Filed: June 25, 1992
James F. Companion, Esq.
William D. Wilmoth, Esq.
Barbara L. Baxter, Esq.
Schrader, Byrd, Byrum and
Wheeling, West Virginia
Attorneys for the Appellants
Mario J. Palumbo, Esq.
Rita Stuart, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellees
JUSTICE NEELY delivered the Opinion of the Court.
"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."
Syllabus Point 2, Crain v. Bordenkircher, 180 W. Va. 246, 376
S.E.2d 140 (1988).
On 2 June 1992, as part of the on-going requirement to
inform this Court concerning the construction of and transition to
a new penitentiary (Crain v. Bordenkircher, 181 W. Va. 231, ___,
382 S.E.2d 68, 70 (1989) (Crain IV)), the Court heard a status
report. In addition to providing information, the respondents also
requested that we modify our order dated 30 November 1988 closing
the West Virginia Penitentiary at Moundsville (WVP) on 1 July 1992
(Crain v. Bordenkircher, 180 W. Va. 246, 248, 376 S.E.2d 140, 142
(1988) (Crain III)), by extending the closure date for an
additional twenty-seven months to complete the construction of and
transition to a new penitentiary at Mount Olive (Mount Olive).
Because the construction of Mount Olive is scheduled for completion
in less than two (2) years, the closure date for WVP as a maximum
security facility for dangerous offenders is extended until 1 July
1994. During the interim, this Court continues to require the
respondents to provide detailed information and continues this case
for further action until 4 November 1992.
This proceeding originated in 1981 when the inmates at
the WVP sought a writ of habeas corpus contending that their
confinement in the penitentiary constituted cruel and unusual
punishment in violation of the Eighth Amendment to the Constitution
of the United States and W. Va. Const., Art. III, § 5. This Court
appointed a special master and the special master found that the
conditions at WVP constituted cruel and unusual punishment. The
special master also made certain recommendations to bring the WVP's
conditions within constitutional standards. Crain v.
Bordenkircher, 176 W. Va. 338, 342 S.E.2d 422 (1986)(Crain I).See footnote 1
After the West Virginia Department of Corrections, the body charged
with managing the penitentiary, failed to comply with the special
master's recommendations, we issued a rule to show cause regarding
the appointment of a receiver for the construction of a new
penitentiary and ordered WVP closed by 1 July 1992. Crain III,
Although the respondents assured us that the WVP would be
replaced by 1 July 1992, on 30 November 1988 we required the
respondents to submit a plan containing specific proposals and to
report to us periodically with information regarding progress.
Crain IV, supra. The status of the new penitentiary was reported
in Crain v. Bordenkircher, 182 W. Va. 787, 392 S.E.2d 227, 230
(1990)(Crain V) (finding adequate progress "to comply with the
mandates of the Court"), Crain v. Bordenkircher, 185 W. Va. 603,
408 S.E.2d 355 (1991) (Crain VI) (directing that the special master
receive the plans, policies, procedures and arrangement to staff
the new penitentiary), and Crain v. Bordenkircher, No. 16646 Filed
February 27, 1992 (per curiam order) (Crain VII) (noting that the
bids for the construction phase of the project were over budget by
about $7,000,000). In Crain VII, we continued the case until 5 May
1992 to receive additional information on the project. Crain VII,
id. at 2-3.See footnote 2
On 2 June 1992, the parties submitted a report on the
final modification of the construction plans and the costs. The
changes in the plans were submitted to our special master and to
the petitioners' counsel. By letter dated May 19, 1992, the
special master said that the final plans were satisfactory and on
this basis the bids were re-let and the new bids approved.
Although the respondents did not respond to the petitioners'
comments until the 2 June 1992 report, the petitioners, by letter
dated 15 June 1992, said that except for two matters, their
concerns were alleviated.See footnote 3
The new bids on the modified plans for the next
construction phase of Mount Olive (Phase III) amounted to
$40,093,000. Although these bids were $3,639,913 less than the
comparable bids received on 22 January 1992, the bids still
exceeded the estimated cost of Phase III by about $3,500,000.
However, the low bids for Phase III were accepted and after the
contractors provide documentation of insurance and bonds, the
respondents anticipate that the final issuance, approval and
encumbrance of contracts will take about two weeks and then the
contractors will be told to proceed. On 1 June 1992, a pre-construction meeting was held to coordinate the start of Phase III
The respondents said that the increased costs for Phase
III would be paid for out of the interest earned on the proceeds
from already issued bonds to finance this and several other
projects.See footnote 4 The bonds earned about $10,000,000 in interest and
about $6,000,000 of the interest is available to cover additional
costs of the projects financed by the bonds. About half of the
available interest has been dedicated to paying the over-budget
bids for Phase III.
The Phase III construction contracts provide for a six
hundred (600) day construction period for substantial contract
completion with an additional thirty (30) days for final
completion. The contracts also provide liquidated damages of $1000
for each day construction continues beyond the scheduled completion
of the facilities. Any further changes in the final plans, by way
of work orders, must be submitted to our special master for his
approval. The Division of Corrections will use the construction
period to develop a transition plan to Mount Olive to avoid further
Citing a need for an orderly transfer of inmates and to
provide for construction delays, the respondents, in the present
proceeding, request that we modify our closure order to allow an
additional twenty-seven months from the date the contractors
receive their notices to proceed. Although we recognize that our
closure order must be modified to allow retention of inmates
pending construction of the new penitentiary, we note that the
construction contracts call for substantial completion in six
hundred (600) days with final completion in an additional thirty
(30) days. Based on the anticipated construction period, an
additional delay of closure for twenty-four (24) months is
justified and, therefore, we stay our closure order until 1 July
1994 to allow an additional two (2) years to complete the
construction of and transfer to the new penitentiary.
We remind the respondents that eleven years have passed
since this case began; nine years since Judge Arthur Recht declared
the prison conditions to be unconstitutional; six years since our
first opinion in Crain I; and, four years since we ordered the
prison closed by the 1 July 1992 (Crain III). Although we
recognize that the respondents are now taking all reasonable steps
to comply with this Court's orders, because of the unconstitutional
nature of WVP's conditions, we continue to require that these
conditions be eliminated as soon as possible.
In order to insure that the transition be made as
efficiently as possible, we remind the respondents that the plans,
policies, procedures and arrangements to staff the new penitentiary
must be submitted to the special master (Crain VI) for review and
comment. The preliminary plans submitted by the respondents to
this Court on 31 January 1992 are incomplete and inadequate. Our
special master has advised the respondents of his concerns with the
preliminary plans. However, we have not received any additional
material from the respondents. Because the Division of Corrections
must submit its budget request in advance of each fiscal year in
August, the respondents must complete the plans in order to have
the necessary funds in the budget. In order to insure that the
funds are budgeted, the respondents are ordered to submit to the
special master a revised preliminary plan by 1 October 1992 so that
the special master's comments on the plan are available at the next
status report to the Court. The process of development and review
of these plans should not delay the targeted operational date for
Mount Olive, 1 July 1994, the closure date for the WVP.
We also remind the respondents of their "statutory obligation to establish and maintain programs of classification, education, and treatment of inmates and that such programs must comply with the standards established by the American Correctional Association and the Commission on Accreditation for Corrections [hereinafter 'ACA Standards']. (Footnote omitted.)" Crain I at 356, 342 S.E.2d at 440-41; see also Cooper v. Gwinn, 171 W. Va. 245, 259, 298 S.E.2d 781, 795 (1981)("rehabilitation is the primary purpose of confinement in state prisons. . . "). Because of the respondents' obligation to provide a rehabilitation program for the inmates, the respondents are to submit comprehensive plans for education and rehabilitation that conforms with ACA Standards for these programs to the special master by 1 October 1992 in order to have the master's comments available at the next status hearing..
See Crain I at 356-58, 342 S.E.2d at 440-42 for a discussion of the
In addition the respondents are to include in the
materials submitted to the special master by 1 October 1992 the
administrative plans and policies for health care. The respondents
should also include in the report to the special master and the
next status report the proposed budgets for the rehabilitation and
health care plans along with any other materials to be submitted to
Because of the delay in the construction of and
transition to the new penitentiary, we are concerned about the
overcrowding in the correctional system. The new penitentiary, an
800-bed facility, is to replace WVP, a 550-bed facility. During
the 2 June 1992 hearing, Colonel Nicholas Hun of the Division of
Corrections said that because of a lack of state prison facilities
on 2 June 1992 about 354 felony inmates were incarcerated in county
facilities at an average cost of $25 per inmate per day. Colonel
Hun said that the number of felony inmates in county jails had been
reduced from 400 a few weeks earlier; however, the reduction is
temporary because of the sentencing of additional persons.
In response to the Court's questions about how to reduce
the number of State inmates housed in county jails, Colonel Hun
noted that several additional facilities are scheduled to open in
the near future. A 100-bed addition is planned for Huttonsville
Correctional Center. The Huttonsville project is to be financed by
the Authority's first bond series, the same bonds financing the new
penitentiary, and bids on the Huttonsville project are to be opened
on 1 July 1992 and project's completion is expected by October
1992. Additional facilities also scheduled for completion include
the Braxton Regional Jail (6 months), Kanawha Regional Jail (9
months), and the Raleigh Regional Jail (20 months). The Court also
requested information on other plans that respondents had for
inmates who are minimum security risks.
The housing of inmates in county jails has shifted at
least part of the cost of housing from the State, Division of
Corrections, to the counties.See footnote 5 Colonel Hun said that the budget
for county-held inmates would be depleted in October 1992, only 4
months into the 1993 fiscal year. Senate Concurrent Resolution
No. 30, the resolution authorizing the sale of the bonds used to
finance the new penitentiary and other projects, allows the
proceeds from the sale of the bonds to be used "for any and all
purposes, costs, and expenses of any nature whatsoever under the
[Regional Jail and Correctional Facility Authority] Act . . . ."
At this time a majority of the Court (Justice Brotherton,
dissenting) does not find it appropriate to use the bond proceeds
not dedicated to a facility construction project, about $3,000,000,
to reimburse the counties for cost of housing State inmates.
Further, we do not pass on the legality of using bond proceeds to
pay the costs of housing state inmates in county facilities.
However, the Court wants to receive information on the
problem to determine if this use of the bond proceeds is justified.
Therefore, the respondents are ordered to include in the next
status report information on the number and location of the State
inmates held in county jails, the costs and reimbursement for such
inmates, and the proposed budget for reimbursement from the
Division of Corrections. The status report should also include
information of the construction of additional facilities for the
housing of State inmates and other strategies to reduce the number
of inmates held in county facilities.
Finally we require that these reports be submitted to our
special master by 1 October 1992 and we set this matter for further
hearing before this Court on 4 November 1992.
Writ Granted as Moulded.
Footnote: 1 In Crain v. Bordenkircher, 178 W. Va. 96, 357 S.E.2d 778 (1987) (Crain II), we held that the fees and expenses of the monitor should be paid by the Department of Corrections.
Footnote: 2By order dated 25 March 1992, the case was continued until 2 June 1992.
Footnote: 3In the 15 June 1992 letter, counsel for the petitioners expressed concern about the following: (1) the requested twenty-seven (27) month extension rather than the actual time needed for construction (See infra pp. 5-6, for a discussion of the extension), and (2) the amount of recreation time for inmates in Mount Olive (See infra pp. 6-8, for a discussion of the operational plans).
Footnote: 4The Series A Bonds were to finance the following projects at the approved amount:
PROJECT PROJECT AMOUNT
Mount Olive Correctional Complex $46,200,000.00
Northern Regional Jail & Correctional
South Central Regional Jail 16,063,500.00
Central Regional Jail 10,360.800.00
Southern Regional Jail 17,669,800.00
Eastern Regional Jail 4,897,600.00*
*The Regional Jail and Correctional Facility Authority amended the
list of projects by substituting the Huttonsville Corrections
Center for the Eastern Regional Jail without altering the allocated
Footnote: 5To seek reimbursement for a state inmate housed in a county's facility,, the country must file a claim for expenses with the Court of Claims, which in County Comm'n of Mineral County v. Division of Corrections, No. CC-89-34 (Ct. of Claims, filed November 21, 1990 and December 19, 1990), held that the Division of Corrections is obligated to reimburse the counties for expense of housing state inmates in county facilities. After the Court of Claims grants the county an award for these expenses, the award is included in the claims bill that must be adopted by the legislature. This procedure requires the counties to pay the expenses and to wait at least a year for the State to reimburse them.