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July 23, 1996

JAMES BENJAMIN, et al., Plaintiffs, against MICHAEL P. JACOBSON, et al., Defendants and related cases.

The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., District Judge:

 Defendants have moved for immediate termination of the Consent Decrees and all supplemental orders entered in this action and the six related cases that are encompassed herein *fn1" based on the recently enacted Prison Litigation Reform Act of 1995 ("PLRA" or "the Act"), Pub. L. No. 104-134, 110 Stat. 1321, ยงยง 801-810 (Apr. 26, 1996). Plaintiffs oppose the motion on the basis that the Act is superseded by the Federal Rules of Civil Procedure and is unconstitutional. *fn2" Although the Court's concerns with this new legislation are myriad, I am constrained under the law to uphold it. As the Supreme Court reminds us in the course of upholding the constitutionality of a Social Security eligibility provision:

It is not within our authority to determine whether the congressional judgment expressed in that Section is sound or equitable, or whether it comports well or ill with purposes of the Act. . . . The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom.

 Flemming v. Nestor, 363 U.S. 603, 611, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960). Accordingly, the defendants' motion is granted and the Consent Decrees are vacated.


 The Consent Decrees in these related cases were entered in 1978-1979. As drafted and agreed to by the parties, and proposed to the Court for its approval, these decrees aimed to ensure that prison conditions became and remained safe and humane. The Decrees address issues that affect individual detainees directly as well as more structural, institutional problems that arise in prison management. Detainees, it should be noted, are those men and women awaiting plea or trial. They have not yet been convicted of anything.

 A few brief examples of the most important provisions of the Consent Decrees may be helpful. On the individual level, the Consent Decrees ensure that detainee mail and property are handled properly, and that procedures in concert with constitutional protections are followed during detainee cell and body searches. On an institutional level, the Consent Decrees seek to maintain the physical plant of the jails in a condition safe for human habitation. They mandate that attention be given to vermin and insect control, sanitation, maintenance and refuse removal. Other provisions govern food services to the detainees and ensure that the detainees are adequately fed while in custody, with food that is prepared and served in a sanitary environment.

 The PLRA, which was passed and signed as part of an appropriations bill, deals primarily with prisoners' rights and prison conditions litigation. This decision represents one of the first tests with respect to the constitutionality of the Act. Section 802 of the PLRA amends 18 U.S.C. ยงยง 3626(a)(1), 3626(b)(2) and (3) and 3626(e) as follows:

(a) Requirements for Relief.--
(1) Prospective relief.--(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
* * *
(b) Termination of Relief.--
* * *
(2) Immediate termination of prospective relief.--In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
* * *
(e) Procedure for Motions Affecting Prospective Relief.--
(1) Generally.--The court shall promptly rule on any motion to modify or terminate prospective relief in a civil action with respect to prison conditions.
(2) Automatic stay.--Any prospective relief subject to a pending motion shall be automatically stayed during the period--
(A)(i) beginning on the 30th day after such motion is filed, in the case of a motion made under paragraph (1) or (2) of subsection (b); or (ii) beginning on the 180th day after such motion is filed, in the case of a motion made under any other law; and
(B) ending on the date the court enters a final order ruling on the motion.

 Retrogression or even harmful aspects of new legislation play little or no role in the Court's assessment of its constitutionality. As now Chief Justice Rehnquist wrote in United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 66 L. Ed. 2d 368, 101 S. Ct. 453 (1980):

"The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."

 Id. at 179 n.12 (quoting Vance v Bradley, 440 U.S. 93, 97, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979) (footnote omitted in original)).

 With that thought in mind a brief historical analysis of the twin concepts of what might be called reform in correctional policy and prison conditions may provide a valuable setting for this decision.

 In Colonial times, there were no prisons and certainly no prisons as we know them today. Prisons did not begin to appear until well into the 18th Century. This is not to say the colonists had no philosophy about crime and how to handle perpetrators. In essence, criminals were punished, punished severely and that was that. There was no thought that men and women who had committed a crime could be rehabilitated and go on to live useful lives. Branding on the forehead was a frequent penalty for a first offense; death for a third. The fact that there were no prisons played a large role in the colonists' approach to punishment. In the early 18th Century, we saw the beginnings of our prison system in what were characterized as county jails. Prisoners were placed in rooms or perhaps in a single room; there were no cells and there was no effort to distinguish between or separate men, women or children. For some time and certainly into the second decade of the 18th Century, while there was capital punishment for murder, many serious crimes, including arson, rape and burglary, exacted the forfeiture of property, restitution and relatively brief terms of imprisonment. From the very beginning, conditions in our prisons were marked by overcrowding, fire hazards and poor sanitation. Some of the same conditions which prompted the Consent Decrees in this case and at which the PRLA has taken aim.

 Later in the 18th Century in what is known as the age of enlightenment in Europe, the concept of "correctional" reform began to emerge. At the same time, the hazards of prison life became known and changes began to take place. In his volume, The State of the Prisons, published in England in 1777, John Howard awakened public opinion with a detailed discussion of the inhuman conditions prevalent in most jails and prisons. The same kinds of problems emerged from Howard's inspection as had plagued the prison business from the beginning. They included poor food or no food; poor ventilation which prompted an increased risk of fire; little or no medical attention and overcrowding.

it simply moved corporal punishment indoors where, hidden from public view, it became even more savage...For the most part, the general public did not know what went on behind prison walls. But it regarded the prison as a form of punishment and believed that the undesirables confined there deserved whatever they got. *fn3"

 Towards the middle of the 19th Century, reform concepts such as parole and the indeterminate sentence emerged and became important correctional tools. The widening use of conditional release and parole resulted in reduced populations in prisons and at the same time was proven in some studies to deter recidivism. Naturally enough, since parole was conditioned on evidence of rehabilitation, prisoners were more amenable to educational and other programs which they were given to understand would accelerate such a finding by the parole board. Parole and conditional release grew up during this period and remained with us for a century until the 1980's when in the federal system at least parole was abolished. Prison conditions varied during the 1800's for the most part prisons during this period remained overcrowded, dirty and poorly ventilated.

 Even early in this century, Kate Barnard, an Oklahoma official, reported as follows on a visit to a Kansas prison:

Prisoners who failed to dig their quota of three cars of coal per day were punished even further. She found one 17 year old, who had been able to mine only two carloads, chained to the wall of the prison. Other punishments included a form of water torture and "the crib," where inmates were thrown with hands and feet tied and drawn together at the back. In addition to the value of the prisoners' labor, the State of Kansas received 48 cents a day for keeping Oklahoma prisoners and paid about 10 cents a day for meals. *fn4"

 Additional reforms particularly new alternatives to incarceration were initiated at or shortly after the dawn of the 20th Century. They included community service and ideas such as work release, which was first passed in Wisconsin with the Huber Law in 1913 and worked its way east and a similar law having been enacted in New York State some half century later, in 1967. Work release programs permit prisoners at least for minor crimes to work during the day and return to their cell in the evening so as to earn some money and to ease their readjustment back into the community.

 With the advent of organized crime and the accompanying violence of the 1920's and 1930's, a new "get tough" policy was spawned and for the most part continues to this day. It is unfair to generalize since at different times during the last half century some states have adapted reforms and improved prison conditions dramatically.

 Clearly prison conditions have markedly improved since the Kate Barnard revelations, those changes, especially those within the last 20 years, are in some measure attributable to consent decrees of the type before me on this motion to vacate.

  For the time being we have settled for a correctional policy that focuses on legislation creating many new crimes with long terms for both the new and the old. Such a "hard time" and longer term policy has, since the inception of our prison system, been accompanied by less attention to prisoners' rights and prison conditions. If this policy had proven effective, it might at least be understandable. It has not. *fn5" It is interesting to note that the primary result of this policy is the emergence of a growth industry in the prison construction business, state and federal expense budgets for our prisons that have never before reached their current numbers, all at taxpayers' expense, and one million souls in those prisons. *fn6"

 Dostoyevsky wrote in the middle of the 19th Century, "the degree of civilization in a society is revealed by entering its prisons." *fn7" In short the fact that this legislation, signed as part of a budget bill and in the midst of an election year, passes Constitutional muster is far from the whole story. Far more important is what will happen to prisoners' rights and the conditions in our prisons as a consequence of this legislation.


 While I must examine only those few sections of the PLRA before me, the hearings that examined the bill as a whole are instructive. First it is worth noting that some believe that this legislation which has a far-reaching effect on prison conditions and prisoners' rights deserved to have been the subject of significant debate. It was not. A single Senate hearing before the Judiciary Committee, one substantive House Report, and some floor debate is all we can find. This is so even though Senator Hatch told us that as of January 1994, 244 institutions in 34 jurisdictions were operating under court orders and 24 reported having court-ordered population caps. *fn8"

 The thrust of the criticism which prompted the legislation was that the federal courts had overstepped their authority and were mollycoddling the prisoners in state and local jails. In short, the time had come to let the responsible entities, the municipal and state legislatures, take care of their own correctional facilities. After all, the cost of keeping up with the decrees are state and municipal obligations to be borne by state and municipal taxpayers, why shouldn't they be dictated by state and municipal legislative bodies responsible to their constituents. Senator Abraham made that thought quite clear on the floor of the United States Senate:

The legislation I am introducing today will return sanity and State control to our prison systems. It will do so by limiting judicial remedies in prison cases and by limiting frivolous prison litigation. *fn9"

 On the cost front, Senator Abraham went on to say:

People deserve to keep their tax dollars or have them spent on projects they approve. They deserve better than to have their money spent, on keeping prisoners in conditions some Federal judges feel are desirable, although not required by any provision of the Constitution or any law. *fn10"

 Again, the alleged problem and one at which the legislation took aim was the theme throughout much of the testimony before the Senate Judiciary Committee hearing that prisons have gotten too comfortable and they have gotten too comfortable at the hands of federal judges.

 Senator Kay Bailey Hutchinson of Texas put it this way:

Prisons exist for the protection of society -- not for the comfort and convenience of criminals. . . . Interference by the federal courts has put the interests of criminals ahead of the interests of victims and law-abiding citizens. *fn11"

 Conversely, Senator Simon joined Senator Kennedy in voicing concern about the proposed legislation and they aligned themselves with the remarks of Associate Attorney General John Schmidt who noted:

"The constitutional provision enforced most frequently in prison cases is the Eighth Amendment's prohibition of cruel and unusual punishment. . . . Prison crowding may also be a contributing element in a constitutional violation. For example, when the number of inmates at a prison becomes so large that sick inmates cannot be treated by a physician in a timely manner, or when crowded conditions lead to a breakdown in security and contribute to violence against inmates, the crowding can be ...

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