the attention of all prison officials. Indeed, one prison official testified at trial he had not even heard about the injunction.
The evidence demonstrated that prior to this Court's preliminary injunction there existed a "deliberate indifference" to the concerns of nonsmoking inmates despite the District's smoking policy. Without a continuation of the injunction, this "indifference" will continue. With such a large smoking population, and without a court order, there are few incentives for prison officials to crack down on the smokers and risk incurring their wrath over something deemed by some to be benign. This is particularly so where a large number of the prison guards are also smokers. As noted, to really deal with this problem, prison officials will have to devise a way to place non-smokers apart from smokers in sleeping and other discrete areas. Where smoking and non-smoking prisoners are kept in the same quarters, it is very difficult to enforce a no smoking policy. This is particularly so where the testimony shows that possibly up to 85-95% of the inmate population are smokers.
The Plaintiffs have met their burden under Helling and the Court will enter a permanent injunction in their favor. Pursuant to the recently enacted Prisoner Litigation Reform Act, "prospective relief . . . with respect to prison conditions shall extend no further than necessary to correct the violation of the federal right of a particular plaintiff or plaintiffs." 18 U.S.C. § 3826(a)(1)(A). The relief granted must be "narrowly drawn, extend no further than necessary to correct the violation of the Federal right, and [be] the least intrusive means necessary to correct the violation of the Federal right." Id.
This is not a class action, and therefore the injunction will be narrow in scope, and made applicable only to the designated Plaintiffs. Specifically, the District will be required to take all steps necessary to assure that the named Plaintiffs will be assigned sleeping quarters with other non-smokers and to otherwise enforce its non-smoking policy in those areas where the Plaintiffs are compelled to be. Thus where it is required for them to use common areas with smoking prisoners, the institutions' nonsmoking policy must be enforced. The Court finds that these are the narrowest and least intrusive means to vindicate Plaintiffs' rights under the Eighth Amendment and under local law pursuant to this Court's supplemental jurisdiction.
The District's stance in this proceeding is somewhat mystifying. It has proceeded on a highly technical basis. Indeed, at one point, it opposed Plaintiff's introduction of the District's "Smoke-Free" environment policy on the basis that it was a "hearsay" document. Despite its own public pronouncement, the District has even challenged whether second-hand smoke poses health hazards. While the District states it intends to carry out its smoke-free environment policy, it will do so only on a voluntary basis and does not want to be held accountable where it fails to do so.
The District certainly has the responsibility to protect society from criminal offenders, some of whom have committed heinous acts against its citizens. When such acts occur, society must rid itself of those menacing its citizens. They must be confined so that they can no longer be a threat to society. In doing so, however, society may not be indifferent to the basic necessities of existence. This means no matter how loathsome a criminal or his acts may be, punishment may not exceed the judgment ordered by the sentencing authority. This means society may not usurp the powers of the court and order a punishment that is more severe than the law dictates. Subjecting prisoners to extreme health hazards goes beyond the power conferred on those charged with administering our prison system. Everyday, society is becoming increasingly aware of the health hazards of cigarette smoke. To its credit the District has instituted widespread restrictions on smoking. See D.C. Code § 6-911 et seq. Inexplicably, the District has taken a somewhat different tact when it comes to the health of its prison population. Having recognized the dangers of ETS, the District has not adequately explained why it is all right to expose its prison population to such hazards. It is not enough to simply announce a policy. Policies must be adequately enforced.
While prisoners such as Plaintiffs with pre-existing medical conditions have the right not to have those conditions exacerbated by exposure to ETS, the problem is broader than just prisoners with health conditions. Where an otherwise healthy prisoner faces a lengthy period of incarceration and where it is documented that the vast majority of inmates and prison guards smoke, there is little question that the non-smoking prisoner's health will soon suffer. The Department of Corrections cannot remain indifferent to this problem. It needs to take steps to protect those who do not want to be exposed to such risks.
In its discretion, this Court's decision will be limited to prospective relief. Any claims for damages must first be pursued in the administrative and court systems of the District of Columbia which are fully capable of handling such claims.
An appropriate order, specifying the precise terms of the permanent injunction, is attached hereto.
March 17, 1997
United States District Judge
Pursuant to the foregoing findings of fact and conclusions of law, the Court finds in favor of Plaintiffs Sylvester Smith, Benjamin Scott and Roger Dawson and grants the following injunctive relief.
It is hereby ORDERED that Defendant, its officers, agents, servants and employees and all persons in active concert or participation with them are hereby ENJOINED to:
1. immediately transfer Plaintiffs Smith, Scott and Dawson into non-smoking quarters;
2. with respect to the named Plaintiffs, enforce the non-smoking policy as set forth in D.O.P. 6060.1, and discipline prisoners and correctional officers who violate the policy;