The opinion of the court was delivered by: JOHNSON
On October 4, 1972, this Court held that the failure of the Board of Corrections to afford the basic elements of adequate medical care to inmates in the Alabama Prison System constituted "a willful and intentional violation" of their rights under the Eighth and Fourteenth Amendments. Newman v. Alabama, D.C., 349 F. Supp. 278, 287. Four years later, when the Court issued its order in Pugh v. Locke, D.C., 406 F. Supp. 318 (1976), those same serious shortcomings persisted. What Pugh revealed, however, was that such shortcomings were endemic to every phase of the prison system's operation. The conditions of confinement then violated any judicial definition of cruel and unusual punishment. In September, 1978, hearings were held to determine the degree of compliance by the Board of Corrections with the Newman and Pugh orders.
The overwhelming weight of the evidence presented at that time established that what was true in 1972 and 1976 is still true today. While some progress has been made, the Board of Corrections has not in several critical areas achieved substantial compliance with the Court's orders. The very fact of confinement in Alabama's Penal System continues to contravene the Eighth and Fourteenth Amendment rights of plaintiffs.
The response of the Board of Corrections in 1976 was that the state legislature had failed to provide adequate funds. Despite the clear command of the law that the state may not discount constitutional rights, the excuse of the Board remains that the legislature has been remiss. That excuse has no legal weight. It may be true that the legislature has failed to meet its constitutional responsibilities in this area. But what the evidence now so strikingly reveals is that even within funding limitations imposed by the legislature, the Board has failed to make a genuine effort at compliance. In area after area, the Board has made no serious attempt to determine what steps can be taken with present funds and to plan what can be accomplished with additional sums. The theme running throughout the evidence is a lack of professional leadership. The Court is compelled to conclude that there is no reasonable likelihood of effective cooperation and substantial compliance from the present Board of Corrections. The passage of three years since Pugh makes the need for comprehensive relief more urgent than ever.
All institutions are in compliance with the requirement that the number of inmates not exceed the design capacity of the facility. This goal has only been achieved, however, by creating a backlog of 1,800 state prisoners in the city and county jails throughout Alabama. It is undisputed that the conditions in the county jails are worse than any that exist in the state prisons. Alabama's city and county jails were not designed to house long-term detainees. The evidence suggests that in almost if not every instance they fall below the minimum constitutional standards set forth in the Pugh order. Overcrowding is the norm. There is no classification system in the jails, with the result that offenders of all types are placed together. The jails are unsanitary and in a state of disrepair, and inspections have disclosed that many are serious fire hazards. Medical care is practically non-existent. In most jails, the prisoners receive no meaningful work, no programs, no exercise. Overcrowding in the prisons has been relieved only at the price of aggravated violations of the rights of state prisoners in the county jails.
The Board has presented no long-term plan to solve this problem. There were plans to build two 400-person facilities with the money from the 1977 bond issue. Indecisiveness, coupled with rising costs, makes it likely that only one can be built with that money now. In its comprehensive plan submitted to the Court on January 17, 1979, the Board proposes to construct four institutions, which will provide 1,700 additional spaces by 1981. Even accepting the Board's optimistic timetable, the problem of state prisoners backed up in the county jails will not be ended. The Board's own projections indicate that there will still be almost 1,000 state prisoners in the city and county jails in 1981. And even that projection makes the questionable assumption that Fountain and Draper can be improved to meet minimum constitutional standards. This prospect of continued non-compliance with this crucial aspect of the Court's order requires further relief.
In 1976, all prisoners were classified, and a system of classification was developed. Since that time, the system has deteriorated and no longer functions in accordance with the Court Order. The experts attributed the problem to a lack of leadership and concluded that a replacement was necessary to run the program. The Court adopts that testimony. The classification staff at the institutions are not properly trained, have an insufficient understanding of the purposes of classification, and operate with no professional guidance. No handbook or guidelines have been provided for the staff's use. It is not surprising, then, that procedures have broken down and inconsistent standards are being applied. Often the initial classification decision is not made by a multi-disciplinary team composed of a psychologist, classification specialist, and correctional counselor, but by the "classification specialist" acting alone. The Central Review Board, in reviewing classifications, also does not meet as a team, and it, too, operates without written criteria. More seriously, classification decisions are dictated by the disciplinary system. Indicative is the fact that the Central Review Board almost always reverses the institutional team when the warden recommends a higher custody classification. As a result, while the initial classification resulted in a determination that 700 prisoners should be classified "medium custody," the subsequent classification decisions by the Board have resulted in almost double that number being so classified. This development has had a detrimental impact on prisoners' access to jobs, activities, and programs. Indeed the classification system does not play its intended role in the assignment of institutional work. There, too, the recommendations of the wardens, none of whom are classification specialists, seem to be controlling. Meaningful classification has also been undercut by the continued employment of certain guidelines as absolute bars to pre-release or work-release programs. As a result, the highly successful Frank Lee Youth Center has had a vacancy rate of 30 to 50 out of 200 places despite the fact that there are hundreds of first-time offenders (for non violent crimes) at Draper and in the county jails who are potentially eligible for that program. Another result is that the current inmate population at Frank Lee, as in 1976, continues to be over 50 percent white, although the prison system population as a whole is predominantly black.
In addition to failing to maintain an adequate, ongoing classification process, the Board has failed to correct the "traumatic and stressful" conditions at its Kilby facility which render unreliable the initial testing and evaluation of new prisoners. The mingling of prisoners regardless of offense and propensity to violence, combined with the absence of security in the cell blocks and dormitories, is an invitation to violence of all kinds. One 18-year-old prisoner testified that he had been raped on four successive days during daylight hours while awaiting classification at Kilby. Effective and reliable classification of inmates, which in large part is the basis of the safety of all inmates, will not be achieved until these conditions are corrected. The problem is less one of money than of management.
In Newman, the Court found that the mentally ill, the disturbed, and the retarded were unidentified and were dispersed throughout the prison population without treatment. The evidence upon this submission reflects that nothing has been done to correct the situation. There is now some effort at identification of those with mental problems. But the record of housing and treatment of such persons is one of total failure and non-compliance. What defendants deem the best facility for housing those with severe emotional and mental problems is the same 12 cell area at Kilby that was in use at the time of this Court's original hearing. Many of those with mental problems at Fountain, Holman, and Tutwiler are housed in segregation cells and in punitive isolation. The consensus of experts was that these cells were unfit for the housing of persons with mental problems. Many of the mentally disturbed are simply left in the general population, where they are particularly vulnerable to harassment and assault. Indeed, of the mentally retarded, more have been placed at Fountain the most violent of the institutions than at any other place.
Non-compliance also exists as to the requirement that the Board hire adequate numbers of mental health professionals and support personnel. The Board employs no psychiatrist either full-time or as a consultant. There is only one licensed clinical psychologist. He spends 80 percent of his time at Kilby. The other staff listed as "psychologists" are not trained clinical psychologists and are not licensed to practice psychology. Even these "psychologists" provide almost no counselling. At Holman, the staff of five devotes a total of 55 hours per week to counselling. At Tutwiler, there is no staff member available for counselling. Because of the lack of trained doctors, psychotropic medication is prescribed without proper supervision and controls.
As of May, 1978, there were no special programs or housing for the mentally retarded. Subsequently, 65 mentally retarded inmates were moved to a dormitory at Staton, and defendants indicate that they will be provided special education teachers. For the remaining identified mentally retarded inmates, the Board apparently has no program and no plan. Recently defendants have sought a federal grant to provide alcohol and drug counselling for inmates going into community release programs. But in spite of the evidence that 40 to 60 percent of the prison population abuses drugs, defendants in the last two years have afforded counselling for only a handful of prisoners.
In light of the clear mandate of the Court in this area, the minimal efforts at compliance by the Board reflect an attitude of deliberate indifference to the mental health needs of the inmate population.
IV. PROTECTION FROM VIOLENCE
Further, the Court concludes from the evidence that robbery, rape, and assault remain everyday occurrences among the general prison population in Alabama. The dormitories particularly are still places of fear and violence. Defendants admit non-compliance with the requirement that guards be stationed in the living areas, including dormitories. The dormitories, they say, are too dangerous for the guards to enter. That fear is well taken. The number of reported incidents of prosecutable crimes of violence shows a steady increase over the last four years. And it is axiomatic in the prison setting that the number of unreported crimes far outnumbers those which are reported.
The Board has not taken the first steps to curb this pattern of violence which makes a mockery of the Eighth Amendment's protection against cruel and unusual punishment. The Board has deliberately ignored the requirement that guards be stationed in the dormitory units at night. Had the Board proceeded with alternatives such as sallyports or catwalks, it could be credited with a good faith effort to comply with the order. All too typically, however, such alternatives are mere talk. The random shakedowns conducted by defendants have not eliminated weapons in the prison population. The recommendation of the Legislative Prison Task Force that metal detectors be installed to check prisoners has not yet been acted upon. These failures are just additional evidence of the managerial incompetence of the Board and its staff, including the Commissioner, Deputy Commissioner and a good number of its wardens. The present correctional staff provide custody, but not security. Considering the other existing conditions, such a prison system is not constitutionally acceptable.
The evidence indicates some improvement in the general level of cleanliness in the dormitories and food service areas. Toilet articles are now supplied to all prisoners, as are clean bed linen and towels. The Board does not, however, provide adequate clothing. Underwear and socks are not provided at all, and, at Fountain, trousers are not furnished. These failings pale alongside those concerning the general sanitary and safety conditions in the prisons. In Pugh, this Court found that Alabama's penal institutions were "filthy." While there has been improvement, the evidence reflects that each of the major institutions falls far below all minimum health and safety standards. It is not necessary to recite in detail what plaintiffs' expert, a United States public health officer, found when he toured Draper, Fountain, Holman, and Kilby again after two years. The Court credits his testimony now as it did then. Fountain and Draper continue to be "unfit for human habitation." At both institutions, lighting, ventilation, and heating remain inadequate. The living and food preparation areas are infested with vermin and rodents. Fire safety is non-existent. After two years, many flammable mattresses remain in use,
guards have not been trained in evacuation, and fire fighting equipment is lacking. The food service at both prisons offers striking evidence of mismanagement. Food service personnel remain untrained, garbage is not properly handled, and equipment is not maintained.
The other institutions reveal similar problems. At Holman, lighting and ventilation remain unchanged. Temperatures in the living areas last winter were as low as 50 degrees. Fire safety also remains a problem. Indeed, flooding of the basement utility room has caused major electrical shortages and raises a serious risk of explosion. The roof and windows leak, posing a health hazard to inmates who must live and sleep in damp surroundings. The same public health problems exist at Kilby. At Tutwiler, these shortcomings are compounded by what the State Fire Marshal deemed a "major hazard to life and property" from the overloaded and deteriorated electrical system.
While a final solution to these problems awaits adequate funding by the legislature, the Court has not even been presented with evidence of that kind of improvement which could be expected from diligent management alone. Where the prison living conditions still pose an imminent danger to the health of inmates, ...