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CONSENT DECREE MODIFICATION ANDTHE SUFFOLK COUNTY JAIL: WHAT A LONG

STRANGE TRiP IT'S BEEN

[P]risoners awaiting trial ... may not constitutionally be madethe orphans of criminal jurisprudence whose degradation may beignored because they are merely charged with criminal offensesrather than found guilty of them.'

I. INTRODUCTION

This Note details one of the more unfortunate chapters in Bostonlegal and political history. The saga began in 1971 when a group ofpretrial detainees incarcerated at the Charles Street Jail brought aclass action suit against the City of Boston and others, claiming thattheir constitutional rights had been violated.2 The detainees claimedthat the conditions of their confinement constituted, inter alia, "crueland unusual punishment" and a violation of their due process rights.3In 1973, Judge W. Arthur Garrity found that, since the inmates werepresumptively innocent pretrial detainees, the conditions at the jailviolated their Fourteenth Amendment due process rights. JudgeGarrity ordered the jail closed at a future date and imposed an imme-

1. Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 616, 688 (D. Mass.1973), aff'd, 494 F.2d 1196 (Ist Cir. 1974), cert. denied sub nor. Hall v. Inmates of Suf-folk County Jail, 419 U.S. 977 (1974).

2. Judge Garrity certified the class as consisting of all inmates of the Suffolk CountyJail. Order on Pending Motions at 2, Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676 (D. Mass. 1973) (No. 71-162), aff'd, 494 F.2d 1196 (1st Cir. 1974), cert. deniedsub nom. Hall v. Inmates of Suffolk County Jail, 419 U.S. 977 (1974).

3. See generally Complaint, Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp.676 (D. Mass. 1973) (No. 71-162), aff'd. 494 F.2d 1196 (1st Cir. 1974), cert. denied subnom. Hall v. Inmates of Suffolk County Jail, 419 U.S. 977 (1974).

CRIMINAL AND CIVIL CONFINEMENT

diate condition that no two inmates be housed in a single cell.4 Al-though the jail was finally closed in 1990, the struggle for single celloccupancy continued until June 14, 1994.' This Note recounts thestruggle for single cell occupancy within the larger context of the lawsurrounding the modification of consent decrees in the federal courts.

In 1979, the inmates and jail officials entered into a consentdecree which mandated that a new jail be built to accommodate oneinmate per cell.6 After construction of the facility was commenced,however, the Sheriff of Suffolk County (hereinafter Sheriff) petitionedthe court to modify the agreement in order to allow more than oneinmate in each cell.7 The issue of whether to modify the agreementto allow double-bunking is governed by Federal Rule of Civil Proce-dure 60(b) regarding modification of judgment.8 In 1992, the UnitedStates Supreme Court, in Rufo v. Inmates of the Suffolk County Jail,9

enunciated a new test specifically for modification of judgments ininstitutional reform litigation.'0 Relying on the Suffolk Countyinmates' cases as a basis for the discussion, this Note will argue thatusing a test for modification of consent decrees in institutional reformlitigation, which is different from that used for modification of judg-ments entered into by private parties or in antitrust litigation, wherethe government is plaintiff is illogical, unnecessary and improperlyaffords more protection to economic rights than is given to individualrights." In addition, a new standard for modification will be pro-posed and applied to the facts of the Suffolk County Jail cases. 2

4. See Eisenstadt, 360 F. Supp. at 691 (permanently enjoining the Sheriff and others"(a) from housing at the Charles Street Jail after November 30, 1973 in a cell with anotherinmate, any inmate who is awaiting trial and (b) from housing at the Charles Street Jailafter June 30, 1976 any inmate who is awaiting trial").

5. Final Order, Inmates of Suffolk County Jail v. Rufo, No. 71-162 (D. Mass. June 14,1994).

6. "A consent decree is a negotiated settlement of a case brought in equity that is en-forced through the court's power to enforce equitable decrees or orders. Thus, a consent de-cree traditionally has been treated as possessing characteristics of both a long-term contractbetween the parties and a judicial decree." David I. Levine, The Modification of EquitableDecrees in Institutional Reform Litigation: A Commentary on the Supreme Court's Adoptionof the Second Circuit's Flexible Test, 58 BROOK. L. REv. 1239, 1239 n.5 (1993).

7. See infra notes 75-105 and accompanying text.8. See infra text accompanying note 77 for language of the rule.9. 112 S. Ct. 748 (1992).

10. See infra notes 110-43 and accompanying text.11. See infra notes 160-217 and accompanying text.12. See infra notes 218-44 and accompanying text.

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1995] CONSENT DECREE MODIFICATION

I. INMATES OF THE SUFFOLK COUNTY JAIL: CASES I-X

A. Inmates of the Suffolk County Jail I 13

"[lit is certain that in .. .criminal [proceedings] . . .a defendantis presumed to be innocent ...."' In Boston, Massachusetts, pre-sumptively innocent defendants who are not released on bail aredetained at the Suffolk County Jail while awaiting trial. In January,1971, the inmates of the Suffolk County Jail filed a class actionsuit.'5 The complaint sought "to redress the deprivation, under colorof state law, of [the inmates'] rights under the First, Fourth, Fifth,Sixth, Eighth, Ninth and Fourteenth Amendments to the United StatesConstitution." 6 A bench trial was held in the United States DistrictCourt for the District of Massachusetts before Judge W. ArthurGarrity. 17 As part of his fact finding, Judge Garrity and his clerkvisited the jail, viewing every area, and without notice, stayed over-night in a cell. 8

Judge Garrity was not pleased with the knowledge gained fromhis overnight stay at the jail. The Suffolk County Jail was construct-ed in 1848. The cells, which were designed to house a single inmate,measured approximately eight feet wide by eleven feet long by tenfeet high. 9 Nonetheless, at the time of this suit, two inmates wereregularly housed in each cell.2' Each cell contained two iron slatted

13. Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973),affd, 494 F.2d 1196 (Ist Cir. 1974), cert. denied sub nor. Hall v. Inmates of the SuffolkCounty Jail, 419 U.S. 977 (1974).

14. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (setting forth pre-sumptive innocence standard); see also Coffin i. United States, 156 U.S. 432, 453 (1895)(stating "Ithe principle that there is a presumption of innocence in favor of the accused isthe undoubted law, axiomatic and elementary").

15. Complaint at 1, Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 688(D. Mass. 1973) (No. 71-162), affd, 494 F.2d 1196 (1st Cir. 1974), cert. denied sub noma.Hall v. Inmates of the Suffolk County Jail, 419 U.S. 977 (1974). The defendants named inthe suit were: the Sheriff of Suffolk County, the Commissioner of Correction for the Com-monwealth of Massachusetts, and the Suffolk County Commissioners. Id. at 3. The Mayor ofBoston and the Boston City Councilors comprise the Suffolk County Commissioners. Id.

16. Complaint at 1, Eisenstadt (No. 71-162).17. Eisenstadt, 360 F. Supp. at 677. Judge Garrity was a Johnson appointee and former

federal prosecutor. Connie Paige, Charles Street Blues, BOSTON OBSERVER, Dec. 1984, at 1,30.

18. Eisenstadt, 360 F. Supp. at 678.19. Id. at 679. Suffolk County Jail will be designated Charles Street Jail until the opin-

ion dated 1990.20. Complaint at 5, Eisenstadt (No. 71-162). This double-bunking not only caused un-


cots with mattresses, a toilet, "a sink with cold running water, a fewwall pegs for hanging clothes and an unshaded 60-watt light bulbwhich is built into the wall . . . and is controlled from outside thecell."'" Additionally, Judge Garrity described the plumbing system asbeing antiquated, "positively repulsive," and frequently flooded.'Moreover, plumbing facilities in the cells were corroded, were filth-encrusted and emanated a fecal smell.2 Pests such as mosquitoes,roaches, waterbugs and rats were a serious, continuing problem andposed serious health hazards to the inmates.24 The area inside thecells was never silent-"a din ... persist[ed] [twenty-four] hours aday which include[d] noise from radios, noise made by drug addictsand alcoholics during withdrawal and steam pipes banging duringcold weather."'

Although subjected to these oppressive conditions, "[eighty-fivepercent] of the population of the Charles Street Jail [had] not beenconvicted of the crime for which arrested." 6 Judge Garrity foundthat the conditions of confinement for pretrial detainees at theCharles Street Jail rose to the level of punishment and thus violatedtheir constitutional right to due process.27 In so holding, the courtstated "[i]n concluding that Charles Street must be replaced, the courthas judged it against a standard of basic humanity toward men inno-cent in the eyes of the law, not against abstract standards of socio-logical, psychological and penological preference."' The court,

pleasant and unhealthy living conditions due to overcrowding, but also brought about safetyproblems. Richard O'Donnell, Charles Street Jail Inmate Slain; Cellmate Faces Charge,BOSTON GLOBE, July 3, 1972, at 1, 14. For example, on July 2, 1972, an eighteen-year-oldinmate, incarcerated for his first offense, which involved a non-violent crime, was housedwith a thirty-year-old violent felon, and was beaten to death by his cellmate. Id. The victim,held on $50,000 bail for a breaking and entering charge, was beaten to death with a toiletseat. Id. His killer was awaiting trial on two murder charges and had previously beatenanother cellmate. Id.

21. Eisenstadt, 360 F. Supp. at 679.22. Id. at 680.23. Id.24. Id.25. Eisenstadt, 360 F. Supp. at 680. Judge Garrity's most vivid memory of his overnight

visit to the jail was the "cacophony of noise which began to climb to its crescendo aftermidnight." Paige, supra note 17, at 30.

26. Eisenstadt, 360 F. Supp. at 685.27. Id. at 686. The Fourteenth Amendment states, in pertinent part: "[N]or shall any State

deprive any person of life, liberty, or property, without due process of law ...... U.S.CONST. amend. XIV, § 1.

28. Eisenstadt, 360 F. Supp. at 689.

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CONSENT DECREE MODIFICATION

therefore, enjoined defendants "(a) from housing at the Charles StreetJail after November 30, 1973 in a cell with another inmate, any in-mate who is awaiting trial and (b) from housing at the Charles StreetJail after June 30, 1976 any inmate who is awaiting trial."29

To facilitate his holding, Judge Garrity suggested that it may benecessary for the Commissioner of Correction "to transfer all womenconfined at the Jail to the Massachusetts Correctional Institution atFramingham ... [and to transfer] male detainees with state felonyrecords . . . to other state or county institutions whenever needed toensure single cell occupancy at the Jail. '3

' The defendants did notappeal from the judgment. When it became necessary, due to inactionof the parties, for Judge Garrity to order the Commissioner of Cor-rection to transfer the surplus inmates to another facility in the statesystem, the Commissioner of Correction appealed the order.

B. Inmates of the Suffolk County Jail II 31

The Commissioner's appeal challenged the power of the districtcourt to "order him to make transfers without a showing of unconsti-tutional conduct on his part."'32 The First Circuit Court of Appealsfound the Commissioner's appeal to be without merit.33 First, thedefendants had not appealed the underlying judgment of the districtcourt and had appealed only the subsequent order.3 The Commis-sioner, therefore, was foreclosed from raising the issue of the districtcourt's power over him.35 Second, the court found that "[g]iven boththe practicalities of the situation and his statutory role, the Commis-sioner may not disavow any responsibility for conditions at theJail."36 In upholding the district court's order, the court of appeals

29. Id. at 691.30. Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196, 1198 (1st Cir. 1974),

cert. denied sub nom. Hall v. Inmates of Suffolk County Jail, 419 U.S. 977 (1974).31. Id. at 1196.32. Id. at 1198.33. Id. at 1200.34. Eisenstadt, 494 F.2d at 1199.35. Id.36. Id. Under Massachusetts law, the Commissioner of Correction is directed to "'estab-

lish . . . minimum standards for the care and custody of all persons committed to county

correctional facilities' and to secure compliance with such standards." Id. (quoting MASS.GEN. L. ch. 127, § l(a) (1992)).

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held that the state's division of powers should not be allowed toperpetuate inhumane conditions at the Charles Street Jail.37

By 1977, it was evident that no progress was being made towardthe construction of a new jail. This lack of progress occurred despiteJudge Garrity's holding, in 1973, that the detainees at the CharlesStreet Jail were being held in violation of their Fourteenth Amend-ment due process rights. The district court, nevertheless, at the re-quest of the defendants, postponed the construction of the jail untilJuly 1, 1977, and then again until November 1, 1977, in compliancewith Judge Garrity's order requiring a new jail.3" On November 2,1977, the district court finally ordered the Boston City Council toappropriate funds to establish the Middlesex County Courthouse as aninterim facility, pending construction of a constitutionally adequatepretrial detention center in Suffolk County.39

C. Inmates of the Suffolk County Jail III 40

The First Circuit Court of Appeals granted a stay pending theCity Council's appeal.4 The court granted another stay of the dis-trict court's order until March 3, 1978, because it appeared duringoral arguments that the parties were nearing agreement.42 Althoughtotal agreement was not reached before the decision of the court washanded down, the inmates, Sheriff, Mayor and Commissioner of Cor-rection: (1) agreed that a new jail should be constructed; (2) agreedupon the conditions of confinement at the new facility; and (3)agreed upon a process for designing a new facility which wouldinclude input from the plaintiffs.43

37. Eisenstadt, 494 F.2d at 1199 ("[The district court] need not perpetuate inhuman con-ditions out of an overly-nice solicitude for the division of powers and duties between countyand state officials where together they share a joint responsibility for the proper functioningof the Jail.").

38. Inmates of Suffolk County Jail v. Kearney, 573 F.2d 98, 98 (1st Cir. 1978), aft'd,915 F.2d 1557 (1st. Cir. 1990). The plaintiff class agreed to the delay "in exchange for anenforceable commitment by the defendants to adopt and execute a plan for construction of anew jail, within a reasonable time and according to specified criteria." Inmates of SuffolkCounty Jail v. Kearney, 734 F. Supp. 561, 562-63 (D. Mass. 1990), aft'd, 915 F.2d 1557(lst Cir. 1990).

39. Kearney, 573 F.2d at 99.40. Id. at 98.41. Id. at 98-99.42. Id. at 99.43. Kearney, 573 F.2d at 99.

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On February 15, 1978, the Boston City Council passed a resolu-tion in favor of constructing a new jail at a cost of between twentyand thirty million dollars." On the same day, the Council, neverthe-less, voted against a $26,700,000 loan request submitted by the May-or for construction of the new facility.45 In a bizarre turn of events,on March 1, 1978, the City Council reversed its earlier decision re-garding construction of a new facility and appropriated ten milliondollars to renovate the existing jail.'

The court of appeals intervened in the dispute between the CityCouncil, the Mayor and the Commissioner of Correction and orderedthe jail closed on October 2, 1978. The court ordered the jail closedunless the defendants submitted a plan "for a new facility includingcommitments for adequate funding, agreement on a site, projectedtarget dates for the beginning and completion of construction, and anarchitectural design or written description of the conditions of con-finement within the new facility consistent with constitutional stan-dards.

' 47

The defendants complied with the order by filing a plan on Sep-tember 28, 1978, which was approved by the district court on Octo-ber 2, 1978.48 For the next six months, the parties, with the help ofa special master appointed by the court, negotiated an agreement.49

On April 9, 1979, a consent decree (hereinafter Consent Decree) wassigned and on May 7, 1979, the decree was approved by the court.5"

The Consent Decree states in part: "Said facility shall be de-signed and built according to the standards and specifications con-

44. Id.45. Id.46. Id. The City Council was particularly petulant regarding the jail issue. Paige, supra

note 17, at 32. "The city was entering a fiscal crisis in which a multi-million-dollar bondissue for new jail facilities was not exactly high on the priority list." Id. In addition, the all-white council was not prone to sit still for another of Judge Garrity's orders. Id. JudgeGarrity was the federal judge who had recently taken control of the city's public schools andimplemented a busing plan over the objections of the council members. Id.

47. Kearney, 573 F.2d at 101.48. Brief for the Plaintiff-Appellee at 7. Inmates of Suffolk County Jail v. Kearney, 734

F. Supp. 561 (D. Mass. 1990) (No. 71-162), aJfd. 915 F.2d 1557 (1st. Cir. 1990).49. Id. at 7-8.50. Inmates of Suffolk County Jail v. Kearney, No. 71-162 (D. Mass. filed May 7,

1979). The Consent Decree was signed by attorneys for the: Plaintiff Inmates; Boston CityCouncilors; Mayor of the City of Boston; Commissioner of Correction; Sheriff of SuffolkCounty and Master of Suffolk County Jail. Id. The Consent Decree was approved by UnitedStates District Court Judge W. Arthur Garrity, Jr. Id.

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tained in the 'Suffolk County Detention Center, Charles Street Facili-ty, Architectural Program' dated January 1, 1979, attached hereto.. ,"5 Thus, the Architectural Program was incorporated into theConsent Decree. The architectural document stated that the singleoccupancy rooms would be seventy square feet. 2

Although the Consent Decree stipulated an eighty-six week time-table for awarding the construction contract, the inmates would re-main at the Charles Street Jail for eleven years after the adoption ofthe Consent Decree.

D. Inmates of the Suffolk County Jail IV 3

In October 1984, with no further progress being made toward theconstruction of a new jail facility, and an increasing population ofpretrial detainees, the Sheriff refused to accept into his custody anyperson awaiting trial. 4 The Attorney General of Massachusetts filedsuit in Massachusetts state court seeking an order to compel theSheriff to accept the inmates.55 The Sheriff sought declaratory andinjunctive relief against the Mayor of Boston, the Boston City Coun-cil, and the Commissioner of Correction. 6 The Sheriff requested thatthe court enjoin the city from failing to provide funding for a facilityin which to house pretrial detainees in Suffolk County.57 The Sheriffalso requested an injunction against the Commissioner of Correctionfor failing to accept Suffolk County pretrial detainees. 8 The twoactions were consolidated and the inmates at the jail were allowed tointervene.59

The Massachusetts Supreme Judicial Court succinctly defined theproblem as "overcrowding at the jail, which has suffered malignant

51. Id.52. Id. "The single occupancy rooms have been sized to meet the minimum standards as

defined by the following standard setting agencies[:] The Massachusetts Department of Cor-rection . . . and the American Correctional Association . I..." Id. In the specifications formale housing units, the Architectural Program stated "[slince the housing unit is where theinmate will spend most of his time while in the institution . . . inmate activities whichprogrammed spaces must respond to include . . . single occupancy rooms." Id.

53. Attorney General v. Sheriff of Suffolk County, 477 N.E.2d 361 (Mass. 1985).54. Id. at 361.55. Id.56. Id.57. Attorney General v. Sheriff of Suffolk County, 477 N.E.2d at 362.58. Id.59. Id.

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neglect for many years."' Population projections which were madeat the time the Consent Decree was drafted were found to be inaccu-rate.' Although the inmate population was projected to decrease an-nually after 1979, it precipitously increased. 2 The Sheriff respondedto this increase by transferring detainees, without prior felony con-victions, to jails in other counties, and by transferring those detaineeswith prior felonies to state institutions. 3 The problem erupted whenthe Sheriff continued to transfer his overflow prison population to al-ready overcrowded facilities elsewhere.' Hearings were held beforea single justice of the Massachusetts Supreme Judicial Court in anattempt to alleviate the growing problems. All parties, includingthe intervenors, agreed that a new jail with at least 435 cells wasnecessary.' Every party except the City Council favored a seventeenstory jail in lieu of the thirteen story structure which had been agreedto in the Consent Decree. 7 The City Council, though agreeing to435 cells, chose to reach that number by constructing a thirteen storystructure and rehabilitating parts of the old jail.' The single justicedisagreed with the City Council and ordered construction of a seven-teen story facility at the site of the old jail with completion of thebid process by December 3, 1985.9 The single justice's orders wereaffirmed on appeal to the full bench of the Supreme JudicialCourt." Subsequently, the United States District Court for the Dis-trict of Massachusetts, on April 11, 1985, approved a modification ofthe Consent Decree allowing the defendants to increase the capacityof the new jail, provided that, "'single-cell occupancy is maintainedunder the design for the facility"' 7 ' and that "'the relative proportion

60. Id.61. Attorney General v. Sheriff of Suffolk County, 477 N.E.2d at 362.62. Id. at 363.63. Id. at 362.64. Id. "By October, 1984, even these stop-gap measures proved inadequate because the

entire correctional system was sagging under the weight of overcrowding." Id.65. Attorney General v. Sheriff of Suffolk County, 477 N.E.2d at 363.66. Id. ("Finally, all parties and intervenors agreed in a stipulation on the following: 1) a

new jail was necessary; 2) its site should be the site of the present jail; 3) a jail of 435cells was required; 4) the new jail should contain at least a thirteen story highrise compo-nent.").

67. Id.68. Id.69. Attorney General v. Sheriff of Suffolk County, 477 N.E.2d at 363.70. Id. at 364.71. Brief for the Plaintiff-Appellee at I1, Inmates of Suffolk County Jail v. Kearney, 915

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of cell space to support services will remain the same as it was inthe Architectural Program."'72

The new Suffolk County Jail was completed in the spring of1990. The seven story structure is located on Nashua Street, a sitedifferent from that originally planned.73 The Suffolk County Jailconsists of the following:

TYPE OF CELL NUMBER OF CELLSRegular male housing 316Pre-classification holding 35Administrative/disciplinary segregation 32Protective custody 8Medical 22

Total male capacity 413

Regular female housing 40Total female capacity 40

Total capacity 45374

E. Inmates of the Suffolk County Jail V 71

In 1989, before completion of the jail, but long after any majorchange in specifications was possible, the Sheriff sought a modifica-tion of the Consent Decree pursuant to Federal Rule of Civil Proce-dure 60(b)(5) and (6).76 The rule states the standard for modificationas:

On motion and upon such terms as are just, the court may re-lieve a party or a party's legal representative from a final judg-ment, order, or proceeding for the following reasons: . . . (5) the

F.2d 1557 (Ist Cir. 1990) (No. 71-162) (quoting Inmates of Suffolk County Jail v. Kearney,No. 71-162 (D. Mass. filed Apr. 11, 1985) (emphasis in original) (order allowing motion tomodify consent decree)).

72. Id. at 12 n.7 (quoting Inmates of Suffolk County Jail v. Kearney, No. 71-162 (D.Mass. filed Apr. 11, 1985) (order allowing motion to modify consent decree)).

73. Id. at 15 n.11 ("When the site was changed to Nashua Street, the jail was redesignedand the number of cells was increased from 435 to 453.").

74. Id. at 15.75. Inmates of Suffolk County Jail v. Kearney, 734 F. Supp. 561 (D. Mass. 1990), aff'd,

915 F.2d 1557 (1st Cir. 1990).76. Id. at 562.

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judgment has been satisfied, released, or discharged, or a priorjudgment upon which it is based has been reversed or otherwisevacated, or it is no longer equitable that the judgment shouldhave prospective application; or (6) any other reason justifyingrelief from the operation of the judgment.'

The Sheriff petitioned the federal district court to permit the dou-ble-bunking of inmates in 197 of the 316 regular male housing cellsat the Suffolk County Jail. at Nashua Street.78 Nineteen years afterthe original suit was filed, and seventeen years after the court foundconditions at the jail unconstitutional, and eleven years after the sign-ing of the Consent Decree, the Sheriff was seeking to double-bunkthe presumptively innocent pretrial detainees at the Suffolk CountyJail.

Ironically, the district court made its decision on April 9, 1990,eleven years to the day after the Consent Decree was signed by allparties to the litigation.79 The district court denied the Sheriff's mo-tion to modify the Consent Decree to permit double-bunking at thenew jail.' The court applied the standard regarding the modificationof consent decrees enunciated by the United States Supreme Court inUnited States v. Swift & Co.:8 "'Nothing less than a clear showingof grievous wrong evoked by new and unforeseen conditions shouldlead us to change what was decreed after years of litigation with theconsent of all concerned.' ' 82

The Sheriff posited four arguments in favor of double-bunking.First, the Sheriff relied on Bell v. Wolfish83 to support his argumentfor modification.' In Bell, the United States Supreme Court alloweddouble-bunking of pretrial detainees at the Metropolitan CorrectionalCenter (hereinafter MCC) in New York City.' The Sheriff main-

77. FED. R. Civ. P. 60(b)(5), (6).78. Kearney, 734 F. Supp. at 562. "The smallest cells in each modular unit where the

Sheriff propose[d] to double-bunk [were] approximately 70 square feet in total area, of whichan area of approximately 40 square feet [was] unencumbered." Inmates of the Suffolk Coun-ty Jail v. Rufo, 148 F.R.D. 14, 18 (D. Mass. 1993), aft'd, 12 F.3d 286 (1st Cir. 1993).

79. Kearney, 734 F. Supp. at 561.80. Id. at 565.81. 286 U.S. 106 (1932).82. Kearney, 734 F. Supp. at 563 (quoting United States v. Swift & Co., 286 U.S. 106,

119 (1932) (emphasis added)); see infra notes 171-77 and accompanying text.83. 441 U.S. 520 (1979).84. Kearney, 734 F. Supp. at 563-65.85. Id. at 564 (citing Bell v. Wolfish, 441 U.S. 520, 541 (1979)). Bell was decided by

the United States Supreme Court on May 14, 1979, which was one week after the Consent

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tained that the Bell holding qualified as a change in law and so satis-fied the language of Federal Rule of Civil Procedure 60(b)(5). 6

United States District Court Judge Robert Keeton, the author of theopinion, disagreed, holding that Bell was limited to its facts.87 Atthe MCC, the inmates were in their cells for seven and one-halfhours at night.8 On the other hand, the Sheriff proposed that theinmates at the Suffolk County Jail spend a total of twelve hours intheir cells, eight hours at night and four hours during the day.89 Inaddition, the detainees at MCC were held for a shorter time thanthose at Suffolk County Jail." The district court quoted the SupremeCourt's language in Bell: "'[C]onfining a given number of people ina given amount of space in such a manner as to cause them to en-dure genuine privations and hardship over an extended period of timemight raise serious questions under the Due Process Clause as towhether those conditions amounted to punishment .... ""' The dis-trict court concluded that the facts in the present case were distin-guishable from those in Bell; thus, the "defendant ha[d] not estab-lished a change in the law of the kind that would satisfy the standardof Rule 60(b)(5)."92

Second, the Sheriff argued that the increase in the pretrial detain-ee population was unforeseen, thus justifying a modification underRule 60(b)(5).93 The court disagreed with the Sheriff, stating that an

Decree in the present case was adopted by the court. Bell, 441 U.S. at 520.86. Kearney, 734 F. Supp. at 564. The rule states in part: "A prior judgment upon which

it is based has been reversed or otherwise vacated." FED. R. Civ. P. 60(b)(5).87. Kearney, 734 F. Supp. at 564 ("The conclusion in Bell that the conditions of con-

finement at the MCC did not violate the Constitution necessarily depended on all of thefacts and circumstances of that case.").

88. Bell, 441 U.S. at 541. At MCC "[ilnmates generally are locked into their rooms from11 p.m. to 6:30 a.m. and for brief periods during the afternoon and evening head counts.During the rest of the day, they may move about freely between their rooms and the com-mon areas." Id.

89. Kearney, 734 F. Supp. at 564.90. Id. at 563-64. In Bell, "[o]ver half of the unsentenced detainees spent less than ten

days at the MCC, three-quarters were released within a month, and more than 85% werereleased within sixty days." Id. at 564. In the present case, however, it was suggested by theSheriff that "approximately 25% of the inmates are released within two days ... and 50%within eight days," while the plaintiffs claimed that "32% of the population had been heldfor more than sixty days, and 14% for more than 120 days." Id.

91. Id. (quoting Bell, 441 U.S. at 542).92. Id.93. Kearney, 734 F. Supp. at 564. The rule states in part: "[I]t is no longer equitable

that the judgment should have prospective application." FED. R. Ctv. P. 60(b)(5).

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increase in jail population was foreseeable and had been an on-goingproblem:

[F]rom the time the population projections on which plans forthe new jail were based were recognized to be inaccurate, re-sulting in a modified plan for a larger-capacity jail, through theconstruction of sixty modular cells at the site of the old jail in1987, and through a request to permit double-celling in thosemodular units, denied by this court in January 1989.'

Third, the Sheriff urged the court to apply a more flexible stan-dard than the one set out in Swift to the modification of the ConsentDecree.95 Under the "flexible standard" for modification of a consentdecree, articulated in New York State Association for Retarded Chil-dren, Inc. v. Carey,96 modification may be allowed in institutionalreform litigation if the defendant has attempted in good faith to com-ply with the decree and the "modification requested does not frustratethe original overall purposes of the decree."' This "flexible stan-dard" had been used in other circuits but not in the First Circuit.98

In the case at issue, the district court found that even if the "flexiblestandard" were applied, modification would not follow. "A separatecell for each detainee," the district court maintained, "has alwaysbeen an important element of the relief sought."'

Fourth, the Sheriff requested relief pursuant to Federal Rule ofCivil Procedure 60(b)(6), which allows modification "for 'any otherreason justifying relief.""'' The Sheriff argued that the Bell caseheld double-bunking constitutional; therefore, double-bunking at theNashua Street Jail would not present a constitutional violation.'The district court disallowed relief under this section, discussing thefinality of consent decrees as an important reason why institutional

94. Id.95. Id. at 565.96. 706 F.2d 956 (2d Cir. 1983), cert. denied, 464 U.S. 915 (1983).97. Kearney, 734 F. Supp. at 565 (citing New York State Ass'n for Retarded Children,

Inc. v. Carey, 706 F.2d at 969-70 (2d Cir. 1983) (holding that the defendants could modifythe consent decree to allow placement of mentally retarded clients in community placementsof up to 50 beds instead of the 15 stipulated by the decree), cert. denied, 464 U.S. 915(1983)).

98. Id.99. Id.

100. Id. (quoting FED. R. Cr1. P. 60(b)(6)).101. Kearney, 734 F. Supp. at 563-64.

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reform litigants enter into them."2 The district court concluded thatthe "[d]efendants' agreement in this case was a firm one, and notmerely an agreement to comply with the decree if it was not toodifficult to do so."'03

In arguing for modification, the Sheriff maintained that if double-bunldng were not allowed, pretrial detainees would be released.08

The district court responded to this argument by stating that inactionof fiscal authorities "is not a legally supportable basis for modifica-tion of a consent decree."'0 5

F. Inmates of the Suffolk County Jail VI

The Sheriff appealed the denial of his motion for modification ofthe Consent Decree to the First Circuit Court of Appeals. 7 Thecourt of appeals, in an unpublished opinion, affirmed the districtcourt's denial of the Sheriff's motion.0 8 The United States SupremeCourt granted certiorari because of the disparity among the circuitsregarding modification of consent decrees in institutional reform lit-igation. 9

G. Inmates of the Suffolk County Jail VII "o

The United States Supreme Court held that the United States v.Swift & Co."' "grievous wrong" standard for the modification ofconsent decrees does not apply to institutional reform litigation."2

The Court adopted a new standard for this type of litigation which

102. Id. at 565-66.103. Id. at 565.104. Id. at 566.105. Kearney, 734 F. Supp. at 566.106. Inmates of Suffolk County Jail v. Kearney, 915 F.2d 1557 (1st Cir. 1990).107. Id.108. Id.109. Inmates of Suffolk County Jail v. Rufo, 111 S. Ct. 950 (1991).110. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992). In a decision handed

down six days short of 21 years after the original complaint was filed, Justice White, joinedby Chief Justice Rehnquist and Justices Scalia, Kennedy and Souter, vacated the decision ofthe district court and remanded for further proceedings in light of its opinion. Id. JusticeO'Connor concurred and Justice Stevens dissented in an opinion joined by Justice Blackmun.Id.

111. 286 U.S. 109 (1932).112. Rufo, 112 S. Ct. at 764-65; see also supra notes 81-82 and accompanying text.

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embodies a two part test."' The test enunciated by the Court is asfollows: "[1] [A] party seeking modification ... must establish thata significant change in facts or law warrants revision of the decreeand [2] that the proposed modification is suitably tailored to thechanged circumstance.""' 4

Justice White, writing for the majority, determined that the lan-guage of Rule 60(b) permits a less stringent standard for modificationin institutional reform cases than the "grievous wrong" test espousedin Swift.15 The Court distinguished the facts of Swift (antitrust liti-gation) from institutional reform litigation: "Because such [institution-al reform] decrees often remain in place for extended periods oftime, the likelihood of significant changes occurring during the life ofthe decree is increased."'" 6 The Court concluded that a flexible ap-proach to modification of consent decrees in institutional reform cas-es is often essential to achieve the goals of litigation."7 The Courtfound that the district court erred in holding that modification of thesingle cell requirement was forbidden even under the more flexiblestandard."' "If modification of one term of a consent decree defeatsthe purpose of the decree, obviously modification would be all butimpossible."'"9

The Court used language from the Swift opinion to buttress itsholding that a flexible approach to modification is appropriate for

113. Id. at 765.114. Id. Three factors should be considered when deciding whether a proposed modifica-

tion is suitably tailored to the changed circumstance. Id. at 763. First, "a modification mustnot create or perpetuate a constitutional violation." Id. Second, "[a] proposed modificationshould not strive to rewrite a consent decree so that it conforms to the constitutional floor."Id. at 764. Third, "[w]ithin these constraints, the public interest . . . require[s] that the dis-trict court defer to local government administrators." Id. A discussion of the federalism issueswhich arise when the federal judiciary exercises authority over local governmental officials isbeyond the scope of this Note.

115. Id. at 758. The Court relied on language of Federal Rule of Civil Procedure 60,which states in part: "[O]n such terms as are just, a party may be relieved from a finaljudgment or decree when it is no longer equitable that the judgment should have a prospec-tive application." FED. R. Civ. P. 60(b)(5).

116. Rufo, 112 S. Ct. at 758.117. Id.118. Id. at 762. The district court denied modification under the more flexible standard

because "It]he type of modification sought here would not comply with the overall purposeof the [Clonsent [D]ecree." Kearney, 734 F. Supp. at 565. Judge Keeton found that "[a]separate cell for each detainee has always been an important element of the relief sought inthis litigation-perhaps even the most important element" and that modification of that partic-ular element of the Consent Decree would undermine the overall purpose of the decree. Id.

119. Rufo. 112 S. Ct. at 762.

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CRIMINAL AND CIVIL CONFINEMENT [Vol. 21:1

institutional reform litigation.' 2° "'The distinction is between re-straints that give protection to rights fully accrued upon facts sonearly permanent as to be substantially impervious to change, andthose that involve the supervision of changing conduct or conditionsand are thus provisional and tentative . *...""" Although the RufoCourt read this language as distinguishing the facts of the Swift casefrom cases in which the flexible approach to modification would beappropriate, this reading of Swift is incorrect. The Swift Court usedthis language to support the argument that the court has power tomodify an injunction.' Before Swift, there was a question as towhether injunctions were subject to modification." In Swift, theCourt was describing the circumstances under which a decree couldbe modified and was not delineating different standards for modifica-tion. 4

In her concurring opinion, Justice O'Connor adopted the languageof Federal Rule of Civil Procedure 60(b)(5) as the standard for modi-fication."2 Thus, Justice O'Connor would allow modification of aconsent decree when "'it is no longer equitable that the judgmentshould have prospective application."" 6 In such cases, the districtcourt should have "substantial discretion" because it is in the best

120. Id. at 758.121. Id. (quoting United States v. Swift & Co., 286 U.S. 106, 114 (1932)).122. Swift, 286 U.S. at 114-15. The Swift Court's language, cited in the Rufo opinion,

states in part:We are not doubtful of the power of a court of equity to modify an injunctionin adaptation to changed conditions, though it was entered by consent. . . . Acontinuing decree of injunction directed to events to come is subject always toadaptation as events may shape the need. The distinction is between restraintsthat give protection to rights fully accrued upon facts so nearly permanent asto be substantially impervious to change, and those that involve the supervisionof changing conduct or conditions and are thus provisional and tentative. Theresult is all one whether the decree has been entered after litigation or by con-sent. In either event, a court does not abdicate its power to revoke or modifyits mandate, if satisfied that what it has been doing has been turned throughchanging circumstances into an instrument of wrong.

Id. (emphasis added) (citations omitted).123. See infra notes 160-62 and accompanying text.124. Levine, supra note 6, at 1243-44. "[The Swift] opinion clarified many issues con-

cerning the trial court's power to modify an injunction or consent decree. [It] determinedthat the court had inherent power to modify its own decree, whether or not the decree pro-vided expressly for future modification." Id.

125. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 765 (1992) (O'Connor, J.,concurring).

126. Id. (O'Connor, J., concurring) (quoting FED. R. Civ. P. 60(b)(5)).


position to discover what is equitable in a given situation.'27 "As aresult, an appellate court should examine primarily the method inwhich the District Court exercises its discretion, not the substantiveoutcome the District Court reaches." 2 ' Justice O'Connor found thatthe district court abused its discretion by imposing legally erroneouslimits on its own authority. 29

According to Justice O'Connor, there were three flaws in thedistrict court's analysis.'30 First, the district court was -mistaken inits use of the Swift "new and unforeseen circumstances" standard,thereby preventing a modification because the court found the in-crease in the pretrial detainee population foreseeable.'3 ' JusticeO'Connor found that even if the overcrowding was foreseen or fore-seeable, modification was not necessarily barred and could still be an"equitable" remedy.'3 2 Second, Justice O'Connor found that the dis-trict court was incorrect in holding that it lacked authority to consid-er the city's budget constraints in deciding whether modification wasappropriate.'33 Budget constraints are one consideration, under Jus-tice O'Connor's analysis, in deciding if the obligation of a consentdecree is "equitable."'"M Justice O'Connor's third problem with thedistrict court's opinion was the finding that "'[the] modificationsought here ... would set aside the obligations of that decree.""' 35

By this language, the district court held itself to a standard whichwould never allow modification of a decree because, in JusticeO'Connor's view, "every modification, by definition, will alter anobligation of a decree."' 36

Although Justice O'Connor disagreed with the methods of thedistrict court, she clearly stated that the court's decision to refusemodification may have been correct.' 37 Her opinion rested on thebelief that the district court unnecessarily constrained itself in reach-

127. Id. (O'Connor, J., concurring).128. Id. (O'Connor, J., concurring).129. Rufo, 112 S. Ct. at 766 (O'Connor, J., concurring).130. Id. (O'Connor, J., concurring).131. Id. (O'Connor, J., concurring).132. Id. (O'Connor, J., concurring).133. Rufo, 112 S. Ct. at 766 (O'Connor. J., concurring).134. Id. (O'Connor, J., concurring).135. Id. (O'Connor, J., concurring) (quoting Inmates of Suffolk County Jail v. Keamey,

734 F. Supp. 561, 565 (D. Mass. 1990), aft'd, 915 F.2d 1557 (Ist Cir. 1990)).136. Id. (O'Connor, J., concurring).137. Rufo, 112 S. Ct. at 766 (O'Connor, J., concurring).

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ing its decision.'38 Justice O'Connor would have remanded to allowthe district court to exercise its "substantial discretion" in decidingwhether to allow modification of the decree.139

Justice Stevens, in his dissenting opinion, agreed with the majori-ty that the "flexible standard" for modification is appropriate in insti-tutional reform litigation. 40 Justice Stevens dissented, joined by Jus-tice Blackmun, because he believed that the majority should have af-firmed the district court's refusal of the proposed modification. 4'Justice Stevens found that the single-bunking provision was integralto the consent of the parties and should not be modified.'42 He stat-ed that "[p]etitioners' history of noncompliance after the 1973 injunc-tion provide[d] an added reason for insisting that they honor theirmost recent commitments."'' 43

H. Inmates of the Suffolk County Jail VIII'4

On remand, United States District Court Judge Robert Keetondenied the Sheriff's motion for modification of the Consent De-cree' 4s Judge Keeton held that, although an increase in pretrial de-tainee population was foreseeable, the rate of increase was not fore-seeable and would, therefore, meet the first prong of the SupremeCourt's legal test: "'[A] significant change in circumstances warrantsrevision of the decree."' "' The district court found, however, thatthe proposed modification was not "'suitably tailored to the changedcircumstance.",147 Judge Keeton's reasoning was based upon thefact that the single-bunking provision was among the "most signifi-

138. Id. (O'Connor, J., concurring).139. Id. (O'Connor, J., concurring).140. Id. (Stevens, J., dissenting).141. Rufo, 112 S. Ct. at 768 (Stevens, J., dissenting).142. Id. at 772 (Stevens, J., dissenting).143. Id. (Stevens, J., dissenting).144. Inmates of Suffolk County Jail v. Rufo, 148 F.R.D. 14 (D. Mass. 1993), aftd, 12

F.3d 286 (1st Cir. 1993).145. Id. at 15. After the case was remanded, the Commissioner of Correction filed a mo-

tion to vacate the Consent Decree. Id. This motion was also denied. Id.146. Id. at 16 (quoting Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 760

(1992)).147. Id. (quoting Rufo, 112 S. Ct. at 760). The Sheriff requested modification to allow

double-bunking in 197 cells. Brief for the Defendant-Appellant at 1, Inmates of the SuffolkCounty Jail v. Kearney, 734 F. Supp. 561 (D. Mass. 1990) (No. 71-162), aft'd, 915 F.2d1557 (1st Cir. 1990).

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cant objectives of the [C]onsent [D]ecree."'45 The court held thatthe Sheriff should have explored "other feasible alternatives thatwould maintain rather than impair the integrity of the [Clonsent[Dlecree."'49 In denying this particular motion for modification toallow double-bunking, the court did not foreclose the Sheriff fromattempting to modify the decree in a way more suitably tailored tothe changed circumstances.'5

The Sheriff subsequently submitted a slightly altered proposal tothe district court.' This revised motion sought to double-bunk only161 of the lower tier cells and enlarge the windows on the celldoors, enhancing the jail officers' ability to monitor the interior ofthe cells.'

I. Inmates of the Suffolk County Jail IX

Judge Keeton's decision regarding the Sheriff's modification pro-posal was released on January 25, 1994-twenty-three years and fourdays after the original complaint was filed.5 3 The provisional orderallowed in part and denied in part the Sheriffs motion." Theorder allowed the Sheriff to double-bunk in one hundred cells, andallowed thirty days for either party to "file a submission with thecourt regarding the proposed modification of the [C]onsent [D]ecreeor the court's determination that the case should be closed.' ' 55 Ifneither party filed a submission to the court within the allotted time,the order would become final. Both 'parties filed submissions toJudge Keeton within thirty days, thus the provisional order did notbecome final.'56

148. Rufo, 148 F.R.D. at 20.149. Id. at 24.150. Id. "[M]y ruling should be without prejudice to the submission of a proposal with an

adequate showing of fit." Id.151. Supplemental Memorandum in Support of Defendant Sheriff Robert C. Rufo's Motion

to Modify Consent Decree at 3-4, Inmates of the Suffolk County Jail v. Rufo, 148 F.R.D.14 (D. Mass. 1993) (No. 71-162), aff'd. 12 F.3d 286 (1st Cir. 1993).

152. Id. at 3-4.153. Inmates of Suffolk County Jail v. Rufo, No. 71-162 (D. Mass. filed Jan. 25, 1994).154. Id. at 20.155. Id.156. Inmates of the Suffolk County Jail v. Rufo, No. 71-162 (D. Mass. filed Feb. 24,

1994 and Feb. 25, 1994).

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J. Inmates of the Suffolk County Jail X

Judge Keeton's final order was issued on June 14, 1994."57 Thecourt ordered the Consent Decree modified to allow for double-bunk-ing in one hundred cells. 5 Judge Keeton kept the case open, forlimited purposes, for five years from the date of the Final Order untilJune 14, 1999, when the case will finally be closed.59

III. HISTORICAL ANALYSIS OF MODIFICATION OF CONSENT DECREES

The history of the modification of consent decrees in the UnitedStates is long and inconsistent."6 Since consent decrees are consid-

157. Inmates of the Suffolk County Jail v. Rufo, No. 71-162 (D. Mass. filed June 14,1994).

158. Id.For the reasons stated in the Memorandum and Order of this date, it is herebyORDERED:(1) The Consent Decree of May 7, 1979 (as modified by the orders of April11, 1985, April 22, 1985, and August 30, 1990) is further modified to theextent that and only to the extent that, as long as no inmates other than Suf-folk County pretrial detainees are assigned to the Nashua Street facility, theSheriff (a) may alter up to 100 cells to permit double occupancy, and (b)may, at any given time, place two inmates in each of the altered cells to theextent necessary to have space within the Nashua Street facility for all SuffolkCounty pretrial detainees committed to the Sheriffs care.

Id.159. Id.

On a date five years from entry of this order, the case will be finally closedunless on appropriate motion and for good cause shown the court orders anearlier or later closing date. After the case is finally closed, no further supervi-sion by this court will occur, and no further modification of the consent decreewill be entertained by the court, unless an appropriate motion to reopen, meet-ing the criteria applicable to relief from a final judgment has first been al-lowed.

Id.160. Levine, supra note 6, at 1245-46. "The Supreme Court has been inconsistent in its

approach to the modification question." Id.; see also Thomas Mengler, Consent Decree Par-adigms: Models Without Meanings, 29 B.C. L. REv. 291, 299-300 (1988).

No one serious about defining a district court's task in interpreting a consentdecree should look to the Supreme Court for guidance. Because its stated viewon interpretation has shifted with the merits of each case, the Court has chart-ed all the possibilities and fixed its sights on none of them. Consequently, theCourt has said nothing useful for lower courts, unless one thinks providing agrab-bag of options is useful.

Levine, supra note 6, at 1246; see also Jost, infra note 161, at 1113 n.84 for a collection ofcases where courts have dealt inconsistently with requests for modification of a consent

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ered a combination of judicial injunctions and bargained-for ex-change, the issue of when modification is appropriate has alwaysbeen unclear. Before Swift, case precedent existed which espoused theproposition that injunctions were final judgments and, as such, werenot subject to modification.' The Swift opinion changed that as-sumption by specifically recognizing the power of the court to modi-fy its decrees."

In 1938, the Federal Rules of Civil Procedure were adopted.Although Rule 60(b)(5) was thought by some to have codified theSwift standard for modification of consent decrees, Justice White inRufo v. Inmates of the Suffolk County Jail" specifically denouncedthat proposal.'" During the sixty years between Justice Cardozo'sdecision in Swift and Justice White's decision in Rufo, there has beensubstantial confusion regarding the modification issue, particularly inthe area of institutional reform litigation.

The 1960s and 1970s were years of rapid social change. An ac-tivist Supreme Court and a recently empowered populace coalescedinto a dynamically charged vehicle for change. Much of this change

decree:

Sierra Club v. United States Army Corps. of Eng'rs, 732 F.2d 253, 256 (2dCir. 1984) (stating that injunctions are "executory and subject to adaptation asevents may shape the need"); . . . Other cases have denied modification onthe grounds that rights were fully accrued. E.g. United States v. City of Provi-dence, 492 F. Supp. 602, 6Q9 (D.R.I. 1980). . . . Several [courts] have inter-preted United States v. United Shoe Mach. Corp., 391 U.S. 244 (1968), asqualifying Swift to permit courts to modify injunctions ad [sic] the instance ofprevailing plaintiffs if the modification proposed by the plaintiffs will betterprotect the plaintiffs' rights. . . . But see Rajender v. University of Minn., 730F.2d 1110, 1115 (8th Cir. 1984) (United Shoe does not establish a lighterstandard for modification for plaintiffs).

Id.161. Timothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions

in the Federal Courts, 64 TFX. L. REv. 1101, 1109 (1986).162. United States v. Swift & Co., 286 U.S. 106, 114 (1932) (stating "[w]e are not

doubtful of the power of a court of equity to modify an injunction in adaptation to changedconditions though it was entered by consent").

163. 112 S. Ct. 748 (1992).164. Rufo, 112 S. Ct. at 757 (stating "[tihe District Court . . . held that Rule 60(b)(5)

codified the 'grievous wrong' standard of United States v. Swift & Co ..... This con-struction of Rule 60(b) was error."). Id. Justice White went on to state that under Rule60(b), "on such terms as are just, a party may be relieved from a final judgment or decreewhere it is no longer equitable that the judgment have prospective application, permits a lessstringent, more flexible standard." Id. at 758.


came in the form of consent decrees.'65 "Federal district court judg-es, spurred on by the Supreme Court and courts of appeal, issuedinjunctions to battle a host of social evils, including segregatedschools, employment discrimination, and inhumane conditions in pris-ons and mental hospitals."'66

The 1980s were much more politically conservative than theprevious two decades. 67 As a result of this conservatism, earlierreform efforts were consistently challenged by the courts, Congress,and society at large.' The result of many of these challenges hasbeen the attempted modification of judicial decrees entered into whenthe federal courts were more protective of individual rights.'69 Con-sent decrees entered into by institutional reform litigants have beenparticularly scrutinized. 7°

IV. LEGAL STANDARD FOR MODIFICATION OF CONSENT DECREES

In 1920, the United States Government filed suit against fivemeat packers, alleging antitrust violations. 7' The five meat packers,Swift & Co., Armour & Co., Wilson & Co., the Morris Packing Co.,and the Cudahy Packing Co., had allegedly "succeeded in suppressingcompetition both in the purchase of live stock and in the sale ofdressed meats, and were even spreading their monopoly into otherfields of trade."'7 The parties consented to a decree which enjoinedthe defendants from:

(1) holding any interest in public stockyard companies, stockyardterminal railroads, or market newspapers, (2) engaging in, orholding any interest in, the business of manufacturing, selling ortransporting any of 114 enumerated food products (principallyfish, vegetables, fruit, and groceries), and [thirty] other articlesunrelated to the meat packing industry; (3) using or permittingothers to use their distributive facilities for the handling of anyof these enumerated articles, (4) selling meat at retail, (5) hold-

165. Jost, supra note 161, at 1106.166. Id. (footnotes omitted).167. Id. at 1107.168. Id.169. Jost, supra note 161, at 1107.170. See generally id. at 1107.171. United States v. Swift & Co., 286 U.S. 106, 109-10 (1932).172. Id. at I10.

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ing any interest in any public cold storage plant, and (6) sellingfresh milk or cream.17

In 1924, defendants Swift and Armour began filing motions tovacate or modify the consent decree." In 1931, the district courtmodified the decree and the modification was appealed to the UnitedStates Supreme Court. 75

Justice Cardozo, writing for the majority, set forth the standardby which a consent decree could be modified. 116 In reversing thelower court's modification of the Swift-Armour decree, JusticeCardozo used the following language, which would be quoted often:

We are not framing a decree. We are asking ourselves whetheranything has happened that will justify us now in changing a de-cree. The injunction, whether right or wrong, is not subject toimpeachment in its application to the conditions that existed atits making. We are not at liberty to reverse under the guise ofreadjusting. Life is never static .... The inquiry for us iswhether the changes are so important that dangers, once sub-stantial, have become attenuated to a shadow. No doubt thedefendants will be better off if the injunction is relaxed, but theyare not suffering hardship so extreme and unexpected as to justi-fy us in saying that they are the victims of oppression. Nothingless than a clear showing of grievous wrong evoked by new andunforeseen conditions should lead us to change what was de-creed after years of litigation with the consent of all con-cerned."

In the decades following Justice Cardozo's opinion in Swift, the"grievous wrong" standard for modification was haphazardlyused.' Most courts deciding motions to modify consent decrees

173. Id. at I11.174. Id. at 112.175. Swift, 286 U.S. at 114.176. Id. at 119.177. Id. (emphasis added).178. Jost, supra note 161, at 1105-06; see, e.g., King-Seeley Thermos Co. v. Aladdin

Industries, Inc., 418 F.2d 31, 35 (2d Cir. 1969) (declining to apply the Swift standard andstating "[w]e think therefore that the court imposed unduly rigid restrictions on its consider-ation of . . .Aladdin's motion . ... [for] modification . . .); In re 1330 19th Street Corpo-ration, 101 B.R. 397 (Bankr. D.C. 1989) (applying Swift standard); Theriault v. Smith, 523F.2d 601, 601 n.3 (Ist Cir. 1975) ("The criteria to guide the court's discretion in determin-ing whether to grant prospective relief from a consent decree . . . [i]s contained in thiscrucial sentence from Mr. Justice Cardozo's opinion in Swift: 'Nothing less than a clearshowing of grievous wrong evoked by new and unforeseen conditions should lead us to

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mentioned Swift, even in cases where the court was not using the"grievous wrong" standard.'79 Rather than overrule Swift, courts notusing the "grievous wrong" standard, distinguished the case at issuefrom Swift on the basis of the type of litigation underlying the con-sent.' This inconsistency culminated in Rufo v. Inmates of SuffolkCounty Jail.' The case set forth a standard of modification for insti-tutional reform litigation consent decrees which differed dramaticallyfrom Justice Cardozo's "grievous wrong" test. 2

change what was decreed after years of litigation' . . . ."); Holiday Inns, Inc. v. HolidayInn, 645 F.2d 239, 240 (4th Cir. 1981) (holding "[flor decision upon the District Court's re-fusal to relax its injunction, our course is charted by Mr. Justice Cardozo's cautions" inSwift) (citations omitted), cert. denied, 454 U.S. 1053 (1981); Gautreaux v. Pierce, 535 F.Supp. 423 (N.D. Il1. 1982) (using a standard more flexible than "grievous wrong"); HumbleOil & Refining Co. v. American Oil Co., 405 F.2d 803, 813 (8th Cir. 1969) (applying Swiftfactors which the court stated as "caution, substantial change, unforeseenness, oppressivehardship, and a clear showing"), cert. denied, 395 U.S. 905 (1969). This inconsistency ofapplication is not limited to the lower federal courts. See, e.g., Columbia Artists Manage-ment, Inc. v. United States, 381 U.S. 348, 352 (1965) (stating "[tihis court has held that aconsent decree ordinarily may not be modified without the consent of the parties involved").But see United States v. United Shoe Machinery Corp., 391 U.S. 244. 248-49 (1967). InUnited Shoe Machinery, the United States Supreme Court upheld the allowance of thegovernment's modification of an antitrust consent decree on a showing that the decree hadfailed to accomplish the result for which it was designed. Id. The court stated "[tihe DistrictCourt misconceived the thrust of this Court's decision in Swift. That case in no way restrictsthe District Court's power to grant the relief requested by the Government in the presentcase." Id. at 248.

179. Jost, supra note 161, at 1105.More than a half-century after the decision, the Swift opinion still dominatesthe field to a remarkable extent. Almost without exception, federal court opin-ions at all levels addressing the question of modification or dissolution ofinjunctions advert to Swift, sometimes in extended discussion, at other times interse citation. Yet the ritual genuflection to Swift is deceptive; in fact, the ap-proach to injunction modification exemplified by Swift is less and less commonin today's cases.

Id. (footnote omitted). As of September 1994, Shepard's Citations listed 738 cases whichhave made reference to Swift.

180. See Levine, supra note 6, at 1245. "Perhaps because a jurist of the eminence ofJustice Cardozo wrote the opinion or perhaps because in the [often] quoted paragraph hecrafted some of his more memorable phrases, many lower courts have interpreted Swift strin-gently." Id.; see also Holiday Inns, Inc. v. Holiday Inn, 645 F.2d 239, 245 (4th Cir. 1981)(Phillips, J., dissenting), cert. denied, 454 U.S. 1053 (1981).

181. 112 S. Ct. 748 (1992).182. Rufo, 112 S. Ct. at 764-65 ("[Wle hold that the Swift 'grievous wrong' standard does

not apply to requests to modify consent decrees stemming from institutional reform litiga-tion."); see also Evans v. City of Chicago, 10 F.3d 474, 476 (7th Cir. 1993) (describingRufo as holding "that consent decrees regulating the conduct of state or local governmentsmay be modified more freely than those entered by private litigants"), cert. denied, 114 S.Ct. 1831 (1994).


After Rufo, an institutional reform consent decree may be modi-fied when: "[A] party seeking modification ... establish[es] that asignificant change in facts or law warrants revision of the decree andthat the proposed modification is suitably tailored to the changedcircumstance."'' In non-institutional reform litigation the test is, ap-parently, still "[n]othing less than a clear showing of grievous wrongevoked by new and unforeseen conditions."'' "

Although the majority's modification standard is the law for insti-tutional reform litigation, there is apparently still no consensus amongthe circuits regarding which standard is the most appropriate for liti-gation which is not seeking to reform governmental institutions.85

In ascertaining the appropriate standard for modification, it is impor-tant to decide what policies are served by the decrees. First and fore-most, consent decrees are efficient. Both the courts and the litigantsare saved from months or years of litigation in lieu of the agreementof the parties. The parties to the litigation are in a better positionthan a court to know the specifics of their needs. Thus, the decree ismore perfectly tailored to those needs despite the compromises nec-

183. Rufo, 112 S. Ct. at 765.184. United States v. Swift & Co., 286 U.S. 106, 119 (1932).185. See, e.g., In the Matter of Hendrix, 986 F.2d 195, 198 (7th Cir. 1993). In Hendrix,

decided after Rufo, the Court of Appeals for the Seventh Circuit applied a flexible standardto modify a judgment entered into by two private parties:

Until recently ... the standard for modification of injunctions was the "griev-ous wrong" standard of United States v. Swift . . . .Lower courts, includingour own, were restive under this confining standard. Last year the SupremeCourt gave it the coup de grace in Rufo v. Inmates of Suffolk County. Al-though, as the Court emphasized in Rufo, that case, like the lower-court casesthat had expressed dissatisfaction with the standard of Swift, involved insti-tutional reform litigation, the "flexible standard" adopted in Rufo is no lesssuitable to other types of equitable caselsi.

Id. (citations omitted) (emphasis added); see also Patterson v. Newspaper and Mail DeliverersUnion, 13 F.3d 33, 38 (2d Cir. 1993) (agreeing with the district court judge that "the flexi-ble standard outlined in Dowell and Rufo is not limited to cases in which institutional re-form is achieved in litigation brought directly against a governmental entity"), cert. denied,115 S. Ct. 58 (1994); Still's Pharmacy v. Cuomo, 981 F.2d 632, 636-37 (2d Cir. 1992)(applying Rufo standard to a dispute over the setting of Medicaid prescription prices"[a]lIthough the activities governed by the Settlement Order [in the present case] do not fallwithin the narrow holding of Rufo"). But see W.L. Gore & Assocs., Inc. v. C.R. Bard, Inc.,977 F.2d 558, 561 (Fed. Cir. 1992). In Gore, which was also decided after Rufo, the courtapplied the Swift standard to a request for modification of an injunction in commercial litiga-tion. Id. "The court may modify an injunction when it is 'satisfied that what it has beendoing has been turned into an instrument of wrong."' Id. at 561 (quoting United States v.Swift & Co., 286 U.S. 106, 114-15 (1932) (alteration in original)).


essary to reach settlement. Needs, however, change. With changingneeds, it may become beneficial to one or both parties to modify theagreement. In the absence of agreement to modify by all parties, aquestion arises as to how difficult modification should be.'86 Ifmodification is too difficult, defendants may be more apt to taketheir chances at litigation. On the other hand, if modification is tooeasy, plaintiffs will be reluctant to use this method of settlement intheir search for finality and stability. The correct standard for modifi-cation should be somewhere between the Swift and Rufo standards.Also, the standard should be the same for all types of litigation.Because "[1]ife is never static,"'87 it is absurd to make modificationeasier for institutional reform litigation than it is for other types oflitigation. In Rufo, the majority suggests that a flexible standard formodification is appropriate for institutional reform decrees becausethey tend to stay in place for a long time, 8' and because the rightsof the public are involved.'89 One problem with this argument isthat antitrust consent decrees often stay in place for a long time andhave an impact on the public and many others. The Swift decree, forexample, was not dissolved until November 23, 1981 9° and impact-ed the public, all meat packers, grocers, public cold storage plantoperators, public stockyard companies, stockyard terminal railroads,and market newspapers.' 9 '

186.The strong public interest in protecting the finality of court decrees alwayscounsels against modifications. In the context of a consent decree, this interestis reinforced by the policy favoring the settlement of protracted litigation. Tothe extent that litigants are allowed to avoid their solemn commitments, themotivation for particular settlements will be compromised. and the reliability ofthe entire process will suffer.

Rufo, 112 S. Ct. at 772 (Stevens, J., dissenting) (citations omitted).187. United States v. Swift & Co., 286 U.S. 106, 119 (1932) (emphasis added).188. Rufo, 112 S. Ct. at 759.189. Id. (quoting Heath v. De Courcy, 888 F.2d 1105, 1109 (6th Cir. 1989) (stating that

institutional reform decrees "reach beyond the parties involved directly in the suit and impacton the public's right to the sound and efficient operation of its institutions")).

190. United States v. Swift & Co., 1982-1 Trade Cas. (CCH) 64,464 (1981) (stating"[t]hat the Final Judgment in this action entered on February 27, 1920 . . . is hereby vacat-ed in its entirety and shall terminate and expire as to all parties and their successors andassigns effective on this date and shall hereafter be of no force and effect whatsoever").

191. See supra text accompanying notes 171-73. Another example of a commercial consentdecree which greatly impacts the public is the AT&T consent decree. The original actionwas brought to eliminate the following behavior: (1) the withholding of "specifications andinformation of its exchange systems from independent manufacturers while providing thisinformation to its Western Electric manufacturing arm"; (2) the buying of Western Electric


Many proponents of the flexible standard for institutional reformmodification have used the following flawed logic to support theirargument: the public is more impacted by institutional litigation (inthe Rufo case, jail overcrowding) than it is by commercial litiga-tion.' 2 In the Rufo case, how is the public impacted by the Con-sent Decree entered into by the city and county officials and the in-mates? If the jail' is not large enough to accommodate the number ofpretrial detainees, and the Sheriff is not allowed to double-bunk,accused persons will be released. If, however, these accused personshad been able to post bond, they would have been released any-way.1

93

If the residents of Suffolk County do not want inmates releasedon personal recognizance (even though such releases probably presentno greater risk than release on bail), it is necessary for the taxpayersto fund a new jail. The impact of the Suffolk County Jail ConsentDecree on the public, therefore, is ultimately economic. Likewise, ifan antitrust consent decree were at issue, the impact on the publicwould also be economic."9 Arguably, the same public interest is in-

products instead of "buying cheaper, better quality products from independent competitors";(3) the subsidizing of "Western Electric research and development through funds derivedfrom AT&T's monopoly in the local exchange market, passing on losses to AT&T's localcaptive customers"; and (4) the providing of "inferior interconnections to its intercity compet-itors and superior interconnections to AT&T's own long distance lines." Lawrence D.Adashek, Public and Private Antitrust Developments in the Communications Industry, 1CoMMLAw CONSPECTUS 140, 141 (1993).

192. See, e.g., Heath v. De Courcy, 888 F.2d 1105, 1110 (6th Cir. 1989).[I]n the area of commercial consent decrees-which typically involve primarilyprivate, not public, interests-any public interest in modifying the decree willordinarily be less than the interest in honoring and preserving the private busi-ness arrangements established by the decree. Conversely, the public interest inmodifying institutional consent decrees-which typically involve significantpublic interests-will ordinarily outweigh the interest of preserving the decreewhere sufficient reason for modification is shown.

Id.193. The constitutional implications of requiring a presumptively innocent person to post

bond before he or she can be released to await trial is beyond the scope of this Note. InDuran v. Elrod, 760 F.2d 756 (7th Cir. 1985), the county conducted a study of inmates whohad been released on personal recognizance due to the consent decree. The study showedthat between November 1984 and March 1985, 311 inmates who had been accused of felo-nies were released. Id. at 757. Of that 311, 53 had become fugitives and 16 others had"been arrested for subsequent crimes-10 for felonies and 6 for misdemeanors." Id. Thecourt found, however, that "accused felons who do make bond and are released jump bail,or are arrested while out on ball, apparently at the same rate as shown in the County'sstudy of the accused felons whom it was forced to release on their own recognizance inorder to comply with the consent decree." Id. at 761.

194. "Antitrust acts" are defined as "[f]ederal and state statutes to protect trade and com-


volved.'95 By using a flexible standard for modification of institu-tional reform decrees, the courts protect the economic rights of thepublic at the expense of the individual rights of the plaintiffs to befree of the offending behavior. By using a stringent standard formodification of antitrust consent decrees, the courts again protect theeconomic rights of the public at the expense of the individual rightof the defendant to transact business without government interfer-ence.1'

Since the public is impacted similarly by commercial antitrustdecrees and institutional decrees, the United States Supreme Courthas arbitrarily created a standard which affords different levels ofprotection to private individual rights and public economic rights andto governmental and non-governmental parties. By creating a standardwhich allows government defendants to get out of their agreementswith institutional reform litigants, while disallowing non-governmentaldefendants to get out of their agreements with the government, theCourt is sending a clear message that individual rights should receiveless protection than economic rights.'97

merce from unlawful restraints, price discriminations, price fixing, and monopolies." BLACK'SLAW DICTIONARY 94 (6th ed. 1990).

195. Instead of using degree of public impact in deciding what is the correct standard formodification, it may be less disingenuous to simply state that courts choose to afford moreprotection to governmental parties than they do to non-governmental parties. In antitrustlitigation such as Swift, the government is the plaintiff. If the "grievous wrong" standard isused, it is difficult for a defendant to modify. In an institutional reform consent decree, thegovernment is the defendant. If a flexible standard is used, it is easy for a defendant tomodify. The governmental parties always win. On rare occasions plaintiffs seek to modifyconsent decrees. See, e.g., Firefighters v. Stotts, 467 U.S. 561 (1984); United States v. Unit-ed Shoe Machinery, 391 U.S. 244 (1968).

196. In a commercial consent decree between private parties, the public interest may ormay not be involved. In such a case, clearly the economic rights of the non-moving partyare being protected by the Swift standard at the expense of the economic rights of the mov-ing party. This Note has separated the interests involved in commercial antitrust decrees anddecrees that are between private parties, which the courts have heretofore failed to do. Thegreatest mistake in the courts' analyses of this issue has been the assumption that there is ahomogenous group of commercial consent decrees when in fact that is not the case.

197. This systemic protection of economic rights is not so surprising when viewed incontext. See generally Charles A. Beard, An Economic Interpretation of the Constitution, inESSAYS ON THE MAKING OF THE CONSTITrTION 3, 31 (Leonard W. Levy, ed., 1969).

A large propertyless mass was, under the prevailing suffrage qualifications,excluded at the outset from participation (through representatives) in the workof framing the Constitution. . . .The Constitution was essentially an economicdocument based upon the concept that the fundamental private rights of proper-ty are anterior to government and morally beyond the reach of popular ma-jorities.


In Heath v. De Courcy,98 an institutional reform case to whichthe Rufo majority cites,' the Court of Appeals for the Sixth Cir-cuit stated "any public interest in modifying the decree will ordinarilybe less than the interest in honoring and preserving the private busi-ness arrangements established by the decree.' '""o By using a strictstandard for modifying commercial decrees, however, the public inter-est is receiving more protection than the private business ar-rangement. If, for example, the defendant in an antitrust action seeksmodification of the consent decree and the court applies the Swiftstandard, modification is exceedingly difficult. It follows, then, thatthe business interest of the defendant is -negatively impacted. In aprivate commercial consent decree, by using the strict standard, theparty seeking modification is significantly -impacted while the publicinterest may or may not be impacted.2"' It appears that some courtsare under the impression that they are protecting business interestswhen in fact that is not always the case. Almost unanimously, thecourts are protecting governmental defendants at the expense of insti-tutional reform plaintiffs.

In the Inmates of the Suffolk County Jail case, the inmates spentten years at the decrepit Charles Street Jail under unconstitutionalconditions in exchange for the Sheriffs agreement to house one in-mate per cell at the proposed new facility. After the ten years passed,modification of the Consent Decree was requested to allow the hous-ing of two inmates per cell. Absent language in the decree delineat-ing a modification standard, 2 what is equitable?0 3

Id.; see, e.g., U.S. CONST. art. I, § 10, cl. 1 ("No State shall ... pass any . . . Law im-pairing the obligation of Contracts ....").

198. 888 F.2d 1105 (6th Cir. 1989).199. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 759 (1992).200. Heath, 888 F.2d at 1110.201. Both private suits and antitrust litigation will be amenable to the proposed modifica-

tion standard.202. The present discussion only applies to cases where the parties have not agreed to a

modification standard. The parties, in drafting an agreement, may write such standards intothe bargain. This is a different situation from one where both parties bargain, one side ad-heres to its agreement, and after that adherence, the opposing party attempts to change thebargain.

203. "[W]hen we set aside the decree as respects those who gave up something of valueto get it, we do an injustice." System Fed'n No. 91 v. Wright, 364 U.S. 642, 655 (1960)(Douglas, J., dissenting).

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Because "[1l]ife is never static,"2' it may become necessary tomodify a consent decree in light of changed circumstances. Since itis generally understood that a consent decree is in the nature of aquasi-contract, -0 5 it is helpful to look to the law of contracts for itsmodification standard. In contract law, it is "the general rule thatduties imposed by contracts are absolute."2" The modem trend,however, has been to invent ways to soften this standard. "Both theRestatement [of Contracts] and Article 2 of the [Uniform CommercialCode] seek to expand the parties' ability to adjust ongoing contractu-al relations to changing needs while prohibiting changes that exploitthe contractual relationship."2 7 According to both the Restatementof Contracts and the Uniform Commercial Code, however, the con-sent of both parties is necessary for modification.0 8

Absent consent to modify a contract, the doctrine of impractica-bility has evolved to allow for unilateral alteration of the contractualrelationship. -° If adherence to a contract becomes impracticable,"the judicial function is to determine whether, in the light of excep-tional circumstances, justice requires a departure from the generalrule that a promisor bears the risk of increased difficulty of perfor-mance."

210

204. United States v. Swift & Co., 286 U.S. 106, 119 (1932).205. Black's Law Dictionary defines "consent decree" as such: "[fIt is not properly a

judicial sentence, but is in the nature of a solemn contract or agreement of the parties, madeunder the sanction of the court .... " BLACK'S LAW DICTIONARY 411 (6th ed. 1990).

206. E. ALLAN FARNSWORTH, CONTRACTS 677 (2d ed. 1990).If a man bind himself, by a positive, express contract, to do an act in itselfpossible, he must perform his engagement, unless prevented by the act of God,the law, or the other party to the contract. No hardship, no unforeseen hin-drance, no difficulty short of absolute impossibility, will excuse him fromdoing what he has expressly agreed to do. This doctrine may sometimes seemto bear heavily upon contractors; but, in such cases, the hardship is attributablenot to the law, but to the contractor himself, who has improvidently assumedan absolute, when he might have undertaken only a qualified liability.

Id. at 678 (citation omitted).207. Subha Narasimhan, Of Expectations, Incomplete Contracting, and the Bargain Prin-

ciple, 74 CAL. L. REv. 1123, 1186 (1986) (footnotes omitted).208. Id. at 1186-87.209. FARNSWORTH, supra note 206, at 707.210. Id. The four requirements for a finding of impracticability are: (1) "the event must

have made 'performance as agreed . . . impracticable'; (2) "the non-occurrence of the eventmust have been 'a basic assumption on which the contract was made'; (3) "the impractica-bility must have resulted without the fault of the party seeking to be excused"; and (4) "thatparty must not have assumed a greater obligation than the law imposes." Id. at 708.


In institutional reform litigation, the plaintiff class enters into anagreement with government defendants. Although circumstances couldarise where modification by a government defendant would be appro-priate, such as flood, fire, earthquake, riots or some other circum-stance beyond the control of the parties, in most cases the changedcircumstance is very much within the control of the defendants.'In the Rufo case, for example, the government defendants draggedtheir collective feet for eleven years after the signing of the ConsentDecree.2" 2 In the years between the signing of the agreement andthe opening of the jail, the pretrial population was precipitouslygrowing. When the growth of the inmate population out-paced thenumber of cells, it was incumbent upon the local officials to allocatemoney for a new jail. When they failed to do so, the impracticabilitybecame their fault and according to contract law, the governmentdefendants would not be allowed to change the agreement.213

This analysis can be applied to the Rufo majority's modificationtest. According to the test, the government defendant must first showa "significantly changed circumstance of law or fact." '214 This, how-ever, is tautological because in many cases the government defendantis responsible for the changed circumstance.2"5 In the SuffolkCounty Jail case, the government defendants failed to obtain accurateprojections, and when the'correct numbers were realized, they failed

211. See, e.g., Heath v. De Courcy, 888 F.2d 1105, 1107 (6th Cir. 1989) ("[S]heriff wasprobably aware or should have been aware that the agreement would not effectively meet thepopulation limits placed on the jail"); New York State Ass'n for Retarded Children v.Carey, 706 F.2d 956 (2d Cir. 1983) (Government defendants failed to place patients in smallcommunity residences), cert. denied, 464 U.S. 915 (1983).

212. See supra note 79 and accompanying text.213. See, e.g., RESTATEMENT (SECOND) OF CONTRAcTs § 90 (1981) ("A promise which

the promisor should reasonably expect to induce action or forbearance on the part of thepromisee ... and which does induce such action or forbearance is binding if injustice canbe avoided only by enforcement of the promise.").

214. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 765 (1992).215. See, e.g., Duran v. Elrod, 760 F.2d 756, 761 (7th Cir. 1985).

[Tihat jails and prisons are expensive to build (in part because of the amountof steel required), as well as to operate, is well known; that state and locallegislatures are reluctant to appropriate money, or taxpayers to vote bond is-sues, to build or expand jails and prisons is well known; that neighborhoodsresist the construction or expansion of jails and prisons, sometimes by refer-ence to environmental impact is well known; that delay in any sort of buildingconstruction is endemic is well known; and that the jail and prison populationis expanding ... is well known.

Id. (citations omitted).

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to fund more cells. It is important to remember that, although theSheriff is the named defendant, he is not the only government defen-dant in this case.2 6 The Sheriff is arguably the least favorably situ-ated since he does not have the power of the purse, yet he mustmeet the challenges of jail overcrowding. In addition, he faces a fineand even a jail sentence if he refuses to accept inmates into his cus-tody.27 Be that as it may, it is unreasonable to allow governmentdefendants to use a circumstance for which they are responsible toseek modification of a consent decree.

V. PROPOSED STANDARD FOR MODIFICATION OF CONSENT DECREES

This Note proposes a new standard for modification of consentdecrees pursuant to Federal Rule of Civil Procedure 60(b)(5).218 Thenew standard would apply to all types of consent decrees and is anamalgam of elements adopted by the majority, concurring and dis-senting opinions in Rufo. According to the proposed test, in order tomodify a consent decree, the moving party must show: (1) signifi-cantly changed circumstance of law or fact;" 9 (2) changed circum-stance was not reasonably foreseeable;2 (3) modification is suitably

216. For a list of the defendants named in the suit, see supra note 15.217. See, e.g., MASS. GEN. L. ANN. ch. 286, § 21 (West 1990) ("A jailer or officer

who . . . wilfully refuses to receive into his custody a prisoner lawfully directed to be com-mitted thereto . . . [s]hall be punished by a fine of not more than five hundred dollars orby imprisonment for not more than two years.").

218. See supra text accompanying note 77.219. Rufo, 112 S. Ct. at 765.220. Id. at 771 (Stevens, J., dissenting).

Mere foreseeability in the sense that it was an event that "could conceivablyarise" during the life of the consent decree, should not, of course, disqualifyan unanticipated development from justifying a modification. But the partiesshould be charged with notice of those events that reasonably prudent litigantswould contemplate when negotiating a settlement.

Id. at 771-72 (Stevens, J., dissenting) (citation omitted).

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tailored to the changed circumstance;22" ' and (4) modification doesnot defeat the overall purpose of the decree.'

This test protects more interests than the Rufo majority's test bymaking modification more onerous for institutional reform litigantsand less onerous for commercial litigants. The two part test of Rufoprotects government defendants by allowing modification upon ashowing that circumstances have significantly changed and that themodification is suitably tailored to that changed circumstance. Byleaving the Swift test intact for commercial decrees, no protection isafforded the moving parties in those cases. Clearly, no protection isgiven to institutional reform plaintiffs. The proposed test more evenlybalances the equities by holding the moving party accountable for thechanged circumstance. If the changed circumstance was reasonablyforeseeable at the time of the consent decree (or at the time of themost recent modification), modification is precluded. This addressesthe circular problem of allowing parties to modify an agreementwhen the reason for modification is the party's own inaction.' Itis also more consistent with basic contract principles and equitablereliance interests.

221. Id. at 765. Since this test is designed to apply to all types of litigation, and not justthose which involve government institutions and constitutional rights, the factors which Jus-tice White considered for this prong would not necessarily apply. (1) "[A] modification must

not create or perpetuate a constitutional violation"; (2) "[a] proposed modification should notstrive to rewrite a consent decree so that it conforms to the constitutional floor"; (3)

"[w]ithin these constraints, the public interest ... require[s] that the district court defer tolocal government administrators." Id. at 763-64. The proposed test would consider "suitablytailored" generically, and not as simply relating to constitutional values.

222. Id. at 767 (O'Connor, J., concurring).223. In Rufo, the majority pays lip service to this proposition, while refusing to include a

foreseeability element in its legal test.[Miodification should not be granted where a party relies upon events thatactually were anticipated at the time it entered into a decree. If it is clear thata party anticipated changing conditions that would make performance of thedecree more onerous but nevertheless agreed to the decree, that party wouldhave to satisfy a heavy burden to convince a court that it agreed to the decreein good faith, made a reasonable effort to comply with the decree, and shouldbe relieved of the undertaking under Rule 60(b).

Rufo, 112 S. Ct. at 760-61.

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VI. APPLICATION OF PROPOSED STANDARDTO THE INMATES' CASES

A. Significantly Changed Circumstance of Law or Fact

The Sheriff argued that the "change in law" was the UnitedStates Supreme Court decision in Bell v. Wolflsh," and the factualchange was the increase in pretrial detainees. Bell was decided sevendays after the Consent Decree was originally entered into but sixyears before the 1985 modification was allowed. Therefore, it cannotnow be considered a change in law because the defendants wereaware of the Bell decision at the time of the 1985 modification. 6

In addition, the change in law criterion has generally been construedto mean that, if a law on which a decree is based changes, makingthe decree unlawful, the decree should be modified.' Since Bell isstrictly limited to its facts,"5 and definitely does not make singlebunking unconstitutional,"' it cannot qualify as a change of law forpurposes of Rule 60(b). The Sheriff's assertion that the population in-crease is a changed factual circumstance is incorrect, since the popu-lation predictions were known to be incorrect by 1984 and the dis-crepancy was addressed by the 1985 modification. This situation can-not now be considered a significantly changed circumstance of law orfact. Even if the population increase met the changed circumstanceprong of the test, the change was reasonably foreseeable and wouldnot meet the second prong.

224. See supra notes 114-24 and accompanying text.225. See supra notes 83-92 and accompanying text.226. "Since petitioners acquiesced in [the 1985] modification, they cannot now be heard to

argue that pre-1985 "developments--either in the law or in the facts-provide a basis formodifying the 1985 order." Rufo, 112 S. Ct. at 771 (Stevens, J., dissenting).

227. Rule 60(b)(5) states: "[A] prior judgment upon which it is based has been reversedor otherwise vacated .... " FED. R. Civ. P. 60(b)(5); see, e.g., System Fed'n No. 91 v.Wright. 364 U.S. 642 (1961). In System Federation, a 1945 Railway Labor Act outlawed un-ion shops. Id. A consent decree was entered into enjoining defendants from discriminating onthe basis of union membership. Id. In 1951, the Railway Labor Act was amended to allowunion shop agreements between railroads and labor unions. Id. The unions sought modifica-tion of the consent decree based on the change in law. Id.

228. See supra note 87 and accompanying text.229. "Bell did not directly overrule any legal interpretation on which the 1979 [C]onsent

[D]ecree was based .... " Inmates of Suffolk County Jail v. Kearney, 734 F. Supp. 561,564 (D. Mass. 1990), af4'd, 915 F.2d 1557 (1st Cir. 1990).

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B. Changed Circumstance Was Not Reasonably Foreseeable

At the time the Consent Decree was entered into, populationprojections were made by a major accounting firmY These figureswere incorporated into the Architectural Program of the Consent De-cree.' In 1978, Robin Ford, a prison expert at the National Insti-tute of Corrections, wrote to the Sheriff and informed him that thefigures were incorrect. 2 "Ford found the accountants' methodologyflawed and their conclusions preposterous." 3 "A reasonably pru-dent litigant"' should, therefore, have foreseen the increase in jailpopulation. Bell v. Wolfish, decided in 1979, was a prison overcrowd-ing case, so the problem of overcrowding was already occurring. 5

It was incumbent upon the Sheriff at that point to obtain accurateprojections, and to then either seek modification or build more cells.

In 1985, when the decree was modified by agreement of theparties, jails were operating above capacity throughout the country.Because the population at the Charles Street Jail was growing fasterthan expected, the plan was modified to allow for more cells while

230. Inmates of Suffolk County Jail v. Kearney, No. 71-162 (D. Mass. filed May 7,1979).

231. Id. The projections were:

YEAR POPULATION PROJECTONS1979 2451980 2431981 2411982 2391983 2381984 2361985-89 2321990-94 2261995-99 216

Id.232. Paige, supra note 17, at 36.233. Id. ("'I find it difficult' [Ford] wrote, 'even on a common-sense basis, to have faith

in a projection which calls for nearly 20 percent fewer cells by the year 2000, when theBoston and Suffolk County population will only be declining by a few percentage points."').

234. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 771-72 (1992) (Stevens, J.,dissenting) ("Mhe parties should be charged with notice of those events that reasonablyprudent litigants would contemplate when negotiating a settlement.").

235. In Duran v. Elrod, 760 F.2d at 756, 761 (1985), the Court of Appeals for the Sev-enth Circuit cited a statistic in 1985, that "prison population is expanding (by 41 percentsince 1980. nationwide) as society redoubles its efforts to deal with crime." Id.


maintaining single cell occupancy. In September 1987, when ground-breaking occurred for the new jail, the population had been continu-ally growing. It was at this point that the Sheriff should have fore-seen that the jail would need considerably more cell space in orderto meet the single-bunking requirement of the Consent Decree. Sincehe did not foresee what was reasonably foreseeable, he should beforeclosed from seeking modification of the decree to allow double-bunking.

C. Modification is Suitably Tailored to the Changed Circumstance

Even if the increase in prison population is a changed circum-stance that was not reasonably foreseeable, the proposed modificationmust be suitably tailored to that change. The plaintiffs, arguing thatthe modification does not meet the Rufo "suitably tailored" prong,contended that "double bunking at the [Nashua Street] jail will leadto a pervasive risk of harm to inmates of both violence and dis-ease." '236 The plaintiffs claimed that the risk of disease relates to thetransmission of tuberculosis. 37 In addition, the plaintiffs claimedthat the risk of inmate-on-inmate assault would be heightened if dou-ble-bunking was allowed.238 In Judge Garrity's 1973 opinion, hestated: "'It is clear that the conditions for pretrial detention must notonly be equal to, but superior to, those permitted for prisoners serv-ing sentences for the crimes they have committed against soci-ety."'239 Confinement conditions of pretrial detainees should beviewed in this light.

The United States Supreme Court, in Helling v. McKinney,24

held that a cause of action may arise under the Eighth Amendment

236. Plaintiff's Memorandum in Opposition to the Sheriff's Revised Double Bunking Planat 13, Inmates of Suffolk County Jail v. Rufo, 148 F.R.D. 14 (D. Mass. 1993) (No. 71-162),aff'd, 12 F.3d 286 (1993).

237. Rufo, 148 F.R.D. at 18. "It is undisputed that no method is available to jail author-ities that would guarantee that tuberculosis will not enter the jail." Id.

238. Plaintiff's Memorandum at 12, Rufo (No. 71-162). "From May 18, 1990, when theNashua Street Jail opened, through April 30, 1992, 72 inmates suffered physical assaults re-quiring some medical treatment at the jail, and eight inmates required outpatient treatment ata hospital." Rufo. 148 F.R.D. at 18-19.

239. Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 686 (D. Mass. 1973)(quoting Hamilton v. Love, 328 F. Supp. 1182, 1191 (E.D. Ark. 1971)), affid, 494 F.2d1196 (1st Cir. 1974). cert. denied sub nom. Hall v. Inmates of Suffolk County Jail, 419 U.S.977 (1974)).

240. 113 S. Ct. 2475 (1993).

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Cruel and Unusual Punishment Clause when an inmate is exposedagainst his will to environmental tobacco smoke.24' Judge Garrityheld that conditions of confinement for pretrial detainees should besuperior to those of sentenced prisoners. It, therefore, seems to followthat the Suffolk County inmates' potential risk of contagion and vio-lence may create a constitutional violation. A modification would notbe suitably tailored to a changed circumstance if it exposed the non-moving party to dangers similar to those that the consent decree wasexpected to eliminate. In the Inmates of Suffolk County Jail case, theConsent Decree was a response to Fourteenth Amendment violations.It would not be proper to rewrite the decree so that it violates theinmates' Eighth Amendment rights.242

D. Modification Does Not Defeat the Overall Purpose of the Decree

The Sheriff argued that the overall purpose of the Consent De-cree was to discontinue housing prisoners at the Charles Street Jail infavor of a more constitutionally sound environment.243 The inmatesargued that they never would have agreed to the Consent Decree if ithad not stipulated single-cell occupancy.2" Although the Sheriff iscorrect that one of the purposes of the Consent Decree was to closethe Charles Street Jail, the fact that the new jail was designed specif-ically to hold one prisoner per cell indicates the importance of sin-gle-cell housing to the overall purpose of the Consent Decree. Thecells were designed to maximize privacy; as a result, there are areasof the cells that cannot be monitored either visually or audibly. As-suming for the sake of argument that a cell which measures seventysquare feet is large enough to house two adults, the fact that areas of

241. Helling, 113 S. Ct. at 2481. The Court stated that holding inmates in isolation withothers who are infectious "[wias one of the prison conditions for which the Eighth Amend-ment required a remedy, even though it was not alleged that the likely harm would occurimmediately and even though the possible infection might not infect all of those exposed."Id. at 2480 (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). The Eighth Amendmentreads in part: "IN]or cruel and unusual punishments inflicted." U.S. CONST. amend. VIII, cl.3.

242. On remand, although the Sheriff sought to double-bunk 197 cells, and then 161 cells,Judge Keeton held that double-bunking in 100 cells would be "suitably tailored" to thechanged circumstance. It is unclear how he arrived at this solution.

243. Brief for Defendant-Appellant at 2, Inmates of Suffolk County Jail v. Keamey, 915F.2d 1557 (1st Cir. 1990) (No. 71-162).

244. Brief for Plaintiff-Appellee at 25, Inmates of Suffolk County Jail v. Kearney, 915F.2d 1557 (Ist Cir. 1990) (No. 71-162) (stating that "the requirement of single cell occupan-cy was a specifically bargained-for element of the Consent Decree").

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the cell are not visible from outside the cell raises enormous securityissues regarding inmate-on-inmate assault. This factor weighs heavilyagainst modification and suggests that modification to allow twoinmates per cell may have been appropriate before the specificationswere unchangeable; however, due to the health and safety issuesinvolved, it is not now.

VII. CONCLUSION

This suit commenced in 1971 when a group of inmates at theCharles Street Jail, with the assistance of a young attorney namedMax Stem, filed suit in federal court alleging violations of their con-stitutional rights. 5 United States District Court Judge W. ArthurGarrity held that the inmates' rights had, in fact, been violated due tothe conditions of their incarceration and ordered that a new jail bebuilt.246 A 1979 agreement gave the Sheriff additional time to buildthe jail and, in exchange, ensured that the inmates would not be dou-ble-bunked at the new facility.247 After ten years had passed, theSheriff sought to alter the agreement to allow double-bunking. 8

United States District Court Judge Robert E. Keeton, who had takenover the case in 1979, denied the request.249

The Sheriff appealed the denial of his request to the UnitedStates Supreme Court. In 1991, in Rufo v. Inmates of the SuffolkCounty Jail, the Court attempted to clarify the legal standard for themodification of consent decrees and remanded the case to JudgeKeeton for a decision consistent with its opinion." Judge Keetonagain denied the modification request, but the denial was withoutprejudice to the submission of a modified proposal.l' Sheriff Rufosubmitted a modified proposal requesting double-bunking in 161 cellsand Judge Keeton ultimately allowed double-bunking in 100 cells. 2

The United States Supreme Court's legal test for modification ofconsent decrees is flawed. 3 A major problem with the test is that

245. See supra notes 13-30 and accompanying text.246. Id.247. See supra notes 49-52 and accompanying text.248. See supra notes 75-105 and accompanying text.249. Id.250. See supra notes 110-43 and accompanying text.251. See supra notes 144-52 and accompanying text.252. See supra notes 153-59 and accompanying text.253. See supra notes 160-217 and accompanying text.

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it is only applied in institutional reform litigation. Using the Court'stest, the economic rights of the public are protected at the expense ofindividual rights of parties to litigation. This is accomplished byusing a flexible test for modification of institutional reform consentdecrees and a stringent test to modify commercial decrees. Allowingconsent decrees to be easily modified fails to adequately protect reli-ance interests.

This Note has shown why this is inequitable and has proposed anew legal test to be used for the modification of all consent de-crees.' This new test requires public officials and other partiesseeking modification to be responsible for their actions. When thenew test is applied to the facts of the Suffolk County Jail case, theSheriff's request for modification of the Consent Decree should bedenied. Because the rate of increase of the inmate population wasreasonably foreseeable, the Sheriff does not make it past the secondprong of the proposed test. 5

ROSE E. KING

254. See supra notes 218-23 and accompanying text.255. See supra notes 224-43 and accompanying text.

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