
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1460                     INMATES OF THE SUFFOLK COUNTY JAIL, ET AL.,                                Plaintiffs, Appellees,                                          v.                   ROBERT RUFO, SHERIFF OF SUFFOLK COUNTY, ET AL.,                               Defendants, Appellants.                                      __________                        COMMONWEALTH OF MASSACHUSETTS, ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Douglas H.  Wilkins, Assistant Attorney  General, with  whom Scott            ___________________                                          _____        Harshbarger,  Attorney General, and Thomas O. Bean, Assistant Attorney        ___________                         ______________        General, were on brief for appellants.            Max  D.  Stern  with  whom  Lynn  Weissberg  and  Stern,  Shapiro,            ______________              _______________       ________________        Rosenfeld & Weissberg were on brief for appellees.        _____________________                                 ____________________                                  December 21, 1993                                 ____________________                      CAMPBELL, Senior  Circuit Judge.   The Commissioner                                _____________________            of  Corrections  for the  Commonwealth of  Massachusetts (the            "Commissioner"), defendant-appellant, brought a motion in the            United   States   District   Court   for   the   District  of            Massachusetts to vacate  a consent decree of May  7, 1979 (as            modified  by the  orders of  April  11, 1985,  and April  22,            1985)1  entered into by  the Sheriff  of Suffolk  County (the            "Sheriff"),  the Commissioner, and others with the inmates of            the  Suffolk  County Jail  (the  "Inmates"),2  the plaintiff-            appellee class.  The district court denied the Commissioner's            motion.   Inmates  of the  Suffolk County  Jail v.  Rufo, 148                      _____________________________________     ____            F.R.D.  14  (D.  Mass.  1993).    The  Commissioner  appeals,            arguing,  inter alia,  that  the  district  court  mistakenly                      __________            treated his motion to vacate as if it were a motion to modify            the consent decree.  We affirm.                                          I.                      This  appeal is part  of an ongoing  saga involving            the construction and the operation of  the new Suffolk County            Jail on Nashua  Street in Boston, Massachusetts  (the "Nashua            Street Jail"), which replaced the  old Suffolk County Jail on            Charles  Street (the  "Charles  Street  Jail").    The  early                                            ____________________            1.  A copy of  the original consent decree is  included as an            appendix to this Opinion.            2.  The  Inmates are those  individuals, male and  female, in            the  custody  of the  Sheriff  of  Suffolk  County,  who  are            awaiting trial on criminal charges,  and who have either been            denied bail or who are unable or unwilling to post bail.                                         -2-            chapters  of this  drama, which  began in  1971, need  not be            repeated.   They  are fully  set out  in published  opinions.            See, e.g., Inmates of the Suffolk County Jail v. Kearney, 928            ___  ____  __________________________________    _______            F.2d 33 (1st  Cir. 1992); Inmates of the  Suffolk County Jail                                      ___________________________________            v.  Rufo, 148  F.R.D.  14  (D. Mass.  1993);  Inmates of  the                ____                                      _______________            Suffolk County Jail v. Kearney,  734 F. Supp. 561 (D. Mass.),            ___________________    _______            aff'd mem., 915  F.2d 1557 (1st Cir. 1990),  vacated, Rufo v.            __________                                   _______  ____            Inmates of the Suffolk County Jail,  ___ U.S. ___, 112 S. Ct.            __________________________________            748, 116 L. Ed. 2d 867 (1992); Inmates of the  Suffolk County                                           ______________________________            Jail v. Eisenstadt, 360 F.  Supp. 676 (D. Mass. 1973), aff'd,            ____    __________                                     _____            494 F.2d 1196 (1st  Cir.), cert. denied, 419 U.S. 977,  95 S.                                       ____________            Ct. 239, 42 L.  Ed. 2d 189 (1974).   We pick up the story  in            July 1989, approximately  ten years after the  consent decree            was entered.                      "In July 1989,  while the [Nashua Street  Jail] was            still under construction,  the [S]heriff moved to  modify the            consent decree  to allow the double bunking of male detainees            in 197 cells,  thereby raising  the capacity  of the  [Nashua            Street Jail]  to 610  male detainees."3   Rufo v.  Inmates of                                                      ____     __________                                            ____________________            3.  The Sheriff's motion was brought pursuant to Fed. R. Civ.            P. 60(b)(5) and (6), which state:                  On motion  and upon  such terms  as  are just,  the                 court  may relieve  a  party  or  a  party's  legal                 representative  from  a final  judgment,  order, or                 proceeding for the following reasons: . . . (5) the                 judgment   has   been   satisfied,   released,   or                 discharged,  or a prior  judgment upon which  it is                 based has been reversed or otherwise vacated, or it                 is  no longer  equitable that  the judgment  should                                         -3-            the Suffolk County  Jail, ___ U.S. ___, ___,  112 S. Ct. 748,            ________________________            756, 116  L. Ed.  2d 867  (1992).   "The Sheriff argued  that            changes  in  law  and fact  [constituted  new  and unforeseen            circumstances that]  justified the modification."   Rufo, 148                                                                ____            F.R.D. at 16.   "The asserted change in law  was [the Supreme            Court's] 1979 decision  in Bell v. Wolfish, 441  U.S. 520, 99                                       ____    _______            S. Ct. 1861, 60 L.  Ed. 2d 447 (1979), handed  down [shortly]            after  the  consent  decree  was  approved  by  the  District            Court.4  The asserted change in fact was the increase  in the            population of pretrial  detainees."  Rufo, 112 S.  Ct. at 756                                                 ____            (footnote not in original).                      The  district court denied the Sheriff's request to            modify the  consent decree.   Inmates  of the  Suffolk County                                          _______________________________            Jail v. Kearney, 734 F. Supp. 561 (D. Mass.), aff'd mem., 915            ____    _______                               __________                                            ____________________                 have  prospective  application;  or  (6) any  other                 reason justifying relief from  the operation of the                 judgment.            The district court found that the Sheriff relied initially on            the provision of Fed. R. Civ. P. 60(b)(5) that authorizes the            modification of a judgment if "it is no longer equitable that            the judgment should have prospective application."  According            to the district  court, "[t]his portion of the  rule codifies            the standard  set out in  United States  v. Swift &  Co., 286                                      _____________     ____________            U.S.  106, 119,  52 S. Ct.  460, 464,  76 L. Ed.  999 (1932),            which  dealt  with  a  court's  inherent  power  to  modify."            Kearney, 734 F. Supp.  at 563.   In Swift, the Supreme  Court            _______                             _____            held that  "[n]othing less than  a clear showing  of grievous            wrong evoked by new and  unforeseen conditions should lead us            to change what was decreed after years of litigation with the            consent of all concerned."  Swift, 286 U.S. at 119.                                        _____            4.  "In Bell,  the [Supreme  Court] held that  double-bunking                    ____            was  not in all  circumstances unconstitutional."   Rufo, 148                                                                ____            F.R.D. at 16.                                         -4-            F.2d 1557  (1st Cir.  1990).  It  held that  the Sheriff  had            failed to meet  the standard for the  modification of consent            decrees imposed  by United  States v. Swift  & Co.,  286 U.S.                                ______________    ____________            106, 119, 52  S. Ct. 460,  464, 76 L.  Ed. 999 (1932).5   The            district court  also "stated  that, even  under the  flexible            modification standard adopted by other Courts of Appeals, the            [S]heriff  would not  be  entitled  to  relief  because  `[a]            separate cell  for each detainee has always been an important            element of the relief sought in this litigation  perhaps even            the most  important element.'"   Rufo, 112  S. Ct.  at 756-57                                             ____            (quoting  Kearney, 734 F.  Supp. at 565)  (footnote omitted).                      _______            As a final matter, the district court "rejected the  argument            that  the  decree  should be  modified  because  the proposal            complied with constitutional standards, reasoning that such a            rule `would  undermine and  discourage settlement  efforts in            institutional cases.'"  Id. at  757 (quoting Kearney, 734  F.                                    ___                  _______            Supp. at 565).                      This court affirmed the  district court's decision.            Inmates of the Suffolk County  Jail v. Kearney, 915 F.2d 1557            ___________________________________    _______            (1st  Cir.  1990).   Thereafter,  the  Supreme  Court granted            certiorari, 498 U.S. 1081, 111 S. Ct. 950, 112 L. Ed. 2d 1039            (1991),  and, after hearing,  vacated the decision  below and            remanded for further proceedings consistent with its opinion.            Rufo, 112 S.  Ct. at 765.   The Supreme Court ruled  that the            ____                                            ____________________            5.  For a description of this standard, see supra note 3.                                                        _____                                         -5-            district  court had  erred in  applying  the rigid  "grievous            wrong" standard  of United States  v. Swift to  the Sheriff's                                _____________     _____            motion to modify the consent  decree.  Id. at 757-58 (holding                                                   ___            that   Fed.  R.   Civ.  P.   60(b)  does   not  intend   that            "modifications of  consent decrees in  all cases [are]  to be            governed by the standard actually applied in Swift . . . [but                                                         _____            rather] permits  a less stringent, more  flexible standard").            The Court observed that "[t]he experience of the district and            circuit courts in implementing and modifying such decrees has            demonstrated that a  flexible approach is often  essential to            achieving the  goals of  [institutional] reform  litigation."            Id. at 758.   Against this backdrop,  the Court held that  "a            ___            party  seeking modification  of a  consent  decree bears  the            [initial] burden of establishing that a significant change in            circumstances warrants revision  of the decree."  Id. at 760.                                                              ___            To meet this initial burden, a party  seeking modification of            an institutional  reform consent  decree may  show "either  a            significant change in  factual conditions  or in  law."   Id.                                                                      ___            Once the party seeking modification meets this standard, "the            court should  consider whether  the proposed modification  is            suitably tailored to the changed circumstance."6  Id.                                                               ___                                            ____________________            6.  The standard announced by the Rufo Court applies  only to                                              ____            motions  to modify institutional reform consent decrees.  The                        ______            Court did not  have before it the "question  [of] whether [in            whole or in part] the . . . decree should be vacated."  Rufo,                                                         _______    ____            112 S. Ct. at 763 n.12 (emphasis added).                                         -6-                      On  remand,  the  district court  reconsidered  the            Sheriff's motion to  modify the consent decree  to permit the            double-bunking of  inmates in  197  of the  322 regular  male            housing  cells at  the Nashua  Street Jail.   The  court also            considered  two  other  motions  filed  after  the  case  was            remanded,  one of which was the Commissioner's present motion            to vacate  the  consent decree  altogether.7   See Rufo,  148                                                           ___ ____            F.R.D. at 15.  The district court denied all three motions.                      The  district  court explained  its  denial  of the            Sheriff's motion for modification to allow  double-bunking of            pretrial  detainees   at  the   Nashua  Street   Jail  in   a            comprehensive   opinion,  concluding   that  "the   Sheriff's            proposed modification  [was] not suitably tailored to changed            circumstances shown by the record."  Id. at 24.  According to                                                 ___            the district court, the Sheriff  had not "made [a] showing of            reasoned  exploration  of  other feasible  alternatives  that            would  maintain rather  than  impair  the  integrity  of  the            consent decree."  Id.  Nevertheless, the district court ruled                              ___            that,  "[t]hough [it] ha[d] rejected the Sheriff's request to            double-bunk,  . .  . it  does not  follow that  no acceptable            alternative could  be fashioned  for  a modified  use of  the            Nashua  Street  facility  in  a   way  that  would  meet  the                                            ____________________            7.  The third motion  was a "motion of the  Sheriff to modify            the consent decree to hold  up to forty Suffolk County female            pretrial  detainees at the Suffolk County House of Correction            at South  Bay, Boston, Massachusetts."   Rufo, 148  F.R.D. at                                                     ____            15.                                         -7-            objectives  of  the   consent  decree,  including  protection            against abuse and undue risk  of contagion."  Id.  Therefore,                                                          ___            the  district  court  did  "not  foreclose  consideration  of            another proposal submitted promptly, with evidentiary support            that  justifies a  finding  that it  is suitably  tailored to            changes  in   circumstances,  beyond   the  control  of   the            defendants after due effort,  from the circumstances existing            when the decree  was entered (or from  circumstances existing            when it  was modified)."  Id.   The Sheriff appealed from the                                      ___            district court's  denial of  his two motions,  but agreed  to            stay his appeal  pending further proceedings on  a new motion            to  modify filed  in the  district  court.   We were  told at            argument  that  proceedings  regarding  this  motion  are  in            progress in the district court.                        In  explaining  its  denial  of the  Commissioner's            separate  motion to vacate  the consent decree,  the district            court began  by stating that the Commissioner did not support            the   Sheriff's   proposal  for   modification   because  the            Commissioner  felt that  "the plan would  require unnecessary            judicial involvement  in the day-to-day administration of the            jail."    Id. at  23.    The district  court  noted that  the                      ___            Commissioner objected to being forced  by orders in this case            to  accept from  the  Sheriff the  overflow  from the  Nashua            Street Jail.  The district court went on to say:                            Rather than submitting  his own plan                      for modification, . . . the  Commissioner                                         -8-                      challenges  the consent  decree and  this                      court's  jurisdiction   over  the   case,                      arguing that  it is  no longer  equitable                      for   the   consent    decree   to   have                      prospective effect. . . .                                        * * *                            The Commissioner's  proposed way  of                      avoiding undue  involvement of  the court                      in  day-to-day   implementation  of   the                      consent   decree   is   an   unacceptable                      extreme  simply  let  the   Sheriff  have                      unfettered  discretion  to  order double-                      bunking   without   any   constraints  or                      limitations  as  to   criteria  regarding                      associated  conditions  of   confinement.                      The Commissioner  contends not  only that                      the court should not require that single-                      bunking be maintained  but also that  the                      court should  not require that  any other                      safeguards  be  instituted   in  lieu  of                      single-bunking   to    carry   out    the                      objectives of the decree as fashioned  by                      consent.    This  hard-line  approach  is                      plainly  incompatible  with  this court's                      obligation, under the order of remand, to                      consider     whether     any     proposed                      modification  of  the consent  decree  is                      suitably     tailored      to     changed                      circumstances.     The  Commissioner   of                      Corrections' position  must be  rejected.                      His motion, accordingly, is denied.            Id.            ___                                         II.                      On  appeal,   the  Commissioner  argues   that  the            district court applied  the wrong legal standard  when ruling            on his motion to vacate the consent decree.  The Commissioner            asserts  that  the  district  court  mistakenly  applied  the            Supreme Court's Rufo  standard, which he says relates only to                            ____            motions  to  modify,  not  to  vacate,  institutional  reform                         ______            ______                                         -9-            consent decrees.   According to the Commissioner,  a district            court that  rules upon  a motion  to vacate  an institutional            reform   consent  decree  must   consider  only  whether  the            defendants  are  in  present compliance  with  constitutional            requirements  and  whether   the  effects  of   the  original            violation  have abated.   Maintaining  that  these conditions            have  been met, the  Commissioner contends that  the district            court erred in refusing to vacate  the decree, and he seeks a            remand so that the court can reconsider the issue.                      Although  we  agree   with  the  Commissioner  that            motions to vacate consent decrees  and motions to modify them            involve somewhat different analytical frameworks, we find the            Commissioner's proposed standard inadequate.   We also  think            that,  whatever the weaknesses  of its stated  rationale, the            lower  court properly declined  to vacate the  consent decree            under the present circumstances and at the present time.                                          III.                      As an initial matter, "[w]e note that  [describing]            the appropriate  legal standard  [to be  applied by  district            courts  to  motions  to vacate  institutional  reform consent            decrees] presents a pure question  of law, subject to de novo                                                                  _______            review."       Societe  des  Produits  Nestle, S.A.  v.  Casa                           ____________________________________      ____            Helvetia, Inc., 982  F.2d 633, 642 n.9 (1st  Cir. 1992); see,            ______________                                           ___            e.g., Stauble  v. Warrob, Inc.,  977 F.2d 690, 693  (1st Cir.            ____  _______     ____________            1992).  Moreover, even should we find that the district court                                         -10-            applied  an incorrect  legal standard  to the  Commissioner's            motion to vacate  the consent decree, we  may, in appropriate            circumstances, affirm  the  district court's  denial  of  the            Commissioner's motion if  we are satisfied that  the district            court's decision  was correct.   See, e.g., Knight  v. Mills,                                             ___  ____  ______     _____            836 F.2d 659, 661  n.3 (1st Cir. 1987) ("It is  proper for an            appellate court to affirm a correct decision of a lower court                                        _______            even when that decision is based on an inappropriate ground."            (emphasis in original)).  In determining the propriety of the            district court's decision, we may affirm on any independently            sufficient ground supported  by the record, see  Willhauck v.                                                        ___  _________            Halpin, 953 F.2d 689, 704 (1st Cir. 1991), and we review  the            ______            district court's  resolution of  mixed questions  of law  and            fact under  a clearly  erroneous standard,  United States  v.                                                        _____________            Rule Indus., 878 F.2d 535, 542 n.7 (1st Cir. 1989).            ___________                                         IV.                      In Board  of Education v. Dowell, 498 U.S. 237, 111                         ___________________    ______            S. Ct. 630,  112 L. Ed. 2d  715 (1991), and more  recently in            Freeman v.  Pitts, ___ U.S. ___, 112 S.  Ct. 1430, 118 L. Ed.            _______     _____            2d 108 (1992), the United  States Supreme Court described the            standard for district  courts to apply when  deciding whether            to dissolve  injunctive orders  previously entered  in school            desegregation  cases.  While  the desegregation cases  have a            special history and  context all their own, many  of the same            considerations would appear to be relevant to  other types of                                         -11-            institutional reform litigation.   This circuit has  cited to            Dowell's  principles  in  cases  involving  consent   decrees            ______            pertaining  to conditions at  correctional facilities  and to            the  treatment of  mentally ill  or retarded  persons.   See,                                                                     ___            e.g., In re Pearson, 990 F.2d 653 (1st Cir. 1993) (petitioner            ____  _____________            sought writ of  mandamus to halt the district court's efforts            to evaluate,  by  the appointment  of a  special master,  the            continuing need for, or the possible modification of, consent            decrees affecting the  operation of a state  institution, the            Massachusetts   Treatment  Center   for  Sexually   Dangerous            Persons); Consumer Advisory  Bd. v. Glover, 989  F.2d 65 (1st                      ______________________    ______            Cir. 1993) (Consumer Advisory Board and a group of  residents            and outpatients of  Pineland Center, a state  institution for            the mentally  retarded, brought  action on  behalf of  Center            residents and outpatients against  the Commissioner of Mental            Health  and  other state  officials,  seeking  enforcement of            rights created under a 1978 consent decree).                      In   Dowell,   the   Supreme   Court  stated   that                           ______            desegregation  decrees should not exist forever.  See Dowell,                                                              ___ ______            498   U.S.   at   248  ("[I]njunctions   entered   in  school            desegregation  cases .  . .  are not  intended to  operate in            perpetuity.").   This circuit  has invoked this  principle in            other kinds of institutional reform cases.  See  Pearson, 990                                                        ___  _______            F.2d at 658 ("In institutional reform litigation, injunctions            should not  operate inviolate in  perpetuity."); Glover,  989                                                             ______                                         -12-            F.2d at 68  ("[I]nstitutional reform decrees need  not endure            forever.").  In all types of institutional reform litigation,            federalism  concerns dictate that any "intrusion by a federal            court into the affairs of  local government should be kept to            a  bare minimum  and not  be  allowed to  continue after  the            violation has  abated and  its pernicious  effects have  been            cured."  Mackin v. City  of Boston, 969 F.2d 1273,  1276 (1st                     ______    _______________            Cir. 1992), cert.  denied, 113 S. Ct. 1043, 122 L. Ed. 2d 352                        _____________            (1993).                      In Dowell, 498 U.S. at 247, 249-50, as supplemented                         ______            by Freeman, 112  S. Ct. at 1446, the  Supreme Court indicated               _______            that  there are  two conditions  that  must be  met before  a            district  court  is  essentially   obliged  to  terminate   a            litigated decree and return the institution or programs under            court  supervision  to  the  governance  of  state  or  local            authorities.            First,  the district court must determine that the underlying            constitutional  wrong has been  remedied, either fully  or to            the full extent now deemed practicable.  See Dowell, 498 U.S.                                                     ___ ______            at 247,  249-50; Glover, 989 F.2d at  69.  Second, there must                             ______            be  a determination that  the authorities have  complied with            the  decree in  good faith  for a  reasonable period  of time            since  it was  entered.   See  Freeman, 112  S. Ct.  at 1446;                                      ___  _______            Dowell, 498 U.S. at 249-50.            ______                                         -13-                      Implicit  in these requirements is the need for the            district court, before terminating the decree entirely, to be            satisfied  that there is  relatively little or  no likelihood            that the  original constitutional violation  will promptly be            repeated when the decree is lifted.   See Dowell, 498 U.S. at                                                  ___ ______            247  ("[A]  finding .  .  .  that  the Oklahoma  City  School            District was being  operated in compliance with  the commands            of the Equal  Protection Clause of the  Fourteenth Amendment,            and that  it was unlikely that the  Board would return to its            _____________________________________________________________            former  ways, would  be a  finding that  the purposes  of the            ____________            desegregation litigation had been fully achieved."  (emphasis            added)).  Whether authorities are likely to return to  former            ways  once  the  decree  is  dissolved  may  be  assessed  by            considering "[t]he defendants' past  record of compliance and            their  present attitudes toward  the reforms mandated  by the            decree."   Lloyd  C.  Anderson,  Release  and  Resumption  of                                             ____________________________            Jurisdiction  Over  Consent  Decrees  in  Structural   Reform            _____________________________________________________________            Litigation,  42  U. Miami  L.  Rev. 401,  411  (1987) (citing            __________            Morgan v. McDonough, 689 F.2d 265,  280 (1st Cir. 1982)).  Of            ______    _________            possible  further relevance  is  the  way  that  demographic,            economic, and political  forces may be expected  to influence            local authorities and the institution once the shelter of the            decree has been lost.                      Obviously,  there can be  no perfect certainty that            the original  constitutional violation will  not be repeated.                                         -14-            No one can demand such an assurance too far into the  future.            But  it would  be a  travesty  of the  two requirements  just            stated      that the  violation  be eliminated  and  that the            officials have shown their commitment to obey the law    if a            decree  could  be  terminated  in  the  face  of  substantial            evidence that  the same  underlying violation  would then  be            resumed.                      These  general  statements   leave  many  questions            unanswered.    One, as  already mentioned,  is the  extent to            which  they can  be extended  from  the school  desegregation            cases,  in  which the  statements  were  made, to  all  other            institutional  reform   decrees  including   those  involving            prisons.  Our tentative view,  as said, is that they probably            can be  so extended, although  the point need not  be decided            definitively.  Another question,  perhaps more perplexing, is            whether there ought to be any difference in treatment between            a  litigated decree  and a  consent decree  when it  comes to            standards  for termination;  arguments can  be  made on  both            sides   and,  again,  we  need  not  definitely  resolve  the            question.  Finally,  there is the question of  whether and to            what extent the  "extra" remedial protections of  the decree,            at least if embodied in a bargained-for consent decree, ought            to  remain  relevant when  the underlying  federal violations            have entirely ceased and  are not likely to  recur.  As  with                                         -15-            the  others, there are  plausible arguments on  both sides of            this question.8                        We see no need, however, to resolve these issues at            this  time.  For purposes of the present appeal, it is enough            to  assume arguendo  that  the  proper  standard  for  decree                       ________            termination is  the one  most favorable  to the  Commissioner            that we can imagine being  adopted by the Supreme Court.   On            this view  of the  law, the  Commissioner  would arguably  be            entitled to  termination of  the decree  if the  Commissioner            could  show: that  the federal  violations  of the  type that            provoked the original  action have been entirely  remedied or            remedied  to the  full extent  feasible;9  that a  reasonable                                            ____________________            8.  The plaintiffs, for instance, argue that the purposes and            requirements of the consent decree continue to deserve weight                                ______________            even  if  it  is  assumed  that a  defendant  has  come  into            compliance  with  the  bedrock  obligations  imposed  by  the            Constitution.   Thus,  the plaintiffs  would  argue that  the            Commissioner's  and  the  Sheriff's  announced  intention  to            abandon single-celling    a requirement of the consent decree            but  not  necessarily of  the  Constitution     is  enough to            demonstrate  that the  time is  not  yet ripe  to vacate  the            decree.   The Supreme Court's  decision in Rufo  itself lends                                                       ____            some  support to  the plaintiffs'  position  in this  regard,            where  the   issue  before   the  court   was  the   proposed            modification of a consent decree, a proposal that may well be            ____________            made even when the ongoing constitutional violations have not            been entirely extirpated.  See Rufo, 112 S. Ct. at 762-64.                                       ___ ____            9.  The  Commissioner asserts,  and there  appears  to be  no            dispute,  that   the  Nashua  Street  Jail,   constructed  in            accordance  with the  decree, presently  meets constitutional            standards and  has done so  since it  opened in May  of 1990.            The district court found that "[t]he Nashua Street  [J]ail is            a modern, seven-story structure of steel, concrete, and brick            construction.    It  provides conditions  of  confinement far            superior to  those at the  former Charles Street  Jail, which            had  been determined  to be  below constitutionally  mandated                                         -16-            period  of time has  passed during which  such compliance has            been achieved;10  and that it  is unlikely that  the original            violations   will  soon  be   resumed  if  the   decree  were            discontinued.  Under  this standard (a view  we neither adopt            nor reject), the  Commissioner on this record has  not made a            showing  adequate to oblige  the district court  to terminate            the decree.                      Unlike   the    standard   just    described,   the            Commissioner's  proposed  formula  for  vacating the  consent            decree     which we  find too restrictive  by any  measure               assumes  that  the  district court  is  obliged  to terminate            whenever the  existing constitutional  violation has  ceased.            This approach  gives insufficient  weight to  the problem  of            recurrence.   To  the  extent that  recurrence is  taken into            account,  the   Commissioner  brushes  the  issue   aside  by            proclaiming  that the  Supreme  Court  has  made  clear  that            double-celling is  not  a constitutional  violation even  for            pretrial  detainees.   There are  a  number of  flaws in  his            analysis.                      We accept entirely the proposition, established  by            the Supreme  Court, that double-celling is  not automatically                                            ____________________            standards."  Rufo, 148 F.R.D. at 17.                         ____            10.  The consent decree was entered in 1979, and was modified            in 1985.   The Commissioner's  motion to vacate was  filed in            April of 1992, nearly two  years after the Nashua Street Jail            was opened to receive prisoners.                                         -17-            unconstitutional  for  pretrial  detainees.     See  Bell  v.                                                            ___  ____            Wolfish, 441 U.S. 520 (1979); see also Rhodes v. Chapman, 452            _______                       ________ ______    _______            U.S. 337  (1981) (similarly as to convicted  prisoners).  But            this  is  a  far  cry  from  the  implicit  position  of  the            Commissioner that whatever double-celling may be contemplated            by the Sheriff in the foreseeable future at the Nashua Street            Jail is therefore clearly constitutional.  We may assume that            the  housing of  two detainees  in a  cell providing  a large            amount  of  space,  with  appropriate  security  measures  to            protect against inmate assaults, would be constitutional; but            we  think it obviously  apparent that double-celling  in very            small quarters, with  lack of security against  assaults, and            possibly  other  threats  (e.g., disease)  could  violate due                                       ____            process.  And  it is far from  clear on the record  before us            that   the  immediate  plans  proposed  by  the  Sheriff  are            constitutional,  let  alone any  prospective next  steps that            might  follow from  the  complete  vacation  of  the  consent            decree.                      Looking  only to the immediate future, we have here            a  prison facility that  was expressly constructed  under the            consent decree on the assumption that it would house only one            detainee per room  unit.  The size  and security arrangements            were specifically designed with that in mind, and  certain of            the "amenities," such  as the  use of a  solid door with  the            small peep hold  instead of bars, may increase  the risk that                                         -18-            assaults  on  inmates  would  go  undetected  (double-celling            resumed).   Moreover,  the  rooms just  meet  the minima  for            single occupancy  that  are recommended  by standard  setting            agencies.11  The  district court also made  findings that the            risk  of tuberculosis spreading  in these close  quarters, if            double-celling  were permitted,  is a  factor  of importance.            This  is not to  say that the  Sheriff's double-celling plans            for the Nashua Street Jail,  or others that are proposed, may            not yet be found constitutional.   We say merely that whether            they  will be constitutional  remains currently  undecided               and the answer is pivotal to whether vacating the decree will            result  in a recurrence of unconstitutional conditions, given            that  both  the  Commissioner and  Sheriff  are  committed to            double-celling unless otherwise ordered.                       Other longer term prospects  of vacating the decree            also give us pause.  Even if the district court were  to find            that  modification  of  the decree  to  accept  the Sheriff's                                            ____________________            11.  The court below found that:                      The  present cells  in the Nashua  Street Jail                 were explicitly designed for single-bunking.   They                 are slightly smaller in area than the  cells in the                 old Charles Street  facility.  The  contemporaneous                 views  of expert  consultants  who participated  in                 recommendations  for design  of  the Nashua  Street                 facility  were   that  cells  of  this   size  were                 acceptable  only because they were meant for single                 occupancy.            Rufo, 148 R.F.D. at 21; see also  Rufo, 112 S. Ct. at 755 n.3            ____                    ________  ____            (listing state and national design standards).                                         -19-            proposed   double-celling  arrangements   in  certain   cells            satisfies  constitutional minimums, it  is by no  means clear            that  the district  court would  also find  that there  is no            likelihood that unconstitutional crowding would occur if  the            decree were  entirely terminated.   As we have said,  even on            the reading  of the law  that we think most  favorable to the            Commissioner, the district  court would hardly be  obliged to            terminate  the decree  if it  had substantial reason  to fear            that the constitutional  conditions would  be recreated  soon            after judicial oversight had been eliminated.                      It  is  a  notorious  fact  that  prisons  are  now            desperately  crowded and that the willingness of legislatures            to  fund  new  prison construction  is  limited  by competing            social  needs  and  public  resistance  to  increased  taxes.            Without  knowing far more than  this record reveals about the            likelihood that the Sheriff would  be in a position to resist            such unconstitutional overcrowding, it is hardly  possible to            make a clear determination that the  Dowell standard could be                                                 ______            satisfied in this case.                      One further consideration bears  on our sense  that            the district court was entitled,  at this stage, not to order            termination of the decree.  The district court did not wholly            foreclose the possibility of double-celling; to the contrary,            it invited the Sheriff, who is not a party to this appeal, to            make a further showing with respect to his own double-celling                                         -20-            plans and alternatives  to them.  The Sheriff  has made clear            that  he intends  to do  so.12   It appears  certain  that in            such a proceeding  further light would be cast  on the impact            of the Sheriff's proposal on  the lives and conditions of the            detainees.                      It  seems to  us  that,  where  the  constitutional            status of the proposal is uncertain, the district court could            reasonably  consider  first  the   lesser  remedy  of  decree            modification before definitively deciding  whether the decree            should  be  irreversibly  terminated.    A  decision  by  the            district court to allow some double-celling might satisfy the            Commissioner despite  his doctrinal  objections to  continued            court supervision; but far more important, the district court            could conclude     on  a more careful  look at  the Sheriff's            embellished    proposal         that    it    would   produce            unconstitutional conditions, a  conclusion that would provide            ________________            an  a fortiori  basis for  refusing to terminate  the decree.                __________            After all, if the Sheriff by his own admission is planning to            introduce  changes that the district court finds recreate the            unconstitutional crowding  violation, then one can hardly say            that future violations are unlikely.                                            ____________________            12.  The  Commissioner is  involved  in this  litigation  not            because  he  manages  the Nashua  Street  Jail  (that is  the            Sheriff's responsibility),  but because  he  must assist  the            Sheriff in lodging  surplus pretrial detainees who  cannot be            accommodated at the  Nashua Street Jail.  See  Inmates of the                                                      ___  ______________            Suffolk County  Jail v. Eisenstadt,  494 F.2d 1196  (1st Cir.            ____________________    __________            1974).                                         -21-                      We recognize that the  district court's reasons for            refusing  to  terminate  may  be  based on  a  reading  of  a            governing  law  that  is quite  different  from  the arguendo                                                                 ________            position we  have described  as the  most favorable  that the            Commissioner could achieve.  It could have been  the district            court's view that the termination was improper merely because            it would frustrate an important object of the original decree                single-celling    or  because the kind  of considerations            pertinent to decree modification (e.g.,  exploration of other                                              ____            alternatives,  financial stringency) have  not been  shown to            favor the Commissioner.   Still, we see no  reason to grapple            either with these matters or with related unsettled questions            of governing law where, as here, the immediate outcome in the            ongoing case  appears to  us correct and  the issues  that we            leave  to another day are  difficult ones not clearly settled            by Supreme Court precedent.                      Accordingly, whatever  the district court  may have            intended,  our affirmance of the court's refusal to terminate            rests  upon  and is  limited  to  the  grounds we  have  just            discussed:   first,  the  absence of  an  adequate record  to            justify  a complete  decree termination  at  this time;  and,            second,  the   prospect  of  further  proceedings   in  which            additional  light may  be shed,  not  only on  the basis  for            decree modification  but also  on issues  that would  clearly            bear upon the decree's termination.   On this basis, and with                                         -22-            these  clarifications, we affirm the judgment of the district            court.                      So ordered.                      __________                                         -23-
