Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, February 13, 1993 TAG: 9302130142
SECTION: VIRGINIA PAGE: A-3 EDITION: METRO
SOURCE: By LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
CROWDED-JAIL INMATES FIND COURTS TOUGH
WHILE A JUDGE may agree that too many inmates are squeezed into a jail, the\ occupants need more than sympathy to win personal lawsuits.
Roanoke's severely overcrowded jail was a lawsuit waiting to happen.
But now that an inmate has claimed in federal court that the jail's "inhumane conditions" violate his constitutional rights, proving the allegations may be more difficult.
The mere fact that a jail is overcrowded - in Roanoke, nearly 500 prisoners share a facility designed for 216 - is not enough on which to stake a constitutional claim, according to Kent Willis of the American Civil Liberties Union.
In order to prove a violation of the Eighth Amendment's protection against cruel and unusual punishment, there must be a showing that the overcrowding creates a risk to inmate health and safety.
And to collect damages, inmates must prove that jail officials acted with "deliberate indifference" in allowing the conditions to exist.
"There isn't anything I see that rises to that level," said Fain Rutherford, a Roanoke lawyer who has represented the jail in other cases.
"Simply having more prisoners than the jail architect designed it to hold is far from a constitutional violation," he said.
In a lawsuit filed Thursday in U.S. District Court in Roanoke, inmate Perley Andrew Perkins claimed the overcrowding has created "inhumane conditions" in the jail. "Our rights under the Constitution are being abused," he wrote in a form lawsuit provided for inmates without legal representation.
Perkins said he has been forced to sleep on the floor under a sink for the past 3 1/2 months.
But the convicted bank robber also raised a number of personal complaints - such as cold food and shortages of milk and toilet paper - that are not likely to advance his argument.
"From the very beginning it has been recognized that jail is not supposed to be a place you like to be," Rutherford said. "That's why it's a very high standard the plaintiffs must prove in these cases."
Lawyers said it is too early to predict if Perkins' lawsuit might lead to what recently happened in Lynchburg, where U.S. Magistrate Glen Conrad ordered city officials to reduce the jail's population after a group of inmates there filed similar complaints.
The Lynchburg inmates started out representing themselves, as Perkins is doing, but were later appointed an attorney in what became a class-action lawsuit.
In a consent decree, Conrad last summer ordered the city to reduce the jail's population to 120 before Dec. 1. The Lynchburg jail, designed for 65 inmates, was holding more than 200 when the suits were first filed.
Conrad has since ruled that if the count goes over the 120-inmate limit, each prisoner must be paid $1 a day for as long as the condition exists.
Although Conrad ordered the city to reduce the jail's population, he never made an official finding that the overcrowding amounted to cruel and unusual punishment.
Mark Loftis, a Roanoke lawyer who represented Lynchburg, said plans were under way to expand the jail and transfer some inmates to a new prison camp in Bedford County before Conrad made his ruling.
"We never felt like we were forced to do anything," he said. "We felt like we agreed to do something that we needed to do anyway."
Similar efforts are being made in Roanoke. Lawyers said it would be hard to show "deliberate indifference" in light of Sheriff Alvin Hudson's repeated warnings to city officials that the jail is in dire need of expansion.
City Council is considering options on how to finance a proposed expansion that would add 220 beds in two buildings adjacent to the jail. It was unclear what impact, if any, Perkins' lawsuit will have on the progress of those plans.
Sam Kerr, an Appomattox lawyer who represented Lynchburg Sheriff Lawrence Simpson in the overcrowding lawsuit, said releasing inmates early was never considered as an option.
"It would be political suicide, because the first guy you release might go out and commit a triple murder," Kerr said.
But at one point in the proceedings, Conrad asked for a list of low-risk inmates who might be eligible for early release - perhaps bringing the city close to a point resembling the outcry in Richmond last year, when officials there were forced to release inmates.
As for judging the Roanoke jail, lawyers said there are no clear guidelines as to what overcrowding conditions amount to cruel and unusual punishment. The U.S. Supreme Court has said the notion of cruel and unusual punishment is defined by "evolving standards of decency that mark the progress of a maturing society."
The decision can be subjective, while other judges may use scientific methods, such as considering how much square footage there is per inmate.
Because Roanoke's jail is more modern and designed differently from the one in Lynchburg, overcrowding may be judged differently in the two facilities.
It has been years since the Roanoke jail held 216 inmates, the maximum for which it was designed. As the count hovers around 500, cells designed for one inmate are holding three - with one sleeping on the floor - and day areas intended for 10 prisoners are crowded with 30.
Steven Rosenfield, a Charlottesville lawyer appointed to represent the Lynchburg inmates, said some people might think that inmates deserve to be lumped together in uncomfortable quarters.
"But a lot of people forget that many people in jail are presumed innocent," Rosenfield said. "Many of them go to court and are found innocent."
In Lynchburg, the city has paid nearly $600,000 in the past year to house inmates in alternative facilities - either the Bedford camp or modular units adjacent to the jail - in order to meet Conrad's order.
"What we're seeing is a public outcry" to get tough on drug dealers and other criminals, Kerr said. "Now it's time to pay the piper."