559 F.2d 283

United States Court of Appeals,
Fifth Circuit.

N. H. NEWMAN et al., Plaintiffs-Appellees,

v.

STATE OF ALABAMA et al., Defendants-Appellants.
Jerry Lee PUGH, for himself and others similarly situated, Plaintiffs-Appellees,

v.

Judson C. LOCKE, Jr. and State of Alabama, et al., Defendants-Appellants.
Worley JAMES et al., Plaintiffs-Appellees,

v.

George C. WALLACE et al., Defendants-Appellants.

No. 76-2269.

Sept. 16, 1977.

Rehearing and Rehearing En Banc Denied Nov. 7, 1977.
*285 William J. Baxley, Atty. Gen., George Beck, Larry R. Newman, Asst. Attys. Gen., Robert S. Lamar, Jr., Montgomery, Ala., for Locke, et al., and State of Alabama, et al.
*286 W. Scears Barnes, Jr., Alexander City, Ala., for Locke and all Board members.
Thomas S. Lawson, Jr., William K. Martin, Montgomery, Ala., for Wallace, et al.
John C. Hoyle, Atty., Dept. of Justice, Civil Rights Div., Washington, D. C. for amicus, U.S.A.
Joseph D. Phelps (court-appointed not under Act), Montgomery, Ala., for Newman, et al.
Robert D. Segall (Court-Appointed not under Act), Joseph J. Levin, Jr., Montgomery, Ala., for Pugh, et al.
George Peach Taylor (Court-Appointed not under Act), University, Ala., for James, et al.
Alvin J. Bronstein, The National Prison Project, Matthew L. Myers, Washington, D. C., for National Prison Project, amicus curiae.
Walter W. Barnett, Stephen A. Whinston, Atty., Depart. of Justice, Washington, D. C., for the United States, amicus curiae.
Appeals from the United States District Court for the Middle District of Alabama.

Before COLEMAN, Circuit Judge, KUNZIG [FN*], Judge, and GEE, Circuit Judge.
FN* Judge of the United States Court of Claims, sitting by designation.

COLEMAN, Circuit Judge.

The Eighth Amendment to the Constitution of the United States, reinforced by the Fourteenth Amendment, prohibits the imposition of cruel and unusual punishment. It is much too late in the day for states and prison authorities to think that they may withhold from prisoners the basic necessities of life, which include reasonably adequate food, clothing, shelter, sanitation, and necessary medical attention, Gates v. Collier, 5 Cir., 1974, 501 F.2d 1291; Newman v. Alabama, 5 Cir., 1974, 503 F.2d 1320,cert. denied421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102; Williams v. Edwards, 5 Cir., 1977, 547 F.2d 1206.

It should not need repeating that compliance with constitutional standards may not be frustrated by legislative inaction or failure to provide the necessary funds, Gates v. Collier, supra, at 1319; Smith v. Sullivan, 5 Cir., 1977, 553 F.2d 373.

On the other hand, lawful incarceration necessitates withdrawal of or limitations upon many individual privileges and rights. A prisoner does not retain constitutional rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Wide ranging deference must be accorded the decisions of prison administrators. They, and not the courts, must be permitted to make difficult judgments concerning prison operations, Jones v. North Carolina Prisoners' Labor Union, Inc. (1977), 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629. In his concurring opinion in Jones, Mr. Chief Justice Berger wrote that in penal matters the federal courts may not "second guess" legislatures and prison administrators except in the most extraordinary circumstances.

The present case is somewhat similar to Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561. There petitioners claimed that the judgment of the District Court represented an unwarranted intrusion by the federal judiciary into the discretionary authority committed to them by state and local law to perform their official functions. The Supreme Court found itself "substantially in agreement with th(o)se claims", at 366, 96 S.Ct. at 602. The case involved an "assertedly pervasive pattern of illegal and unconstitutional mistreatment by police officers".
The Supreme Court said,

"Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the 'special delicacy of the adjustment to be preserved between federal equitable power and state administration of its own law'. * * * Even in an action between private individuals, it has long been held that an injunction is 'to be used sparingly, and only in a clear and plain case'."

*287 The Court concluded that when the District Court injected itself into the internal disciplinary affairs of the Philadelphia Police Department, a state agency, it had departed from the controlling precepts of federalism in determining the availability and scope of equitable relief. The judgment of the Court of Appeals affirming the decree of the District Court which directed the imposition of a comprehensive program for dealing adequately with civilian complaints was reversed.

This does not mean that Constitutional standards are not to be scrupulously observed or that the statutes designed to enforce that objective are to be denied full effect. It does mean in the prison context that federal courts should keep their eyes on the main objective, the Eighth Amendment command for the eradication of cruel and unusual punishment. The remedy must be designed to accomplish that goal, not to exercise judicial power for the attainment of what we as individuals might like to see accomplished in the way of ideal prison conditions. There are those who would argue that imprisonment in any form is cruel and unusual. The Amendment, however, recognizes the right to punish for criminal conduct as long as that punishment does not escalate to the cruel and unusual.

For example, we have held that visitation privileges are matters subject to the discretion of prison officials, McCray v. Sullivan, 5 Cir., 1975, 509 F.2d 1332, 1334.

Failure of prison authorities to provide a rehabilitation program does not by itself constitute cruel and unusual punishment, Ibid, at 1335.

Federal courts are extremely reluctant to limit the freedom of prison officials to classify prisoners as they, in their broad discretion, may deem appropriate, Ibid, at 1334; Young v. Wainwright, 5 Cir., 1971, 449 F.2d 338.

State penitentiaries are occupied by convicted felons, either ineligible for or found to be unworthy of probation. By its very nature, the operation of such a prison is a dangerous undertaking. Time and time again, experience has dramatically taught that the management and control of prisons, the prevention of mass violence within prisons, and the safe retention of convicts within prison walls, present problems of the first magnitude, in which failures occur all too often, as recently demonstrated at Brushy Mountain, Tennessee. There was intense nationwide interest when a notorious prisoner escaped but not much concern had previously been shown for the problems of prison officials in trying to hold him inside the walls.

The authority to manage and control a felony prison should never be unduly restricted or divided. That authority must repose in one well identified place, limited only by the requirements of the law.
I

This appeal is concerned with the remedies prescribed by the very able District Court for the eradication of cruel and unusual punishment in the Alabama State Prison System, Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala., 1976). At the federal level this involves a comparatively new field of the law. It was not until 1962 that the Supreme Court applied the Eighth Amendment ban to the states through the Fourteenth Amendment, Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.

The State concedes that the evidence established excessive overcrowding in these prisons, that there were not sufficient guards to reasonably protect the inmates from one another, and that the overcrowding was primarily responsible for and exacerbated all the other ills of the penal system. As detailed in its published opinion, other indefensible conditions were found by the District Court, findings clearly supported by the evidence.

At the outset, then, the case is reduced to a constitutional appraisal of the remedies required of the State. The State contends that in fashioning those remedies the District Court "exceeded its judicial power and abused its discretion".

*288 Our first response is that the determined efforts of the highly dedicated District Judge to put an end to unconstitutional conditions in the Alabama prison system merit high commendation. We cannot believe that the good people of a great state approved the prison situation demonstrated by the evidence in this case. We note, too, that for more than a year funds for an entirely new prison have been available as the result of legislative action, which is likewise commended. A state has no higher duty than the preservation of its governmental integrity by the enforcement of its own laws, which inescapably includes the maintenance of an effective state prison system. This Court expresses the hope that the difficulties encountered in naming a location for the new prison will be speedily resolved.

Our real issue is whether in striving to attain constitutional objectives the District Court in a few respects went impermissibly beyond the requirements of the federal constitution; more specifically, did the Court supersede the duly constituted state authorities in the performance of vital state functions rather than compelling those authorities to perform those functions in a constitutional manner? We all understand, of course, that federal courts have no authority to address state officials out of office or to fire state employees or to take over the performance of their functions. Most assuredly, however, in proper cases a federal court can, and must, compel state officials or employees to perform their official duties in compliance with the Constitution of the United States.

At the outset we hold that the steps taken by the District Court to ensure reasonably adequate food, clothing, shelter, sanitation, necessary medical attention, and personal safety for the prisoners were within its sound discretion and will not be disturbed on appeal. Some of the steps in regard to these matters, if considered in isolation, may have gone beyond constitutional mandates but they were justifiably invoked for the eradication of Eighth Amendment conditions. We do not pause to discuss a number of state contentions which are foreclosed by our opinion in Williams v. Edwards, 5 Cir., 1977, 547 F.2d 1206, decided after this appeal was filed and briefed.

There are a few features of the case, however, in which we are of the opinion that less intrusive, but equally effective, measures should have been taken by the District Court. An adjustment of these matters within constitutional bounds should not hamper or impede the attainment of an effective, constitutionally operated state penal system. As to these matters, we think some modifications are in order. With those modifications, the judgment of the District Court will be affirmed and the case remanded for further proceedings not inconsistent herewith.
II

Unless intended to apply only to existing facilities we do not discern the constitutional basis for the requirement that Alabama state prisoners shall be housed in individual cells, nor can we agree that "design" standards, without more, amount to a per se constitutional limitation on the number of prisoners which may be housed in a particular prison facility. Those who design prisons are not vested with either the duty or the power to prescribe constitutional standards as to prison space. Assuming that the District Court intended these limitations to apply only to presently existing prisons and not to those hereafter to be constructed the judgment in these respects is affirmed.
The Court required that all new prison construction should provide sixty square feet of space per prisoner. We remand this requirement to the District Court for further consideration in the light of our opinion in Williams v. Edwards, 547 F.2d, at 1215.
III

The District Court established and appointed a "Human Rights Committee", composed of 39 individuals. Whether they *289 were qualified by training or experience in the operation of a state prison system is not shown. At State expense, the Committee was authorized to employ a fulltime staff consultant, other specialists, and a fulltime clerk-stenographer. The Committee members were to be compensated at the same rate as that paid the Alabama State Board of Corrections.
The Committee was authorized to monitor implementation of the standards prescribed by the Court's decree as well as those prescribed in Newman v. Alabama.[FN1] The Order provided that
FN1. D.C., 349 F.Supp. 278,affirmed in part, 5 Cir., 1974, 503 F.2d 1320,cert. denied421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102.
"(T)he Committee may at reasonable times inspect the state prison facilities, interview inmates, and inspect institutional records. The Committee shall review plans for implementation of this decree to ensure that they comport with minimum standards set forth. . . .. The Committee shall be authorized to take any action (emphasis added) reasonably necessary to accomplish its function."
Our initial reaction is that "reviewing plans for implementation of this decree to ensure that they comport with minimum standards set forth" could more properly have been assigned to the magistrate or to a master, qualified to hold hearings, make findings of fact, and report to the Court for its approval or disapproval. Moreover, the authority to "take any action ", with no accompanying standards or limitations, could amount, in practical effect, to turning the administration of the prisons over to the Committee, as, in some respects, appears to have occurred.