extinguishers at the Jail are required, no such written reports were made. At a recent serious fire in September 1974, several inmates were overcome by smoke, and more severe injuries were narrowly avoided, when fire extinguishers and other safety devices were not usable.
Many inmates at the jail display psychiatric symptoms. Some of these, designated for pretrial mental examinations, are committed to the District of Columbia Jail to await bedspace at St. Elizabeths Hospital. Others require psychiatric attention after returning from St. Elizabeths upon completion of examinations. In addition, some inmates who are not the subject of mental examination orders become psychiatric problems. From time to time sixty to seventy percent of the hospital beds available at the Jail are given over to psychiatric patients. The Jail medical staff does not include a psychiatrist, and the facility is not equipped to house, care for or treat psychiatric patients. Ordinary handcuffs and leg irons are used to shackle some severely disturbed inmates to their beds because appropriate restraining devices are unavailable.
Laundry services for most Jail inmates are inadequate. Except for those housed in CB-3, inmates are responsible for washing their own underclothing, but the cells in CB-1 and CB-2 have no hot water.
Frequently old mattresses, not cleaned or sterilized and stained with urine and other excreta are issued to new detainees.
The quality of life for members of the class is substantially inferior to that enjoyed by convicted prisoners housed at other facilities of the District of Columbia Department of Corrections. Inmates at Lorton Correctional Complex, for example, including some with "maximum" security designations, live in dormitories much less crowded than those at the Jail. They also have contact visits with their friends and family, and recreational facilities are better. The differences in treatment between sentenced prisoners at Lorton and pre-trial detainees at the Jail are not attributable to the needs of security or custody, but are for the most part due to the overcrowding at the Jail and the Department's decisions on the allocation of resources.
During the course of this litigation defendants have never seriously contended that the matters complained of did not exist. Rather, their position has been that since the inception of the lawsuit matters over which they had control have been alleviated, and that as to the remaining complaints the defendants are helpless.
It is true that some shortcomings have been corrected, e.g. vermin have to a large degree been exterminated, some portions have been painted, and apparently much cleaning has taken place because the horrible stench described at the trial was not in evidence during an unannounced visit in late August of this year. Also the delivery of medical services has improved because of additional personnel and a realignment of the authority of the medical staff.
The defendants complain bitterly, and with what appears to be righteous indignation, that in these circumstances they have been accused of violating Eighth Amendment rights against cruel and unusual punishment. In support of the position that the cruel and unusual punishment charge is unfair, they seek much solace from the pronouncements of the Court in Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971), and suggest that the facts in that case are similar enough to this case for the holding therein to "give the Court wise guidance".
But then, in the very first six words of the description of Sostre, the defendants state: "Sostre was a New York convict. . ." (emphasis added).
Plaintiffs in this case are unconvicted pre-trial detainees held for the sole reason that they cannot meet the conditions set for their release pending trial.
Finding further the similarity between Sostre and the instant case, defendants point out his (Sostre's) "normal sized" cell was 6 x 8 feet -- but the defendants do not point out that Sostre was not double housed in his cell.
It could be that the Eighth Amendment claim should not lie here because of its applicability only to convicted, sentenced persons. But as to the ultimate resolution of this case, Sostre offers little help. This Court measures the claims in this case by the standards utilized by the courts in such cases as Rhem v. Malcolm, 507 F.2d 333 (2nd Cir. 1974); Brenneman v. Madigan, 343 F. Supp. 128 (N.D.Cal.1972); Jones v. Wittenberg, 323 F. Supp. 93 and 330 F. Supp. 707 (N.D.Ohio 1971); Hamilton v. Love, 328 F. Supp. 1182 (E.D.Ark.1971). The Court in Rhem, supra, put it succinctly and in precise terms:
"The demands of equal protection of the law and of due process prohibit depriving pre-trial detainees of rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail; and the same constitutional provisions prevent unjustifiable confinement of detainees under worse conditions than convicted prisoners . . . a detainee is entitled to protection from cruel and unusual punishment as a matter of due process, and, where relevant, equal protection."
Sostre, supra, was an en banc decision by the Second Circuit in 1971. Over three years later a panel decision of the same Circuit (two members of which participated in Sostre), decided Rhem, without ever mentioning Sostre. This latter case is indeed more similar in every respect to the instant case, and this Court relies heavily upon it for the wise guidance suggested by defendants.
Accordingly, the Court concludes that the conditions already described are constitutionally impermissible insofar as they apply to the plaintiff class, and should be discontinued.
By far the most flagrant and shocking encroachment on the constitutional rights of the plaintiff class is the overcrowding; and an order which directed cessation of this specific condition has already been entered. It is currently the subject of a remand procedure which the Court seeks to implement in a separate memorandum.
Relative to the remaining conditions to be remedied the Court orders that the defendants shall:
1) Direct the D.C. Fire Department, the D.C. Department of Inspections and Licenses, and the D.C. Environmental Health Administration to inspect the Jail no later than November 15, 1975 to determine violations of the D.C. Fire Code, Building Code, Housing Regulations, Health Regulations, and Food Regulations. In each case, inspections will be conducted in accordance with the same standards, procedures, and evaluation methods as are used in inspecting any other building in the District of Columbia. Within ten (10) days of these inspections, the inspectors will prepare and submit to this Court and to counsel for the parties written reports of their inspections, including lists of code violations or other unsafe or unsanitary conditions, together with recommendations for remedial action. Within thirty (30) days of these inspections defendants shall report to the Court the action taken on each deficiency.
2) Provide clean clothing (including underwear) to all residents of the D.C. Jail and clean bed linen and towels at least once a week.
3) Provide at least one hour of out-door recreation daily for each resident of the Jail.
4) Establish a classification system which will make it possible to determine a) which inmates of plaintiff class require maximum security confinement; and b) which members of class can enjoy contact visits without jeopardizing the security of the facility.
5) Provide medical examinations of all food handlers, inmate and civilian employees, at the Jail at least once every thirty (30) days and more often if medically required.
6) Establish the following procedures at the Jail: In the event an inmate displays unusual behavior suggestive of possible mental illness, such behavior shall be immediately reported to the medical staff. The inmate will be seen by a psychiatrist within twenty-four (24) hours. If the inmate is found to be mentally ill, he will be transferred within forty-eight (48) hours of such finding to a hospital having appropriate facilities for the care and treatment of the mentally ill; and
7) Establish the following procedures governing use of restraints:
a) inmates requiring restraints will be housed only in a hospital setting, and not with the general population;
b) unpadded handcuffs and leg irons shall not be used under any circumstances. Medically appropriate restraints, padded or pliable to prevent injury to the inmate, may be utilized;
c) restraints may be imposed only on the specific written authorization of a medical doctor;
d) if required in an emergency situation when a doctor is present, a Medical Technical Assistant (MTA) or a Registered Nurse may order the temporary use of restraints, subject to the receipt, by telephone or otherwise, of approval from a medical doctor within two (2) hours of the imposition of such restraints;
e) a log will be kept reflecting the use of restraints, and stating for each such use the name of the person restrained, the date and time he was placed in restraints, the name of the doctor approving the use of restraints, and the time of such approval;
f) orders by a doctor authorizing the use of restraints are valid for twenty-four (24) hours only, and if no further written order has been entered within that period, the inmate shall be released from restraints;
g) no restrained inmate shall be housed in such a manner as to permit access to him by non-restrained inmates, with the exception of inmates approved by the medical staff for employment in the hospital area.
It is further ordered that this Court retains jurisdiction for the purpose of implementation of this ORDER.