Crain v. Bordenkircher

• Decision Date: 30 November 1988
• Docket Number: No. 16646,16646
• Citation: 376 S.E.2d 140,180 W.Va. 246
• Parties: Robert Carl CRAIN, et al. v. Donald E. BORDENKIRCHER, Warden, West Virginia Penitentiary, et al.
• Court: West Virginia Supreme Court

Page 140

376 S.E.2d 140

180 W.Va. 246

Robert Carl CRAIN, et al. v. Donald E. BORDENKIRCHER, Warden, West Virginia Penitentiary, et al.

No. 16646.

Supreme Court of Appeals of West Virginia.

Nov. 30, 1988.

Rehearing Denied Dec. 21, 1988.

Syllabus by the Court

1. "Certain conditions ... of confinement may be so lacking in the area of adequate food, clothing, shelter, sanitation, medical care and personal safety as to constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution." Syl. pt. 2, Hickson v. Kellison, 170 W.Va. 732, 296 S.E.2d 855 (1982).

2. This Court has a duty to take such actions as are necessary to protect and guard the Constitution of the United States and the Constitution of the State of West Virginia.

Schrader, Stamp, Byrd, Bryum & Companion, James F. Companion, William D. Wilmoth, Barbara L. Baxter, Wheeling, for appellant.

Silas B. Taylor, Deputy Atty. Gen., Charleston, for appellee.

BROTHERTON, Justice:

This proceeding originated in a consolidated action for habeas corpus instituted by the plaintiffs in 1981 to secure relief from conditions of imprisonment at the West Virginia Penitentiary in Moundsville. On June 10, 1981, the Honorable Arthur M. Recht of the First Judicial Circuit was appointed to conduct the hearings and trial on the issue of whether the conditions of confinement at the West Virginia Penitentiary were unconstitutional as cruel and unusual punishment under the Eighth Amendment to the Constitution of the United States and Article III, Section 5 of the Constitution of the State of West Virginia. On June 21, 1982, the circuit court ruled that when considered in the totality, the conditions of confinement violated the constitutional prohibition against cruel and unusual punishment. The court gave the Department of Corrections 180 days to develop a remedy to bring the totality of the conditions up to a constitutional standard. The court also incorporated into the Final Order the Consent Decree agreed to by the parties, which encompassed the various prison policies and the appointment of a Special Master (now identified as a Monitor), whose duties would be to monitor the implementation of and compliance with the Final Decree. No appeal was taken from the court's finding that the conditions of confinement at the West Virginia Penitentiary were unconstitutional.

In 1983, the Honorable John Bronson replaced Judge Recht as the presiding officer in this case. On September 1, 1984, Judge Bronson approved the Compliance Plan submitted by the Department of Corrections. The appellants disagreed and appealed only the issue relating to whether the Compliance Plan comported with the original findings and order of Judge Recht.

We addressed that issue in the original case of Crain v. Bordenkircher, 176 W.Va. 338, 342 S.E.2d 422 (1986), where we held the Compliance Plan did not meet the requirements of the Final Order of Judge Recht. After an extensive review of the Compliance Plan to determine if it comported with the Final Order, we found that it did not in all aspects. Therefore, we appointed a Special Master (a person separate and apart from the Monitor formerly identified as a Special Master) to review a revised Compliance Plan to be submitted by the Department of Corrections within 120 days and to make a report to the Court with comments and recommendations about the revised Compliance Plan and the conditions of the penitentiary. ¹ The plan was submitted in September, 1986.

The revised Compliance Plan detailed several procedures designed to bring the Penitentiary to constitutional standards in compliance with the Final Order. In his report, the Special Master, Patrick D. McManus, reviewed the revised Compliance Plan and recommended that a new facility be built to be in use by July 1, 1992. In essence, Mr. McManus concluded that the Moundsville facility, built in 1863, was incapable of complying with the constitutional requirements even with additions and corrections. After reviewing the Special Master's report, along with the parties' briefs and Judge Recht's findings, we find that all parties concur that in order to bring the West Virginia Penitentiary up to constitutional standards, a new facility must be built.

Although both parties agree that a new facility would correct most of the deficiencies, the Department of Corrections has been unable to act upon the recommendation. The Department responded that the funds necessary to build the facility were "not available out of appropriations historically available to the Department, and therefore, such a decision cannot be made at a Department level." ² Given the decreasing amount of funding, the appellees concluded the Department was in no position to embrace the Special Master's recommendation.

We will not reiterate the appalling conditions found at the West Virginia Penitentiary. We adequately described the dismal ruin in the first Crain opinion. Suffice it to say that the conditions have not improved, nor has the situation become any less unconstitutional since we last directed the Department of Corrections to remedy the problems. If possible, the conditions have deteriorated even more.

Consequently, we find ourselves again faced with the dilemma of how to fulfill our duty to uphold the Constitutions of the United States and West Virginia. In our original Crain opinion, we concluded that "[c]onfronted as we are with this task, we decline to abandon it to our brethren in the federal system as we would then concede our inability to do our constitutional duty." 176 W.Va. at 364, 342 S.E.2d at 449. ³ However, our original attempt to correct the problem has resulted in no material change in conditions. Neither the Legislature nor the Governor has taken any substantive action to correct the problem. ⁴

This Court is well aware that the State of West Virginia has been suffering through a period of great economic distress. The day-to-day tasks of balancing the budget and meeting the obligations of the State has been a serious problem for both the legislative and executive branches of government. It is understandable that the correction of the conditions that exist at the State Penitentiary have not been a major priority: it is difficult to concentrate on the conditions at the Penitentiary when faced with the problems of unemployment, educational competency, economic development, and a dwindling tax base. We point out, however, that the action before us was not initiated by this Court, and the parties before us are entitled to a determination of the questions raised in their petition. All three branches of the government of this State have affirmatively stated that the totality of the situation at the State Penitentiary at Moundsville makes confinement there cruel and unusual punishment, and is therefore unconstitutional.

If we fail to act now, after more than eight years of waiting for the legislative and executive branches to act to solve the problem, we would be abdicating our responsibility to uphold and guard the Constitutions of the United States and West Virginia. We decline to abandon the task of correcting the unconstitutional conditions at the Penitentiary to the federal court system. Given the facts of this case, we believe we can do no less than set in motion the procedures that will eliminate the unconstitutional conditions. We can only hope that with the beginning of a new legislative session and the election of a new executive, action will be taken to construct a new facility that will meet constitutional standards. We concur with the report of the Special Master where he finds a new facility must be constructed, and, therefore, we order that the State Penitentiary at Moundsville be closed by July 1, 1992.

This Court is not unmindful of the extraordinary nature of our order closing the penitentiary by July 1, 1992. Our action, however, is clearly a lesser evil than the relief prayed for by the petitioners--their release from the penitentiary because of the unconstitutional conditions of confinement. We feel compelled to point out that the release sought by the petitioners may be the only remaining alternative to this Court after July 1, 1992, if the conditions of confinement are not remedied. ⁵

This Court has authority to place the penitentiary in receivership and appoint a receiver for the purpose of constructing a new facility. ⁶ Article 6, Chapter 5 of the Code of West Virginia, State Building Commission, sets up statutory provisions for the financing and construction of State buildings. Chapter 5, Article 6, Section 4, Power of the Commission, states as follows:

The Commission shall have power:

(10) To construct a building or buildings on real property, which it may acquire, or which may be owned by the state of West Virginia, in the city of Charleston, as convenient as may be to the capitol building, together with incidental approaches, structures and facilities, subject to such consent and approval of the city of Charleston in any case as may be necessary; and, in addition, to acquire or construct a warehouse, including office space therein, in Kanawha county for the West Virginia alcohol beverage control commissioner, and equip and furnish the same; and to acquire or construct, through lease, purchase, lease-purchase, or bond financing, hospitals or other facilities, buildings, or additions or renovations to buildings as may be necessary for the safety and care of patients, inmates and guests at facilities under the jurisdiction of and supervision of the department of health and at institutions under the jurisdiction of the department of corrections; and to formulate and program plans for the orderly and timely capital improvement of all of said hospitals and institutions and the state capitol buildings ....

(emphasis added). This section also provides for entering into agreements for the sale of bonds and the refinancing of outstanding...