source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    STATE OF ILLINOIS by the ILLINOIS DEPARTMENT OF PUBLIC AID, Plaintiff, Counter-Defendant, v. Margaret HECKLER, Secretary of the United States Department of Health and Human Services, and United States Department of Health and Human Services, Defendants, Counter-Plaintiffs.
    No. 84 C 6343.
    United States District Court, N.D. Illinois, E.D.
    May 23, 1985.

      Karen Konieczny, Chicago, Ill., for plaintiff, counter-defendant.
    James J. Kubik, Asst. U.S. Atty., Chicago, Ill., for defendants, counter-plaintiffs.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Medicaid is a welfare program which in theory is run cooperatively by state and federal agencies. This case reveals a breakdown of state-federal cooperation, or at least a communication breakdown. The State of Illinois (“Illinois”) has sued Margaret Heckler, Secretary of U.S. Department of Health and Human Services (“the Secretary”), claiming that she is trying, to put it bluntly, to cheat it out of about $4,000,000 in federal reimbursement for medical services provided by Illinois. The Court is asked to review a decision of the Secretary’s “Departmental Grant Appeals Board” (“the Board”) which upheld an earlier administrative decision to disallow Illinois’ claims for the $4,000,000. The parties have submitted cross-motions for summary judgment based upon a certified administrative record. For the reasons stated below, we grant the Secretary’s motion and deny that of Illinois’.

The background of this case is somewhat complex and needs some elaboration. We will first sketch the relevant statutory and regulatory background. Then we shall describe the facts as revealed by the record, which show how Illinois came to believe it was entitled to the $4,000,000 in reimbursement. Finally, we will summarize the decision of the Board and explain why that decision must be upheld.

1. Statutory and Regulatory Background

Congress passed Title XIX of the Social Security Act (“Medicaid” or “Title XIX”), 42 U.S.C. § 1396 et seq., in 1965 to help provide certain medical services to the poor. The lifeblood of the program is federal money, which is given to the states, which in turn afford the services to the beneficiaries. 42 U.S.C. § 1396.

Under Title XIX, a state must designate one state agency to administer the State’s Medicaid “plan.” 42 U.S.C. § 1396a(a)(5). In Illinois that agency is plaintiff Illinois Department of Public Aid (“IDPA”). IDPA must create and then implement a “plan for medical assistance” which is consistent with Title XIX and the Secretary’s regulations. The plan describes the services covered, the method by which providérs are reimbursed and the manner in which the program is administered. The plan is submitted to the Secretary for approval. After the plan is approved, the State becomes entitled each quarter to be reimbursed for a percentage of its expenditures made in providing specific types of “medical assistance” under the plan. 42 U.S.C. § 1396b(a)(l). This federal reimbursement is' called “federal financial participation,” or in bureaucratic jargon, “FFP.” IDPA had such an approved plan during the time period of this suit.

The term “medical assistance” encompasses a broad range of services, but in general excludes services of a type central to the dispute here — inpatient services to people of ages 22-64 in an “institution for mental diseases” (“IMD”):

(a) The term “medical assistance” means payment of part or all of the cost of the following care and services ...
(1) inpatient hospital services (other than services in an institution for ... mental diseases);
>{< % # $ >1» #
(4)(A) skilled nursing facility services (other than services in an institution for ... mental diseases) ...
* * # # # *
(14) inpatient hospital services, skilled nursing facility services, and intermediate care facility services for individuals 65 years of age or over in an institution for ... mental diseases;
(15) intermediate care facility services (other than such services in an institution for ... mental diseases) ...
(16) effective January 1, 1973, inpatient psychiatric hospital services for individuals under age 21 ...
******
except as otherwise provided in paragraph (16), such term does not include—
******
(B) any such payments with respect to care of services for any individual who has not attained 65 years of age and who is a patient in an institution for ... mental diseases.

42 U.S.C. § 1396d(a). Despite the statute’s seemingly clear exclusion of IMD services for patients between ages 22-64 (“the general IMD exclusion”), the dispute here centers about whether IDPA is entitled to FFP for exactly that type of service. The source of the dispute is conflicting interpretations of the Secretary’s regulations promulgated under Title XIX.

The regulations in general echo the statute’s general exclusion of IMD services to people between 21-65 years old. See 42 C.F.R. 435.1008(a)(2) (1984). However, another part of this regulation can generally be read to create an exception to this general exclusion:

(a) Except as provided in paragraph (b) of this section, FFP is not available in expenditures for services provided to—
******
(2) Individuals under age 65 who are patients in an institution for tuberculosis or mental diseases unless they are under age 22 and are receiving inpatient psychiatric services under § 440.160 of this subchapter.
(b) FFP is available in expenditures for services furnished to eligible individuals during the month in which they become ... patients in an institution for tuberculosis or mental diseases.

42 C.F.R. § 435.1008(a), (b). IDPA argues that this provision allows FFP for the first month of all “services,” even otherwise excluded IMD services to those between 21 and 65. It reasons that this is consistent with the usual Medicaid rule of administrative convenience that the “month” is the interval of eligibility. See 42 C.F.R. § 435.-914(b) (1984) (if individual is eligible for Medicaid at any time during a month, individual is eligible for entire month); S.Rep. 404, Part I, 89th Cong., 1st Sess. 82 (1965), reprinted in 1965 U.S.Code Cong. & Ad. News 1943, 2022 (for administrative convenience medical assistance may include payment for care provided any time during month individual becomes eligible). We will expand on Illinois’ theory below, as its whole case turns on these provisions. But we turn first to what happened in this case between IDPA and HHS.

2. Factual Background

So far as the record reveals, before 1979 IDPA never sought or received FFP for IMD services given to those between 21 and 65. However, in February 1979, relying on its interpretation of 42 C.F.R. § 435.1008(b), IDPA wrote the Regional Commissioner of HHS about this regulation. IDPA specifically asked whether “individuals age 22-65 who enter an institution are eligible during this first month.” The record shows that HHS referred this question to its Office of General Counsel for consideration. Sometime in late 1979 or early 1980, HHS’s Regional Medicaid Program Representative, Patricia Richter (“Richter”) told IDPA that claims for FFP for IMD services to 22-64 year olds during their first partial month in an institution seemed to be in accord with the Act and its regulation. Richter also told IDPA that no state plan amendment was necessary for the State to submit claims for this FFP.

Illinois began claiming reimbursement in January 1980. Several months later, on September 9, 1980, HHS Regional Administrator finally sent a formal written response to IDPA’s queries made eighteen months earlier. In relevant part he wrote:

With respect to the second issue raised— that of individuals between the ages of 21 and 64 — FFP is available for medical care and services to an otherwise eligible individual during the first month of institutionalization. Coverage extends to all services specified in the approved State plan including per diem rates.

Letter of George R. Holland, HHS Regional Administrator to IDPA, Administrative Record at 127.

An HHS report which later disallowed IDPA’s claims for FFP, dated April 6,1983, supports the above history that HHS for a time believed that FFP was available for the IMD services in question. This report suggests that HHS shifted its policy in 1982:

G. Guidelines
The Bureau of Program Policy (BPP) issued policy memorandums (date, August 21, 1980 and November 17, and 24, 1980) that indicated FFP was available for both the IMD services and all other non-IMD services covered under the State plan for otherwise eligible individuals 21-64 years of age during the first and last partial months of institutionalization in an IMD.
On April 2, 1982, the Associate Administrator for Policy, based on a legal opinion by the Office of the General Counsel concluding that the proper reading of the regulations was to allow FFP during a partial month of eligibility only for services included in the State plan, issued a policy statement that superseded the previous memorandums on this subject. This memorandum stated that FFP is not available for the inpatient psychiatric care and services (IMD services) provided to individuals aged 21 to 64 during their partial months of institutionalization because such services would not meet the definition of medical assistance and would not be included in the State plan. However, the memorandum stated that, under the regulations, FFP is currently available for all non-IMD services covered under the State law for otherwise eligible individuals during their partial months of institutionalization in an IMF. (As noted above, the regulations now in clearance will preclude FFP for all services).
In summary, the statute provides that no FFP is available for any care or services for individuals aged 21 to 64 from the date of admission to the date of discharge in an IMD. The regulations provide an exception, but only for non-IMD services during the month in which an individual becomes a patient in an IMD. The policy issuances have varied from allowing both IMD and non-IMD services during the partial months of institutionalization to the current issuance which only allows the non-IMD services during this period.

(Emphasis added). This report concludes that the earlier policy interpretations conflicted with the requirements of the statute and regulations, and that the latter control. Relying on this interpretation of the regulation, HHS decided to disallow IDPA’s previous FFP claims for IMD services given to individuals aged 21-64. These claims spanned ten quarters, beginning in January 1980, ending in June 1982, and totalling some $4,000,000 in federal reimbursement.

Illinois is not the only state which had claimed FFP for all IMD services during the first partial month of institutionalization, only to have HHS later disallow such claims. The record shows that at least five other States ran into similar problems, and the Board had previously upheld disallowances against these States in its “Decision No. 436,” dated May 31, 1983.

IDPA appealed HHS’s decision to disallow the IMD claims to the Board. In “Decision No. 517,” dated February 29, 1984, the Board upheld the disallowances, relying in large part on its previous decision, No. 436. IDPA sought judicial review in this Court under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., claiming that the Secretary’s disallowance and the Board’s affirmance were arbitrary, capricious and not supported by substantial evidence.

3. The Board’s Decision

The opinion of the Board in this case thoughtfully considered each of IDPA’s arguments at length. It first summarized and reaffirmed its Decision No. 436, which involved similar claims raised by the five other States. In that decision the Board had held, among other things, that:

a. the statutory scheme upholds the Agency’s current interpretation of the statute to exclude FFP for the first partial month of admission of IMD patients between the ages of 21-64.
b. the regulatory scheme as a whole supported that interpretation.
c. the documentary evidence submitted by the States failed to support its claim that HHS had a longstanding policy of such FFP.
d. the States had not relied reasonably to their detriment on HHS’s communications to warrant invoking the doctrine of equitable estoppel.

The Board in the present case next noted that IDPA had not expressly questioned the analysis in Decision No. 436, but instead relied upon the correspondence between IDPA and HHS which we summarized above. After reviewing this new evidence the Board held that:

a. the evidence did not alter its conclusion that HHS had no longstanding policy that the costs at issue were allowable.
b. the HHS letter of September 9, 1980 was neither a binding policy ruling nor a binding admission.
c. IDPA, like the other States, had not made out a claim of equitable estoppel.

IDPA seeks review of this Board decision. Virtually its whole case hinges on the Board’s first finding, that is, whether HHS had the former policy allowing IDPA’s claim. This finding in turn rests on Decision No. 436, which first held that HHS had no such policy. IDPA argues vigorously that HHS had this policy, reversed it and is now unlawfully trying to apply its new policy retroactively.

4. The Court’s Mission in this Case

In well-written briefs, the parties have thoroughly examined the statutory and regulatory history of the IMD exclusion. The Secretary argues forcefully that the relevant regulation, 42 C.F.R. § 435.1008, can only be read in light of what it terms the clear legislative command forbidding any federal reimbursement for institutional IMD services given to 21-65 year olds. IDPA counters that a narrow exception for the first or last partial month of admission is warranted by legislative history concerning administrative convenience. We think that both readings are superficially plausible. We agree with IDPA that our initial focus should not be on the best reading of the statute, but on whether the Secretary has formally reversed her reading of the statute and applied its new reading retroactively on IDPA. If IDPA is correct that the Secretary has pulled an official flip-flop, we then must interpret the statute and determine if her former position violated the statute. But if the Secretary has not flipped, then we may avoid the difficult question of who is right in reading the statute, as IDPA concedes, the Secretary’s current interpretation of the statute and regulation is lawful as applied prospectively-

The parties’ analysis of whether the Secretary in fact had and then reversed what Illinois calls a “long-standing policy” of FFP for partial month IMD services is a bit askew. Both sides focus on the issue and record as if this were a de novo proceeding. Such is not the case. The Board found in Decision No. 436, and reaffirmed in Decision No. 517, that the Secretary had no such longstanding policy. We are constrained in this administrative review to affirm the Board’s finding if it is supported by substantial evidence in the record as a whole and if it is not arbitrary, capricious or otherwise unlawful. 5 U.S.C. § 706(2)(A), (E). Whether the Secretary actually had the alleged policy is a difficult question. The record is not entirely clear on this point, and the Board considered the record in depth. But despite our narrow scope of review, we think that the record as a whole cannot support the Board’s conclusion that no formal official policy existed.

6. IDPA’s Evidence and the Board’s Treatment of It

Before discussing the specific evidence, we note some background facts from the record. The regulation at issue here was first promulgated in 1971. Yet it was not until 1979 that IDPA asked the Secretary about clarifying the scope of the regulation’s exception. The Secretary responded that she was referring the question to the Office of General Counsel. The formal response to the inquiry did not come until September 1980, nine months after IDPA began claiming reimbursement. From these facts, it is difficult to say, as IDPA does, that the Secretary’s policy was longstanding. Nor can it be said that the policy was crystal clear to everyone at that time. But we conclude it nevertheless existed.

Against this backdrop we turn to IDPA’s most damning pieces of evidence: the April 1982 disallowance memorandum quoted above and several HHS internal memoranda from 1980. The April 1982 memorandum relies on the earlier ones and quite obviously suggests that a formal policy reversal had taken place. The earlier policy memoranda contain seemingly consistent statements of policy. The August 21, 1980 memorandum is representative. Directed to Regional Medicaid Directors from the “Director, Bureau of Program Policy,” it states in relevant part:

This responds to various regional inquiries regarding the availability of FFP for services to individuals in institutions for tuberculosis or mental diseases during the month in which an individual enters an institution for tuberculosis or mental diseases.
# * * * * *
A State may cover medical care, including psychiatric care and services, as indicated in the State plan, during the month in which an individual enters an institution for tuberculosis or mental diseases when three conditions exist:
Section 1905(a)(17)(B) of the Act precludes Federal matching of any payments for medical care given to patients in an institution for tuberculosis or mental diseases who are in the 21 through 64 years of age group. As an exception to this provision, based on administrative convenience, FFP is available for medical care and services to an otherwise eligible individual, regardless of age, as indicated in the State plan during the first month of institutionalization (Senate Report No. 400, Part 1, 89th Cong., 1st Session (1965) at 82).

We are in the process of reexamining this area and will notify you if our development results in a policy revision. Similarly, a December 8, 1980 memorandum to Regional Administrator states:

This responds to your inquiry of October 24 for clarification of Median policy on the month of admission for individuals in the 21 through 64 years of age group who reside in an IMD/TB. Your request indicates that, based on Sections 1905(a)(14) and (16) and the corresponding regulations at 42 CFR 440.140 and 440.160, Federal Financial Participation (FFP) is limited to inpatient hospital services for individuals 65 years of age or over in an IMD/TB, or to inpatient psychiatric hospital services for individual under age 21.
We concur with your interpretation of policy for those particular groups. However, as indicated in our previous memorandum of August 21, FFP is available for medical care, including psychiatric care and services provided to an individual in the 21 through 64 years of age group, during the month in which an individual enters an IMD/TB (Senate Report No. 404, Part I, 89th Congress, 1st Session (1965) at 82; Regulation at 42 CFR 435.1008(b)). The inpatient per diem services are covered under the Medicaid program during that partial month in the same manner as the inpatient per diem services are covered in an IMD/TB for the 65 years of age or over group. The States should be informed that FFP may be claimed for those services without the risk of disallowance.

A letter dated December 12, 1980, from a Regional Administrator to a New York State administrator echoes the above statement, as well as the ones made in the September 9, 1980 letter to IDPA:

The current Federal interpretation is that these Medicaid eligible individuals continue to be eligible for medical care, including psychiatric care and services with Federal financial participation during the remainder of the month in which the individual enters an institution for mental disease which meets Title XIX requirements for participation. Based on administrative convenience, our policy for the month of discharge from an institution for mental disease is that Federal financial participation is available for medical care and services to an otherwise eligible individual back to the beginning of that month.

Several other memoranda are consistent.

Other memoranda suggest that there was dissent over this policy within the Agency. A memorandum dated January 1981 from a Regional Director to the Director of the Bureau of Program Operations complains that the rationale of “administrative convenience” could not overcome the general statutory IMD exclusion. The Director of Bureau of Program Policy replied in April 1981 that “[W]e do not agree with your contention that medical care for the [21 to 64 year old] age group in an IMD/TB is a noncovered service.” A June 29, 1981 memorandum from the Acting Assistant General Counsel opines that a June 15, 1979 memorandum on the subject (similar to the one above) is “seriously misleading.” It reasons that an individual should not get services he would not otherwise get simply by being institutionalized for part of a month. The Agency finally and clearly adopted this latter position in April 1982, as the memorandum disallowing IDPA’s claim shows.

Despite this seemingly powerful evidence that HHS had and then reversed the policy IDPA says it had, the Board in Decision No. 436 concluded that HHS in fact had no firm policy. First, the Board exhaustively analyzed the statute and the underlying regulations, concluding that the Agency’s current policy was most in accord with these provisions. It then analyzed, among other things, the above documentary evidence. It just concluded that no formal policy issuances ever spelled out the alleged former policy. IDPA does not point us to any such issuances, so we assume this to be correct. The policy, to the extent it ever existed, could be found in the HHS internal memoranda which we have detailed above. The Board accurately summarized these memoranda, conceded that they “seem to suggest the allowability of the claims involved here,” but concluded that “these memoranda were not intended as an official interpretation of the statute.”

We think the Board’s reading of the documentation is strained and unsupported by the plain and repeated language of the documents themselves. Although policy was in a state of flux, and there was dissent and some confusion, we think that the documents compel a conclusion that HHS did for a time have an official policy to allow FFP for all IMD services for the first partial month of admission. The Secretary now concedes in her brief that at least some within the Agency held this view, but argues that the Agency as a whole was confused and settled policy never emerged. The dissent and confusion does not contradict the fact that the policy was settled for awhile. The only dissent that we see came from a lower authority, a Regional Administrator, and that dissent was rebuffed by the Central Office. And this dissent occurred after issuance of the crucial August 21, 1980 memorandum, indicating that the disagreement was about current Agency policy. The Board recognized this, but lamely reasoned that the States were not told they had no risk of disallowance. This might have born on an estoppel issue, but not on whether the Agency actually had the policy in question.

The April 1982 memorandum underscores the fact that the policy actually existed. It unmistakably indicates that IDPA’s claim would have once been viable, but that on April 2, 1982, the Agency felt that the earlier memoranda had misread the statute and regulations: This clearly signals a reversal. Something was reversed, and that “thing” was the policy of partial month FFP for IMD services. Memoranda from the Office of General Counsel reinforce the conclusion that the policy existed. First, a memorandum by Attorney Nancy King clearly refers to the August 21, 1980 memorandum as if it were current agency policy. It addresses the problem of states relying on the policy to obtain FFP retroactive to 1971. Second, the June 29, 1981 memorandum of the Acting Assistant General Counsel attacks the statutory validity of the policy. Both of these memoranda speak as if the policy actually existed.

The above documentation as a whole suggests that something close to this scenario occurred: For several years until 1978 or 1979 nobody seemed to notice that the regulation, 42 C.F.R. § 435.1008(b), could be read to allow the type of FFP that IDPA is claiming. States began asking about it, and a period of some flux ensued as HHS tried to answer the States’ questions. The series of memoranda beginning August 21, 1980 indicate that for a time the agency did firmly adopt the policy in question. There were no formal policy issuances to that effect, but the record shows clearly and unmistakably, we believe, that high-ranking policymakers within the agency had adopted the policy. Some within the agency dissented, including legal counsel beginning in 1981, arguing that the policy violated the Social Security Act. The dissenters ultimately prevailed in 1982, as HHS reversed its policy.

Given this factual scenario, we must now reach the question whether the Secretary can lawfully apply its new policy retroactively in order to disallow IDPA’s claims. This determination will hinge on whether the former policy was valid under Title XIX.

6. Statutory Authority for the Old Policy

We believe the Secretary is correct that her former, short-lived policy violated the Social Security Act. The parties do not dispute that the Act in clear terms forbids FFP for services to 21-65 year old patients “in an institution for tuberculosis or mental disease.” See 42 U.S.C. § 1396d. This exclusion reflects the Congressional intent that such services be left to the states, which had traditionally been responsible for them. See S.Rep. No. 404, 89th Cong., 1st Sess. 144, reprinted in 1965 U.S.Code Cong. & Ad.News 1943, 2084. IDPA points to no explicit statutory exception to this general exclusion. It is axiomatic that the Secretary cannot enlarge the scope of the Act by herself. Without express or implied delegation of authority, then, she lacks power to create an exception to the general IMD exclusion. 42 C.F.R. § 435.-1008(b) can be read as just such an exception, and we held above that her former policy read that regulation as an exception. The question for the Court is whether this exception was somehow consistent with implied Congressional intent or whether it impermissibly expanded the scope of the statute.

IDPA’s position rests on the regulation and policy allowing states, for purposes of administrative convenience, “to make eligibility for Medicaid effective on the first day of a month if an individual was eligible any time during that month.” 42 C.F.R. § 435.-914(b) (1981). It reasoned that 42 C.F.R. § 435.1008(b) was promulgated to effectuate that policy of convenience by allowing FFP for the first month of all institutional services so long as an individual was eligible before entering the institution. The purported congressional authority for this policy comes not from the statute, but from a Senate Report written when Medicaid was passed in 1965:

Medical assistance provided under the bill may include payment for care and services provided at any time within the month in which an individual becomes eligible or ineligible for assistance, e.g., by attaining a specified age. This avoids the administrative inconvenience of having to segregate bills by the day of the month on which care or services were provided and is consistent with the monthly pattern of benefits under the other public assistance titles.

S.Rep. No. 404, Part I, 89th Congress, 1st Session 82 (1965), reprinted in 1965 U.S. Code Cong. & Ad.News 1943, 2022. We do not think this Senate Report supplies the congressional intent necessary to support the Secretary’s former policy or IDPA’s current position.

The above quotation speaks to convenience in the context of whether “an individual becomes eligible or ineligible for assistance.” However, we agree with the Secretary that the statutory IMD exclusion speaks not to the eligibility of an individual, but rather to the eligibility for FFP for a type of service. The structure of the Act supports this reading. The general IMD exclusion appears in the section defining the range of eligible services, under the heading “medical assistance,” not under the section defining the categorical and financial eligibility of individuals. The exclusion appears several times in the statute parenthetically as an exception to the type of service for which the states can claim reimbursement. And the passage from the Senate Report does not by its terms allow exceptions to the term “medical assistance,” which expressly excludes IMD services to 21 to 65 year olds. Rather it allows individual eligibility for medical assistance to be decided on a monthly rather than daily or weekly basis. Nowhere does the statute or the report allow “medical assistance” to include the services in question.

IDPA’s reading and the Secretary’s former policy are internally incoherent because their rationale of administrative convenience does not in fact support their views. Drawing upon the policy of administrative convenience, IDPA argues that “[a]s long as a person is eligible at any point within the month, then medical assistance is available for the entire month.” Plaintiff’s Response to Defendant’s Memorandum in Support of Motion For Summary Judgment at 5 (emphasis added). This argument silently assumes that “medical assistance,” which is a term defined specifically by statute, can ever include the IMD services in question. We held above that it could not. Moreover, we do not see how IDPA’s reading materially furthers administrative convenience in the manner contemplated by the Senate Report. That report allows monthly reporting to avoid “the administrative convenience of having to segregate bills by the day of the month on which care or services were provided. ” (Emphasis added). This language does not expand the range of available services under the Act, but instead, for convenience sake allows an individual’s eligibility to be determined monthly. The convenience mentioned refers to the situation where an individual becomes eligible or ineligible during a month because of, for example, change in income, resources or age. But this policy of convenience does not spare the states the administrative inconvenience of segregating bills by the type of service. Indeed, the statute’s complex definition of “medical assistance,” with all of its limitations on the range of services included, shows that states must always segregate bills by the type of service rendered.

Even when Congress did define “medical assistance” to include some IMD services— for those 65 or older or younger than 21— it did so with several conditions which show that it was concerned with the type of service provided, not just the age of the individual. For example, among other requirements, a state plan for medical assistance which includes IMD services for individuals 65 years of age and older must require the formulation of individual patient care plans and the development of alternate methods of care. 42 U.S.C. § 1396a(a)(20). Similarly, in authorizing inpatient psychiatric hospital services for individuals 21 years of age and younger, Congress limited such services to those provided in a psychiatric hospital accredited by the Joint Commission on Accreditation of Hospitals. And Congress insisted that such inpatient psychiatric hospital services meet other statutory and regulatory requirements. 42 U.S.C. § 1396d(h). Accordingly, the statutory exclusion of IMD services is not solely related to the eligibility of the individual but also involves the category of IMD services itself. IDPA’s interpretation is thus unreasonable: If persons between 21 and 65 were entitled to IMD services during their month of admission, they would enjoy more services than those available to persons above 65 or below 21. For instance, they would not be subject to the restrictions which 42 U.S.C. § 1396d(h) places on patients below 21 nor to the requirements 42 U.S.C. § 1396a(a)(10) places on services given to patients above 21. Thus, IDPA’s reading runs afoul of not only the general IMD exclusion, but also the Congressional limitations placed on IMD services when those services are authorized.

In sum, we conclude that the Senate Report does not support the Secretary’s former position or IDPA’s current reading. IDPA points to no other source of Congressional intent bolstering its interpretation. Instead, it argues strenuously that the plain meaning of the Secretary’s regulations supports its position. Even if this were so, the regulation could not overcome what we hold to be a statutory bar without exception. We therefore hold that IDPA’s claimed reimbursement, and the former policy upon which it is based, had no basis in Title XIX of the Social Security Act.

That being so, IDPA’s arguments concerning retroactivity lose their force. From IDPA’s perspective, the Secretary had a lawful policy under which IDPA submitted its claim, but she reversed her policy and is trying to recoup the money she already paid out under the old lawful policy. See Daughters of Miriam Center for the Aged v. Mathews, 590 F.2d 1250 (3d Cir.1978). This argument has some appeal, but it rests on the flawed assumption that the Secretary’s former and current policies were both lawful. Were the Secretary acting within her broad discretion to change from one lawful policy to another, we might be inclined to agree with IDPA that her reversal and subsequent retroactive application of the new policy was unfair and arbitrary. But we have held that the Secretary’s former short-lived policy was itself contrary to the statute and thus outside the scope of her discretion. And IDPA has cited no authority which would forbid recoupment of funds paid out unlawfully under the Act.

Because the Secretary’s former policy was unlawful, IDPA’s redress, if any, could conceivably lie under a theory of estoppel. The communications between HHS and IDPA raise a plausible question that an estoppel was created. The Board considered and rejected the estoppel theory. Although IDPA alleged a theory of estoppel in its complaint, it scuttled this theory in its briefs on summary judgment, choosing to throw all of its eggs into one basket — the retroactivity issue. In light of this withdrawal, we need not review the Board’s rejection of the estoppel theory.

Conclusion

We affirm the result of the Board disallowing IDPA’s claim for the FFP in question. Although its conclusions about the existence of the Secretary’s former policy appear to us to be in error, it correctly ruled that that policy was inconsistent with Title XIX considered as a whole. We therefore grant the Secretary’s motion for summary judgment and deny Illinois’ cross-motion. It is so ordered.

      . States are not required to participate in the Medicaid program. If they chose to do so, the plan they submit to the Secretary of HHS must fulfill the requirements of Title XIX. See Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980). The plan describes the nature and scope of the state program and provides assurances to the Secretary of HHS that the State will administer the program in conformity with the requirements of the federal guidelines. 42 U.S.C. § 1396a(b); 45 C.F.R. § 201.20.

      . The State, of course, can volunteer to furnish medical assistance to these individuals. If, however, it furnishes assistance to individuals aged 22 to 65 in institutions for mental diseases, the State does so without federal reimbursement. Harris v. McRae, 448 U.S. 297, 311, 100 S.Ct. 2671, 2685, 65 L.Ed.2d 784 (1981).

      . Of course, in 1979 the Department was called "Health, Education and Welfare" or HEW. For simplicity, we have used the new name, HHS, throughout this opinion.

      . Although at some times during this case the Secretary was a "he,” we have used her current gender throughout this opinion.

      . It stated several reasons. First, as internal agency documents they were never issued to the States in the usual manner for authoritative statements of policy. Second, the August 21, 1980 memorandum, as well as several of the others qualified the interpretation to services "as indicated in the State Plan.” None of the States in No. 436, as well as IDPA in this case, had such services listed in their state plans. Third, the dissent mentioned above suggests a context in which the question was unsettled. Although central office indicated that the states should be advised that they ran no risk of disallowance, they were never so advised. Fourth, as a matter of policy, the Board felt it would inhibit future internal agency dialogue if internal agency documents could be relied upon by the States.

      . In Daughters of Miriam, the case IDPA relies heavily upon, the Secretary had had a policy allowing nursing homes to depreciate assets on an accelerated basis. She then reversed the policy in favor of a straight-line method of depreciation and tried to apply her new policy retroactively. The Court held that the retroactive application of the policy was unlawful. The major difference between that case and this one is that both policies in Daughters of Miriam were lawful and within the scope of the Secretary’s discretion.

        But even if the retroactivity analysis in that case were relevant, as IDPA claims it is, we are not so sure that analysis favors IDPA’s case. As IDPA recognizes, retroactivity is not per se unlawful. See E.L. Wiegand Division v. NLRB, 650 F.2d 463, 471 (3d Cir.1981), cert, denied, 455 U.S. 939, 102 S.Ct. 1429, 71 L.Ed.2d 649 (1982); see generally 4 K. Davis, Administrative Law Treatise §§ 20:5, 20:7, 20:8 (2d Edition 1983). Rather, courts must balance the public interest favoring retroactive application of a rule against the interests disrupted by retroactivity. See Daughters of Miriam, 590 F.2d at 1260 & n. 27. The balance here appears to favor the Secretary. Because she recognized that her former policy violated the Medicare Act, her decision to apply the new policy retroactively, is entitled to great weight:
      [Retroactive rules designed to cure defects in regulatory schemes, such as the Medicare program, are often sustained because the interest in the retroactive curing of such a defect in the administration of government outweighs the individual’s interest in benefitting from the defect.

        Id. (Quotation omitted). Here the public interest strongly favors a policy which squares with the Act. On the other side of the ledger, Illinois stands to lose what it has gained from the incorrect interpretation of the Act. But it would have spent the funds in question regardless of what the Secretary did. True, reimbursement would open up other funds for use by the state, but this benefit does not outweight the harm caused by letting the faulty reading of the Act go uncorrected. See E.L. Weigand, 650 F.2d at 471 (significant statutory interests may “counterbalance” any inequities of retroactive applications).


author: JOHN T. NIXON, District Judge.

text:
    William GROSECLOSE, et al. v. Michael DUTTON, et al.
    No. 3-84-0579.
    United States District Court, M.D. Tennessee, Nashville Division.
    May 24, 1985.

      Larry Woods, Jinx Woods, William J. Marett, Jr., and Irwin Venick of Woods, Bryan, Woods & Watson, Nashville, Tenn., for plaintiffs.
    Bill Redick, Richard McGee, Nashville, Tenn., and Hal Hardin, Guardian ad Litem, Nashville, Tenn., for Harries.
    William M. Leech, Jr., Atty. Gen., State of Tenn., John Southworth, Robert Grunow, Robin J. Mitchell, Asst. Attys. Gen., Nashville, Tenn., for State of Tenn.
   MEMORANDUM

JOHN T. NIXON, District Judge.

This is a bifurcated case that was originally filed as a next friend action by William Groseclose, Reverend Joseph Ingle, the Southern Coalition on Jails and Prisons, and the Tennessee Chapter of the American Civil Liberties Union, individually, and on behalf of Ronald Harries. Groseclose and Harries are prisoners who are confined to Unit VI at the Tennessee State Penitentiary and have been sentenced to death. Although Mr. Harries had avenues open to appeal his sentence of death, he announced he would forego those appeals because of the adverse conditions of his confinement. Subsequently, the plaintiffs brought this action as next friends on his behalf. On June 7, 1984, this Court stayed Mr. Harries’ execution in order to determine his competency to act in his own behalf. The Court also ordered the defendants to cease administering antianxiety drugs to Mr. Harries. On June 8, 1984, Hal D. Hardin, Esq., was appointed as guardian ad litem to represent the interests of Mr. Harries. On June 11, 1984, the Court further ordered (1) the removal of Mr. Harries from death watch, (2) the extension of the stay of execution pending further orders of the Court, and (3) the setting of an evidentiary hearing. On June 22, 1984, Mr. Harries sought permissive joinder to act in his own behalf. A hearing was held on July 12, 13, and 16, 1984. At the hearing, the Court granted Mr. Harries’ motion to join, and the parties presented evidence that included all allegations raised affecting Mr. Harries’ decision to forego further judicial review of his conviction. These included the issue of competency and the issue of lack of voluntariness due to adverse prison conditions. On August 17, 1984, the Court issued a Memorandum and Order, which concluded that as a matter of law Mr. Harries was incompetent and that plaintiffs, therefore, had standing to challenge his decision to forego his appeals. The Court also stayed his execution pending final disposition of this proceeding. See Groseclose v. Dutton, 594 F.Supp. 949, 962 (M.D.Tenn.1984). Although the Court found that conditions in Unit VI had caused Mr. Harries to waive his rights of appeal involuntarily, the Court made no finding as to the constitutionality of the conditions in Unit VI. Id. at 961-62.

On November 9 and 13, 1984, the Court certified a class of those persons who are death sentenced inmates currently residing on death row and those future inmates who will be confined in Unit VI under sentence of death. After a hearing on December 18, 1984, the Court issued a preliminary injunction requiring the defendants to permit the plaintiff class to hold a congregate religious ceremony. Also on December 18, the Court issued an Order bifurcating the civil rights cause of action and the habeas corpus cause of action. The civil rights cause of action came on for trial on January 14, 15, 16, and 18, 1985. The following constitute the Court’s findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

A. Unit VI

Unit VI is a compound located within the confines of the Tennessee State Penitentiary. There are two visitation rooms at the front of the building. There are four walks, two outside walks that permit natural light through translucent glass and two inside walks with no natural light. Each walk contains fluorescent lighting that remains on twenty-four hours a day. Many inmates have fashioned cardboard shades in order to block the light while sleeping. There are two death watch cells that are separate from the walks and immediately adjacent to the death chamber. In order to enter the cellblock area, it is necessary to pass through one locked door and then through the locked door for each walk. Each cell is also individually locked. Outside the walks, but inside the cellblock, is a small room known as the law library. The defendants acknowledge that the room is merely a meeting room with some old law books in it. Between the walks are ventilation chambers, which also contain some of the plumbing for the cells. Immediately behind the facility is a small exercise yard with a steel mesh sheet overhead. The yard is approximately twenty feet in width and sixty feet in length. At one end of the yard is a covered passageway leading to a larger exercise yard, which contains basketball facilities. The large exercise yard is shared with Unit I.

B. The Cells

Nine cells in Unit VI are approximately thirty-five square feet, and the remaining thirty-nine cells are approximately forty-four square feet. Although only one inmate is housed in each cell, each cell contains a double bunk. With the space taken up by the bunk, an inmate has enough room to take approximately three paces, turn around and take three paces back. Each cell contains a combination toilet and wash basin, and some cells have old-fashioned concrete toilets. Although replacement commodes made of stainless metal have been available for two years, they have not been installed in all cells. Homemade repairs, such as cardboard lids, are used to try to reduce the odor associated with the toilets. The cells do not contain windows. Ventilation and odors have been a serious problem in Unit VI. Often the stale air, laden with cigarette smoke, malodorous emissions from toilets, and paint fumes, make existence in the cells extremely uncomfortable. Insect infestation is a problem for the inmates. Defendants acknowledge that some inmates do not use bug spray in their cells because of the added odor from the insecticides.

There is no natural light on walks 2 and 3 and minimal sunlight on walks 1 and 4. The State provides a single low wattage light bulb that renders reading difficult if not impossible for any prolonged period. Dr. Dorothy 0. Lewis, a Professor of Psychiatry at New York University, Bellevue Medical Center, and a clinical Professor of Psychiatry at Yale University Child Study Center, testified that both the cells and the walk on which Mr. Harries was housed were very dark. Dr. Seymour Leon Halleck, a Professor of Psychiatry at the University of North Carolina Medical School and Adjunct Professor of Law at the University of North Carolina Law School with extensive experience in criminology, described the walks on Unit VI as giving one a sense of being entombed. The lack of natural lighting has had an adverse impact on the sleep cycle of many, if not all, inmates. Many inmates remain in their bunks twenty hours a day or more.

Inability to regulate indoor temperatures in the summer and winter also presents significant problems for the inmates. The evidence indicates that in the summer temperatures in the mid-eighties and higher are common. Inmates sometimes must remove their clothing because of high temperatures. Dr. Halleck testified that after he spent part of a rainy, cold day inside Unit VI, he left the facility “shivering.” Transcript of Proceedings, January 14, 1985, at 39 (hereinafter cited as “Transcript”).

Dr. Lewis testified that, based on her tours of death rows in several states, Tennessee had the worst death row that she had seen. She compared it to cages in a zoo. Dr. Halleck testified that of the death rows of which he was aware, it was the worst in the nation in terms of the deprivations, lack of exercise, and lack of human contact. Dr. Harold Jordan, former Commissioner of Mental Health for the State of Tennessee, described the conditions as inhumane, deplorable, and completely lacking any stimuli. Reverend Joe Ingle concluded, based upon his experience as Director of the Southern Coalition on Jails and Prisons, his numerous publications about death rows and death penalty cases, and his visits to every death row in the South, that because of the “extraordinarily long hours that the men are locked down in their cells, the overwhelming idleness of the men ... and the lack of programs available for the men and the absence of diagnostic and classification procedures to identify their respective personalities, traits, and problems [,] ... the conditions and circumstances under which condemned men are confined on the Tennessee death row fail to afford even minimal levels of basic human decency____” Expert Testimony of the Reverend Joseph B. Ingle pursuant to Local Rule 11, Plaintiffs’ Exhibit 205, at 21. Ingle considered only the Louisiana death row worse because of its lack of electricity and “dog runs” for exercising the inmates.

C. Classification

The defendants use no system of classification for the inmates housed in Unit VI. All death sentenced inmates are considered the same in terms of security risk and needs. The only classification they go through is completion of a one page personal data information sheet. Individuals are assigned to Unit VI based entirely on their sentences and, rather than undergoing normal classification procedure, they are automatically assigned the most restrictive classification, “mandatory segregation.” That classification is changed to a less restrictive classification only if the sentence of death is lifted. Ronald Bishop, Deputy Commissioner of Corrections, testified that the officials do not normally conduct any psychological or personality testing of the inmates sentenced to death. Although some death sentenced inmates have been classified, that classification has had no impact on their treatment while confined to Unit VI.

All other inmates in the Tennessee penal system are routinely classified by administration of psychological testing, personality testing, aptitude tests, medical and dental examinations, initial entry counseling, and similar methods. The classification system mandated by state law is used to determine what level of security is required for the inmate and what the needs of the inmate are. Classification enables the institution to identify violent tendencies and escape risks from those with minimal escape tendencies.

The plaintiff class is composed of individuals who have been convicted of murder with aggravating circumstances. For this reason the prison administration has determined that these individuals must be segregated from the general prison population. From the evidence presented at trial, it is clear that there is disagreement among professional correctional authorities as to whether segregation of death sentenced inmates is necessary.

D. Out of Cell Time

The evidence indicates that the inmates typically spend more than twenty-two hours per day locked in their cells. The inmates may leave their cells for one hour of outdoor exercise daily in the small exercise yard. This yard contains weights, a bench, and a punching bag. The small yard is completely enclosed, including the steel mesh “roof” through which officers view the inmates while they are in the yard. Once every four days the inmates use the large exercise yard, which is shared with Unit I. No inmates from Unit I are in the larger yard when the Unit VI inmates are using it. Inmates are permitted to shower immediately after their exercise as part of their one hour exercise period.

Within the building in which the cells are located are two visitation rooms and one room known as the law library. The visitation rooms are used only for inmate contact with the outside world. The “law library” is a small room used by individual inmates or by small groups of inmates. Inmates must sign up to use the law library, and the typical waiting period is three days.

Inmates also may receive out of cell time by acting as “rockman.” One man from each walk may volunteer and serve as a rockman, and the positions are rotated daily. The designated rockman cleans the walk, collects trays, and talks with the other inmates on the walk. Five inmates rotate as rockman for the area on the crosswalks in Unit VI.

Death row inmates are not permitted access to the commissary, although they may order items from it. They have no access to the gymnasium, nor do they have access to work programs. The inmates may not visit the prison’s law library, although they may order books from it. With the exception of the ceremony pursuant to this Court’s Order of December 18, 1984, inmates are not allowed congregate religious ceremonies, although they may meet with ministers in the visitation rooms. The inmates are not allowed to have formal educational classes. Inmates have no access to a dining area and must eat their meals alone in their cells. The defendants maintain that all of these restrictions have been imposed for valid security reasons.

E. In Cell Time

There are prolonged periods of idleness in Unit VI because the institutional policy is one of “deadlock,” which means that the death sentenced inmates are to be locked down twenty-four hours a day, except when exercising, showering, or receiving a visitor. As Warden Dutton admitted, this means that inmates are confined to their cells more than twenty-two hours each day. Defendants do little to alleviate the boredom, and the inmates are largely powerless to take any steps to relieve the tedium.

The extremely cluttered and crowded conditions in the cells preclude exercise opportunities within the cells. Religious counseling in the inmates’ cells is no longer available. There are no in cell work programs. The State does not pay for correspondence courses. Especially in the summer, the heat and poor ventilation combine to inflict even more lethargy and idleness upon the inmates. Although radios and televisions are not provided by the State, many inmates possess them and thereby while away their in cell hours. Although radios and televisions may be necessities to the inmates, their collective blare only adds to the overall sense of defeat that prevails in Unit VI.

The prison counselor visits inmates in the cells for short periods of time and, considering the proximity of the cells, private conversations with him are impossible. Only one counselor is assigned for all forty-four inmates on death row, and that person is also the sole counselor for Unit I, which has over eighty inmates. As Dr. Halleck testified, “[t]he absence of any kind of work, the absence of any kind of education, the absence of any kind of group meeting and primarily the absence of any opportunity to talk to anybody except by screaming across the cells, that kind of inactivity ... makes for depression and lethargy.” Transcript, at 35.

F. Necessities

There is no evidence before the Court to indicate that the food provided the inmates on Unit VI is not nutritious. However, all meals must be eaten in the cells, often near a malodorous cement commode. Medical services regarding physical ailments appear to be adequate. Sick call occurs daily, and there is no indication that inmates who have emergency medical needs are ignored. The most evident medical problem of a physical nature is the lack of out of cell opportunities and consequent deterioration of physical health.

The emotional needs of the inmates are another matter. The Court finds that the evidence is overwhelming that the defendants have not provided the inmates with adequate psychological and psychiatric assistance necessary for one confined and sentenced to death. Dr. Halleck testified that inmates facing a sentence of death have emotional problems that are different from those of other inmates. Virtually all witnesses who testified as to conditions at Unit VI supported the idea that emotionally the inmates housed there were different from the remainder of the inmate population. The only effort by defendants to deal with these problems is to make available the counselor, George Keeling, who meets with the inmates at their cells without benefit of privacy for a total of one to two hours per week for the entire Unit VI population.

G. Fire Safety

The defendants’ policies require that fire evacuation training and a fire drill be conducted every three months. Warden Dutton admits that this policy has never been followed in regard to Unit VI. In the event of a fire in Unit VI, evacuation of the inmates housed there would be extremely difficult. First, the two outside doors would have to be unlocked.I. Then each cell must be unlocked individually. There have been no walk-through fire drills with the inmates in Unit VI and consequently the risk of injury and death to the inmates in the event of a fire is substantial. In the event of a serious fire, the gate from the small exercise yard to the large exercise yard presumably would also have to be unlocked to find safety for the inmates. In order to alert the guards to a fire, the inmates must shout through the doors, and there have been situations when it was extremely difficult to get the attention of a correctional officer. Several fires have occurred in Unit VI.

H. Access to the Courts

All of the inmates on death row have attorneys. Furthermore, they may request books from the prison’s library and may request meetings with an inmate law clerk.

I. Contact with the Outside World

Inmates in Unit VI may meet with their attorneys at reasonable hours without restriction in the visitation rooms. In addition, personal visitation is permitted in the visitation rooms. Inmates are limited to two visitors per week for one or two hours for each visit depending on the distance that the visitor must travel. There are often lengthy waits of two to three hours for visitors. There are two telephones available to the inmates daily for a total of two hours per walk. Those telephones can be used to make collect calls only. In addition, a pay telephone is available in the big exercise yard, which the inmates may visit for approximately one hour every four days.

J. Officer Training

The correctional officers assigned to Unit VI have received training at either the Tennessee Corrections Institute or the Tennessee Corrections Academy, They have no special training for working on death row.

II. DEATH ROW AND THE HISTORY OF THE EIGHTH AMENDMENT

The conditions for inmates housed on death row must receive the special attention of the courts, both because of the history of the Eighth Amendment and because of the effects on human beings of the unique punishment to which these inmates have been sentenced. It is appropriate to examine the history of the Eighth Amendment in an attempt to resolve issues pertaining to treatment of those sentenced to death.

The courts have historically held that the Eighth Amendment was adopted to prevent inhuman, barbarous, or tortuous punishments. See, e.g., Hemans v. United States, 163 F.2d 228, 237 (6th Cir.), cert, denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380 (1947). See also Weems v. United States, 217 U.S. 349, 370-71, 30 S.Ct. 544, 550-51, 54 L.Ed. 793 (1910). The Eighth Amendment to the Constitution is the exact language of "the English Bill of Rights of 1689.. A. Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif.L.Rev. 839, 840 (1969) (hereinafter cited as “A. Granucci”). It was also contained in the Bill of Rights of Virginia, and it was contained in many constitutions that were adopted by the original states in 1776. Id. The language was not contained in the original Constitution or in the Articles of Confederation.

During the debate over the ratification of the Constitution, one of the serious objections was that there was no Bill of Rights. Objections from delegates from Massachusetts, and vigorous objections from George Mason and Patrick Henry in the Virginia delegation, raised serious concerns not only about the absence of a Bill of Rights, but also about the lack of a prohibition against inhuman treatment. Id. at 840-41. Their fear was that cruel and inhuman treatment would be permitted absent the language of the Eighth Amendment.

The record of the First Congress does not afford much insight in regard to the Eighth Amendment. In order to understand what the founding fathers and the legislators at the First Congress intended when they adopted the prohibition against cruel and unusual punishment, it is necessary to examine the English history of punishment.

Because under the Normans fines rather than corporal punishment were imposed, the Magna Carta’s reference to the concept of excessive punishment apparently involved only fines. By the time of Edward I, however, corporal punishment had become a basic punishment. 2 F. Pollock and F. Maitland, The History of English Law 530-31 (2d ed. 1923). Misdemeanors were punishable by whipping, by mutilation, by removal of a hand or an ear, and grand larceny, being a felony, was punishable by decapitation. Id. at 495-96.

Treason carried a particularly harsh punishment. Pollock and Maitland, in their history of the law of England prior to Edward I, mention the unfortunate Duke of Wales who was drawn for treason, hanged for homicide, cut down while still alive, disemboweled for sacrilege, and then beheaded for conspiring to kill the king. Id. at 501 and n. 1. As late as 1782 in the case of David Tyree, the Court pronounced sentence as follows:

Mr. Justice Heath.
You, David Tyrie, are to be led from hence to the gaol [sic] from whence you came; and from thence you are to be drawn, upon a hurdle, to the place of execution; and there you are to be hanged by the neck; and being alive, to be cut down, and your privy members to be cut off, and your bowels to be taken out of your belly, and there burnt, you being alive: and your head to be cut off, and your body to be divided into four quarters; and that your head and quarters to be disposed of where his majesty shall think fit.

21 T. Howell, A Complete Collection of State Trials 844 (1814). In reaction to these harsh and barbarous acts, the English Bill of Rights, which was adopted in 1689, specifically evinces the English disapproval of cruel and unusual punishment.

It is evident that the prohibitions in the Eighth Amendment evolved primarily from the concern for the manner in which individuals would be put to death. Although Tennessee has determined that the punishment for aggravated murder should be execution, those who have been condemned are entitled to a dignified death within the bounds of the Eighth Amendment. See Groseclose, 594 F.Supp. at 962; Autry v. McKaskle, 727 F.2d 358, 363 (5th Cir.), cert, denied, — U.S. —, 104 S.Ct. 1458, 79 L.Ed.2d 906 (1984). The Supreme Court has stated that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958), a purpose which illegitimates punishments that result in the destruction, denial, or degradation of the humanity of a criminal. See McCray v. Burrell, 516 F.2d 357, 367 (4th Cir.1975), cert, dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976); Gray v. Creamer, 376 F.Supp. 675, 679 (W.D.Pa.1974). The history of the Eighth Amendment makes it clear that the prohibition against cruel and unusual punishment has, as a principal focus, the denial of unreasonable treatment of the individual prior to execution.

III. CONCLUSIONS OF LAW

In Grubbs v. Bradley, 552 F.Supp. 1052 (M.D.Tenn.1982), the Court included Tennessee State Penitentiary where Unit VI is located in its finding that the conditions of confinement in Tennessee’s Adult Prison System violated constitutional standards. Id. at 1070-72. Two years later this action was brought challenging the conditions in Unit VI alone. This Court will not relitigate the issues raised in Grubbs, but it will examine the impact of the changes in the conditions and policies of Unit VI since the findings of fact in Grubbs in 1982 for the following reasons. First, many of the conditions raised in this action were not addressed by the Court in Grubbs. See Groseclose, 594 F.Supp. at 958-59 n. 5. Second, when the Court made its findings in Grubbs, there were only nineteen inmates sentenced to death in Unit VI; there are now approximately forty-four persons sentenced to death and confined in that unit. Thus, the Court will examine the conditions in Unit VI to the extent that this increase in inmate population has significantly altered the conditions in Unit VI.

Third, when Warden Michael Dutton became warden at the Tennessee State Penitentiary, he made significant policy changes that greatly increased the restrictions on the inmates confined to Unit VI. These changes included elimination of commissary visits, religious services, group dinners, and visits to the gymnasium. The effect of these changes was clearly to make Unit VI a separate “prison within a prison.” Therefore, the Court will also examine the conditions in Unit VI to the extent that these changes have significantly altered the conditions in Unit VI since the Court’s findings in Grubbs. Finally, as a practical matter, the Court must examine the conditions on death row because of this Court’s finding that the conditions in Unit VI had caused Mr. Harries to waive his legal rights involuntarily and had contributed to his mental illness. Id. at 961. Mr. Harries’ personal claim was not at issue in Grubbs. Thus, the Court’s conclusions of law as to the constitutionality of conditions in Unit VI will be limited to changes in conditions and changes in policies that significantly affect the conditions on death row since the findings of fact in Grubbs.

Traditionally, federal courts have been reluctant to interfere with the administration of state prisons. See Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). However, increasing pressure for prison reform has resulted in broad based judicial intervention in challenges to the constitutionality of entire prison systems. See, e.g., Cody v. Hillard, 599 F.Supp. 1025 (D.S.D. 1984); Dawson v. Kendrick, 527 F.Supp. 1252 (S.W.Va.1981); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), affd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), rev’d in part, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114, cert, denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). Federal courts no longer limit the prohibition against cruel and unusual punishment to specific acts directed at specific individuals; rather, it is applicable to the general conditions of confinement prevailing in state prisons. E.g., Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert, denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Williams v. Edwards, 547 F.2d 1206 (5th Cir.1977); Gates v. Collier, 501 F.2d 1291 (5th Cir.1974); Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977), affd, 616 F.2d 598 (1 Cir.), cert, denied, 449 U.S. 839,101 S.Ct. 115, 66 L.Ed.2d 45 (1980).

In cases challenging overall prison conditions and practices, courts often apply a totality of conditions analysis. See Inmates of Allegheny County Jail v. Wecht, 565 F.Supp. 1278, 1295 (W.D.Penn.1983); Dawson v. Kendrick, 527 F.Supp. at 1285. Properly applied, this approach requires examination of each element of the challenged prison conditions, recognizing the impact of its interdependent existence. Id. This analysis was employed by the Supreme Court in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in affirming a remedial order of the lower court:

The court was entitled to consider the severity of ... [past constitutional] violations in assessing the constitutionality of conditions in the isolation cells. The court took note of the inmates’ diet, the continued overcrowding, the rampant violence, the vandalized cells, and the “lack of professionalism and good judgment on the part of the maximum security personnel.” The length of time each inmate spent in isolation was simply one consideration among many. We find no error in the Court’s conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment.

437 U.S. at 687, 98 S.Ct. at 2571 (citation omitted).

Totality of conditions analysis is in contrast to what has been described as “discrete adjudication.” See Comment, Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv.L.Rev. 626, 628 (1981).

In discrete adjudication, the explicit target of the lawsuit is a particular incident or practice. Within the prison context, examples of discrete adjudication can be found in recent Supreme Court cases reviewing constitutional challenges to particular aspects of prisons. At issue may be the validity of a parole procedure, or of rales restricting specific inmate activity such as. a ban on soliciting for a prisoners’ union. The Court’s analytical approach in these cases exemplifies the essential character of discrete adjudication.

Id. (footnotes omitted). Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), is illustrative of the discrete adjudication approach. In Bell, one of the issues was whether a regulation prohibiting an inmate’s receipt of hardback books not mailed directly from the publisher was in violation of the First Amendment. Id. at 550-52, 99 S.Ct. at 1880-81. The Supreme Court found the regulation constitutional because the prohibition was a rational response to a security problem, it was executed in a neutral manner, and alternative means of obtaining reading material were available. Id. Similarly, in Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), the Court held that neither the First Amendment nor the Equal Protection Clause were violated when prison officials prohibited a prisoners’ union from soliciting other inmate members, barred union meetings, and refused to permit distribution of union publications. 433 U.S. at 131-36, 97 S.Ct. at 2540-43. “The primary constitutional concern in the discrete adjudication of isolated issues is the determination of the rationality of a given practice or policy in relation to a fundamental constitutional right.” Dawson, 527 F.Supp. at 1285 (footnote omitted).

The semantical line between prison conditions and prison practices cannot always be clearly drawn. Totality of conditions analysis is applicable to consideration of the physical conditions of confinement, whereas discrete adjudication necessarily assumes that a challenged practice is not of an interdependent nature and, therefore, may be isolated for purposes of constitutional analysis. Id. at 1285 n. 26. This distinction is particularly significant to the case at bar. Although petitioners’ allegations and proof merit application of the totality of conditions approach, many of the challenged conditions and practices, such as inmate access to the courts, require consideration on a discrete adjudicatory basis in keeping with Supreme Court precedent. Id. at 1285. See, e.g., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Although conditions of confinement are unquestionably a proper subject for Eighth Amendment scrutiny, Hutto, 437 U.S. at 685, 98 S.Ct. at 2570, the Supreme Court has failed to articulate a specific method for examining these conditions. As a result, lower federal courts have struggled to define the totality of conditions approach. See, e.g., Watson v. Ray, 90 F.R.D. 143 (S.D.Iowa 1981); Lightfoot v. Walker, 486 F.Supp. 504 (S.D.Ill.1980). The courts have sought a judicial tool that would permit intervention without unnecessarily expanding the scope of the Eighth Amendment. See Comment, Challenging Cruel and Unusual Conditions of Prison Confinement: Refining the Totality of Conditions Approach, 26 How.L.J. 227, 230 (1983) (hereinafter cited as Comment, Refining the Totality Approach).

In Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the Supreme Court considered for the first time the limitation that the Eighth Amendment imposes upon the conditions in which a state may confine those convicted of crimes. Id. at 344-45, 101 S.Ct. at 2398. The response of the Rhodes Court to the need for conformity among the circuits was to offer the following guidelines to be applied in conditions cases.

No static “test” can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 [78 S.Ct. 590, 2 L.Ed.2d 630] (1958) (plurality opinion). The Court has held, however, that “Eighth Amendment judgments should neither be nor appear to be merely the subjective views” of judges. Rummel v. Estelle, 445 U.S. 263, 275 [100 S.Ct. 1133, 1139, 63 L.Ed.2d 382] (1980). To be sure, “the Constitution contemplates that in the end [a court’s] own judgment will be brought to bear on the question of the acceptability” of a given punishment. Coker v. Georgia, 433 U.S. 584, 597 [97 S.Ct. 2861, 2868, 53 L.Ed.2d 982] (1977) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 182 [96 S.Ct. 2909, 2929, 49 L.Ed.2d 859] (1976) (joint opinion). But such “ ‘judgments] should be informed by objective factors to the maximum possible extent.’ ” Rummel v. Estelle, 445 U.S. at 274-75 [100 S.Ct. at 1139-40] (quoting Coker v. Georgia, 433 U.S. at 592 [97 S.Ct. at 2866]).

Rhodes v. Chapman, 452 U.S. at 346, 101 S.Ct. at 2399 (short form citations modified to avoid ambiguity).

Although the Court avoided an explicit affirmation of the totality of conditions approach, the majority clearly indicated that a totality test should be applied. “[C]onditions [,] ... alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities.” Id. at 347, 101 S.Ct. at 2399. In contrast to the majority opinion, Justice Brennan’s concurrence relied heavily on previous lower federal court prison conditions cases in outlining the application of the totality approach. Id. at 353 n. 1, 101 S.Ct. at 2402 n. 1 (Brennan, J., concurring). The concurrence states that prison conditions violate the Eighth Amendment when “ ‘the cumulative impact of the conditions of incarceration threatens the physical, mental, and emotional health and well-being of the inmates ____’” Id. at 364, 101 S.Ct. at 2408 (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 323 (D.N.H.1977). See also Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir.1980), cert, denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Since Rhodes, lower courts have consistently cited the majority opinion as support for a totality of conditions approach. See, e.g., Ruiz v. Estelle, 650 F.2d 555, 568 (5th Cir.1981), cert, denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir. 1981), cert, dismissed sub nom. Ledbetter v. Jones, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); Grubbs v. Bradley, 552 F.Supp. 1052, 1121 (M.D.Tenn.1982).

This Court is aware of the abundance of cases advocating deference to prison administrators in 42 U.S.C. § 1983 cases. See, e.g., Bell v. Wolfish, 441 U.S. at 547-48, 99 S.Ct. at 1878-79 (1979) (prison administrators should be accorded deference in the adoption and execution of policies that in their judgment are needed to preserve internal order, discipline, and security); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 126, 97 S.Ct. 2532, 2538, 53 L.Ed.2d 629 (1977) (the complex and difficult realities of running a penal institution require wide ranging deference to be accorded decisions of prison administrators); Brown v. Johnson, 743 F.2d 408, 410 (6th Cir.1984) (courts should ordinarily , defer to the expert judgment of prison officials in the daily operation of a correctional facility) cert, denied sub nom. Inosencio v. Johnson, — U.S. —, 105 S.Ct. 1190, 84 L.Ed.2d 336 (1985). Furthermore, the Supreme Court has reaffirmed the proposition that “ ‘[ljawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ ” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). See also Kendrick v. Bland, 740 F.2d 432, 437-38 (6th Cir.1984). Federal courts must therefore avoid usurping the function of the state legislative and executive branches and encroaching upon the role of state prison officials. Comment, Refining the Totality Approach, at 236. General concerns with federalism, however, will not prevent this Court from ameliorating cruel and unusual prison conditions if found to be warranted pursuant to the totality of conditions approach. “Courts certainly have a responsibility to scrutinize claims of cruel and unusual confinement____ When conditions of confinement amount to cruel and unusual punishment, ‘federal courts will discharge their duty to protect constitutional rights.’ ” Rhodes v. Chapman, 452 U.S. at 352, 101 S.Ct. at 2402 (quoting Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974)).

As noted above, no precise definition exists that identifies the point at which prison conditions violate the Eighth Amendment. In a totality analysis, a court will examine certain conditions that “do not rise to constitutional dignity but which aggravate the more serious defects and deficiencies.” Holt v. Sarver, 309 F.Supp. 362, 380 (E.D.Ark.1970), affd, 442 F.2d 304 (8th Cir.1971). If the aggregate conditions transgress constitutional standards, the court is then empowered to fashion an appropriate remedy. Although elements of this remedy, if considered alone, may extend beyond constitutional mandates, they may be invoked as part of a comprehensive plan to eradicate the Eighth Amendment violation. See Newman v. Alabama, 559 F.2d 283, 288 (5th Cir.1977), rev’d in part, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), cert, denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). See also Comment, Refining the Totality Approach, at 240.

In Smith v. Coughlin, 748 F.2d 783, 788 (2d Cir.1984), Lemuel Smith, a prisoner in a special unit for condemned persons in New York, challenged the restrictions imposed on him as a result of his confinement. Id. at 784. The prisoner was confined to a sixty square foot cell containing adequate lighting and ventilation. He had access to a radio and television twenty-four hours a day and the personal or legal materials of his choice. He was permitted to exercise daily from 8:30 a.m. until 3:30 p.m. in a yard measuring approximately twenty yards square and could receive visitors daily. Daily contact visits were permitted with either his attorney, a nurse, or a doctor, and weekly contact visits with a priest. He was allowed noncontact visits with a prison psychiatrist, members of his family, and four additional clergy. He was not allowed visits with lay religious advisors, friends, the press, employees of his attorney, or others, except by order of the court. In addition, he could not attend congregate religious services. Id. at 785.

Smith brought an action in federal district court pursuant to 42 U.S.C. § 1983 alleging violations of his First, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. In moving for injunctive relief, he contended that his confinement to the special unit and the associated restrictions on his behavior (1) deprived him of a liberty interest without due process of law, (2) subjected him to cruel and unusual punishment, (3) denied him equal protection of the laws, (4) denied him freedom of speech and religion, and (5) deprived him of access to the courts. Id. at 786. Smith sought contact visits with his mother, friends, and paralegals, interaction with fellow inmates, the right to attend congregate religious services, and the right to keep legal papers in his cell. He also testified that as a result of the totality of the conditions in the condemned persons unit, he had suffered psychological damage. Id. This physical and mental deterioration, he asserted, would result in his loss of will to fight his conviction through appeal and thereby violate his Sixth Amendment right of access to the courts. Smith v. Coughlin, 577 F.Supp. 1055, 1059 (S.D.N.Y.1983), affd, 748 F.2d 783 (2d Cir.1984).

The district court, citing Rhodes v. Chapman, found that the totality of the conditions of Smith’s confinement did not constitute cruel and unusual punishment. 577 F.Supp. at 1060-61. Although the court found that the ban on visits by paralegal personnel violated his Sixth Amendment right of access to the courts, no other constitutional violations were found. Id. at 1063. Regarding Smith’s claim that the adverse conditions of incarceration prior to execution would weaken his will and force him to surrender his right of appeal, the court found “no evidentiary basis that he is in imminent danger of voluntarily surrendering his right of access to the Courts.” Id. at 1062. His treating psychiatrist corroborated this finding, stating that although Smith suffered from anxiety, he was not suffering from a major disorder and his desire to reverse his conviction had not diminished. Id. at 1062-63.

The conditions of the death row in Coughlin and the conditions in the case at bar are vastly different. Smith’s cell was sixty feet square. Many cells in Unit VI are barely half that size. The adequacy of the lighting and ventilation was not in dispute. Testimony heard in the case at bar revealed serious inadequacies in ventilation, heating, cooling, and lighting. Smith had access to an exercise yard seven hours per day. Inmates confined in Unit VI are permitted one hour per day in a completely caged-in yard. In short, vast modifications of the policies and practices at Unit VI would have to occur before it would ascend to resemble the conditions of which inmate Smith complained. As an aside, the Court would note that the lack of an evidentiary basis for Smith’s claimed psychological debilitation was founded upon testimony of Smith’s psychiatrist of two years. The attention to a death row inmate’s psychological needs is conspiciously absent in the case at bar.

The tradition of deference to the decisions of prison administrators has survived the development of the totality of conditions approach. See Cody v. Hillard, 599 F.Supp. at 1046. Courts often invoke broad equitable powers in remedying constitutional deprivations, e.g., Newman v. Alabama, 683 F.2d 1312, 1320 (11th Cir. 1982), cert, denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983); Battle v. Anderson, 457 F.Supp. 719, 734-35 (E.D.Okla. 1978), and have been reluctant to impose comprehensive and intrusive remedies. See Lock v. Jenkins, 464 F.Supp. 541, 548-49 (N.D.Ind.1978), affd in part, rev’d in part, 641 F.2d 488 (7th Cir.1981) (federal courts should defer to prison officials as to the means by which unconstitutional conditions are corrected).

Because unconstitutional prison conditions infect the entire system of corrections, a comprehensive remedial scheme is the only method to insure continued compliance. Comment, Refining the Totality Approach, at 247. Although “[e]aeh factor separately ... may not rise to constitutional dimensions [,] ... the effect of the totality of these circumstances is the infliction of punishment on inmates violative of the Eighth Amendment____” Gates v. Collier, 501 F.2d 1291, 1309 (5th Cir. 1974). See also Alberti v. Heard, 600 F.Supp. 443, 457-58 (S.D.Tex.1984). A constitutional right is not being established for each aspect of the remedy. See Miller v. Carson, 563 F.2d 741, 751 (5th Cir.1977) (when the totality of conditions violates the Constitution, remedies are not limited to the redress of specific constitutional rights). Rather, “[e]ven if no single condition of confinement would be unconstitutional in itself, ‘exposure to the cumulative effect of prison conditions may subject inmates to cruel and unusual punishment.’ ” Rhodes v. Chapman, 452 U.S. at 363, 101 S.Ct. at 2407 (Brennan, J., concurring) (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 322-23 (D.N.H.1977)). See also Cody v. Hillard, 599 F.Supp. at 1047-48; Hendrix v. Faulkner, 525 F.Supp. 435, 525 (N.D.Ind.1981), affd in part, vacated in part sub nom. Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert, denied, — U.S. —, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984).

IV. CONCLUSIONS

The evidence presented in this action convinces the Court that individuals sentenced to death have unique psychological and emotional problems. Dr. Halleck testified not only that death row inmates generally experience serious psychological problems because of their sentence of death but that these problems are exacerbated if adequate counseling is not present, if inmates must remain idle for long periods of time, if heating and lighting are inadequate, and if the inmates are not properly classified so as to plan for their psychological needs properly. Transcript, at 33-42, 46. Mr. Gordon Chris Kamka, former Superintendant of the Maryland Reception Diagnostic and Classification Center, Warden of the Baltimore Jail, and Secretary of the Maryland Department of Public Safety and Correctional Services, testified that when inmates are subjected to long periods of isolation without access to religious services or programs to reduce the idleness and to eating in their cells next to their toilets, it is likely that they would lose hope, with the implication that, as Mr. Harries, they may choose not to pursue their legal rights. Transcript, at 290. Virtually all the witnesses testified that they feared that because of the anxieties and frustrations unique to death sentenced inmates, many of these individuals would be prone to outbreaks of violence. As a result, the Court concludes that those sentenced to death in Unit VI face unique psychological crises that inmates in the general population do not face. Consequently, the factors that go to a determination of whether the totality of conditions on death row constitutes cruel and unusual punishment should receive significantly different weights than the factors that are examined in a nondeath row conditions ease.

Upon consideration of the changes that have occurred since 1982, it is the judgment of the Court that the totality of conditions in Unit VI violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The principal concern of the Court is that the inmates remain idle and confined in their small cells for so much time. The cells are entirely too small to confine individuals for more than twenty-two hours a day, day after day. The temperatures in the cells vary excessively. Lighting in the cells is inadequate; many toilets are outmoded; and many cells are infested with insects.

Furthermore, there are conditions in the unit that seriously jeopardize the safety of the inmates. Inmates housed in Unit VI have a right to be protected against unreasonable threat of serious injury or death by assaults or fire. See Dawson v. Kendrick, 527 F.Supp. at 1289-90. The lack of a central locking system, the absence of fire drills, and the unsupervised freedom of the rockmen constitute serious safety problems, which the defendants must address.

The evidence before the Court further indicates that defendants largely ignore the emotional well-being of the inmates. Inmate interaction with other human beings is insufficient; there are no educational or work programs available; the inmates are not permitted access to a dining room or a gymnasium; they may not leave their cells to visit the commissary or law library; and exercise opportunities are minimal. Counseling services, although somewhat improved, are inadequate for so many men facing the death sentence. Of significant concern to the Court is that the inmates have no opportunity for congregate religious services.

The Court finds no constitutional problems with the inmates’ rights of access to the courts. In addition, the Penitentiary’s visitation policies are seemingly adequate. These practices will not be elements of the finding of unconstitutionality pursuant to the totality of conditions analysis.

It appears to the Court that a classification system incorporating psychological and personality evaluations could serve to alleviate the unconstitutional totality of conditions existing in Unit VI. Although the Fifth Circuit has cautioned that “[federal courts are extremely reluctant to limit the freedom of prison officials to classify prisoners as they, in their broad discretion, may deem appropriate, ...” Newman v. Alabama, 559 F.2d at 287, such a classification system may provide a method for prison administrators to insure the constitutional rights of inmates.

The Constitution does not expressly require states to develop prisoner classification plans for the incarceration of convicted criminals. In the past, we have approved district court orders that require state prisons to develop classification systems, but those orders were not predicated on an Eighth Amendment right to classification. They were used as remedies employed to eradicate abuses that were themselves unconstitutional. For example, when prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners, and the level of violence becomes so high as to constitute cruel and unusual punishment under the Eighth Amendment, federal courts have broad authority to eradicate such conditions and may order the development of a classification system as part of the remedy.

Jones v. Diamond, 594 F.2d at 1015 (emphasis in original).

In deference to the expertise and discretion of the prison administration, this Court does not intend to direct defendants to implement a system of classification of inmates confined in Unit VI. However, in that the totality of conditions existing within Unit VI is unconstitutional, substantial remedial measures are in order. Classification would seem to be a logical, economical, and effective means of achieving this constitutionally mandated end.

The average death row inmate spends six to ten years pursuing appeals. Death sentenced inmates are aware that their institutional record while on death row could influence their chances for clemency; but, perhaps more significantly, the presence of a classification system could have the effect of improving the mental and physical health of the inmates. Specifically, inmates could be classified to identify death row inmates with serious emotional problems. Classification could reveal those inmates, who could be allowed to participate in many out of cell activities such as group religious services, educational programs, work programs, group dining, indoor recreation, or fire drills. Classification could identify those inmates who could serve more safely as rockmen. Proper classification could also permit many inmates to be out of their cells long enough to allow the fumes from insecticides or paint to dissipate or to permit the installation of new toilets. Classification of inmates on death row need not involve the same procedures as with the general population. The inmates in Unit VI who receive a certain classification need not receive the freedoms given to inmates similarly classified in the general pbpulation. The Court found the testimony of witnesses Dutton, Rose, Pellegrin, and Henderson convincing that there were valid security concerns supporting the policy that those confined to Unit VI should be segregated from the remainder of the prison population. See Bell v. Wolfish, 441 U.S. at 546-47, 99 S.Ct. at 1877-78. Nothing in this Memorandum should be interpreted as requiring that the inmates sentenced to death in Unit VI should be integrated into the general population.

Under questioning by this Court, Warden Dutton acknowledged that with proper structural changes and other accomodations for security concerns, including more staff, the following changes in Unit VI could be accomplished for inmates classified “medium security” within a separate Unit VI classification system: (1) the visitation rooms could be used for weekly meals for four inmates at a time; (2) the day room (“law library”) could be used more often; and (3) a group religious ceremony could be held, perhaps on Monday nights. It is the opinion of this Court that Warden Dutton’s testimony is indicative of the potential curative effect of classifying the death row population. Dutton preferred to refer to such proposed changes as “program needs.” Transcript, at 726-27. The onus of correcting the unconstitutional conditions existing at Unit VI is on the defendants. Regardless of the approach or its label, each condition contributing to the unconstitutional totality must be addressed.

A special master, to be appointed by the Court, will work in conjunction with the defendants to prepare a comprehensive plan to abate the unconstitutional conditions prevailing at Unit VI. This plan will encompass the physical characteristics of the Unit and the cells, the policies and practices of the defendants, and the physical and psychological needs of the inmates, all contributing to the totality of conditions currently existing. The Court reserves the right to add to, delete from, or modify the proposed plan in such a fashion as to effectuate the constitutionality of the totality of conditions of the Unit. An appropriate ORDER shall enter.

ORDER

In accordance with the Memorandum filed contemporaneously herewith, it is hereby DECLARED that the totality of the conditions existing at Unit VI of the Tennessee State Penitentiary amount to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The parties shall, within thirty (30) days of the issuance of this ORDER, submit to the Court the name of an individual to serve as special master pursuant to FED.R.CIV.P. 53. In the event the parties are unable to agree on a person to serve as special master, each party shall submit two (2) recommendations of individuals who have not been witnesses in this case to the Court by that date, and the Court will determine who shall serve. Within ninety (90) days of the appointment of the special master, defendants will submit a good faith plan to the Court to remedy the unconstitutional totality of conditions found within Unit VI.

The special master is to work in conjunction with the defendants in formulating the proposed plan. Objections to the plan will be filed within ten (10) days of its filing. The Court reserves the right to modify the plan should it fail to remedy the unconstitutional totality of conditions, and the Court shall retain jurisdiction of this cause pending complete implementation of an adequate remedy.

      . Mr. Harries was also represented at the time and throughout these proceedings by Richard McGee, Esq., and William Redick, Esq.

      . Aggravating circumstances include prior convictions, the nature and circumstances of the crime, or other factors. TENN.CODE ANN. § 39-2-203.

      . The Court notes that in its tour of Unit VI, it took a considerable period of time to unlock the doors for each walk.

      . The entire discussion of the Eighth Amendment at the First Congress is as follows:
      [T]he committee ... then proceeded to the sixth clause of the fourth proposition, in these words, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
      Mr. Smith, of South Carolina, objected to the words “nor cruel and unusual punishments;" the import of them being too indefinite.
      Mr. Livermore. — The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented,
      it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.
      The question was put on the clause, and it was agreed to by a considerable majority.
      1 Annals of Cong. 754 (1789).

      . The language referred to in the Magna Carta is as follows:
      A free-man shall not be amerced for a small fault, but after the manner of the fault; (1) and for a great fault after the greatness thereof, saving to him his contenement; (2) and a Merchant likewise, saving to him his Merchandise; (3) and any other’s villian than ours shall be likewise amerced, saving his wainage, if he fall into our mercy. (4) And none of the said amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage. [Amercement was essentially fining].
      Am.Jur.2d Desk Book 787 (1979).

      . The term “drawn" meant dragging.

      . The preamble to the Bill of Rights makes reference to cruel and inhuman treatment inflicted by James II. There is some question as to what the drafters of that language were referring. See A. Granucci, 852-60.
      Some say that the reference was to the trial of Titus Coates who had concocted a false story of a papist plot to assassinate Charles II, and as a result of what was referred to as his perjury, a number of innocent people were prosecuted and put to death. Coates was tried for perjury, convicted, and sentenced to life imprisonment. He was to be defrocked and to be flogged and pillaried four times a year. His appeal went to the House of Lords, and the conviction was upheld. It then went to the House of Commons, the lower house of the Parliament, and it was held that his sentence constituted excessive punishment. In addition, the Commons held that defrocking was a punishment that was beyond the authority of the temporal court. Id. at 856-60.
      Others say that that language — referring to James II — refers to what is known as the Bloody Assizes. Judge Jeffries, after Lord Montmouth’s unsuccessful rebellion, faced with the prosecution of hundreds and hundreds of people, and in a rather remarkable act of plea bargaining, told those accused that if they pled guilty they would not be put to death; but if they went to trial and were found guilty, they would be disemboweled and have their heads removed. There were over 500 guilty pleas as a result of this plea bargain, and those who went to trial were apparently tortured and put to death. Id. at 852-56.

      . The Supreme Court has recently addressed the issue of the importance of a psychiatrist to the protection of legal rights. See Ake v. Oklahoma, — U.S. —, 105 S.Ct. 1087, 1096-97, 84 L.Ed.2d 53 (1985).

      . The Court finds the testimony of the defendants’ expert James Henderson to be of minimal value in this case. Mr. Henderson is clearly an expert in prison administration, but on cross-examination, Mr. Henderson revealed no expertise as to death rows. In fact, the strongest thrust of Mr. Henderson's testimony was his evaluation of what was the proper administration of those inmates confined to Unit VI. For the reasons discussed in this Memorandum, the Court must avoid making administrative decisions relative to the operations of a prison.