decided as amended march 13 1981.: March 4, 1981.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Higginbotham and Sloviter, Circuit Judges. Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
These cross appeals bring before us a final judgment disposing of a Complaint which was filed on June 11, 1973. The case is a class action challenging transfers of inmates from three correctional institutions in Philadelphia, maintained by Philadelphia County, to correctional institutions maintained by the Commonwealth of Pennsylvania at locations distant from Philadelphia. Inmates subjected to such transfers included pretrial detainees who were unable to make bail, inmates who had been tried and convicted, but who had not been sentenced, and sentenced inmates. The final judgment grants injunctive relief in favor of pretrial detainees but denies relief sought on behalf of the convicted but unsentenced inmates and the sentenced inmates. The class action plaintiffs and the defendants responsible for the operation of the Philadelphia correctional facilities (the Philadelphia defendants) both appeal. The defendants responsible for the operation of the Commonwealth correctional facilities (the Commonwealth defendants) have not appealed, but filed a brief supporting the appeal of the Philadelphia defendants. We affirm in part, vacate in part and reverse in part.
Philadelphia County operates three correctional facilities: Holmesburg Prison; the House of Correction; and the Philadelphia Detention Center. All three facilities are within the city limits and house inmates in each of the three classes referred to above. In the spring of 1973 the design capacity of the three facilities totaled 1,950 persons, but for various reasons they actually held a substantially larger total population. Although the facilities were overcrowded, most inmates could move freely about their cell blocks, shower at any time, watch television until 11:00 p. m., eat in the dining hall, watch movies in an auditorium or on the cell block, and occasionally attend shows presented by outside entertainers. A variety of educational and organizational programs were also available to them. There was, moreover, organized religious activity. Among the groups engaging in that activity was the Orthodox Muslims, whose leader at Holmesburg Prison was inmate Lee Jenkins. In May of 1973 inmate Joseph Bowen was attempting to displace Jenkins as leader of the Orthodox Muslims in Holmesburg and prison administrators in charge of that facility received reports that Bowen and his followers had resorted to violence and threats to achieve that end. Moreover, Bowen sought leave from the prison administration to use a storage room on "I" Block as a private Muslim prayer room. Deputy Warden Fromhold refused the request, believing that such a room would create a security risk. On May 31, 1973, Bowen and another Orthodox Muslim, Frederick Burton, requested to see Deputy Warden Fromhold about the prayer room. Shortly after they were admitted to a room occupied by Warden Curran and Deputy Warden Fromhold, Guard Captain Taylor heard calls for help and entered to find the two inmates stabbing the Warden and Deputy Warden. They died of the stab wounds and Captain Taylor was seriously wounded. Bowen and Burton were charged with the killings.
Shortly after the stabbings the Deputy Superintendent of the Philadelphia County Prisons, Edmund Lyons, arrived at Holmesburg and assumed control. He was informed by correctional officers of the recent power struggle among the Orthodox Muslims, of the fact that many Muslims were housed in "I" Block, of the possibility of revenge from some members of that sect over the trouble Bowen and Burton had caused, and of the possibility that some followers of Bowen and Burton might instigate trouble to show support for them. Lyons recommended to Louis S. Aytch, the Superintendent of Philadelphia County Prisons, that the ten or twelve inmates on "I" Block who were allied with Burton and Bowen be transferred to the Detention Center to assure their safety and the security of the Holmesburg facility. On May 31, 1973, Superintendent Aytch ordered twelve Orthodox Muslims on "I" Block whom he thought were associated with Burton and Bowen transferred to the Detention Center. Within 48 hours of their arrival at the Detention Center, the twelve were transferred to Commonwealth correctional facilities outside Philadelphia. These transfers were made without the approval of the Pennsylvania Court of Common Pleas, although Pennsylvania law required such approval. See Pa.Stat.Ann. tit. 61, § 72 (Purdon 1979).
On May 31, 1973, Superintendent Aytch instructed the Acting Chief Registrar of the Philadelphia County prisons to compile a list of unsentenced prisoners whose names could be sent to the Court of Common Pleas as persons proposed for transfer to Commonwealth correctional facilities. A list of 110 unsentenced prisoners was prepared. On June 1, 1973, Mr. Aytch instructed several members of his staff to prepare lists of inmates who were disruptive of the normal operation of the Philadelphia facilities. When asked whether the lists should include Muslims in those institutions, Aytch responded affirmatively. In preparing the lists the officers responsible were instructed not to distinguish among untried, unsentenced, and sentenced inmates. A final transfer list of 287 inmates was prepared, which included 150 pretrial detainees, 101 convicted but unsentenced inmates, 25 sentenced inmates, 5 persons held for the Pennsylvania Parole Board, 4 persons held for the United States Marshal, 1 held for another jurisdiction, and 1 serving back time. Of the 287 inmates on the transfer list, 28 were being held in the House of Correction, 173 in Holmesburg, and 86 in the Detention Center. Only 24 of the 287 had any record of misconduct as an inmate resulting in disciplinary action. At the time when the list was completed the Philadelphia County prisons housed 445 sentenced inmates and 2,167 persons who were awaiting trial.
On or about June 6, 1973, Mr. Aytch filed with the Court of Common Pleas of Philadelphia County a Petition for Transfer to Commonwealth facilities of the 287 inmates whose names were on the list. On June 7, 1973, acting pursuant to Pa.Stat.Ann. tit. 61, § 72, the President Judge of the Philadelphia Court of Common Pleas, after deleting 50 names of inmates with pending court dates, approved the Petition. Of the 232 inmates whose names remained, there were 115 pretrial detainees, 82 convicted but unsentenced inmates, 25 serving sentences, 4 being held for the Pennsylvania Parole Board, 4 being held for the United States Marshal, 1 being held for another jurisdiction, and 1 serving back time. The Court of Common Pleas acted ex parte, affording the affected inmates neither notice nor opportunity to be heard.
On June 11, 1973 the Complaint that commenced this prolonged lawsuit was filed. It alleged that various violations of the inmates' constitutional rights had occurred or would occur as a result of the proposed transfers and sought preliminary and permanent injunctive relief against those transfers. The district court issued an order to show cause containing a temporary restraining order preventing transfers outside Philadelphia County. On June 14, 1973, the district court denied plaintiffs' motion for a preliminary injunction and they filed a notice of appeal. This court granted the plaintiffs' motion for an expedited briefing schedule. Before the appeal was heard, however, the parties filed a stipulation of dismissal under Rule 42(b) of the Federal Rules of Appellate Procedure.
Since no preliminary injunction had been granted, in late June of 1973, 123 inmates were transferred to Commonwealth correctional facilities pursuant to Aytch's Petition and the Order of the Court of Common Pleas. Later in the same month two more inmates were transferred. These transfers were also accomplished without any notice to the inmates involved, to their attorneys, or to their families. Their attorneys were notified only after the transfers had occurred. The transferees were placed in five different state correctional institutions:
Huntingdon, 220 miles from Philadelphia;
Dallas, 120 miles from Philadelphia;
Pittsburgh, 300 miles from Philadelphia;
Rockview, 201 miles from Philadelphia;
Camp Hill, 90 miles from Philadelphia.
In October 1973, two additional inmates on the list approved by the Court of Common Pleas, who had testified in actions against city officials after June 1973, were transferred. Throughout 1973 Mr. Aytch continued to transfer both unsentenced and sentenced inmates, although in smaller numbers.
Following the withdrawal of the first appeal the case proceeded in the district court, and on July 3, 1975 the Commonwealth defendants agreed to a consent decree which permanently enjoined them from receiving any Philadelphia County prisoners for transfer to state correctional institutions, except unsentenced transferees who voluntarily consented to such transfer, or prisoners serving sentences who had first been afforded a due process hearing to establish an administrative or punitive reason for transfer. That consent decree did not formally bind the Philadelphia defendants, but they nevertheless objected to its entry and took an appeal. In July, 1976, this court held that Aytch, who was one of these defendants, had standing to appeal from the entry of the decree because it had an effect upon the exercise of the discretion vested in him by Pa.Stat.Ann. tit. 61, § 72 to request approval from the Court of Common Pleas for transfers from the institutions he administers to those administered by the Commonwealth. We reversed the district court's affirmance of the consent decree, holding that because Aytch's exercise of discretion was affected, it was error to approve its entry over his objection without a hearing. However, we expressed no opinion as to the merits of the requested relief, and remanded for trial. Cobb v. Aytch, 539 F.2d 297, 301 (3d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S. Ct. 1130, 51 L. Ed. 2d 554 (1977).
After our remand, on January 24, 1977, Harry E. Wilson, Director of Special Services for the Pennsylvania Bureau of Corrections, issued a memorandum describing the procedure which must be followed by a warden seeking to transfer a county inmate. According to the memorandum the warden must complete a Petition for Transfer form, including a short narrative indicating the reasons for the sought transfer and any special conditions of which the state facility should be aware. The transferring institution must afford a hearing prior to transfer for all untried and unsentenced inmates whom the county seeks to transfer. After the hearing the Pennsylvania Bureau of Corrections must approve the transfer. Only after these steps have been completed is the Petition for Transfer submitted to the Court of Common Pleas for approval. This memorandum, while it states the policy of the Commonwealth defendants as of January 1977, is neither a statute nor a regulation having the force of law, and the policy it states may be changed at any time. As late as May 1977, however, the Philadelphia defendants submitted a Petition for Transfer of 150 sentenced inmates of whom 54 were accepted for transfer by the Commonwealth defendants. Presumably these transfers were in compliance with the January 24, 1977 memorandum.
In July 1977, over four years after the Complaint was filed, the case was reached for trial, and on January 30, 1979, the district court filed its findings of fact and conclusions of law. Cobb v. Aytch, 472 F. Supp. 908 (E.D.Pa.1979). The court's findings, although not organized in this fashion, may be divided into:
1) those bearing upon the motivation for transfers of those selected;
2) those bearing upon the access to legal representation and to timely trial of untried inmates and sentencing of unsentenced inmates; and
3) those bearing upon changes in the conditions of confinement resulting from the transfers.
As to the motivation for the May 31, 1973 transfer of twelve Orthodox Muslims, the court found that Lyons believed that the transfers would serve Holmesburg's interest in security and the inmates' interest in safety, and that he selected the twelve not based on their religion, but on their association with Bowen and Burton. Aytch's action was also found to be based on the twelve inmates' association with Bowen and Burton, and not on their religious beliefs.
Bearing on the motivation for transferring the remaining inmates are the court's findings: that prior to the May 31, 1973 homicides there had been discussions among representatives of the Philadelphia Criminal Justice System, the Court of Common Pleas, the Philadelphia District Attorney's Office and Superintendent Aytch about means for alleviating overcrowding in the Philadelphia prison system; that after the homicides Aytch decided to reduce the number of inmates as a means of defusing what he believed to be an explosive situation; that when Aytch responded affirmatively to an inquiry as to whether Muslims should be included on the list for transfer, he did not mean, and was not understood to mean, that all Muslims should be transferred, but rather that only those Muslims who were also disruptive, including those already isolated from the general prison population, should be included; that the officer in charge of compiling the list of troublemakers understood that it should include not only those against whom charges of disciplinary infractions could be brought, but also those against whom the corrections officers could not obtain sufficient evidence to file formal charges, although that in ordering the preparation of a list of inmates who were thought by the staff to be disruptive of the normal operation of the institutions Aytch did not mean to punish these individuals. Id. at 913-15.
The trial court also made extensive findings on access to legal representation and timely trial. The Defender Association of Philadelphia represents 80% of the incarcerated defendants in Philadelphia County prisons. Prior to trial the assistant defender representing a defendant goes to the prison and interviews him respecting the facts of the case, possible witnesses, his background and psychiatric services. The court found that interviews are essential to the defense because they allow the attorney to develop the necessary attorney-client relationship and to prepare the case. It is often necessary for these attorneys to interview clients at the post-trial stage in order to prepare for sentencing. The Defender Association of Philadelphia lacked in 1973, and it lacks today, the resources of money and time to conduct either type of attorney-client interview at the Commonwealth institutions distant from Philadelphia to which transfers were made. Most of the untried inmates who were transferred in 1973 and represented by the Defender Association were deprived of these pretrial interviews. On several occasions, transferees missed court appearances and parole hearings when they were not returned to Philadelphia on time. During one eight to ten week period, for example, 25% of the transferees' cases had to be continued because the defendants were not ...