can alter the population limits during the period it retains jurisdiction, denial of a stay pending appeal will not render whatever right the District Attorney has to appeal "substantially meaningless." District Attorney's Memorandum at 7. Preferential trial listings where the accused is in detention awaiting trial will alleviate whatever substance there is to the District Attorney's concern about release of most pretrial detainees. At worst, the failure to grant a stay pending appeal will make it more difficult for the District Attorney to prosecute some pretrial detainees released during the pendency of the appeal. In view of the unlikelihood of success on the merits, the minimal injury to the putative intervenor (some of which is within his power to ameliorate), the substantial prejudice to all parties to the settlement agreement if its implementation is delayed, and the public interest in this settlement, that injury is clearly insufficient to warrant a stay.
3. Substantial Harm to the Parties
The grant of a stay pending appeal would cause irreparable harm to the plaintiff-prisoner class. The District Attorney argues that no harm would be caused to existing parties by a stay pending appeal because the plaintiff-prisoner class has no legitimate expectation of release. See District Attorney's Memorandum at 7. The District Attorney is correct that the plaintiff-prisoner class has no legitimate expectation of release from prison. But the District Attorney incorrectly assumes that the plaintiff-prisoner class primarily seeks approval of the settlement to obtain release of its members. The class seeks approval of the settlement primarily to achieve a portion of the relief demanded in the amended complaint for allegedly unconstitutional conditions of confinement. Plaintiffs have not only a legitimate expectation but a right to constitutional conditions of confinement. There has been no adjudication of the constitutionality of the conditions of confinement in the City penal institutions, but the City defendants, without any admission of fault or liability, have offered substantial relief to the plaintiff-prisoner class by this settlement. It is against public policy favoring settlement of civil rights class actions to grant a stay pending appeal just because there has been no judicial finding of unconstitutionality in this court. Irreparable injury will be caused to the plaintiff class by granting a stay pending appeal because class members would be forced to continue in confinement under conditions less humane than those obtained if settlement is implemented in accordance with the agreement with the City defendants.
The District Attorney is apparently opposed only to the prison population limits. However, granting his motion would stay all the provisions of the consent decree, even those provisions beneficial to the class to which the District Attorney has stated no objection, such as time to post bail at the Police Administration Building, housing assignment within 72 hours, sleeping quarters, mattresses, bedding and perhaps most important, construction of a downtown 440 bed detention facility by December 31, 1990. The District Attorney offers no reason to delay these substantial benefits and there is none.
4. The Public Interest
Granting a stay pending appeal would not be in the public interest. In its opinion approving the settlement agreement, the court articulated the reasons the settlement agreement was in the public interest. See Harris v. Pernsley, 654 F. Supp. 1042, Slip Op. at 30-31, (E.D. Pa.1987). Staying its implementation is not.
The District Attorney argues that the consent order should be stayed in the public interest because, "absent a stay, hundreds of prisoners, most of whom are accused felons with criminal records, will be released." The court finds compliance with the court's consent order less disturbing than the District Attorney. The record established that 70% of the persons in Philadelphia prisons are pretrial detainees who are presumed innocent. While some pretrial detainees are held on high bail for serious charges, a large number are held on minimal bail and would not be in custody if they had sufficient funds. Low bail suggests that the judicial officer setting it did not consider such defendants a serious threat to the public safety. The District Attorney refuses to recognize in his arguments for a stay of the consent order that there will be no release of prisoners accused or convicted of murder or forcible rape or of prisoners who present an imminent threat to their own or the public safety. Releases might not ever be required if the District Attorney brings cases to trial promptly as required by law and gives priority to cases where the defendant is being held in detention as required by the Chief Justice of Pennsylvania, Robert N.C. Nix, Jr. Statement reported in The Retainer, January 28, 1987.
Therefore, the public interest does not mandate grant of a stay pending appeal.
Instead, the delay in the implementation of this court's order is against the public interest. It would infringe upon the public safety interest in orderly and safe operation of the City prisons. The City defendants argue that the current prison populations strain the resources of the prisons. See City defendants' Brief in Opposition at 11. While the City defendants could certainly institute systemic reforms to lower the population in the penal institutions voluntarily, the court recognizes that the City defendants are less likely to do so in the absence of a court order. The interest in protecting public safety by maintaining safe prisons is more pressing than the District Attorney's interest in confining persons accused of non-violent crimes prior to trial where that interest may be met by complying with the Sixth Amendment right to speedy trial.
The strongest public interest is in protection of civil rights guaranteed to all by the Constitution of the United States. Society in general as well as those in custody are severely harmed when persons are held under conditions of confinement that are arguably in violation of the Eighth Amendment. While it may not be as easy to perceive the harm caused, the court believes that it is more serious than that which the District Attorney alleges will occur if the motion for stay is denied. Granting the District Attorney's motion to stay is not in the public interest.
Implicit in the District Attorney's motion to stay is an unarticulated concern that this settlement agreement will impede the administration of his office by requiring compliance with state deadlines for preliminary hearings (10 days) and speedy trials (180 days). No such requirements enter into the population limitations imposed or the release procedures provided. However, the effect of the settlement agreement's implementation may be to require priority in the disposition of the criminal list be given to cases where the untried are being held in detention awaiting trial. There was testimony at the evidentiary hearing that this was not the District Attorney's preference, but this court assumes that the District Attorney as well as the state court administrators will comply with the recent mandate of the Chief Justice of Pennsylvania that this be done in part to meet the crisis created by 10 judicial vacancies and 15 judicial suspensions. No doubt other solutions to this serious problem in court administration will be sought and implemented. But no concern of the District Attorney can justify impeding the momentum for improvement in prison overcrowding accomplished by the entry of the consent order. The Commissioner of the Department of Human Services of the City of Philadelphia, the members of the Board of Trustees of the Philadelphia prison system, the Superintendent of the Philadelphia prison system, the Warden of Holmesburg Prison, the Warden of the Detention Center, the Warden of the House of Corrections, the Managing Director of the City of Philadelphia, the Mayor of the City of Philadelphia, and the City of Philadelphia are all parties to the settlement and agree its terms can be met without undue risk to the community. They and court administrators are ready, willing and able to implement the consent order. This court will not, stay the cooperative effort to ensure that conditions of confinement are consistent with the Constitution.
Because the District Attorney has failed to meet his burden of proof on any of the four factors relevant to the grant of a stay pending appeal, the motion for stay pending appeal is denied. An appropriate Order follows.
AND NOW, this 19th day of February, upon consideration of the District Attorney's motion to stay implementation of the settlement agreement pending appeal, memoranda filed in support thereof and in opposition thereto, and for the reasons set forth in the foregoing Memorandum, it is ORDERED that said motion is DENIED.