E-Block is the area wherein most of the inmate population in
the 17 to 20 year old age group is housed. This area is also
overcrowded; inmates must sleep in extra bunks placed in the
dayroom area. Each cell in this area is occupied by more than
Members of the plaintiff class testified that various inmates
of Ward conversed with them about methods of committing crimes.
Jail officials conceded that there is no way, under present
conditions, to prevent such conversations. It was also conceded
that members of the plaintiff class received the same diet as
the general prison population, a diet which is admittedly
inadequate for growing adolescents. Additionally, members of
the plaintiff class are only allowed the standard two visits
per month from family members. Defendants also concede that
plaintiffs receive no rehabilitative treatment in Cook County
jail. Moreover, none of the jail guards receives any special
training in juvenile care. This is despite the fact that jail
officials recognize that juveniles present special problems for
penal institutions. Jail officials also admit that they are
unable to force certain members of the plaintiff class to
attend the school in the jail as required by state law. Even if
plaintiffs were to attend school, plaintiffs' expert presented
uncontradicted testimony that the school was grossly
inadequate. Additionally, no recreational program is provided
Plaintiffs presented uncontradicted expert testimony as to
the effect of the Cook County jail experience on members of the
plaintiff class. Plaintiffs' expert, Dr. Marvin J. Schwarz,
stated that the jail experience would cause a "devastating,
overwhelming, emotional trauma with potential consolidation of
[these children] in the direction of criminal behavior."
Plaintiffs' expert further testified that the 17 to 20 year old
residents of E-Block and the older residents of Ward 1 would
convey extremely destructive values to the plaintiff class. He
further noted that there were crucial psychological
distinctions between 13 to 16 year olds and 17 to 20 year olds
who are being processed through the criminal justice system.
From his personal knowledge of Cook County jail, plaintiffs'
expert testified that the jail did not and could not recognize
these distinctions. The expert also explained why plaintiffs
would prefer to remain on Ward 1 with older adults instead of
the 17 to 20 year olds housed in E-Block. The older
adolescents' peer group structures including the street gang
phenomenon present in the jail would viciously exploit the
younger group "sexually and otherwise." The Ward 1 residents
provide some protection against such dangers but still provide
highly destructive models for the children.
In sum, Dr. Schwarz testified that the initial period of
incarceration is crucial to the development of a young
juvenile: if improperly treated the child will almost
inevitably be converted into a hardened permanent criminal who
will forever be destructive toward society and himself. Dr.
Schwarz noted that this process will likely occur even if the
child is innocent and released from custody. Cook County jail
provides none of the psychiatric or educational services which
could ameliorate the effects of this period of incarceration.
In contrast to the treatment accorded children transferred to
adult jurisdiction, the County provides juveniles under
Juvenile Court jurisdiction extensive psychiatric and
educational services in the Audy Home. The Audy Home is a
recently built, short term detention center exclusively used
for children under the age of seventeen. It is a relatively
secure institution which can prevent its detainees from
escaping. It is composed of 29 individual units which are
designed to accommodate 16 to 18 persons. Only 20 of these
units are being used because the institution's population is
presently about 264. With present staff, the Audy Home could
hold 365 children, provided they fell into proper categories.
In operation, the institution separates children detained on
petitions from children detained because they are minors in
need of supervision (MINS) (children who have committed no
crime but who the Juvenile Court determines need court
supervision). Apparently the Audy Home also separates pending
delinquent detainees on the basis of age, seriousness of the
alleged offenses, and other social factors.
As a matter of course, Audy Home provides extensive medical,
psychological, casework and educational services to its
detainees. Recreational programs are provided. It provides an
adequate diet for juveniles. The Home allows two visits per
week for its detainees. Moreover, Dr. Schwarz testified that
the programs and environment of the Audy Home could prevent
many of the destructive elements of the initial incarceration
III. Legal Conclusions
A. Jurisdiction is proper under 42 U.S.C. § 1983
Defendants have moved to dismiss the instant complaint
asserting that a recent Supreme Court case, Preiser v.
Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973),
requires plaintiffs to exhaust state court remedies. The
Preiser Court held that when a state prisoner is challenging,
in federal court, the fact of his confinement, he cannot
disguise his action as a § 1983 claim but rather must resort to
the judicial remedy of habeas corpus. To obtain a writ of
habeas corpus in federal court a state prisoner must exhaust
his state court remedies. 28 U.S.C. § 2254(b). If a remedy
under the Civil Rights Act is available, a plaintiff need not
first attempt to seek redress in a state court forum. See,
e.g., Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20
L.Ed.2d 1319 (1968); Monroe v. Pape, 365 U.S. 167, 81 S.Ct.
473, 5 L.Ed.2d 492 (1961).
Defendants argue that plaintiffs' claim sounds in habeas
corpus. Some cases hold that when a prisoner challenges the
location of his incarceration a writ of habeas corpus is the
proper remedy. See, e.g., In re Bonner, 151 U.S. 242, 14 S.Ct.
323, 38 L.Ed. 149 (1894); Creek v. Stone, 126 U.S.App.D.C. 329,
379 F.2d 106 (1967); Leahy v. Estelle, 371 F. Supp. 951
(N.D.Tex. 1974). In these cases the applicant for the writ
argues that confinement in a certain place vitiates the
justification for his confinement. United States ex rel. Murray
v. Owens, 341 F. Supp. 722 (S.D.N.Y. 1972), rev'd on other
grounds, 465 F.2d 289 (2d Cir. 1972), cert. den.,
409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973).
In the instant action, plaintiffs directly attack the
conditions of their confinement. They seek transfer to another
institution only incidently as a matter of relief; if the
conditions of their confinement could be corrected within the
confines of Cook County jail, the alleged constitutional wrong
here would be corrected without transfer to another
institution. Thus, this suit attacks the conditions of
incarceration not the location thereof and the action is
properly brought under § 1983 without exhausting state
remedies. Edwards v. Schmidt, 321 F. Supp. 68 (W.D.Wis. 1971).
B. Standard of Review under the Eighth Amendment
The meaning of cruel and unusual punishment is not fixed. As
the Court stated in Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct.
590, 598, 2 L.Ed.2d 630 (1958):
"The [8th Amendment] must draw its meaning from
the evolving standards of decency that mark the
progress of a maturing society."
However, tests for cruel and unusual punishment have begun to
emerge. The severity or harshness of a punishment should not
offend the "broad and idealistic concepts of dignity, civilized
standards, humanity, and decency." Jackson v. Bishop,
404 F.2d 571 (8th Cir. 1968). Moreover, punishment cannot be
disproportionate to the offense. See, e.g.,
Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed.
793 (1910); Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974).
Under these standards courts have accorded juveniles a
particularly high standard of care. For instance, this circuit
has held that persons held under juvenile court jurisdiction
are entitled to adequate rehabilitative treatment. Nelson v.
Heyne, supra. Other courts have held that juveniles held under
juvenile court jurisdiction cannot be mixed with adult
prisoners. See, e.g., White v. Reid, 125 F. Supp. 647 (D.D.C.
1954); Stinnett v. Hegstrom, 178 F. Supp. 17 (D.Conn. 1959).
Contra United States ex rel. Murray v. Owens, supra. The
rationale for these decisions is that the high standard of care
required is a quid pro quo for society's right to exercise its
parens patriae control over juveniles in custody. In effect,
the Supreme Court has held that a juvenile is entitled to a
higher standard of custodial care in return for a more limited
set of rights during the adjudication process under the due
process clause. McKeiver v. Pennsylvania, 403 U.S. 528, 91
S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Winship, 397 U.S. 358,
90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1,
87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
In the instant action the strict rationale of the above cited
cases is inapplicable. Since the plaintiffs have been
transferred to adult authority, they will receive the full
panoply of criminal constitutional rights to which any adult
would be entitled. Defendants thus argue that plaintiffs are
entitled to no higher standard of care than any other detainee
in the criminal justice system. The Court cannot agree with
this proposition. Children between the ages of 13 and 16 are
not merely smaller versions of the adults incarcerated in Cook
County jail. As noted, the effect of incarceration in Cook
County jail on juveniles can be devastating. At present these
juveniles remain unconvicted of any crime and therefore must be
presumed innocent. Although the Eighth Amendment does not
mandate that this Court become a super-legislature or
super-administrator under these circumstances, the Court is not
powerless to act. Under the Eighth Amendment children who
remain unconvicted of any crime may not be subjected to
devastating psychological and reprehensible physical
conditions, and while other juvenile law cases are not strictly
on point, they recognize that juveniles are different and
should be treated differently. Thus, the evolving standards of
decency that mark the progress of a maturing society require
that a more adequate standard of care be provided for pre-trial
juvenile detainees. Plaintiffs therefore have demonstrated that
there is a likelihood of success on their Eighth Amendment
C. Plaintiffs' Equal Protection Claim
Plaintiffs also argue that their detention in Cook County
jail violates the equal protection clause. Under Ill.Rev.Stat.,
Chap. 38, § 1005-8-6(c), even if convicted in the adult
criminal justice system, a minor under the age of 17 still
cannot be confined with adults in the Adult Division of the
Illinois Department of Corrections. Apparently, juveniles under
17 who are convicted as adults are incarcerated in institutions
which theoretically provide adequate rehabilitative services.
Moreover, all juveniles under juvenile court jurisdiction
always receive these services. Plaintiffs argue that
incarcerated juveniles under adult jurisdiction who are
unconvicted can receive no less.
Under the equal protection clause this Court's review of
state action is limited. So long as the governmental action in
question is rationally related to a legitimate government
purpose the allegedly discriminatory action passes
constitutional muster. See, e.g., San Antonio Independent
School District No. 1 v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278,
36 L.Ed.2d 16 (1973). Measured against the effects of the
treatment accorded juveniles in Cook County jail the state has
yet to present a rational reason for its behavior.
Incarceration at Cook County
jail appears to be predicated on only slight administrative
convenience involving transportation of the juveniles to court
for hearings. This occurs about once a month. Defendants also
argue that Cook County jail is a more secure institution than
any other location in which the plaintiffs could be detained.
Evidence in the record does not support this contention.
No reason is given for the lack of rehabilitative services
for juveniles at the jail other than that defendants do not
believe plaintiffs are entitled to such services because they
have been transferred to adult jurisdiction. Plaintiffs'
argument on this point seems well taken. If the state provides
such treatment to convicted juvenile felons because of their
age it is irrational to deny unconvicted detainees the same
services under similar conditions. Unconvicted detainees can
remain in Cook County jail for up to two years. As Dr. Schwarz
stated, this period, particularly its earlier stages, is
crucial to the development of the juvenile. It seems irrational
to deny what the state admittedly considers essential services
and a controlled environment to juveniles during this crucial
period. Thus, plaintiffs, even under this limited standard of
review, have again demonstrated a likelihood of success.
D. Right to preliminary injunctive relief and the scope of
The award of a preliminary injunction is an extraordinary
remedy. The party seeking such relief has the burden of
establishing a prima facie case showing a reasonable
probability that he will ultimately be entitled to the relief
sought. The moving party must also show that irreparable harm
is likely to occur in the absence of interlocutory relief. He
must also demonstrate that issuance of an injunction will not
substantially harm other interested parties and that the public
interest generally requires issuance of an injunction. See,
e.g., Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1967); First
Citizens Bank v. Camp, 432 F.2d 481 (4th Cir. 1970).
Under these tests, plaintiffs have sustained their burden.
The Court has already determined that there is a likelihood of
success on both the Eighth Amendment and the equal protection
claims. Dr. Schwarz' testimony shows that continued
incarceration in Cook County jail under present conditions
causes irreparable harm. Moreover, it is evident that the
public interest commands interlocutory relief. A process which
almost invariably produces juveniles which act destructively
toward themselves and society must be corrected with dispatch.
The burdens of granting interlocutory relief in the form
requested by plaintiffs present more difficult problems.
Plaintiffs have requested that they be physically transferred
to Audy Home while awaiting trial. Defendants concede that Audy
Home can provide the minimum level of care required by
juveniles but they argue that transferring plaintiffs to the
Audy Home will threaten the morals of the other detainees at
the home. Audy officials, however, already have procedures to
segregate more allegedly serious offenders from less seriously
involved children. Moreover, Dr. Schwarz testified that the
quality of the acts which plaintiffs are charged with may not
necessarily affect their behavior in custody. Additionally, the
architecture of the home and its present population guarantee
that, if necessary, plaintiffs can be effectively isolated from
other detainees. Therefore, on balance the Court determines
that physically transferring the plaintiffs to Audy Home would
not place an undue burden on the defendants. Since the evidence
demonstrates that defendants cannot now provide adequate care
for juveniles at Cook County jail or segregate young juveniles
from older juveniles and adults and provide necessary support
services, plaintiffs — and all others similarly situated —
should be transferred to Audy Home where such an environment
and services are available.