HOWERTON v. MISSISSIPPI COUNTY, ARKANSAS

MEMORANDUM OPINION

EISELE, District Judge.

This case arises from two distinct complaints that the Court ordered consolidated for disposition. The complaints contain similar factual allegations, legal contentions, and prayers for relief; moreover, defendants in both cases are identical. The complaints are based on the alleged experiences of three inmates of the Mississippi County Penal Farm. In addition to their individual claims, plaintiffs raise class claims on behalf of all similarly situated. Named as defendants are: Mississippi County; A. A. "Shug" Banks, Mississippi County Judge; Dan Blodgett, former Superintendent of the Penal Farm; and James Bobbitt, present Superintendent of the Penal Farm. The objects of the suit are a declaratory judgment, preliminary and permanent injunctions, and "other appropriate relief" on the grounds that conditions and practices in the institution constitute "cruel and unusual punishment" contrary to command of the Eighth Amendment of the United States Constitution. Jurisdiction is invoked under 28 U.S.C. §§ 1343(3), 2201 (1970). The suit is in equity pursuant to the provisions of 42 U.S.C. § 1983 (1970). Plaintiffs allege deprivations under color of state law of rights, privileges and immunities secured by the Eighth, Thirteenth and Fourteenth Amendments to the Constitution.

The complaint alleges, inter alia, that inmates work with inadequate tools, without safety instructions, and with co-workers inexperienced and unfit for labor; are poorly clothed, inadequately fed and given little medical care; are living under unsanitary conditions with inadequate sanitary plumbing, showers, or kitchen facilities; and are subject to assaults by fellow inmates who actually "run" the penal farm.

Plaintiffs attack Ark.Stat.Ann. § 46-502 et seq. (1947), which permits the compelling of misdemeanants to work on public projects and the contracting by one county or municipality with another to supervise, maintain, and work prisoners. Plaintiffs allege that defendant institution not only routinely forces those sentenced for misdemeanor violations by Mississippi County courts to work on public projects but also contracts with other governmental units outside of said county to house and work the latter's misdemeanor convicts. Plaintiffs allege: "This is in simplest terms a contract for involuntary servitude of inmates who are not sentenced by courts in Mississippi County. This results in out-of-county judges and sheriffs conveying to Mississippi County their poorest and most criminal inmates for this County Penal Farm to keep and labor, all to the danger of lives and liberties of Mississippi County inmates."

Shortly after the filing of this suit on September 29, 1971, defendants filed a motion for dismissal on the basis that the plaintiffs lacked standing to raise the issues surrounding the constitutionality of the penal farm since none were incarcerated therein at the time the suit was filed.1 The Court concluded, however, (and so informed counsel in a letter of March 16, 1972) that after consolidation at least one of the plaintiffs had standing and that the suit was properly a class action on behalf of present and future inmates of the institution.

The Court understands that plaintiffs have received complete cooperation from the defendants. It has also been evident throughout the proceeding that the defendants sincerely desire to conform their facilities, operations, and procedures to constitutional standards.

After conferences with the Court on December 21, 1971, and July 20, 1972, the latter conference being combined with a visit by the Court to the challenged institution, the parties determined that the case could be submitted to the Court to be determined upon the pleadings, the on-site inspection, and stipulations filed by the parties.

By stipulation the parties have agreed to certain conditions of operation and maintenance of the facility that they believe will meet constitutional standards. The parties have also reduced, by stipulation, the remaining issues concerning the constitutionality of: (1) "working" misdemeanants; and (2) of accepting convicts from other governmental units (to be maintained and "worked" by the Mississippi County facility) to questions of law. Before dealing with these disputed questions, however, the Court must determine whether the conditions agreed to by the parties meet constitutional standards, it being remembered that this is a class action in which the interests of non-named members of the class must be carefully protected by the Court.

Penal Farm History, Facilities and Operation

The Mississippi County Penal Farm was created some forty years ago. For approximately 39 of those years it was operated as a farm with inmates performing the necessary farm operations. The original barracks burned in 1960 and were reconstructed of reinforced concrete. They are now considered fireproof. Basically, the structure is in the shape of a cross with four wings directed toward the principal points on the compass. The east, south, and west wings are cell-block wings. Each of these wings is approximately 100 feet in length and about 30 feet wide. There are windows on each side of the long sides of the wings providing cross ventilation. The wings converge in a central lobby area. Eating, kitchen and office areas are located in the north wing. At the extreme north end of this wing is a smaller westward directed wing used for the housing of female inmates. Males are housed principally in the south and west wings without regard to race. Racial segregation at the institution was discontinued many years ago.

Each of the three main wings has shower facilities, two commodes, a lavatory, and urinals. The small wing has equivalent facilities. The building is heated by circulating hot water; three exhaust fans are used in conjunction with certain window arrangements during summer months to increase cross ventilation. The lobby area houses a "store" or supply center where inmates may obtain certain items of a sundry nature, including tobacco products and candy. Immediately north of the lobby area is the eating or dining quarters consisting of long wooden tables with benches where the inmates may be seated for their meals away from the cell blocks.

The east wing, which formerly housed "trusties", is used as an area where the inmates may visit their families or friends during certain hours. Visitors are permitted to enter the aisle along the north side of the east wing and inmates who have visitors are transferred from their regular cell block for the visitation period. Visitors and inmates are permitted to communicate freely; a wire mesh screen is in place along the cell bars to prevent the passing of articles to the inmates.

For many years inmates worked in what is commonly known as the "long line" in row crop operations on the county farm lands. The inmates engaged in the planting, cultivating, and harvesting of cotton, soybeans and other crops. Prior to the filing of this suit, a Quorum Court committee, appointed by defendant County Judge A. A. "Shug" Banks, recommended the discontinuance of farming operations with the use of convict or inmate labor, and the County Court has followed this recommendation. Inmates are now used only on county maintenance crews. While working on projects such as bridge repair or ditch cleaning, the inmates are under the supervision of employees of the County Road Department, who in effect act as guards on the job sites.

As of the time of the filing of this suit, there was no established policy regarding discipline within the institution. In the basement of the barracks building is a solitary confinement cell. However, its use was discontinued prior to the institution of this action. Corporal punishment has not been officially sanctioned during the administration of the present County Judge.

If corporal punishment has been administered, it has been directly contrary to the instructions and orders of the County Judge. Guards and other farm personnel have been instructed for many years that firearms are not to be used except for the purpose of self-defense. Indeed, policy forbids the firing upon even escaping inmates. The escape rate for the farm is probably higher than that of felony institutions. However, a high escape rate is one of the problems inherent in the maintenance of a misdemeanor institution.

The farm receives inmates from several courts in Mississippi County, including the Circuit Courts for the Osceola and Chickasawba Districts of the County, Municipal Courts at Osceola and Blytheville, and, infrequently, Mayor's or City Courts within the County. The farm, however, does not indiscriminately accept inmates, even if committed by a Mississippi County Court. Since 1971 the farm administration has followed the recommendation of the Quorum Court committee and refused to accept as inmates persons under eighteen years of age.

The Mississippi County Penal Farm serves not only Mississippi County but also numerous counties and communities throughout the state. Originally misdemeanants were sent to the institution to "work out" their fines and the cost of their prosecution. Mississippi County reimbursed the committing governmental unit. Over a period of time beginning in 1961, the practice of reimbursement has been discontinued. As presently operated neither party to the commitment contract assumes any financial obligations to the other. Mississippi County has the facilities to house and work misdemeanants; the other committing counties and cities do not. The contracting governmental units derive the benefit of having local offenders incarcerated for their offenses and Mississippi County provides the means and facilities for doing so.

There are presently employed at the farm seven "free world" employees. The staff is now considered adequate; hence, the use of trusties in any capacity has been discontinued and defendants have agreed that the practice will not be reinstated.

Since the pendency of this case population and operations of the facilities have been curtailed significantly by the defendants.2 Indeed, the Court is not so much considering the adequacy of an ongoing penal farm, as the constitutionality of numerous proposals to be implemented in a reactivated penal facility.

Constitutionality of Agreed Practices and Conditions

In the initial stipulation filed in this action the parties stated:

Specific provisions of the stipulation require defendants to submit an application to the Law Enforcement Administration of the United States Department of Justice for planning funds for the Mississippi County correctional facilities and to explore methods and means of securing funds from other federal and state sources to improve the facility.

Pending the achievement of the above-stated goals, the defendants have agreed to operate the present facilities under the following restrictions:3

In reviewing the stipulations of the parties regarding current practices and future undertakings, the Court is guided by the analysis of Chief Judge Henley in the several opinions written concerning conditions and practices in the Arkansas state correctional facilities at Tucker and at Cummins.7 In that series of opinions particular conditions and practices were found to be constitutionally repugnant: corporal punishment, Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); confinement of inmates in isolation cells that are overcrowded and unsanitary, Holt v. Sarver, 300 F.Supp. 825 (E.D.Ark.1969); failure to use ordinary care to protect the lives of inmates, Id.; the delegation of substantial portions of institution management to "trusties", Holt v. Sarver, 300 F.Supp. 362 (E.D.Ark.1970), aff'd., 442 F.2d 304 (8th Cir. 1971); and the segregation of inmates within the institution according to race, Id. Concerning Eighth Amendment abridgments Judge Henley has stated:

Holt v. Sarver, 309 F.Supp. at 372-373. Extrapolating from the particular practices previously found to be unconstitutional and applying the general standards regarding cruel and unusual punishment, the Court must conclude that the operation and maintenance of the Mississippi County Penal Farm in good faith compliance with the agreement referred to above will meet constitutional standards.

Intergovernmental Custody Contracts and Compulsory Labor

The remaining questions to be resolved by the Court are: (1) Whether the "working" of misdemeanants without compensation on public projects is contrary to constitutional principles, and (2) whether the contracting between government units to incarcerate and work convicts from foreign political subdivisions (within the State of Arkansas but outside of Mississippi County) as provided by Section 46-504 of Ark.Stat. Ann. (1947) offends the Constitution.

Plaintiffs maintain that a person convicted of a misdemeanor cannot be compelled to work, but must be given a choice. In addition, contend plaintiffs, if an inmate chooses to perform work for the county, he must be compensated at the rate of the prevailing minimum wage. Otherwise, argue plaintiffs, incarceration in the county penal farm would run afoul of constitutional proscriptions of involuntary servitude and cruel and unusual punishment. As a corollary to these contentions, plaintiffs pray that Section 46-504 be declared unconstitutional because, they contend, it allows one political subdivision to contract with another to "work" misdemeanants. Defendants respond by asserting that the working of misdemeanants without compensation is constitutional and that the contracting between political units under Section 46-504 is permissible.

The simple "working" of inmates on county work crews as a part of their sentence should be distinguished from the working of inmates to pay fines and costs. Defendants concede that former practice was to use inmate labor to "work off" fines and costs chargeable to the misdemeanant. Contracts with other political subdivisions were also on this basis. Defendants have stipulated to the unconstitutionality of these past practices under Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and presently refuse to accept misdemeanants, whether committed locally or by a foreign political subdivision, who are to be incarcerated solely for failure to pay fines or costs.

The "working" of inmates committed to a term of incarceration independent of any abridgment of the principle stated in Tate v. Short, however, is a distinct question. The Thirteenth Amendment to the Constitution provides: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction". [Emphasis added]. Courts have long held that reasonable work requirements may be imposed on one convicted of a crime, whether misdemeanor or felony, without running afoul of the Thirteenth or Eighth Amendments. See, e. g., Butler v. Perry, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672 (1916); Draper v. Rhay, 315 F.2d 193 (9th Cir.), cert. denied, 375 U.S. 915, 84 S.Ct. 214, 11 L.Ed.2d 153 (1963); Holt v. Sarver, 309 F.Supp. at 369-372; Wilson v. Kelly, 294 F.Supp. 1005, 1012 (N. D.Ga.1968). In the present case, where work is conducted in a reasonable manner under public authority,8 the Court finds no constitutional deprivation. Furthermore, no court has imposed the requirement that, as a condition precedent to the imposition of a compulsory work program, a state must agree to compensate inmates. Indeed, the Eighth Circuit has expressly stated that any scheme or program of prisoner compensation exists only by the grace of the state. Sigler v. Lowrie, 404 F.2d 659, 661 (8th Cir. 1969).

In a letter supplementary to their trial brief, plaintiffs raise a second argument concerning the unconstitutionality of the working of inmates. Relying on Ward v. Village of Monroe, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), and Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), plaintiffs argue that the working of inmates for profit by the county presents an unconstitutional conflict of interest apparently because the chief executive officer of the county, with wide-ranging administrative responsibilities, is also charged with administration of the county penal farm. The Court believes Ward and Tumey do not reach so far as plaintiffs contend. Those cases were bottomed on denials of procedural due process. The judicial official's financial interest in the outcome abridged petitioner's right to a hearing before an impartial hearing officer. Here the County "Judge", for all pertinent purposes, is an administrative, not a judicial, officer and has no say in the conviction and sentencing process.

Plaintiffs also challenge, independent of the compulsory labor issue, the practice of receiving under custodial contracts persons sentenced by foreign political units. Within this challenge falls Section 46-504.9 Plaintiffs argue that the true purpose of Section 46-504 "is not only to provide a place for counties with inadequate facilities, to incarcerate their county and city prisoners, but also that the convicting county or city shall be assured of payment of its fines and costs."

Plaintiffs' Trial Brief at 16.

Hence the apparent basis for plaintiffs' challenge to the statute is that Tate v. Short abridgments are produced by the scheme. The Court understands how this was a possibility under past practice, but fails to appreciate the constitutional ramifications of the contractual scheme in the light of defendants' undertaking to accept only those misdemeanants sentenced to terms of incarceration.

The Court notes that modern theories of allocation of resources for penal institutions contemplate the possible creation of regional centers for misdemeanant incarceration.10 The questioned statute provides one means for implementing the contemplated reform and, properly followed, raises no serious constitutional problems.

A decree will this day be entered in accordance with this memorandum opinion.

FINAL DECREE

In conformity with the Court's findings of fact and conclusions of law set forth in the Memorandum Opinion filed this day, it is hereby ordered, adjudged and decreed that:

1. Plaintiffs' prayer for declaratory and injunctive relief is denied;

2. Plaintiffs' claims challenging the constitutionality of Arkansas Statutes Annotated § 46-502 et seq. (1947) are dismissed with prejudice;

3. Plaintiffs be awarded their costs.