USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1460
INMATES OF THE SUFFOLK COUNTY JAIL, ET AL.,
Plaintiffs, Appellees,
v.
ROBERT RUFO, SHERIFF OF SUFFOLK COUNTY, ET AL.,
Defendants, Appellants.
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COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Douglas H. Wilkins, Assistant Attorney General, with whom Scott
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Harshbarger, Attorney General, and Thomas O. Bean, Assistant Attorney
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General, were on brief for appellants.
Max D. Stern with whom Lynn Weissberg and Stern, Shapiro,
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Rosenfeld & Weissberg were on brief for appellees.
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December 21, 1993
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CAMPBELL, Senior Circuit Judge. The Commissioner
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of Corrections for the Commonwealth of Massachusetts (the
"Commissioner"), defendant-appellant, brought a motion in the
United States District Court for the District of
Massachusetts to vacate a consent decree of May 7, 1979 (as
modified by the orders of April 11, 1985, and April 22,
1985)1 entered into by the Sheriff of Suffolk County (the
"Sheriff"), the Commissioner, and others with the inmates of
the Suffolk County Jail (the "Inmates"),2 the plaintiff-
appellee class. The district court denied the Commissioner's
motion. Inmates of the Suffolk County Jail v. Rufo, 148
_____________________________________ ____
F.R.D. 14 (D. Mass. 1993). The Commissioner appeals,
arguing, inter alia, that the district court mistakenly
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treated his motion to vacate as if it were a motion to modify
the consent decree. We affirm.
I.
This appeal is part of an ongoing saga involving
the construction and the operation of the new Suffolk County
Jail on Nashua Street in Boston, Massachusetts (the "Nashua
Street Jail"), which replaced the old Suffolk County Jail on
Charles Street (the "Charles Street Jail"). The early
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1. A copy of the original consent decree is included as an
appendix to this Opinion.
2. The Inmates are those individuals, male and female, in
the custody of the Sheriff of Suffolk County, who are
awaiting trial on criminal charges, and who have either been
denied bail or who are unable or unwilling to post bail.
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chapters of this drama, which began in 1971, need not be
repeated. They are fully set out in published opinions.
See, e.g., Inmates of the Suffolk County Jail v. Kearney, 928
___ ____ __________________________________ _______
F.2d 33 (1st Cir. 1992); Inmates of the Suffolk County Jail
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v. Rufo, 148 F.R.D. 14 (D. Mass. 1993); Inmates of the
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Suffolk County Jail v. Kearney, 734 F. Supp. 561 (D. Mass.),
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aff'd mem., 915 F.2d 1557 (1st Cir. 1990), vacated, Rufo v.
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Inmates of the Suffolk County Jail, ___ U.S. ___, 112 S. Ct.
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748, 116 L. Ed. 2d 867 (1992); Inmates of the Suffolk County
______________________________
Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff'd,
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494 F.2d 1196 (1st Cir.), cert. denied, 419 U.S. 977, 95 S.
____________
Ct. 239, 42 L. Ed. 2d 189 (1974). We pick up the story in
July 1989, approximately ten years after the consent decree
was entered.
"In July 1989, while the [Nashua Street Jail] was
still under construction, the [S]heriff moved to modify the
consent decree to allow the double bunking of male detainees
in 197 cells, thereby raising the capacity of the [Nashua
Street Jail] to 610 male detainees."3 Rufo v. Inmates of
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3. The Sheriff's motion was brought pursuant to Fed. R. Civ.
P. 60(b)(5) and (6), which state:
On motion and upon such terms as are just, the
court may relieve a party or a party's legal
representative from a final judgment, order, or
proceeding for the following reasons: . . . (5) the
judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should
-3-
the Suffolk County Jail, ___ U.S. ___, ___, 112 S. Ct. 748,
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756, 116 L. Ed. 2d 867 (1992). "The Sheriff argued that
changes in law and fact [constituted new and unforeseen
circumstances that] justified the modification." Rufo, 148
____
F.R.D. at 16. "The asserted change in law was [the Supreme
Court's] 1979 decision in Bell v. Wolfish, 441 U.S. 520, 99
____ _______
S. Ct. 1861, 60 L. Ed. 2d 447 (1979), handed down [shortly]
after the consent decree was approved by the District
Court.4 The asserted change in fact was the increase in the
population of pretrial detainees." Rufo, 112 S. Ct. at 756
____
(footnote not in original).
The district court denied the Sheriff's request to
modify the consent decree. Inmates of the Suffolk County
_______________________________
Jail v. Kearney, 734 F. Supp. 561 (D. Mass.), aff'd mem., 915
____ _______ __________
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have prospective application; or (6) any other
reason justifying relief from the operation of the
judgment.
The district court found that the Sheriff relied initially on
the provision of Fed. R. Civ. P. 60(b)(5) that authorizes the
modification of a judgment if "it is no longer equitable that
the judgment should have prospective application." According
to the district court, "[t]his portion of the rule codifies
the standard set out in United States v. Swift & Co., 286
_____________ ____________
U.S. 106, 119, 52 S. Ct. 460, 464, 76 L. Ed. 999 (1932),
which dealt with a court's inherent power to modify."
Kearney, 734 F. Supp. at 563. In Swift, the Supreme Court
_______ _____
held that "[n]othing less than a clear showing of grievous
wrong evoked by new and unforeseen conditions should lead us
to change what was decreed after years of litigation with the
consent of all concerned." Swift, 286 U.S. at 119.
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4. "In Bell, the [Supreme Court] held that double-bunking
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was not in all circumstances unconstitutional." Rufo, 148
____
F.R.D. at 16.
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F.2d 1557 (1st Cir. 1990). It held that the Sheriff had
failed to meet the standard for the modification of consent
decrees imposed by United States v. Swift & Co., 286 U.S.
______________ ____________
106, 119, 52 S. Ct. 460, 464, 76 L. Ed. 999 (1932).5 The
district court also "stated that, even under the flexible
modification standard adopted by other Courts of Appeals, the
[S]heriff would not be entitled to relief because `[a]
separate cell for each detainee has always been an important
element of the relief sought in this litigation perhaps even
the most important element.'" Rufo, 112 S. Ct. at 756-57
____
(quoting Kearney, 734 F. Supp. at 565) (footnote omitted).
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As a final matter, the district court "rejected the argument
that the decree should be modified because the proposal
complied with constitutional standards, reasoning that such a
rule `would undermine and discourage settlement efforts in
institutional cases.'" Id. at 757 (quoting Kearney, 734 F.
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Supp. at 565).
This court affirmed the district court's decision.
Inmates of the Suffolk County Jail v. Kearney, 915 F.2d 1557
___________________________________ _______
(1st Cir. 1990). Thereafter, the Supreme Court granted
certiorari, 498 U.S. 1081, 111 S. Ct. 950, 112 L. Ed. 2d 1039
(1991), and, after hearing, vacated the decision below and
remanded for further proceedings consistent with its opinion.
Rufo, 112 S. Ct. at 765. The Supreme Court ruled that the
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5. For a description of this standard, see supra note 3.
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district court had erred in applying the rigid "grievous
wrong" standard of United States v. Swift to the Sheriff's
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motion to modify the consent decree. Id. at 757-58 (holding
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that Fed. R. Civ. P. 60(b) does not intend that
"modifications of consent decrees in all cases [are] to be
governed by the standard actually applied in Swift . . . [but
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rather] permits a less stringent, more flexible standard").
The Court observed that "[t]he experience of the district and
circuit courts in implementing and modifying such decrees has
demonstrated that a flexible approach is often essential to
achieving the goals of [institutional] reform litigation."
Id. at 758. Against this backdrop, the Court held that "a
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party seeking modification of a consent decree bears the
[initial] burden of establishing that a significant change in
circumstances warrants revision of the decree." Id. at 760.
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To meet this initial burden, a party seeking modification of
an institutional reform consent decree may show "either a
significant change in factual conditions or in law." Id.
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Once the party seeking modification meets this standard, "the
court should consider whether the proposed modification is
suitably tailored to the changed circumstance."6 Id.
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6. The standard announced by the Rufo Court applies only to
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motions to modify institutional reform consent decrees. The
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Court did not have before it the "question [of] whether [in
whole or in part] the . . . decree should be vacated." Rufo,
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112 S. Ct. at 763 n.12 (emphasis added).
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On remand, the district court reconsidered the
Sheriff's motion to modify the consent decree to permit the
double-bunking of inmates in 197 of the 322 regular male
housing cells at the Nashua Street Jail. The court also
considered two other motions filed after the case was
remanded, one of which was the Commissioner's present motion
to vacate the consent decree altogether.7 See Rufo, 148
___ ____
F.R.D. at 15. The district court denied all three motions.
The district court explained its denial of the
Sheriff's motion for modification to allow double-bunking of
pretrial detainees at the Nashua Street Jail in a
comprehensive opinion, concluding that "the Sheriff's
proposed modification [was] not suitably tailored to changed
circumstances shown by the record." Id. at 24. According to
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the district court, the Sheriff had not "made [a] showing of
reasoned exploration of other feasible alternatives that
would maintain rather than impair the integrity of the
consent decree." Id. Nevertheless, the district court ruled
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that, "[t]hough [it] ha[d] rejected the Sheriff's request to
double-bunk, . . . it does not follow that no acceptable
alternative could be fashioned for a modified use of the
Nashua Street facility in a way that would meet the
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7. The third motion was a "motion of the Sheriff to modify
the consent decree to hold up to forty Suffolk County female
pretrial detainees at the Suffolk County House of Correction
at South Bay, Boston, Massachusetts." Rufo, 148 F.R.D. at
____
15.
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objectives of the consent decree, including protection
against abuse and undue risk of contagion." Id. Therefore,
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the district court did "not foreclose consideration of
another proposal submitted promptly, with evidentiary support
that justifies a finding that it is suitably tailored to
changes in circumstances, beyond the control of the
defendants after due effort, from the circumstances existing
when the decree was entered (or from circumstances existing
when it was modified)." Id. The Sheriff appealed from the
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district court's denial of his two motions, but agreed to
stay his appeal pending further proceedings on a new motion
to modify filed in the district court. We were told at
argument that proceedings regarding this motion are in
progress in the district court.
In explaining its denial of the Commissioner's
separate motion to vacate the consent decree, the district
court began by stating that the Commissioner did not support
the Sheriff's proposal for modification because the
Commissioner felt that "the plan would require unnecessary
judicial involvement in the day-to-day administration of the
jail." Id. at 23. The district court noted that the
___
Commissioner objected to being forced by orders in this case
to accept from the Sheriff the overflow from the Nashua
Street Jail. The district court went on to say:
Rather than submitting his own plan
for modification, . . . the Commissioner
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challenges the consent decree and this
court's jurisdiction over the case,
arguing that it is no longer equitable
for the consent decree to have
prospective effect. . . .
* * *
The Commissioner's proposed way of
avoiding undue involvement of the court
in day-to-day implementation of the
consent decree is an unacceptable
extreme simply let the Sheriff have
unfettered discretion to order double-
bunking without any constraints or
limitations as to criteria regarding
associated conditions of confinement.
The Commissioner contends not only that
the court should not require that single-
bunking be maintained but also that the
court should not require that any other
safeguards be instituted in lieu of
single-bunking to carry out the
objectives of the decree as fashioned by
consent. This hard-line approach is
plainly incompatible with this court's
obligation, under the order of remand, to
consider whether any proposed
modification of the consent decree is
suitably tailored to changed
circumstances. The Commissioner of
Corrections' position must be rejected.
His motion, accordingly, is denied.
Id.
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II.
On appeal, the Commissioner argues that the
district court applied the wrong legal standard when ruling
on his motion to vacate the consent decree. The Commissioner
asserts that the district court mistakenly applied the
Supreme Court's Rufo standard, which he says relates only to
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motions to modify, not to vacate, institutional reform
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-9-
consent decrees. According to the Commissioner, a district
court that rules upon a motion to vacate an institutional
reform consent decree must consider only whether the
defendants are in present compliance with constitutional
requirements and whether the effects of the original
violation have abated. Maintaining that these conditions
have been met, the Commissioner contends that the district
court erred in refusing to vacate the decree, and he seeks a
remand so that the court can reconsider the issue.
Although we agree with the Commissioner that
motions to vacate consent decrees and motions to modify them
involve somewhat different analytical frameworks, we find the
Commissioner's proposed standard inadequate. We also think
that, whatever the weaknesses of its stated rationale, the
lower court properly declined to vacate the consent decree
under the present circumstances and at the present time.
III.
As an initial matter, "[w]e note that [describing]
the appropriate legal standard [to be applied by district
courts to motions to vacate institutional reform consent
decrees] presents a pure question of law, subject to de novo
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review." Societe des Produits Nestle, S.A. v. Casa
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Helvetia, Inc., 982 F.2d 633, 642 n.9 (1st Cir. 1992); see,
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e.g., Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st Cir.
____ _______ ____________
1992). Moreover, even should we find that the district court
-10-
applied an incorrect legal standard to the Commissioner's
motion to vacate the consent decree, we may, in appropriate
circumstances, affirm the district court's denial of the
Commissioner's motion if we are satisfied that the district
court's decision was correct. See, e.g., Knight v. Mills,
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836 F.2d 659, 661 n.3 (1st Cir. 1987) ("It is proper for an
appellate court to affirm a correct decision of a lower court
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even when that decision is based on an inappropriate ground."
(emphasis in original)). In determining the propriety of the
district court's decision, we may affirm on any independently
sufficient ground supported by the record, see Willhauck v.
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Halpin, 953 F.2d 689, 704 (1st Cir. 1991), and we review the
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district court's resolution of mixed questions of law and
fact under a clearly erroneous standard, United States v.
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Rule Indus., 878 F.2d 535, 542 n.7 (1st Cir. 1989).
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IV.
In Board of Education v. Dowell, 498 U.S. 237, 111
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S. Ct. 630, 112 L. Ed. 2d 715 (1991), and more recently in
Freeman v. Pitts, ___ U.S. ___, 112 S. Ct. 1430, 118 L. Ed.
_______ _____
2d 108 (1992), the United States Supreme Court described the
standard for district courts to apply when deciding whether
to dissolve injunctive orders previously entered in school
desegregation cases. While the desegregation cases have a
special history and context all their own, many of the same
considerations would appear to be relevant to other types of
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institutional reform litigation. This circuit has cited to
Dowell's principles in cases involving consent decrees
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pertaining to conditions at correctional facilities and to
the treatment of mentally ill or retarded persons. See,
___
e.g., In re Pearson, 990 F.2d 653 (1st Cir. 1993) (petitioner
____ _____________
sought writ of mandamus to halt the district court's efforts
to evaluate, by the appointment of a special master, the
continuing need for, or the possible modification of, consent
decrees affecting the operation of a state institution, the
Massachusetts Treatment Center for Sexually Dangerous
Persons); Consumer Advisory Bd. v. Glover, 989 F.2d 65 (1st
______________________ ______
Cir. 1993) (Consumer Advisory Board and a group of residents
and outpatients of Pineland Center, a state institution for
the mentally retarded, brought action on behalf of Center
residents and outpatients against the Commissioner of Mental
Health and other state officials, seeking enforcement of
rights created under a 1978 consent decree).
In Dowell, the Supreme Court stated that
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desegregation decrees should not exist forever. See Dowell,
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498 U.S. at 248 ("[I]njunctions entered in school
desegregation cases . . . are not intended to operate in
perpetuity."). This circuit has invoked this principle in
other kinds of institutional reform cases. See Pearson, 990
___ _______
F.2d at 658 ("In institutional reform litigation, injunctions
should not operate inviolate in perpetuity."); Glover, 989
______
-12-
F.2d at 68 ("[I]nstitutional reform decrees need not endure
forever."). In all types of institutional reform litigation,
federalism concerns dictate that any "intrusion by a federal
court into the affairs of local government should be kept to
a bare minimum and not be allowed to continue after the
violation has abated and its pernicious effects have been
cured." Mackin v. City of Boston, 969 F.2d 1273, 1276 (1st
______ _______________
Cir. 1992), cert. denied, 113 S. Ct. 1043, 122 L. Ed. 2d 352
_____________
(1993).
In Dowell, 498 U.S. at 247, 249-50, as supplemented
______
by Freeman, 112 S. Ct. at 1446, the Supreme Court indicated
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that there are two conditions that must be met before a
district court is essentially obliged to terminate a
litigated decree and return the institution or programs under
court supervision to the governance of state or local
authorities.
First, the district court must determine that the underlying
constitutional wrong has been remedied, either fully or to
the full extent now deemed practicable. See Dowell, 498 U.S.
___ ______
at 247, 249-50; Glover, 989 F.2d at 69. Second, there must
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be a determination that the authorities have complied with
the decree in good faith for a reasonable period of time
since it was entered. See Freeman, 112 S. Ct. at 1446;
___ _______
Dowell, 498 U.S. at 249-50.
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Implicit in these requirements is the need for the
district court, before terminating the decree entirely, to be
satisfied that there is relatively little or no likelihood
that the original constitutional violation will promptly be
repeated when the decree is lifted. See Dowell, 498 U.S. at
___ ______
247 ("[A] finding . . . that the Oklahoma City School
District was being operated in compliance with the commands
of the Equal Protection Clause of the Fourteenth Amendment,
and that it was unlikely that the Board would return to its
_____________________________________________________________
former ways, would be a finding that the purposes of the
____________
desegregation litigation had been fully achieved." (emphasis
added)). Whether authorities are likely to return to former
ways once the decree is dissolved may be assessed by
considering "[t]he defendants' past record of compliance and
their present attitudes toward the reforms mandated by the
decree." Lloyd C. Anderson, Release and Resumption of
____________________________
Jurisdiction Over Consent Decrees in Structural Reform
_____________________________________________________________
Litigation, 42 U. Miami L. Rev. 401, 411 (1987) (citing
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Morgan v. McDonough, 689 F.2d 265, 280 (1st Cir. 1982)). Of
______ _________
possible further relevance is the way that demographic,
economic, and political forces may be expected to influence
local authorities and the institution once the shelter of the
decree has been lost.
Obviously, there can be no perfect certainty that
the original constitutional violation will not be repeated.
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No one can demand such an assurance too far into the future.
But it would be a travesty of the two requirements just
stated that the violation be eliminated and that the
officials have shown their commitment to obey the law if a
decree could be terminated in the face of substantial
evidence that the same underlying violation would then be
resumed.
These general statements leave many questions
unanswered. One, as already mentioned, is the extent to
which they can be extended from the school desegregation
cases, in which the statements were made, to all other
institutional reform decrees including those involving
prisons. Our tentative view, as said, is that they probably
can be so extended, although the point need not be decided
definitively. Another question, perhaps more perplexing, is
whether there ought to be any difference in treatment between
a litigated decree and a consent decree when it comes to
standards for termination; arguments can be made on both
sides and, again, we need not definitely resolve the
question. Finally, there is the question of whether and to
what extent the "extra" remedial protections of the decree,
at least if embodied in a bargained-for consent decree, ought
to remain relevant when the underlying federal violations
have entirely ceased and are not likely to recur. As with
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the others, there are plausible arguments on both sides of
this question.8
We see no need, however, to resolve these issues at
this time. For purposes of the present appeal, it is enough
to assume arguendo that the proper standard for decree
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termination is the one most favorable to the Commissioner
that we can imagine being adopted by the Supreme Court. On
this view of the law, the Commissioner would arguably be
entitled to termination of the decree if the Commissioner
could show: that the federal violations of the type that
provoked the original action have been entirely remedied or
remedied to the full extent feasible;9 that a reasonable
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8. The plaintiffs, for instance, argue that the purposes and
requirements of the consent decree continue to deserve weight
______________
even if it is assumed that a defendant has come into
compliance with the bedrock obligations imposed by the
Constitution. Thus, the plaintiffs would argue that the
Commissioner's and the Sheriff's announced intention to
abandon single-celling a requirement of the consent decree
but not necessarily of the Constitution is enough to
demonstrate that the time is not yet ripe to vacate the
decree. The Supreme Court's decision in Rufo itself lends
____
some support to the plaintiffs' position in this regard,
where the issue before the court was the proposed
modification of a consent decree, a proposal that may well be
____________
made even when the ongoing constitutional violations have not
been entirely extirpated. See Rufo, 112 S. Ct. at 762-64.
___ ____
9. The Commissioner asserts, and there appears to be no
dispute, that the Nashua Street Jail, constructed in
accordance with the decree, presently meets constitutional
standards and has done so since it opened in May of 1990.
The district court found that "[t]he Nashua Street [J]ail is
a modern, seven-story structure of steel, concrete, and brick
construction. It provides conditions of confinement far
superior to those at the former Charles Street Jail, which
had been determined to be below constitutionally mandated
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period of time has passed during which such compliance has
been achieved;10 and that it is unlikely that the original
violations will soon be resumed if the decree were
discontinued. Under this standard (a view we neither adopt
nor reject), the Commissioner on this record has not made a
showing adequate to oblige the district court to terminate
the decree.
Unlike the standard just described, the
Commissioner's proposed formula for vacating the consent
decree which we find too restrictive by any measure
assumes that the district court is obliged to terminate
whenever the existing constitutional violation has ceased.
This approach gives insufficient weight to the problem of
recurrence. To the extent that recurrence is taken into
account, the Commissioner brushes the issue aside by
proclaiming that the Supreme Court has made clear that
double-celling is not a constitutional violation even for
pretrial detainees. There are a number of flaws in his
analysis.
We accept entirely the proposition, established by
the Supreme Court, that double-celling is not automatically
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standards." Rufo, 148 F.R.D. at 17.
____
10. The consent decree was entered in 1979, and was modified
in 1985. The Commissioner's motion to vacate was filed in
April of 1992, nearly two years after the Nashua Street Jail
was opened to receive prisoners.
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unconstitutional for pretrial detainees. See Bell v.
___ ____
Wolfish, 441 U.S. 520 (1979); see also Rhodes v. Chapman, 452
_______ ________ ______ _______
U.S. 337 (1981) (similarly as to convicted prisoners). But
this is a far cry from the implicit position of the
Commissioner that whatever double-celling may be contemplated
by the Sheriff in the foreseeable future at the Nashua Street
Jail is therefore clearly constitutional. We may assume that
the housing of two detainees in a cell providing a large
amount of space, with appropriate security measures to
protect against inmate assaults, would be constitutional; but
we think it obviously apparent that double-celling in very
small quarters, with lack of security against assaults, and
possibly other threats (e.g., disease) could violate due
____
process. And it is far from clear on the record before us
that the immediate plans proposed by the Sheriff are
constitutional, let alone any prospective next steps that
might follow from the complete vacation of the consent
decree.
Looking only to the immediate future, we have here
a prison facility that was expressly constructed under the
consent decree on the assumption that it would house only one
detainee per room unit. The size and security arrangements
were specifically designed with that in mind, and certain of
the "amenities," such as the use of a solid door with the
small peep hold instead of bars, may increase the risk that
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assaults on inmates would go undetected (double-celling
resumed). Moreover, the rooms just meet the minima for
single occupancy that are recommended by standard setting
agencies.11 The district court also made findings that the
risk of tuberculosis spreading in these close quarters, if
double-celling were permitted, is a factor of importance.
This is not to say that the Sheriff's double-celling plans
for the Nashua Street Jail, or others that are proposed, may
not yet be found constitutional. We say merely that whether
they will be constitutional remains currently undecided
and the answer is pivotal to whether vacating the decree will
result in a recurrence of unconstitutional conditions, given
that both the Commissioner and Sheriff are committed to
double-celling unless otherwise ordered.
Other longer term prospects of vacating the decree
also give us pause. Even if the district court were to find
that modification of the decree to accept the Sheriff's
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11. The court below found that:
The present cells in the Nashua Street Jail
were explicitly designed for single-bunking. They
are slightly smaller in area than the cells in the
old Charles Street facility. The contemporaneous
views of expert consultants who participated in
recommendations for design of the Nashua Street
facility were that cells of this size were
acceptable only because they were meant for single
occupancy.
Rufo, 148 R.F.D. at 21; see also Rufo, 112 S. Ct. at 755 n.3
____ ________ ____
(listing state and national design standards).
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proposed double-celling arrangements in certain cells
satisfies constitutional minimums, it is by no means clear
that the district court would also find that there is no
likelihood that unconstitutional crowding would occur if the
decree were entirely terminated. As we have said, even on
the reading of the law that we think most favorable to the
Commissioner, the district court would hardly be obliged to
terminate the decree if it had substantial reason to fear
that the constitutional conditions would be recreated soon
after judicial oversight had been eliminated.
It is a notorious fact that prisons are now
desperately crowded and that the willingness of legislatures
to fund new prison construction is limited by competing
social needs and public resistance to increased taxes.
Without knowing far more than this record reveals about the
likelihood that the Sheriff would be in a position to resist
such unconstitutional overcrowding, it is hardly possible to
make a clear determination that the Dowell standard could be
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satisfied in this case.
One further consideration bears on our sense that
the district court was entitled, at this stage, not to order
termination of the decree. The district court did not wholly
foreclose the possibility of double-celling; to the contrary,
it invited the Sheriff, who is not a party to this appeal, to
make a further showing with respect to his own double-celling
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plans and alternatives to them. The Sheriff has made clear
that he intends to do so.12 It appears certain that in
such a proceeding further light would be cast on the impact
of the Sheriff's proposal on the lives and conditions of the
detainees.
It seems to us that, where the constitutional
status of the proposal is uncertain, the district court could
reasonably consider first the lesser remedy of decree
modification before definitively deciding whether the decree
should be irreversibly terminated. A decision by the
district court to allow some double-celling might satisfy the
Commissioner despite his doctrinal objections to continued
court supervision; but far more important, the district court
could conclude on a more careful look at the Sheriff's
embellished proposal that it would produce
unconstitutional conditions, a conclusion that would provide
________________
an a fortiori basis for refusing to terminate the decree.
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After all, if the Sheriff by his own admission is planning to
introduce changes that the district court finds recreate the
unconstitutional crowding violation, then one can hardly say
that future violations are unlikely.
____________________
12. The Commissioner is involved in this litigation not
because he manages the Nashua Street Jail (that is the
Sheriff's responsibility), but because he must assist the
Sheriff in lodging surplus pretrial detainees who cannot be
accommodated at the Nashua Street Jail. See Inmates of the
___ ______________
Suffolk County Jail v. Eisenstadt, 494 F.2d 1196 (1st Cir.
____________________ __________
1974).
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We recognize that the district court's reasons for
refusing to terminate may be based on a reading of a
governing law that is quite different from the arguendo
________
position we have described as the most favorable that the
Commissioner could achieve. It could have been the district
court's view that the termination was improper merely because
it would frustrate an important object of the original decree
single-celling or because the kind of considerations
pertinent to decree modification (e.g., exploration of other
____
alternatives, financial stringency) have not been shown to
favor the Commissioner. Still, we see no reason to grapple
either with these matters or with related unsettled questions
of governing law where, as here, the immediate outcome in the
ongoing case appears to us correct and the issues that we
leave to another day are difficult ones not clearly settled
by Supreme Court precedent.
Accordingly, whatever the district court may have
intended, our affirmance of the court's refusal to terminate
rests upon and is limited to the grounds we have just
discussed: first, the absence of an adequate record to
justify a complete decree termination at this time; and,
second, the prospect of further proceedings in which
additional light may be shed, not only on the basis for
decree modification but also on issues that would clearly
bear upon the decree's termination. On this basis, and with
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these clarifications, we affirm the judgment of the district
court.
So ordered.
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