Atiyeh v. Capps

• Decision Date: 04 February 1981
• Docket Number: No. A-625,A-625
• Parties: Victor ATIYEH, Governor of Oregon, et al., v. Tom CAPPS et al
• Court: U.S. Supreme Court

449 U.S. 1312

101 S.Ct. 829

66 L.Ed.2d 785

Victor ATIYEH, Governor of Oregon, et al.,

v Tom CAPPS et al.

No. A-625.

Feb. 4, 1981.

Justice REHNQUIST, Circuit Justice.

This matter has previously come before me on the application of applicant Atiyeh, Governor of Oregon, applicant Watson, administrator of the Corrections Division of the State of Oregon, and applicant Cupp, Superintendent of the Oregon State Penitentiary on a motion for a stay of the final injunction issued by the United States District Court for the District of Oregon, 495 F.Supp. 802, pending appeal to the Court of Appeals for the Ninth Circuit. I issued a temporary stay feeling that on the basis of the application there was merit to some of the applicants' points, but not wanting to proceed further with even my own analysis without calling for a response. I called for that response, and it has now been received.

The tests have been stated and restated as to probability of success on the merits, the probability of four Justices voting to grant certiorari, and the like as guideposts for the exercise of the function of the Circuit Justice in granting or denying stays. Because this is not an appeal from an adverse ruling of the Court of Appeals for the Ninth Circuit, from which a similar stay was sought and denied, it is not in a posture where the so-called "stay equities" can be readily evaluated, but I am satisfied in my own mind that, although it should not be nearly as frequently done as in the case of a final judgment of the court of appeals, an application to a Circuit Justice of this Court from a district court is within the contemplation of the All Writs Act, 28 U.S.C. § 1651(a). I do not understand the respondents to contest this proposition as a matter of law. I recognize that they are correct in their statement in their response that "[t]he normal presumption is that '[i]n all cases, the fact weighs heavily that the lower court refused to stay its order pending appeal.' " Memorandum for Respondents 2. And, because an appeal from the District Court order is presently pending before the Court of Appeals for the Ninth Circuit, the rule to be followed is that "[o]rdinarily a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted. . . . Pasadena Board of Education v. Spangler, 423 U.S. 1335, 1336, 96 S.Ct. 416, 417, 46 L.Ed.2d 364 (1975) (REHNQUIST, J., in Chambers).

Having given such time as was possible to the consideration of the lengthy and able submissions on the part of both parties, I have decided to grant the stay pending the decision of this Court in Rhodes v. Chapman, No. 80-332, presently scheduled for argument this Term, or the decision of the Court of Appeals for the Ninth Circuit pursuant to its expedited briefing schedule (whichever may come first). My reasons for doing so follow and they rest both on procedural and substantive grounds.

I find in the carefully considered opinion, findings of fact, and conclusions of law of the District Court a set of assumptions which I do not believe the Constitution warrants, and I believe that at least three other Justices of this Court would concur in my belief. The court dealt with a "maximum security prison" located in Salem, Ore., comprising 22 acres surrounded by a re-enforced concrete wall averaging 25 feet in height. Prisoners are housed in five units. One of these cellblocks was built in 1929, two in the early 1950's, and the newest in 1964. 495 F.Supp. 802, 808 (1980). The findings of fact and conclusions of law proceed to set forth in great detail the numbers, facilities, and conditions at this prison. Some of those findings and conclusions were based on the Standards of the American Correctional Association, id., at 809, the National Sheriffs' Association Standards, id., at 810, and the Standards of the United States Army. Ibid.

The District Court also relied on the testimony of a professor of psychology at the University of Texas at Arlington to the effect that the housing at the Salem institution is "inadequate to avoid adverse physical and mental effects." Ibid. It also relied on the testimony of the Dean of the University of Chicago Law School that the "overcrowding" levels that exist at the institution undermine the initiative of inmates to seek self-improvement and prevent their rehabilitation. Id., at 811.

Naturally, penal officials would like to have a larger share of the State's budget, just as would any number of other state officials administering programs mandated by the State. But there is nothing in the Constitution that says that "rehabilitation" is the sole permissible goal of incarceration, and we have only recently stated that retribution is equally permissible. See Gregg v. Georgia, 428 U.S. 153, 184, n. 30, 96 S.Ct. 2909, 2930, n. 30, 49 L.Ed.2d 859 (1976).

The District Court concluded by stating that overcrowding "exceeds the level of applicable professional standards; has increased the health risks to which inmates are exposed; has impinged on the proper delivery of medical and mental health care; has reduced the opportunity for inmates to participate in rehabilitative programs; has resulted in idleness; has produced an atmosphere of tension and fear among inmates and staff; has reduced the ability of the institutions to protect the inmates from assaults; and is likely to produce embit- tered citizens with heightened antisocial attitudes and behavior." 495 F.Supp., at 813.

I think the District Court, while it may be correct in its findings of fact, and is certainly closer to the scene than a single Circuit Justice in Washington, has missed the point of several of our cases, including Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). It has chosen to rely on a plurality opinion in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), stating in dicta that the touchstone of the Eighth Amendment is "nothing less than the dignity of man." Id., at 100, 78 S.Ct., at 597.

I find the District Court's efforts to distinguish Bell v. Wolfish, supra, particularly unpersuasive, although I likewise realize that there is considerable difference of opinion among the Members of this Court as to the merits of that decision. The District Court states that Bell "is not controlling here" because double-celling of pretrial detainees for no more than 60 days is quite different from institutions housing people who have been convicted of crime and are sentenced to long-term confinement. But this cuts both ways; a pretrial detainee, presumably detained on probable cause but not yet having been found guilty as charged under our constitutional procedures, cannot be "punished" at all. See Bell v. Wolfish, supra. The respondents here, however, each...