Litigating Prison Conditions in Philadelphia: Part II

Date01 October 1990
Published date01 October 1990
Subject MatterArticles
Litigating Prison Conditions
in Philadelphia: Part II
William G. Babcock*
In an era when motion picture sequels are becoming the rule rather than the
exception, it is fitting that The Prison Journal should publish a sequel to David
Rudovsky’s excellent article about ongoing prison litigation in Philadelphia (Rudovsky
1985). A
great deal has happened in the ensuing five years. Jackson v. Hendrick, the state
court litigation of which Rudovsky wrote, entered a new phase in its history with the
approval in 1988 of a comprehensive stipulation and agreement addressing all of the
issues in the case. Additionally, a separate lawsuit, alleging unconstitutional conditions
in the Philadelphia Prisons, Harris v. Reeves, filed in federal court in 1982, reached a
court-approved settlement in 1986.
While a great deal has happened since 1985, it also could be argued that very little
has changed, either on the national level or in Philadelphia. Rudovsky wrote of the
Supreme Court’s movement back toward the &dquo;hands-off&dquo; approach to prisoners’ rights
litigation and of the legislative trend toward tougher sentences which has resulted in
dramatic increases in the prison population. Both of these trends have continued.
Two Supreme Court decisions from 1989 exemplify the movement back to a hands-
off approach to prisoners rights’ litigation. In Thornburgh v. Abbott, the Court upheld
Federal Bureau of Prisons regulations that &dquo;authorize prison officials to reject incoming
publications found to be detrimental to institutional security.&dquo; The test applied by the
court was whether the regulations are &dquo;reasonably related to legitimate penological
interests.&dquo; In constitutional terms, this is an easy standard for prison administrators to
meet. It does not require them to implement the least restrictive alternative, and the
legitimate penological interest can always be the catch-all of maintaining the security of
the institution. Thus, administrators now have a relatively free hand in banning
publications from the institutions.
In Kentucky Department of Corrections v. Thompson, the Court held that
visiting is not a liberty interest protected by the due process clause of the 14th
Amendment. Therefore, unless the prisons’ regulations require visiting absent a
violation of the rules, the administration may deny visits for any reason or no reason at
all, without notice to the inmate or an opportunity to be heard. The clear message to prison
administrators is to make
that their regulations are drafted in discretionary, rather
than mandatory, language, thus allowing them to ban any visit at their discretion.
Legislatively, the vast majority of elected officials remain unwilling to vote against
mandatory sentencing bills or for the implementation of more progressive sentencing
options for fear of appearing &dquo;soft on crime.&dquo; Others remain convinced, based primarily
on &dquo;gut reaction,&dquo; that mandatory sentencing serves as a deterrent to crime. In
Pennsylvania, tough mandatory sentencing bills have become an annual event, with their
passage almost a foregone conclusion. The impact on the prison population has been
staggering. In 1980, the State prison population was 8,300 inmates. By 1990, it had risen
to approximately 21,000, an increase of more than 150 percent in just 10 years.
*William Babcock, who served in the Special Master’s Office in Ruiz v. Estelle, has been the
Special Master in Harris v. Reeves since 1987.

Similarly, despite being under the jurisdiction of two separate courts, little has
changed with respect to the seemingly intractable problems attendant to the Phila-
delphia Prisons. In particular, overcrowding, which the earlier article pinpointed as
beginning in 1980, continues to be a fact of life in Philadelphia Prisons, despite several
measures taken by both the Jackson and Harris Courts. This article will serve as an
update on the prison litigation in Philadelphia, with an emphasis on Harries.
The Jackson litigation began in 1971, and Rudovsky described the late 1970’s as a
period when:
...some substantial progress was made toward improving prison conditions. The
population levels did not greatly increase, and it appeared that the case might soon
enter a dormant stage requiring only monitoring of compliance with the consent
decrees (1985:69).
The population began to increase dramatically in 1980:
It climbed from 2,200 in 1979 to 3,000 in 1981 and close to 4,000 in 1984. The City made
real effort to contain this increase or to provide new cells; accordingly, by 1982, there
was double-celling for most inmates, triple-celling for many, and a hard, cold
gymnasium floor for those who could not be squeezed into cells (1985:69).
In 1982, therefore, a group of inmates held in Holmesburg Prison initiated a new lawsuit
alleging unconstitutional conditions in that institution. This time, the inmates, who were
not represented by counsel, chose to file their suit in federal court. It was filed as a class
action on behalf of all inmates housed at Holmesburg, alleging violation of their Eighth
and Fourteenth Amendment rights. The court subsequently appointed counsel to
represent plaintiffs and an amended petition was filed.
The trial court granted the City’s motion to dismiss the action as barred by res
judicata because plaintiffs’ claims for injunctive relief and money damages were merged
in the decrees of the Jackson Court. The trial court also held that it should abstain from
exercising its jurisdiction due to the pendency of the state court action. On appeal, the
Third Circuit, in a 2-1 decision in 1985, reversed the lower court and remanded the case
to the district court for further proceedings. Defendants’ subsequent petition to the
United States Supreme Court for a writ of certiorari was denied and the case again was
remanded to the district court.
On remand, two important steps were taken affecting the future course of the
litigation. First, plaintiffs filed a second amended complaint, expanding the plaintiff
class to include inmates in all of the Philadelphia Prisons, rather than just Holmesburg.
Second, the parties, rather than going to trial, chose to enter into negotiations aimed at
settlement of plaintiffs’ claims.
The Search for Remedies
At the same time, negotiations began in Jackson to settle the outstanding issues in
that case, and a decision was made by counsel in the two cases that the Harris settlement
would address the other conditions of confinement (staffing, health care, disciplinary
procedures, etc.). Rather than simply establishing a population limit for the prison, and
building in mechanisms for reaching that limit, the initial settlement negotiations in
Harris addressed what was felt to be a primary cause of the overcrowding - the lack of
prompt disposition of charges for pre-trial detainees.
At that time, the pre-trial population in the Philadelphia Prisons constituted about
75 percent of the overall inmate population, and records illustrated that substantial
numbers of those detainees were waiting several months, and often more than a year,

before disposition of their charges. The initial negotiations on the settlement, therefore,
centered on the establishment of time limits for incarceration of pre-trial detainees prior
to the disposition of charges. If the time limits were not met, the detainees would be
released from custody, although still subject to the outstanding charges.
This proposal, when submitted to the state courts and the District Attorney’s Office
for comment, was met with strong opposition. The parties, therefore, returned to a more
common approach in prison overcrowding cases and agreed to a settlement that
established a phased-in &dquo;maximum allowable population&dquo; (MAP) for the prison system
and for each of the institutions therein. The agreement also incorporated a requirement
that, if the MAP
of 3,750 inmates was not reached on the date to which the parties had
agreed, defendants would implement a qualified admissions moratorium. The other
major component of the agreement, designed to expand prison capacity, was the
construction of a &dquo;downtown detention facility&dquo; by December 31, 1990.
In August 1986, the parties informed the court that a proposed settlement had been
reached and a hearing on approval of the settlement was scheduled. Prior to the hearing,
the District Attorney moved to intervene as a party defendant in order to oppose the
settlement. In December 1986, the court denied the District Attorney’s motion to
intervene and approved the settlement of the parties. A consent order was entered on
December 30, 1986.
Under the terms of the consent order, the MAP
to be phased in as follows: 4,100
inmates by March 9, 1987; 3,950 inmates by May 11,...

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