By Ed Mead
A flood of new rumors have been flying hot and heavy on the double celling status here at the Reformatory in Monroe. Some of these reports say there has been a negative change in the district court's order barring double bunking; other rumors claim that judges in the U.S. Circuit Court of Appeals have "leaked" that they intend to rule against prisoners; and still another piece of gossip has it that the state is going to ignore the federal court order and just go ahead and double us up anyway, declaring some sort of emergency condition to give their contempt of court a fig leaf of legitimacy. What is the real story? I'll try to tell it as best I can. But first let me put the situation in a political context, and then explain a bit of history about this litigation, for those of you who are new to the never-ending legal drama known locally as the Collins v. Thompson case.
A term we hear often in both legal circles and in the establishment press is "finality of litigation." This catch phrase is usually used in conjunction with some state's efforts to murder (they call it "execute") someone. Just this morning there was a report on the radio saying that attorneys for Charles Campbell, a Washington state death row prisoner, had neglected to file some document within the specified period of time. As a result of this, the defenders of freedom and democracy, the same folks who brought you the Desert Storm show, were screaming "finality of litigation" and demanding that immediate steps be taken to start killing Campbell. Oh how they cry and moan about how this Campbell case has gone on and on, and still he isn't dead. Well, that is what they cry when they want to kill one of us.
What do they whine when they want to subject us to unconstitutional double bunking, against our wills, when the courts are consistently ruling against them? Do they still believe in finality of litigation? Why of course not. These " upholders of the constitution" are fighting a form of judicial house-to-house combat in the courts. The Collins case was filed thirteen years ago. The consent decree mandating single ceiling has been signed for over ten years. But that means nothing to our captors, for them there is no finality of litigation. Their opposition to the consent decree is now in the Ninth Circuit Court of Appeals for the third time in ten years! Where is their plea for finality of litigation now? They want finality of litigation when they want to kill us, but they do not want any finality in the courts when they are trying to subject us to cruel and unusual punishment.
I for one get a bit sick listening to these hypocrites snivel because some poor guy on death row tries to extend his miserable life for a few years by exercising his right to file a habeas petition, yet they won't ever stop trying to weasel their way out of a judicially enforceable agreement, their word of honor, entered into with prisoners.
And that's what this is all about. Reformatory prisoners filed the Collins case back in 1978. The suit covered a lot of areas, but was ultimately settled out of court on a consent decree. Prisoners dropped many legitimate issues we believed could have been won so as to settle for single ceiling. The consent decree guaranteed that the number of prisoners at the Reformatory would not exceed the number of cells. The ink was not dry on the state's promise before they started violating the agreement. We were not single celled until the late 1980s, and even then, with so much prison space available around the state that Washington was renting out more than a thousand prison beds to foreign prisoners, we had to drag them kicking and screaming into court before they'd finally single cell us.
Now they again want to "modify" (read "gut") the consent decree entered into with prisoners. Can they do it? My normal answer would be a resounding "no." The law relating to modifying a consent decree is both long-standing and difficult. Once you've entered into a decree you are generally stuck with the results. For more than fifty years the standard for altering a consent decree has been that the party seeking modification must show a "grievous wrong evoked by new and unforeseen conditions." See United States v. Swift, 268 U.S. 106, 119 (1932). But lately some federal circuit courts have been adopting a more relaxed rule in terms of what is required to modify a consent decree, particularly in cases involving state agencies. See, e.g., New York State Association for Retarded Children, Inc. v. Carey 706 F.2d 956 (2 Cir. 1983), cert. denied 464 U.S. 915 (1983). Now the U.S. Supreme Court is going to resolve the issue, in the case of Rufo v. Inmates of the Suffolk County Jail (Nos 90-954, 90-1004).
In 1971 the inmates of the Suffolk County Jail in Boston, Massachusetts, filed a suit claiming that the conditions in the jail violated their constitutional rights. A consent decree was subsequently entered into between the sheriff and prisoners in which the sheriff promised that prisoners would not be double-celled. Ever since then the sheriff, no doubt another one of those believers in finality of litigation, has been litigating in the courts in an effort to slip out from under his written promise.
Will the sheriff be successful in his bid to cheat prisoners? Some experts, such as David Fathi, staff attorney for the National Prison Project, says, "it is clear that the Sheriff seeks an even more liberal standard [than any court has yet adopted, i.e.,] - if a proposed modification would not result in conditions that are actually unconstitutional, it would be allowed." As Fathi points out, "[a] consent decree, like any agreement, is useful only if it is understood that both sides will be bound by it."
So whether prisoners are double-bunked at the Reformatory will turn on the outcome of the Suffolk County case pending in the U.S. Supreme Court. Logic and reason would dictate that the sheriff would lose, but given the dynamic of supreme court decisions in recent years, anything could happen. The case will be heard some time this term. If the decision is a bad one for prisoners, it will then have to be implemented on the local level by the lower courts. All in all, even if the Supreme Court's decision should go in favor of the sheriff, the process of double-bunking us will take at least six month to implement, more than enough time for prisoners to mount a judicial counter attack.
One thing the state will most likely not do is ignore the federal court order banning double-celling at the Reformatory. Should they ever do so, prisoners would probably refuse to collaborate in the violation of the court's order. Indeed, an argument could be made in support of the proposition that they would be defending the constitution against all enemies, foreign and domestic. In any case, the state is unlikely to claim any sort of emergency situation, as recent legislation provides an adequate safety valve in the event of overcrowding. The Sentencing Guidelines Commission is empowered to lower guideline ranges for crimes, and the governor is authorized to release prisoners who are six months or less from their normal release dates. Thus any claim of emergency problem would be difficult to prove when these legislative measures have not even been implemented.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login