by way of a video taped deposition. Dr. Dvoskin, a proponent of individualized treatment, stated that the ICM program is successful in New York. Although it is a "tremendous idea," one drawback is finding a residence for someone who is in jail. Dr. Dvoskin felt that this is a major problem with the ICM program. His program is state-wide and underwritten by the state.
Richard Asarian, Ph.D., a co-founder of the Ielease Institute, which is under contract with the County, testified on behalf of the inmates. Dr. Asarian stated that he is opposed to institutionalization for treating the mentally ill. Dr. Asarian explained that a lengthy stay in an institution has a detrimental effect on the mentally ill individual. He believes that there should be a continuity in treatment of the mentally ill, so that the therapist has an opportunity to "bond" with the person. He opined that the ICM concept is "excellent" because the same person is involved in the treatment of the individual.
The inmates also called Howard P. Friday, M.D. the Director of the Forensic Center at Mayview State Hospital. Dr. Friday opined that certain mentally ill individuals would benefit from a structured residential facility.
CONCLUSIONS OF LAW
A. Population Cap Issue
The inmates contend that the jail is presently too crowded to permit an increase in the population cap. In Rhodes v. Chapman, 452 U.S. 337, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981), the Supreme Court of the United States, in considering double celling of inmates, held that double celling at the Southern Ohio Correctional Facility did not constitute cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendment. The court stated that "the double celling made necessary by the unanticipated increase in prison population did not lead to deprivations of essential food, medical care, or sanitation. Nor did it increase violence among inmates or create other conditions intolerable for prison confinement." Id., 452 U.S. at 348. Thus, double celling is not unconstitutional per se. One must look at all aspects of the jail in question.
Following the standard set out by Rhodes v. Chapman, to determine whether an increase in the population cap at the ACJ would violate the Eighth and Fourteenth Amendments, we must look to such factors as adequacy of food service, medical care, sanitation, and safety of the inmates.
Both the Jail Monitor and Deputy Warden Gregg opined that the Jail can handle an increased population. In fact, as previously noted, from December 16, 1991 through March 31, 1992, the Jail operated with an inmate population of 632 or more on 70 days. Both Ms. Norton and Mr. Gregg testified that food service and sanitation have not been affected by the increase in population. Further, evacuation procedures would not be hampered. According to Mr. Gregg, the staff, including the counsellors, is sufficient to handle an increase, along with the new fifth counsellor.
We therefore conclude that increasing the population cap at the Jail will not deprive the inmates of adequate sanitation, safety, inmate needs and services, and staffing. See Rhodes v. Chapman, 452 U.S. at 364. We hasten to add however, that this permission is contingent on the County maintaining its present level of staffing, and we will not hesitate to order a hearing to consider an increase in staffing if the Jail Monitor or the inmates request it. In addition, the fifth counsellor must be in place before the increase may go into effect.
As to the inmates' contention that there has not been any significant improvement in the number of down cells since November of 1988, in that opinion we stated that "on any given day, approximately 20 cells are 'down'. . . ." 699 F.Supp. at 1140. At the recent hearing, however, both the Jail Monitor and Mr. Gregg testified that the average number of down cells in the first part of 1992 was eight. During the hearing, both reported that the number of down cells that day was six, and those cells were being worked on.
Therefore, contrary to plaintiffs' assertion, there has been a significant decrease in the number of down cells.
As to the inmates' contention that the conditions at the jail are oppressive, they primarily focus on the absence of adequate space for physical and mental health care, the lack of adequate living space in the cells and otherwise, and the lack of adequate space for inmate exercise and recreation. We cannot disagree that space is limited at the Jail. This is why a new jail is being built.
The inmates also complain about the faults of the fire alarm system. Ms. Norton and Mr. Gregg stated that although the computerized fire alarm system is not perfect, it is working much better than when it was installed. Further, the pull box alarm system, which is directly linked to the fire station, functions properly. Additionally, Mr. Gregg testified that there are fire extinguishers placed throughout the Jail, which are checked regularly. Evacuation procedures are also apparently well organized, since there have been two successful evacuations.
We will, therefore, permit an increase in the population cap. We will, however, leave a cushion of 10 for cells which may become inoperable. Thus, we will increase the population cap at the Jail to 622, contingent as we said, on present staffing being maintained, or increased if this is later determined by the Court to be necessary, and the addition of the fifth counsellor. This will become effective July 1, 1992, assuming the fifth counsellor's position is filled, otherwise, at such time as that position is filled.
B. Mental Health Issue
As we pointed out in our opinion of November 17, 1988, "when this case was filed in 1976, the litigation focused on conditions at the Jail. Overcrowding was not a problem until 1983." 699 F.Supp. at 1140. Various issues relating to overcrowding have come before the Court since then. Today, however, the parties ask us to determine which program would best suit the needs of the forensic mentally ill, a function ill-suited for determination by the courts. The stipulation called for construction of a mental health facility. The issue now is whether the consent decree entered into on July 7, 1989 should be modified.
We acknowledge that at the same time the defendant's proposed plans and programs have been changing, the law applicable to these kinds of cases has been evolving.
In Rufo v. Inmates of Suffolk County Jail, U.S. , 116 L. Ed. 2d 867, 892, 112 S. Ct. 748 (1992), the Supreme court held that the "grievous wrong" standard established by United States v. Swift & Co., 286 U.S. 106, 76 L. Ed. 999, 52 S. Ct. 460 (1932) does not apply to requests to modify consent decrees stemming from institutional reform litigation. The Supreme Court, instead, adopted a flexible standard where a party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstances. Rufo, 116 L. Ed. 2d at 892. While certainly no consent decree should be modified without serious study, the law would be grievously inflexible if it could not be modified when conditions change.
The County asserts that there has been a significant change in conditions which warrants revision of the consent decree. Mr. Peters, who has been the Director of the Allegheny county MH/MR Program for 17 years, testified that professionals in the mental health/mental retardation area have moved away from the belief that institutionalization is always best for the care of the mentally ill. In fact, Dr. Asarian testified that he was opposed to any institutional treatment of the mentally ill. Instead, the popular philosophy now is that the mentally ill do better in noninstitutional settings. The County's proposed ICM program, according to Mr. Peters, comports with this new philosophy and thus, is in the best interest of the public and the mentally ill.
Dr. Dvoskin and Dr. Asarian both testified that the ICM program is an excellent idea. Further, even Mr. Huber, the Executive Director of the Stairways Program in Erie, stated that the ICM program is an important concept.
We believe that the deinstitutionalization philosophy in the mental health field constitutes a significant change in treatment prescribed for the mentally ill, and therefore, we must consider whether the County's proposed ICM program is suitably tailored to comport with this new theory.
In Rufo, the Supreme Court warned that a modification of a consent decree should neither create or perpetuate a constitutional violation nor conform to the constitutional minimum. Rufo, 116 L. Ed. 2d at 890-91. In this case, the inmates do not allege that the ICM program is unconstitutional. Further, they do not allege that the ICM program simply meets the constitutional minimum. Their argument is, instead, that since the County had agreed to the establishment of a single facility, they should stick to it. This argument is without merit under Rufo.
The inmates seek to have the Court impose sanctions on the County for being dilatory. While we have often criticized the County on this point, we believe that the County has now turned the corner and is progressing as well as could be expected given the complexities of acquiring and cleaning up construction sites, and undertaking a major construction project. We see no purpose to be served by imposing sanctions and will not do so.
From the outset of this case, sixteen years ago, we have consistently reiterated that this Court has no desire to micromanage the operation of the Allegheny County Jail. We have attempted to set out constitutional parameters and relied on the County Commissioners and their appointed representatives to see that they conform.
Once again, we will defer to the Allegheny County officials who have primary responsibility for evaluating, assessing, and solving the problems of institutional reform. See Rufo, 116 L. Ed. 2d at 891. We conclude that the County's proposed ICM program is suitably tailored to comport with the current philosophy in the case of the mentally ill. Therefore, we will modify the consent decree entered into on July 7, 1989 and allow the County to implement its proposed ICM plan.
Further, in County's Exhibit 64 (5-1-92), the ICM proposal, the County requests that the monies that have been collected by the Clerk of Court as fines in this case be used to establish a contingency fund to be used by the Intensive Case Management Team.
We believe that now that the entire jail problem is progressing toward resolution, it would not be inappropriate to permit the County to use some of the money from the fines collected in this case, to implement the ICM program.
We will permit the fine money to be so used, but not until the County officials and the Jail Monitor work out a system wherein she can monitor requests and the manner in which the money is thereafter expended. We suggest, but will not require, that the parties meet to discuss these plans since the inmates' representatives obviously have developed many good resources for mental health treatment and advice. We will require that the County submit such a plan to the Court for approval before any monies are disbursed.
This Court expects the County to comply with the new cap and we may not excuse future repetitive non-compliance. Therefore, the order imposing fines shall remain in full force and effect, except to the extent that it is affected by the increase in the population cap.
An appropriate order will issue.
Maurice B. Cohill, Jr.
AND NOW, to-wit, this 26th day of June, 1992, it is ORDERED, ADJUDGED, and DECREED that:
1. The County's Motion to Extend the Time for the Closing of the Old Jail and Opening of the New Jail be and hereby is GRANTED. The County shall have until December 1, 1994 to have the new jail in full operation;
2. The Motion to Increase the Court Ordered Jail Population Limit from 578 to 632 filed by defendant Allegheny County (the County) be and hereby is GRANTED in part, and the population cap is now set at 622, effective July 1, 1992, contingent upon the County maintaining staffing at present levels or increasing staffing if deemed necessary by the Court, and upon the addition of a fifth counsellor prior to the population cap increase going into effect;
3. The Motion by plaintiff inmates of the Allegheny County Jail to Dismiss the County's Motion to Increase the Population Limit filed be and hereby is DENIED;
4. The Motion to Modify and/or Clarify Order of Court Dated July 7, 1989 filed by the County be and hereby is GRANTED. The County may implement its proposed Intensive Case Management (ICM) plan. It is further ORDERED that the County may use the monies collected by the Clerk of Court as fines in this case to be used for the establishment of the ICM program. A plan for such disbursements must first be submitted to the Court for approval, and thereafter all expenditures must be approved by the Jail Monitor;
5. The Motion for sanctions and/or Additional Relief filed by the inmates be and hereby is DENIED.
Maurice B. Cohill, Jr.