The opinion of the court was delivered by: LASKER
This is an application by the City defendants for an order modifying the orders of this court dated September 3, 1980 (which imposed a population cap of 1200 on the House of Detention for Men), June 23, 1981 (which imposed a sixty square foot - fifty person limitation on the dormitories in City correctional facilities) and October 31, 1983 (which directed compliance with the earlier orders).
Although the moving papers do not specify the authority for making such a motion, the parties have throughout regarded it as a motion brought under Federal Rules of Civil Procedure 60(b). As indicated below, the relief requested is partially of a temporary nature and partially permanent.
The City's position may be summarized as follows. Since 1983, when an overpopulation crisis resulted in the release of inmates from the House of Detention for Men, the City has constructed several thousand cells and has plans to build several thousand more. In spite of this considerable increase in available space, the increase in the number of detainees and other classes of prisoners has outstripped the expanded number of prison beds so that the City is unable to house prisoners at the present time within the limitations of the 1980 and 1981 decrees. The City asserts that a major and unforeseen cause of the present crisis is the arrival on the drug market of the cocaine derivative known as "crack". As a result of the unforeseen substantial trading in "crack" occurring in New York City, the City contends that a much larger number of arrests than could have been anticipated has been made and that a much larger number of those arrested have been "retained" than is normal, that is, have been detained because of bail conditions imposed by state courts which inmates are unable to meet.
The City makes two major contentions as to why the decrees should be modified, one based on an alleged change of law and the other on alleged changes of fact. As to the first, the City argues that the decision in Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981), constitutes a change in the law as it existed at the time the 1980 and 1981 decrees were entered, and that Lareau authorizes a permanent arrangement for the holding of prisoners for a limited period of time under the conditions specified in the modifications here being requested. The City also relies on the decision of the Court of Appeals in New York State Association for Retarded Children v. Carey, 706 F.2d 956 (2d Cir. 1983) (Willowbrook), a seminal ruling with regard to the modification of decrees in institutional reform cases in which Judge Friendly, speaking for the court, established principles of flexibility in dealing with such cases. The changes of fact since the date of the decrees on which the City relies, relate substantially, if not exclusively, to the growth in arrests and detentions caused by the arrival of "crack" on the scene.
The plaintiffs strenuously oppose the application for modification of the decrees and differ with the City as to the law and the facts. Conceding that the arrival of "crack" may have caused substantial additional arrests and detentions, the plaintiffs nevertheless assert that the present crisis is the result of the City's own inefficiency in population forecasting, its insufficient reliance on non-incarcerative procedures and its tardiness in waiting to apply to the court for relief until only days before the relief was required rather than doing so months before when the "crack" crisis and its inevitable impact on detention facilities became fully apparent.
The plaintiffs disagree with the City's construction of Lareau and Willowbrook. It is their position that Lareau was a fact oriented case which did not establish as a general principle that detainees could be held in sub-standard conditions for limited periods of time and that, although Willowbrook may have established standards of flexibility as to modification of decrees in institutional reform cases, it nevertheless limited courts to modifying such decrees only in cases where the modification would enhance the primary purpose of the original decree. The plaintiffs urge that the more relevant case is Badgley v. Santacroce, 800 F.2d 33 (2d Cir. 1986) (Badgley II), in which the Court of Appeals unanimously reversed the district court for failure to hold Nassau County officials in contempt in what the plaintiffs regard as a similar crisis in Nassau County. The plaintiffs also rely on Badgley v. Varelas, 729 F.2d 894 (2d Cir. 1984) (Badgley I), in which the Court of Appeals held that the judicial remedy for overcrowding should be to enjoin correctional officials from accepting prisoners beyond the authorized maximum rather than the release of prisoners already in custody. The plaintiffs argue that the remedy for the present situation is not to grant a modification of the decrees but to enjoin the correctional officials from accepting more detainees than the present decrees allow.
Before coming to the question of the merits of the application, it is necessary to construe the decisions in Willowbrook, Lareau and Badgley.
Willowbrook not only authorizes flexibility but encourages it under appropriate circumstances. Judge Friendly, speaking for the court, made clear that it is a responsibility of the District Court to give serious and deliberate consideration to a good faith application for modification of a decree if it is based on a significant change in the law or the facts. Willowbrook, 706 F.2d at 970-71. Plaintiffs read Willowbrook too narrowly when they argue that the only modifications sanctioned by that case are those which advance or enhance the purpose of the decree. The modification allowed in Willowbrook, was only found not to be "in derogation of the primary objective of the decree." Willowbrook, 706 F.2d at 969. It is true that "[w]e are not at liberty to reverse under the guise of readjusting," United States v. Swift & Co., 286 U.S. 106, 119, 76 L. Ed. 999, 52 S. Ct. 460 (1932), and hence cannot "reconsider the primary purposes of the decrees: to relieve unconstitutional strains on the facilities caused by overcrowding." Benjamin v. Malcolm, 564 F. Supp. 668, 686 (S.D.N.Y. 1983). However, Willowbrook not only allows but directs the court to consider the City's requests for modification "with generosity", 706 F.2d at 971, if it is determined that they will not result in unconstitutional conditions in derogation of the primary purpose of the decrees. Furthermore:
It is well recognized that in institutional reform litigation ... judicially-imposed remedies must be open to adaption when unforeseen obstacles present themselves, ... and to accommodation of a wider constellation of interests than is represented in the adverserial setting of the courtroom.
Willowbrook, 706 F.2d at 969. Here, where the public interest may well be affected by this decision, the court has a duty to act upon those modifications which will not result in unconstitutional conditions at the affected jails. See Duran v. Elrod, 760 F.2d 756, 760 (7th Cir. 1985) (in modifying jail consent decree, district judge "must consider the concrete impact of modification on both parties, and also on the ...