Appeal from a judgment and order of the United States District Court for the Eastern District of New York (Judd, J.) enjoining, with certain qualifications, the confinement of two pretrial detainees in single occupancy cells at the Brooklyn and Queens Houses of Detention. Affirmed as to finding of unconstitutionality; remanded for further consideration of remedy.
Lumbard and Oakes, Circuit Judges, and Bartels, District Judge.*fn*
Just recently this Court held in Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974), that the conditions existing at the Manhattan House of Detention (better known as "the Tombs") were so shocking and intolerable as to violate the constitutional rights of equal protection and due process of pretrial detainees ("detainees"). Today we are asked to reach a similar conclusion in a different context relating to the conditions of confinement of detainees at the Brooklyn and Queens Houses of Detention ("BHD" and "QHD," respectively). In November, 1970, Ralph Valvano on behalf of a class of all persons incarcerated at the QHD instituted a civil rights action under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 in the District Court for the Eastern District of New York against the Commissioner of Correction of the City of New York and other City officials, alleging as unconstitutional the inhumane and unsanitary living conditions and administrative practices at the QHD, and in February, 1973, Ray Moctezuma and others instituted on behalf of the detainees of the BHD a similar civil rights action against the defendants, alleging as unconstitutional similar living conditions relating to the custody of detainees at the BHD. Both complaints are patterned after the Rhem complaint and in effect protest essentially the conditions existing in the Tombs, such as restrictive visiting hours, denial of contact visits, inadequate recreation, restrictive correspondence rules, inadequate care, inhuman and unsanitary living conditions and brutality by guards.
On September 7, 1973, the District Court consolidated the two actions but tried only two issues which were common to both the BHD and QHD: (1) the alleged unconstitutional overcrowding and, more specifically, the confinement of two detainees in a single cell (double celling), and (2) the alleged unconstitutional excessive confinement of detainees in their 5 feet X 8 feet cells each day.
Immediately before the trial, the Court personally toured both Houses of Detention. After a six-day trial during which it considered the stipulation of facts, the Manual of Correctional Standards, the testimony of detainees, psychiatrists, prison wardens and other experts in the field, the Court made comprehensive findings on July 31, 1974, of the conditions existing at these two institutions. In its substituted order dated October 2, 1974, the district court decreed with respect to both institutions "that beginning March 1, 1975 no person shall be confined in a cell with another person without the voluntary written consent of both persons . . .," except in certified emergencies, and at the same time it denied relief on the issue of excessive confinement on the ground that the two issues were interrelated and that the additional lockout time would result upon the elimination of double celling. On October 2, 1974, the Court entered its judgment prohibiting double celling from March 1, 1975, as impermissively restrictive and dehumanizing in violation of the plaintiffs' constitutional rights in accordance with its opinion above. From this judgment and order the City has appealed and has obtained a stay which is presently in effect. Thus, we are concerned only with the issue of overcrowding.
The City does not attack the Court's findings as clearly erroneous but instead claims that double celling is not per se unconstitutional and that under the totality of circumstances existing at these two institutions, double celling is a prison hardship that can be constitutionally justified. To this contention it adds another claim that the Court must in determining the constitutional minimum standards for detainees, look " inter alia, to the needs and resources of the governmental entity operating the jail." Upon this appeal we are not faced with the precise operating conditions that existed in the Tombs in Rhem,*fn1 which were condemned as "shocking to the conscience," nor with any claim of structural defects as existed in that case, nor was double celling an issue there since it was eliminated by a consent decree predicated upon a stipulation relating to overcrowding. To properly comprehend the housing and living conditions to which these detainees are subjected while awaiting trial, a brief resume of the conditions as reflected by the Court's findings is necessary.
The inmates, including detainees, are housed in two units constructed relatively recently as maximum security multistory institutions. The floors in both institutions are divided into four quadrants with two tiers of fifteen cells, one above the other in each quadrant. All cells are rectangular 5 X 8 feet, approximately 40 square feet in floor space, containing two bunk beds, one table, one immovable seat, one unenclosed toilet and one mirror, and open onto corridors 90 feet long and 5 feet wide. There are no closets for clothing or personal effects of any of the inmates including detainees, and there is only one shower for each tier.
The rated capacity of BHQ was 814 and of QHD 520, and in both instances is based on single occupancy of the 5 X 8 feet cells. The rate of occupancy for 1969-1973 was 170% of capacity at BHD and 153% of capacity at QHD. At the time of the hearings the rate of occupancy was 23% above capacity at BHD (998 persons) and 29% above capacity at QHD (670 persons). The actual overcrowding was greater because 90 cells, which are included in the rated capacity, at BHD were usually unoccupied and one dormitory and 40 cells were not in service at QHD. This resulted in the abnormal practice at both institutions of housing two men in a cell. Further overcrowding resulted in the elevators and dayrooms in which there was an inadequate number of chairs, and also in the lack of adequate gymnasium facilities; moreover, these gymnasium facilities were available generally only once or twice a week for each detainee. Time out of cells was divided into three periods at each institution and at BHD the lockout time was approximately 8 1/2 hours and at QHD the lockout time was approximately 9 3/4 hours per day. At both institutions the detainees were fed in their cells since the dayrooms at BHD and QHD could not accommodate all of the detainees of a double cell section at one time.
Only 20% of the detainees required maximum security at both institutions but due to an inadequate staff and budget, the classification system at both institutions has been and is inadequate. However, this issue, as well as other issues raised in both complaints, was not litigated in the district court. The more positive aspects of the two institutions include the fact that each institution has a gymnasium, a theater auditorium and an enclosed roof recreation area, the largest of which is approximately 3400 square feet, and also classroom areas and libraries. Other advantages are that the institutions are close to the detainees' homes, there is a policy of non-censorship of mail, a liberal access to the press, many minority correction officers and a large variety of activities and programs which, however, must be suspended on weekends because of overcrowding.*fn2
Overcrowding and Double Celling
Judge Judd found that confining two detainees in a space of 40 square feet created personal problems, which he ultimately concluded were dehumanizing. He stated that "Two men cannot move about at the same time in the portion of the cell which is not utilized for bunks, table, seat, and toilet. Since the meals are fed to inmates in the cells and there is only one chair, only one man can use the table and the other must sit on the bed to eat; the choice of who eats on the bed is made in varying ways, depending on seniority, rotation, strength, or other factors. Disagreements concerning the choice of activities, embarrassment and discomfort in the use of the toilet in the presence of a cell-mate, and disagreements concerning personal belongings are common. Fights and charges of theft are frequent, although fights between inmates who do not share cells are also common. Loss of privacy is one of the major results of double celling."
Many detainees testified as to specific dehumanizing incidents arising from double celling, such a bumping into each other, the necessity of one detainee eating his meals sitting either on the bed or toilet,*fn3 the use of the toilet by one while the other is eating close by, and many other invasions of privacy. Correctional experts testified that confinement of two detainees together not only deprives a detainee of privacy but also is psychologically destructive and increases homosexual impulses, tensions and aggressive tendencies.*fn4 In 1965 the United Nations' Congress on the Prevention of Crime and the Treatment of Offenders adopted a set of Standard Minimum Rules for the Treatment of Prisoners, which recommended that each inmate have an individual cell. The Manual of Correctional Standards issued in 1966 by the American Correctional ...