the following paragraphs
    involving behavior management.  Our conclusion is equally
    applicable to the Community Access Board and the Transfer Board.
    An appropriate place to start our analysis of the behavior
    management component of the Plan is to examine appellants'
    criticism of the manner of imposing sanctions.  We note that this
    criticism is levied at the Original Decree and is to be
    distinguished from the substance, punishment and sequestration,
    which are proscribed by the Supplemental Decree.
    The controlling document, 103 MTC 430A, "Observation of
    Behavior Reports," sets forth the Center's disciplinary system,
    including a "clear set of rules" and a "clear set of sanctions."  The
    monitoring and enforcing body is the Behavior Review Committee.
    Appointed by the Superintendent, it consists of one security staff
    member, one clinician and one JRI staff member.  This committee
    deals with violations meriting such sanctions as warnings, and
    room, unit, work, and visitation restrictions.  In addition, the
    Superintendent has the authority to impose sequestration awaiting
    hearing, investigation, prosecution or a transfer hearing in
    instances where the resident has threatened, attempted, or
    inflicted serious harm on others.
    Appellants contend that such decisions violate the teaching of
    Youngberg that only qualified professionals should make treatment
    decisions regarding involuntarily committed individuals.  We begin
    by noting, as we did in Cameron v. Tomes, 
    990 F.2d 14
    (1993), that
    Youngberg was a "cautiously phrased decision," directed to the right
    of a mentally retarded inmate to "minimally adequate . . . training
    to ensure safety and freedom from undue restraint."  
    Id. at 18
    (citing 
    Youngberg, 457 U.S. at 319
    ).  Moreover, the Court in
    Youngberg gave a rather flexible, context-related definition of
    what it meant by "professional":  "a person competent, whether by
    education, training or experience, to make the particular decision
    at 
    issue." 457 U.S. at 323
    n.30.  It added the circumscribed
    caveat that "[l]ong-term treatment decisions normally should be
    made by persons with degrees in medicine or nursing, or with
    appropriate training in such areas as psychology . . . ."  
    Id. Unlike in
    Youngberg, what is at issue here is not long term
    treatment decisions but short term disciplinary decisions.  We look
    in our analysis to the guidance we deliberately gave, in Cameron,
    for the future application of the concept of professionals and to
    the role of administrators:
    Any professional judgment that decides an issue involving
    conditions of confinement must embrace security and
    administration, and not merely medical judgments. . . .
    The administrators are responsible to the state and to
    the public for making professional judgments of their
    own, encompassing institutional concerns as well as
    individual 
    welfare. 990 F.2d at 20
    .
    In this case, the disciplinary system is responsive to both
    the "treatment" need of residents to learn accountability for their
    actions and the administrative and security concerns of the
    institution.  The composition of the Behavior Review Committee,
    with one DMH professional, and one security-minded member from DOC,
    and one JRI person with overall treatment program responsibility
    seems well suited to the mix of concerns involved in sequestration
    decisions.  Indeed, if mental health professionals were to control
    all decisions, certainty and regularity of sanction imposition
    would necessarily be swallowed up by ad hoc individualized decision
    making.  We know of no case authority that would declare the
    decision process in applying sanctions described in the Plan
    facially constitutionally defective.  We decline the invitation to
    extend Youngberg anticipatorily to this case.
    The authority to sequester "awaiting action" wielded by the
    Superintendent implicates procedural concerns.  The district court
    was sensitive to these concerns and required DOC to give the due
    process protections of written notice of reasons for placement and
    opportunity to respond required by Hewitt v. Helms, 
    459 U.S. 460
    ,
    471 (1983), in cases of administrative segregation.  The court, in
    so doing, acknowledged that its action stemmed from its recognition
    that residents, unlike the prison inmate in Assandin v. Corner, 
    115 S. Ct. 2293
    (1995), were entitled to due process protections.
    Again, on this record we are not prepared to declare any breach of
    procedural due process.
    A final target of the criticism is in the area of resident
    management and operations.  Appellants protest a number of
    privileges which have been truncated.  These involve the amount of
    clothing allowed to be kept by a patient, the amount of funds, and
    the number of room visits, telephone calls, stamps, credit cards,
    etc.  The Plan justifies some reduction in these privileges because
    of past experiences with security, assault, gambling, coercion, and
    interruptions in treatment.  No reduction rises to the level of a
    constitutional infraction.
    When all the smoke has cleared, the legislatively ordered
    change in command and the directions which it proposes to take do
    not exceed the reasonable latitude implicit in the legislative
    change of command.  Nor does either appear likely to undermine the
    Original Decree or to violate the Constitution.
    II.  The Supplemental Decree.
    A.   Modification.
    While modification of the Original Decree involved mainly a
    change from dual control to exclusive DOC management of the Center,
    the Supplemental Decree and any modifications proposed were
    substantive.  The Supplemental Decree barred solitary confinement
    for punishment, "disciplinary and punitive procedures having no
    place in the care and treatment of civilly committed patients."
    The requested modifications would strike the general proscription
    of disciplinary and punishment procedures and link solitary
    confinement to the offense underlying the original commitment of
    the individual.
    In King II, we were not persuaded that the mere change in
    control implicated this substantive change.  We therefore remanded
    the question of justification for modification and left it to the
    district court to decide whether further factual development or
    opinion evidence was needed.  The court decided that it did not
    require an evidentiary hearing and scheduled a prompt submission of
    briefs and a hearing for presentation of views.  Appellants
    submitted several affidavits, and appellees rested on the record.
    The court ruled that a significant change in fact had occurred,
    based on examination of the Plan and monthly DOC reports which
    verified DOC's adherence to the Plan, a visit to the Center with
    counsel, discussion with the residents at the Center, and review of
    opinions of the qualified professional in charge of the
    administration of the Plan, Dr. Schwartz.  The court also stated
    that the dramatically changed conditions of segregation that had
    taken place since 1972 constituted a relevant added factual
    development.
    We agree with the district court but would add another factual
    development called for by our scrutiny of the record, namely, a
    significant change in the philosophical approach to treatment of
    civilly committed sex offenders in programs operated by
    correctional departments.  We do not mean that there has been a
    complete reversal of position under all circumstances from the
    earlier, more permissive mental health approach to the more
    restrictive behavior control approach.  But the monolithic
    acceptance of the mental health approach that existed a quarter of
    a century ago has yielded to the acknowledgment that there is no
    royal road to treatment and cure.  Behavioral control programs
    including defined offenses and sanctions are now featured in
    institutions operated by corrections personnel.
    We begin with the 1989 report of the Governor's Special
    Advisory Panel on Forensic Mental Health, which preceded the
    passage in 1994 of Chapter 489.  We do not rely on opinions
    expressed by that Panel, but on some factual statements which have
    never been impugned.  Indicative of some kind of sea change is that
    most of the thirty-one states that had "special dispositional
    provisions" for sex offenders, i.e., indefinite commitments as in
    Massachusetts, repealed or significantly reformed the statutes.
    Repeal was recommended by the American Bar Association in its 1984
    proposed Criminal Justice Mental Health Standards on the ground
    that, inter alia, the assumption that mental disability underlay
    sexual offenses in general was no longer viewed as clinically
    valid.  A 1977 report of the American Psychiatry Association to the
    same effect was cited.
    Dr. Roger Smith, the impressively credentialed Director of
    Michigan's Bureau of Forensic Mental Health, narrowed the focus to
    programs run by correctional personnel.  In 1994, he evaluated the
    Massachusetts DOC Plan.  In an affidavit, he made the point that in
    institutions where civilly committed residents and corrections
    inmates are lodged and treated, "[E]very attempt must be made to
    apply program rules, and sanctions for violation of such rules, in
    a uniform and fair manner, and to avoid the perception (or reality)
    that civilly committed residents have privileges and rights which
    exceed those of their DOC peers."  In states that have opted to
    treat sex offenders only in the months prior to parole release, he
    added, programs generally are provided in minimum security
    settings.  As for DOC's Plan, "[t]he establishment of clear rules
    and sanctions for rule violations by residents is clearly long
    overdue, and essential to effective management of the therapeutic
    program."  He also found the restrictions on residents' privileges,
    such as visits and mail, to be "consistent with standards found in
    correctional treatment programs nationwide."
    To this we add the unrebutted factual assertions of Dr.
    Schwartz, who is a JRI employee and the Clinical Director of the
    Center.  Having trained staff from most of the prison-based sex
    offender treatment programs, she made the unqualified statement:
    "Every sex offender program in the country which is operated by a
    corrections department adheres to the disciplinary policy of the
    institution."
    These affidavits were filed with the court in November 1994.
    Only after remand did appellants seek to counter such statements in
    any way.  In 1997, appellants filed affidavits of clinical
    directors of treatment programs in Kansas and Washington.  These
    programs were run by a department of Social and Rehabilitation
    Services or of Social and Health Services and were available only
    to persons soon to finish serving their sentences or without
    criminal sentences, whose release depended solely on their ability
    to control their conduct.  It is understandable that in Kansas
    sequestration for a period in excess of fifty-nine minutes was
    rare, and that in Washington there had been only one occasion in
    thirteen months to keep an inmate in a "quiet room" for up to four
    hours.  Clearly, the populations and the problems were quite
    different from those in the Center.  Appellants also submitted a
    draft of a proposed patients' handbook from Wisconsin, but although
    some twenty-two definitions of "major misconduct" were set forth,
    the Appendix we were furnished did not contain standards for either
    incapacitation measures or deterrent sanctions.  The program,
    unlike that we consider here, was confined to those who were only
    civilly committed.  We view appellants' submissions concerning
    other states' civil-commitments-only programs as essentially
    comparing oranges to appellees' apples.
    Finally, appellants attempt to demonstrate that there has been
    no change in basic treatment philosophy by submitting a 1972 policy
    statement by Dr. Harry Kozol, then Director of the Center, who did
    not attribute his policy eschewing punishment to a mental illness
    theory but rather to a view of self-discipline and personal
    accountability as focal patient goals.  Any similarity with the
    present treatment philosophy stops at this point.  For Dr. Kozol
    went on to describe the process of enforcing accountability: when
    a patient was found to have engaged in "antisocial and
    inappropriate behavior," a clinical study would be made of steps
    needed to be taken, which could include, not segregation, but
    "exclusion from the population and placement in the Special
    Intensive Treatment Unit."  This was, he stated, not looked upon as
    "lock-up" but, "[i]n operation, this program has excluded patients
    from the general population for considerably longer periods than
    patients . . . were excluded in lock-up by the correctional
    authority here."  We think it clear that this system   lacking
    definitions of "antisocial and inappropriate behavior," and with
    sanctions that vary according to the clinical analysis,
    indeterminate sequestration, and release that depends on "our
    clinical judgment that the risk of his acting offensively and
    inappropriately is reduced to a reasonable or substantial [sic]
    level"   differs significantly from the Plan's approach.
    The factual assertions of the Special Advisory Panel and Dr.
    Schwartz, together with the observations of Michigan's Dr. Smith,
    lead us to accept as a significant change of fact the adoption of
    a new treatment approach to sex offender treatment programs
    conducted by corrections departments.  Our survey of this record
    also convinces us that the court did not err in not delaying its
    consideration pending further discovery.  Appellants' request in
    their Joint Submission Concerning Supplemental Decree was couched
    in the alternative.  In the event that the court did not deny the
    motion to modify the Supplemental Decree, they wished discovery,
    citing as their only objective, "the deposition of defendants'
    witnesses."  What we said in connection with the refusal to extend
    discovery relating to the Original Decree applies here.  We see
    little fruitful prospect in such proceedings; the court did not
    abuse its discretion in refusing such a request.
    The district court suitably relied on the Plan, its visit to
    the Center, its talks with residents who did not complain about
    discipline, punishment, or conditions in the Minimum Privilege
    Unit, and on the opinion of Dr. Schwartz who averred, "I consider
    the institution of a disciplinary policy containing clearly defined
    offenses carrying definitive sanctions as an essential part of a
    state-of-the-art treatment program." The court added that since
    punishment was clearly contemplated, "it follows that appropriate
    punishment may include sequestration of some kind."  This last
    proposition may not be self evident.  We therefore elaborate.
    A reading of the Code of Offenses and list of sanctions
    suggests to us the essentiality of sequestration to this Plan.
    There are fifty-nine offenses divided among four categories.  There
    are eleven offenses described in the category of the greatest
    severity, such as killing, rape, arson, and taking hostages.  In
    the high category are seventeen offenses, including assault,
    bringing in illegal drugs, demanding protection money, and
    counterfeiting.  The nineteen offenses in the moderate category
    include refusing a direct order, lying to a staff member, and
    threatening another person.  The low category consists of twelve
    offenses, ranging from use of obscene language and unexcused
    absences, to failure to follow safety regulations.
    In like manner, the sanctions vary both according to category
    and to whether the offense is accompanied by mitigating or
    aggravating circumstances   or neither.  The most severe sanction
    is placement in the Minimum Privilege Unit for thirty days for a
    severe offense accompanied by aggravating circumstances.  Other
    sanctions available for severe offenses include loss of privileges
    from sixty to eighty days, restitution, forfeiture of good time,
    restitution, and loss of job.  The maximum sanction for a high
    offense, with  aggravating circumstances, is placement in the
    Minimum Privilege Unit for five days with a lesser alternative
    being room restriction for ten days, and, like a severe offense,
    restitution, loss of privileges, good time, and job.
    It is obvious that, if placement in the Minimum Privilege Unit
    were not available as a sanction, the range of sanctions would be
    so telescoped and compressed that a resident could not expect much
    more severe treatment for a high or severe offense than for a
    moderate offense.  For example, a resident who had taken hostages
    might lose some privileges for eighty days while a resident who
    refused an order might lose some privileges for five days.  The
    disparity between offenses far exceeds the disparity in sanctions
    that could be imposed.  We therefore also conclude that
    sequestration is an integral part of the Plan's system of graduated
    and defined offenses and sanctions.
    Finally, we cannot fault the court for relying on the "vastly
    different" conditions of confinement in the Minimum Privilege Unit
    today compared to those described in the King complaint.  King,
    placed in solitary confinement without procedural safeguards for
    calling a guard a "dingbat," was placed in a six by nine foot cell,
    without a sink, only a portable chamber pot, no facilities for
    drinking water, no reading or writing materials, no visits   not
    even from his parents   no radio or exercise . . . and filthy walls
    and floor.
    The Minimum Privilege Unit, on the other hand, is a new
    building constructed in 1986, with rooms eight by sixteen feet,
    with toilet and sink.  Residents are allowed access to telephone,
    visitors, exercise periods, daily showers, canteen, and library.
    The regulations, 103 MTC423.07, provide that residents in the
    Minimum Privilege Unit will be accorded treatment by their regular
    treatment team, unless some modification is dictated by safety and
    security.  Additional or supplemental treatment "will be provided
    as necessary."
    We are fully satisfied that this combination of a difference
    in basic approaches, a detailed Plan maintaining treatment
    standards accompanied by a detailed disciplinary system, and
    dramatic changes in conditions of confinement amounts to the
    significant change in facts required by Rufo.
    As for the second prong, "suitable tailoring," there is little
    need for lengthy discussion.  The Plan preserves clinical treatment
    programs and procedural safeguards.  Its departures from the
    Supplemental Decree, inaugurating a disciplinary system and
    outlining procedures for charging, deciding, and reviewing
    infractions seem well within reasonable requirements.  The major
    area of difference, the Plan's provision for sequestration, reveals
    a restrained resort to this sanction.  Placement in the Minimum
    Privilege Unit is allowed under only four circumstances: commission
    of a severe offense with aggravating circumstances (up to thirty
    days); a severe offense without either aggravating or mitigating
    circumstances (up to twenty days); a severe offense under
    mitigating circumstances (up to ten days); and a high offense under
    aggravating circumstances (up to five days).  The only other kind
    of confinement is restriction to one's room, which can be imposed
    for ordinary and aggravated high offenses for seven and ten days,
    and for an aggravated moderate offense for five days.
    Given the legitimacy of a disciplinary system in a treatment
    program under the auspices of a department of correction, such
    utilization of sequestration fulfills the requirement of being
    suitably tailored to the change of circumstances.  We find that
    modification of the Supplemental Decree is therefore justified.
    *  *  *
    We note only briefly an issue that our decision has mooted
    whether or not the district court erred in vacating several orders
    of Judge Young.  These orders all dealt with participation of
    psychologists or psychiatrists in various kinds of decision and
    policy making in the use of sequestration.  Our holding that the
    proposed modifications in the Supplemental Decree as illustrated by
    the Plan are both based on significant changes in fact and are
    tailored to those changes leaves no room for the continued survival
    of Judge Young's orders, which served as interim measures pending
    a long-term resolution.
    We have considered the other arguments advanced by appellants,
    intervenor plaintiffs, and amicus and deem them either to raise
    issues not presented to the district court or otherwise without
    merit.
    At this point we can only say that court and counsel have done
    their jobs well in what must be one of the most complex and vexing
    areas of law and administration.  What we have said in upholding
    modifications of the Decrees concerning DOC's Plan should not be
    construed as rulings foreclosing issues arising out of Plan
    administration in the future.  What we have done is to survey the
    new regime, its general approach, and to give a green light.  That
    does not mean that reckless driving will be immune from review.  We
    rely on the district court, which has commendably shown its
    readiness to exercise its oversight powers.
    Affirmed.