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December 22, 1981

James BENJAMIN, et al., Plaintiffs,
Benjamin J. MALCOLM, et al., Defendants

The opinion of the court was delivered by: LASKER

This suit was commenced against New York City officials in 1975 by persons housed while awaiting trial at the House of Detention for Men on Rikers Island (HDM). They complained that the conditions under which they were held were constitutionally impermissible, and in particular that the institution was unconstitutionally overcrowded. In August of 1980, after five years of litigation which included a lengthy trial and substantial post-trial negotiations between the plaintiffs and the City defendants, this court ruled that, in order to meet constitutional standards, the population of HDM be reduced to 1200. *fn1" Benjamin v. Malcolm, 495 F. Supp. 1357 (S.D.N.Y.1980).

In August, 1980, the City defendants moved to join the Governor of New York and the Commissioner of the Department of Correctional Services of New York State (the State) as defendants. The City argued that the State was obligated under § 430.20 of the New York Criminal Procedure Law to remove "forthwith" from City facilities persons sentenced to imprisonment in State institutions; that the State was failing to meet this obligation and that its failure prevented the City from meeting its obligations under this court's order to limit the population of HDM. That application was denied solely because of the assurances given by the State Commissioner that the State would voluntarily meet its obligations under Criminal Procedure Law § 430.20. Benjamin v. Malcolm, 88 F.R.D. 333 (S.D.N.Y.1980).

Although the problem was thus temporarily solved by voluntary action, the growth of the State prison population in the period between the summer of 1980 and the summer of 1981 resulted in a renewed failure of the State to remove State prisoners from City facilities on a timely basis, so that in July 1981 the City again moved for a judicial order requiring the State to do so. That application was granted and on August 20, 1981 an order was entered requiring the State to accept, within forty-eight hours of the completion of transfer processing, each person housed at HDM who is sentenced to a term of imprisonment in a State correctional facility.

 The State inmate population has continued to grow since that date and now, less than four months after the entry of the order, the State moves under Rule 60(b)(6) of the Federal Rules of Civil Procedure to modify the August 1981 judgment so as to permit the State to accept only those State-ready inmates which it has spaces for within the State correctional system. The State emphasizes that its request for modification is temporary only because it is in the process of constructing additional capacity which, it alleges, will by March 1, 1982 make available 1,317 new beds. It estimates that the maximum "backup" population of State-ready inmates which it would fail to remove from HDM in the intervening period would be 303, and the minimum 20. (Affidavit of Thomas E. Coughlin, III, Commissioner of the Department of Correctional Services of the State of New York in Support of the motion.)


 The State argues that the relief it seeks is justified because it has "taken every possible initiative to create cell space in existing facilities", has utilized recreation areas, basements and substandard galleries, and rejected the Department's long standing policy of refusing to "double-encumber" all space-that is, has even utilized cells of inmates who are in the hospital or out to court. The State claims that as a result of the present overcrowding in its prisons it has discontinued rehabilitation and program efforts, and that the present population of 25,490 prisoners amounts to 112.1% of its system's capacity. It contends that further population growth will cause "unacceptable risks to the safety and security of the employees, the inmates and the institution", including the housing of inmates in the cell-block corridors of maximum security prisons and the use of current program space for inmate housing in such institutions.

 The City vigorously opposes the State's request for relief. Its arguments are set forth in the affidavit of Benjamin Ward, Commissioner of the New York City Department of Correction who, immediately before coming to his present position in August 1979 was, for over three years, the Commissioner of the Department of Correctional Services of the State of New York and who, accordingly, has intimate knowledge of the operations of both systems. According to the City, the State is not entitled to relief because it has failed to provide a solution for the problem it faces today although the problem was entirely forseeable. For example, the City points out that in 1978, Ward, then State Commissioner, drew up a construction plan which would have resulted in the provision of 3,000 beds, but that the State failed to implement it; and that the present State correctional administration, in its 1980 Master Plan, called for consideration of expanded use of "good time", increased use of alternatives to imprisonment and earlier parole, to reduce prison population, but that none of these proposals has been acted on. *fn2"

 The City points out that it has reduced its own overcrowding not only by adding 900 beds to its capacity in the last year, but also by conducting monthly bail reviews, funding additional community services programs as alternatives to incarceration and decreasing inmates' lengths of stay by expediting the preparation of probation reports. It suggests that similarly creative approaches should be used by the State and that their absence renders it against the interests of justice to grant the State's application. It concludes that "Surely overcrowding City jails with convicted felons is the least desirable of the solutions to the State defendants' problem."

 Moreover, the City claims that since the State releases approximately 173 inmates per week from its prisons and takes only an average of 160 from the City it is attempting, by this motion, merely to accommodate the other counties in the State from which it draws the remainder of its population.

 The City points out that litigation is pending in the Supreme Court of the State of New York, Albany County, in which a class of New York State inmates contends that under § 70.30, subd. 3(a) of the New York Penal Law there are approximately 2,000 inmates who have not received credit for their jail time before sentencing; that these inmates will be released earlier if their claims are correct; that all of these inmates come from outside of the City of New York, and that the State should be required to recalculate their jail time credit before the court acts upon the present motion.

 The City casts doubts upon the State's assertion that its present population amounts to 112.1% of the capacity of its system. It stresses that the State has not indicated the square footage per inmate upon which that figure has been calculated, or whether capacity has been adjusted to account for the current use of general confinement beds vacated by inmates in special housing, for example.

 The plaintiffs take no position as to the relative responsibilities of the City and State for State-ready inmates but express their concern that compliance with the Court's orders eliminating overcrowding in the City's jails be assured. In this connection the plaintiffs argue that the State has not established any facts which would justify a modification of the order of August 20, 1981. The plaintiffs criticize the State for considering the only solution to the problem to be the creation of further cell space without making any efforts to manage prison population by other means. *fn3"


 Rule 60(b)(6) ...

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