Full opinion text
MEMORANDUM OPINION MYRON H. THOMPSON, District Judge. In this class-action lawsuit, the plaintiffs, who are inmates in the Alabama prison system, challenged the following four policies and practices employed by the prison system: (1) the use of “chain gangs”; (2) the use of “hitching posts”; (3) the denial of visitation rights to certain inmates; and (4) the failure to provide adequate toilet facilities to inmates on work squads. The plaintiffs claim that these policies and practices violated the first, fifth, eighth, and fourteenth amendments to the United States Constitution, as enforced through 42 U.S.C.A. § 1983. The plaintiffs named the Commissioner of the Department of Corrections (hereinafter “DOC”) as defendant. The subject-matter jurisdiction of the court has been properly invoked pursuant to 28 U.S.C.A. §§ 1331, 1343(a)(4). This lawsuit is now before the court on the recommendation of the United States Magistrate Judge. In it, she recommends the following: (1) the approval of the parties’ settlement of the plaintiffs’ challenge to the use of chain gangs, including certification of a plaintiff class as to this claim; (2) the approval of the parties’ settlement of the plaintiffs’ claim that inmates on work release are not provided adequate toilet facilities; (3) the certification of a plaintiff class as to the plaintiffs’ remaining two claims, the visitation-privileges claim and the hitehing-post claim; (4) a holding that the denial of visitation privileges to certain inmates is constitutionally impermissible; and (5) a holding that the use of the hitching post is constitutionally impermissible. For the reasons that follow, the court accepts the Magistrate Judge’s recommendation to the following extent: (1) the chain-gang settlement is approved and a plaintiff-class certified; (2) plaintiff classes are certified as to the plaintiffs’ visitation-privileges claim and their hitching-post claim; and (3) the DOC’s use of the hitching post is held to be unconstitutional, albeit only as to the manner in which the hitching post is generally used. The court rejects the Magistrate Judge’s recommendation as to following matters: (4) the DOC’s visitation-privileges policy is not unconstitutional; and (5), at this time, the toilet-facilities settlement is not be approved. The court will, however, enter a supplemental order setting forth the procedures necessary for the court to approve the toilet-facilities agreement. I. STANDARD OF REVIEW The court makes a “de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made.” Fed.R.Civ.P. 72(b); 28 U.S.C.A. § 636(b)(1). The court “may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.” Id.; see also United States v. Raddatz, 447 U.S. 667, 673-84, 100 S.Ct. 2406, 2411-16, 65 L.Ed.2d 424 (1980). II. SETTLEMENT OF CHAIN-GANG CLAIM On May 3, 1995, the DOC Commissioner implemented a “chain gang” prison labor policy. Pursuant to this policy, inmates assigned to a chain gang were shackled by leg irons in groups of five; they were separated with eight feet of chain between them. The inmates, who were required to wear white uniforms with “CHAIN GANG” printed in black, were then taken to public highways or work sites on DOC property where they performed manual labor in ten-hour shifts. One to two corrections officers supervised 25 to 40 inmates, who remained shackled to each other throughout the day, including during mealtime. The type of work the inmates performed included cutting grass, picking up litter, and breaking apart rocks. Although unused for the past 30 years, chain gangs have a long, sordid history in the State of Alabama. During the Reconstruction era, chain gangs provided an alternative to rebuilding the penal institutions that were destroyed during the Civil War; they also served as a cheap form of labor. The majority of these chain-gang inmates, who died at enormously high rates due to the brutal conditions, were African-Americans. See Lynn M. Burley, History Repeats Itself in the Resurrection of Prisoner Chain Gangs, 15 Law & Ineq. 127, 129-130 (1997) (discussing history of the use of chain gangs). Chain gangs were later incorporated into the convict-lease system, whose atrocities have been well-documented. See, e.g., C. Vann Woodward, Origins of the New South: 1877-1913 214-215 (1951) (“For the Southern convict-lease system a modern scholar can ‘find parallel only in the persecutions of the Middle Ages or in the prison camps of Nazi Germany.’ ”) (citations omitted); Benno Schmidt, Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases, 82 Colum. L.Rev. 646, 651 (1982) (“Alabama Governor Thomas E. Kilby in 1919 declared his state’s convict-lease system ‘a relic of barbarism ... a form of human slavery.’”) (citations omitted). Although the DOC’s modern version of the chain gang differs in many respects from these earlier models, the return of chain gangs to Alabama’s roadsides has provoked much concern from commentators, as well as jurists, about reviving a practice with such heinous roots. See, e.g., Alabama v. Engler, 85 F.3d 1205, 1210 (6th Cir.1996) (Jones, J., concurring) (noting that a fugitive from Alabama, whom the Sixth Circuit held should be extradited by the State of Michigan, “will be tossed into a prison system that has adopted the barbaric ‘discipline’ of the chain gang. This perpetuation of injustice cloaked in the tattered cloth of the Alabama justice system is deplorable.”). The purpose behind the reinstatement of the chain gang was, as stated in a form distributed to the inmates assigned to the chain gang, to send the inmates a message: “If you are worried about the Chain Gang, then don’t violate parole, commit crimes, or come to prison in ALABAMA.” However, no uniform policy in the Alabama prison system was used to determine prisoner eligibility for chain-gang placement. Some prisons assigned only repeat offenders and parole violators to the chain gang. Other institutions used the chain gang as a means of punishing inmates who committed disciplinary violations. In addition, Alabama trial judges were permitted to sentence inmates to placement on a chain gang as a part of a split-sentence. These sentences could range from 30 to 180 days. The length of an inmate’s assignment to the chain gang, whether it was imposed through sentencing or a DOC classification, could be extended depending on the inmate’s behavior during the assignment. The “orientation” form for the Holman Correctional Facility explains the reassignment system as follows: “You are now assigned to the Holman Correctional Facility ‘Chain Gang.’ The institution is a limited privileges work camp. You are expected to work while assigned to this institution. The length of your stay will be no less than 30 days. The average stay is 180 days. Many factors determine how long you stay. The number one factor is attitude and behavior. The number two factor is work performance and following the institution’s rules on the job and on all three (3) shifts. Bottom line, a clear record, no negative reports. Depending on the severity of your infractions or breaking rules you can be extended. For instance, you could be extended for: late for work, failure to shave, disrespect to a staff member, arguing with a staff member, not keeping your bed area clean and neat, etc. A disciplinary results in an automatic extension usually. Behave, if you want another job and more privileges and the opportunity for programs. If you don’t behave, you could stay here indefinitely.” The plaintiffs’ chief claim in their original complaint was that Alabama’s use of chain gangs violated the eighth and fourteenth amendments of the United States Constitution. The claim encompassed two distinct sets of allegations: the first set related specifically to the increased risk of exposure to physical harm associated with accidents and inmate violence; the second included more general allegations concerning the physical and psychological harm inflicted by the use of chains that render the practice barbarous and inhumane. As part of the first set of claims, the plaintiffs alleged the following: (1) that the location of the gangs — alongside the highway — placed inmates at risk of being hit by a car, and further, that if an automobile accident did occur, the inmates were more likely to be hit or dragged by virtue of being chained together; (2) that the chains increased the likelihood of inmate-on-inmate violence because of the frustration inmates experienced while on the chain gang, and the chains rendered them unable to protect themselves should such violence occur; and (3) that the chains decreased the inmates’ ability to protect themselves from workplace accidents, especially at locations such as rock piles. In their second set of allegations, the plaintiffs complained that the shackles inflicted physical pain, by chafing their legs and causing swelling, as well as severe psychological pain. According to the plaintiffs, this psychological pain emanated from the inherent indignity of being chained together, as well as the humiliation of being publicly exposed while working in such chains. In their amended complaint, the plaintiffs raised a claim concerning the lack of adequate toilet facilities for chain gang inmates while they were placed on work sites. The settlement agreement reached by the parties with regard to the chain-gang claim includes the following terms: that the DOC Commissioner, his agents and his successors, had ceased and would not resume the practice of chaining inmates together, but would use individual chains to shackle inmates; that Governor Fob James should be dismissed from the case; that the plaintiffs would waive their right to seek fees and costs incurred in pursuing their claim related to the practice of chaining inmates together; that the plaintiffs’ challenge to the practice of chaining inmates together should be dismissed with prejudice; and that in the event the Commissioner or his successors breached the settlement agreement, the plaintiffs may reinstate their challenge to the practice of chaining inmates together, or enforce the agreement as a contract between the parties in State court. During a pretrial conference with the Magistrate Judge, the DOC Commissioner agreed to withdraw his opposition to the plaintiffs’ motion for class certification only as it applied to the chain-gang claim in order to implement the settlement agreement. One notable aspect of the settlement agreement, immediately seized upon by the inmates who objected to it, as discussed infra, is that the agreement only curtails the DOC’s ability to chain inmates together; it does not prevent the DOC from continuing the practice of placing inmates on public highways to perform manual labor in individual chains. Rule 23(e) of the Federal Rules of Civil Procedure provides, in part, that “[a] class action shall not be dismissed or compromised without the approval of the court.” Not only must this court approve of the settlement agreement, it must also determine whether the agreement meets the requirements of the Prison Litigation Reform Act, 18 U.S.C.A. § 3626 (“PLRA”), as well as whether the putative class to which the agreement applies meets the criteria for class certification under Rule 23. These issues will be addressed by the court below. A. The Prison Litigation Reform Act Before approving the settlement agreement, the court must determine whether it complies with the PLRA. The PLRA limits the prospective relief a federal court may provide in cases concerning prison conditions. Prospective relief may “extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs,” must be “narrowly drawn,” and “is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C.A. § 3626(a)(1)(A). Further, the court may not “order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law” unless the following conditions are met: (1) Federal law permits such relief to be ordered in violation of State or local law; (2) the relief is necessary to correct the violation of a Federal right; and (3) no other relief will correct the violation of the Federal right. § 3626(a)(1)(B). In addition to limiting the type of relief a federal court may grant, the PLRA also curtails the longevity of such relief to two years after the court approves or grants the relief, or one year after the court has entered an order denying termination of relief. § 3626(b)(1). However, private settlement agreements are not subject to the above restrictions if the terms of such an agreement are not subject to court enforcement other than the reinstatement of the civil proceeding. § 3626(c)(2)(A). A “private settlement agreement” is defined in the PLRA as “an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled.” § 3626(g)(6). In addition, the PLRA provides that a party to a private settlement agreement claiming that the agreement has been breached is not precluded “from seeking in State court any remedy available under State law.” § 3626(e)(2)(B). By choosing to resolve their chain-gang claim through a private settlement, rather than through a judicially enforceable consent decree, the plaintiffs have attempted to avoid the PLRA’s stringent limitations with respect to the type and duration of the relief. The expense of their trade-off is the relinquishment of their right to challenge the constitutionality of the DOC’s practice of shackling inmates together. The agreement does not require judicial enforcement of its terms, but rather contemplates enforcement through mechanisms permitted by the PLRA: reinstatement of the action and state-court relief. Thus, the court does not need to decide whether the relief provided in the settlement agreement — complete and permanent cessation of the chain gang practice — comports with the PLRA’s prospective relief limitations. B. Court Approval of the Settlement Agreement Judicial policy favors voluntary settlement as the means of resolving class-action cases. Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). However, “the settlement process is more susceptible than the adversarial process to certain types of abuse and, as a result, a court has a heavy, independent duty to ensure that the settlement is ‘fair, adequate, and reasonable.’ ” Paradise v. Wells, 686 F.Supp. 1442, 1444 (M.D.Ala.1988) (Thompson, J.) (quoting Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir.1978)). This abuse can occur when, for example, “the interests of the class lawyer and the class may diverge, or a majority of the class may wrongfully compromise, betray or ‘sell-out’ the interests of the minority.’ ” Id. Besides evaluating the fairness of the settlement agreement, the court also has the duty to make sure that the settlement is not illegal or against public policy. Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir.1985). Before resolving these concerns, the court must ensure that all interested parties were informed of the settlement and had the opportunity to voice their objections. As required by Rule 23(e) of the Federal Rules of Civil Procedure, the Magistrate Judge ordered the parties to provide notice of the settlement of the chain-gang issue to the putative class of plaintiffs. This court-approved notice was posted on community bulletin boards in every dormitory in every prison, as well as in the law libraries and dining areas of each facility; it was also sent to county jails so as to facilitate notice to state inmates who were potential class members. The notice informed inmates about the nature of the settlement, the advantages and disadvantages of the terms of the agreement, the right to file an objection to the settlement, as well as forms for filing such objections. A fairness hearing was held on August 2,1996, and a total 154 objections to the agreement were filed by members of the putative class of plaintiffs. The notice was adequate to inform all the interested parties about the provisions of the settlement of the chain-gang claim. The fairness hearings and opportunity for written objections were adequate to solicit and determine the views of the class members. In sum, the notice and fairness hearings were sufficient under Rule 23(e). 1. Whether the Settlement Is Fair, Adequate, and Reasonable The factors the court may examine in deciding whether a settlement is fair, adequate, and reasonable are as follows: (1) the views of the class members; (2) the views of the class counsel; (3) the substance and amount of opposition to the settlement; (4) the possible existence of collusion behind the settlement; (5) the stage of the proceedings; (6)the likelihood of success at trial; (7) the complexity, expense, and likely duration of the lawsuit; and (8) the range of possible recovery. Shuford v. Alabama State Bd. of Educ., 897 F.Supp. 1535, 1548 (M.D.Ala.1995) (Thompson, J.) (citing Leverso v. SouthTrust Bank of Al., Nat. Assoc., 18 F.3d 1527, 1530 n. 6 (11th Cir.1994); Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984)). a. Views ofthe Class Members In determining whether a settlement agreement is fair, adequate, and reasonable, the obvious first place a court should look is to the views of the class itself. Shuford, 897 F.Supp. at 1548. As stated above, notice was given to the class and 154 objections were filed in opposition to the settlement agreement. The Magistrate Judge categorized these objections in the following manner: the responses of 56 inmates did not constitute objections; 50 inmates objected on the basis that they were still being chained individually and the lawsuit should have covered that circumstance; three wanted a declaration that the chain gangs were unconstitutional; 14 wanted money damages; eleven wanted further relief not included in the complaint and beyond the court’s power {e.g., early release, parole, etc.); 17 inmates thought the settlement should have included other claims, such as the hitching-post and the toilet-facilities claims; and three objections discussed gender and other classification issues. The Magistrate Judge also conducted a fairness hearing on August 2, 1996, in which named plaintiffs Michael Austin and Ogie Hayes, and putative class members Douglas Crouch, Domineke Taylor, Terrance Roberts, Curtis Boggs, and Lorenzo Johnson, all five of whom had filed objections to the settlement agreement, testified for the plaintiffs. Austin and Hayes both testified that they approved the terms of the settlement agreement, and that they had not received any benefit, reward, or promise of reward in exchange for their approval of the agreement. Based on a review of the objections and the testimony given at the fairness hearing, it appears that the majority of inmates who objected to the settlement agreement did so based on a misunderstanding of the terms of the agreement, rather than based on unfairness. Hayes testified that although he agreed with the terms of the settlement, many inmates with whom he discussed the lawsuit thought the agreement was a “sellout” because it failed to encompass the DOC’s practice of shackling inmates individually while on work detail. Indeed, 50 inmates based their objections specifically on this perceived deficiency of the settlement. It is entirely understandable that some inmates would object to the settlement agreement or view it as a “sell-out” because of the agreement’s failure to cover the DOC’s practice of individually shackling inmates while on work detail. After all, under the terms of the agreement the DOC may send inmates to work detail on public highways, and may use chains, albeit on an individual basis, to prevent the inmates from escaping. Assuming the objecting inmates believed this class-action litigation was designed to end the entire practice of chaining inmates while on work detail, whether the chains be used for individual or group purposes, the terms of the settlement might strike them as a somewhat of a disappointment, or a “sell-out.” However, as both Hayes and Austin acknowledged in the fairness hearing, the plaintiffs did not challenge the DOC’s use of individual chains for inmates, but rather the specific practice of shackling five men together. Three of the inmates who testified at the fairness hearing and who objected on this basis (Taylor, Roberts, and Buggs) approved the terms of the settlement after the plaintiffs’ attorney and the Magistrate Judge informed them that the settlement agreement did not state that the plaintiffs agreed that the DOC could shackle inmates individually, and that the inmates were free to challenge this practice in the future. Although the court has characterized this objection as a “misunderstanding” of the terms of the settlement agreement and of the underlying claim of the lawsuit, the objecting inmates do raise an important issue regarding the adequacy of the settlement agreement: whether the agreement is adequate with regard to the psychological injury claim raised in the second part of the plaintiffs’ eighth- and fourteenth-amendment challenge to the use of chain gangs. Prior to reaching a settlement with the DOC Commissioner, the plaintiffs submitted to this court dozens of affidavits of inmates who had served time on chain gangs in various Alabama penal institutions. These affidavits reported the nature of the physical and psychological pain suffered by inmates placed on the DOC chain gangs. The psychological injuries, particularly those caused by being forced to wear the chains in public, were described as follows: “People photographed and waved and honked at me and the other inmates. This was humiliating. Looking down at my feet and seeing the chains around them, I felt like a slave. Wearing the chains publicly was still more humiliating.” “The chain gang tore me apart mentally. I was chained up in public view. My family, Mends and potential employers could all see me in chains — a fact which hurt and embarrassed me deeply.” “The chain gangs have caused me extreme mental anguish. Wearing chains made me feel like an animal. Being paraded along the Alabama highways, moreover, made me feel like I was for sale — for public consumption.” “My chain gang sentence has caused me extreme mental anguish. Being forced to wear chains was humiliating. The experience also reminded me of the slavery that my ancestors had to endure.... Although I have been out of chains for months, I cannot stop their image from running through my mind. I dream about the chains frequently. I often wake up two or three times in the night screaming and in a cold sweat. Every time I see my ankles, I picture the chains around them.” Based on these statements, it is arguable that the inmates’ alleged psychological injuries were not solely derived from the DOC’s practice of chaining inmates together, but from the mere fact of being chained throughout the day and placed in public view. The settlement agreement, which states that the DOC will adopt the practice of individually shackling inmates, leaves the DOC with plenty of room to continue practices that have allegedly inflicted psychological harm on the inmates. This drawback, however, must be balanced with the substantial benefits the plaintiff class derives from the settlement agreement, along with the fact that the agreement does not preclude future challenges to the DOC’s use of chains on individual inmates on work detail. The second area involving a misunderstanding of the terms of the settlement agreement concerned the lack of award of monetary damages. Crouch’s testimony at the fairness hearing typified this objection: Crouch stated that he wanted a clarification on the monetary and punitive damages, and wanted to know why the putative class of plaintiffs had not received these damages in the lawsuit. However, after the plaintiffs’ attorney and the Magistrate Judge explained to Crouch that the plaintiffs did not seek damages in their lawsuit and individual inmates would be able to pursue claims for monetary damages in addition to the settlement, Crouch stated that he approved the terms of the settlement. Again, this set of objections must be balanced against the substantial benefits the plaintiffs will derive from the settlement agreement, as well as with the fact that inmates such as Crouch and the other 13 objectors are permitted to file or maintain their actions for monetary damages stemming from injuries while serving time on the chain gangs. ■ These two sets of objections together constitute 64 of the 98 objections filed with the court that actually stated an objection to the settlement agreement, or 65% of such objections. Of the remaining objections, only those concerning the constitutionality of the chain gangs warrant this court’s attention in an examination of the fairness and adequacy of the settlement agreement. One of the trade-offs the plaintiffs have made in settling their chain-gang claim is to forgo the possibility that this court would find the practice of shackling inmates together cruel and unusual punishment in violation of the eighth and fourteenth amendments. Although such a holding would arguably have limited duration, given the relevant provisions of the PLRA discussed above, such a decision would also have precedential value if future challenges to the practice were brought. On the other hand, by settling the chain-gang claim, the plaintiffs have avoided the significant risk of losing their constitutional challenge to the chain-gang practice. These considerations all must be included in the court’s appraisal of the agreement. b. Views of Class Counsel The judgment of class counsel is also important in addressing the fairness, adequacy, and reasonableness of a settlement agreement. Pettway, 576 F.2d at 1215. Class counsel for the plaintiffs are experienced civil rights lawyers who have shown to the court, through their participation and continued monitoring in this case, an enduring commitment to protecting the rights of the plaintiff class. Further, class counsel have agreed to waive attorneys’ fees with regard to the chain-gang claim, thus alleviating any doubts about their dedication to the plaintiff class. Id. (court should be sensitive to potential conflict between class and its attorneys, particularly where large attorneys’ fees may also be at stake). Class counsel have argued that the proposed settlement is fair, adequate and reasonable, and have thoroughly explained the benefits the settlement agreement provides, specifically in terms of the longevity of the agreement, and the court gives considerable weight to their views. c. Substance and Amount of Opposition to the Settlement Agreement It is difficult for the court to gauge the size of the putative class of plaintiffs involved in this litigation. The Magistrate Judge has estimated the class size at different times as numbering 2,000 or 4,000. The Magistrate Judge also noted that because “the population of state inmates is ever-changing, and the function of the institutions involved suggests] a perpetual life,” the class of plaintiffs involved in the chain-gang claim is potentially infinite. In their amended motion for class certification, the plaintiffs sought to certify two classes for purposes of the litigation, the first consisting of “all present and future Alabama inmates who have been or may be assigned to work in chain gangs.” According to the plaintiffs, at the time of the filing of their motion, there were 700 inmates on Alabama chain gangs, and approximately 2,000 inmates had completed sentences on the chain gang. The DOC Commissioner has not contested the plaintiffs’ allegations concerning the number of inmates who have been, are, or will be assigned to the chain gang. Even with these difficulties in estimation, the court can say with reasonable certainty that the 154 objections filed by the members of the putative class represent a small percentage of the class as a whole. In resolving objections within the class to a settlement agreement, this court has previously noted that “where the settlement provides for structural changes with each class member’s interest in the adequacy of the change being substantially the same, and where there are no conflicts of interests among class members or among definable groups within the class, then the decision to approve the settlement ‘may appropriately be described as an intrinsically “class” decision in which majority sentiments should be given great weight.’ ” Paradise v. Wells, 686 F.Supp. at 1445 (quoting Pettway, 576 F.2d at 1217). Here, where the number of objections to the settlement agreement is relatively small, and where the concerns voiced in those objections, particularly the concerns related to monetary damages and challenges to the DOC’s practice of individually shackling inmates on work detail, are capable of being remedied outside or in addition to the settlement agreement, the court is confident in giving credence to the class majority’s approval of the agreement. This conclusion does not imply, however, that the court has interpreted the silence of the remaining class members to represent agreement with the settlement. As the court previously noted in Reynolds v. King, “the court must look beyond the numbers to the total reality of the circumstances presented and from those circumstances attempt to extrapolate some picture of the true support for the proposed decree.” 790 F.Supp. 1101, 1109 (M.D.Ala.1990) (Thompson, J.) (declining to approve consent decree despite the overwhelming majority of class members who did not file objections to the decree). The court is especially wary of such silence in the context of prison litigation where the members of the class are likely to have lower literacy levels, as well as limited access to materials to enable them to file an objections. See generally Johnson v. Avery, 393 U.S. 483, 487, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969) (“Jails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.”). The court has therefore taken pains to examine the objections that were raised to determine whether the agreement is fair, adequate, and reasonable. d. Existence of Collusion There has been no charge that the agreement was the product of collusion between the parties. There is no evidence that counsel or the named plaintiffs will benefit from the agreement at the expense of members of the class or sub-class: the settlement agreement specifically states that the plaintiffs have waived their right to fees and costs related to their chain-gang claim, and Austin and Hayes both testified that they had received no reward or promise of reward in exchange for agreeing to settle their claim. Further, there is no evidence that the parties’ negotiations were anything other than at arms length. e. Other Factors The four remaining factors are interrelated: the stage of the proceedings; the likelihood of success at trial; the complexity, expense, and likely duration of the lawsuit; and the range of possible recovery. The issues presented in these two claims are particularly complex and would have required a contentious trial with considerable expense. Indeed, the parties and the Magistrate Judge estimated that trial on the chain-gang and toilet-facilities claims would have doubled the length of the trial, as well as created a much more voluminous record requiring the court to expend an even greater time considering the claims. In light of the above considerations, the court has independently evaluated the fairness, adequacy, and reasonableness of the proposed settlement. Here, the plaintiffs have traded the risk of losing a protracted litigation, combined with the limited duration of any success under the PLRA, with the assurance that the DOC will cease the practice the plaintiffs contested in their original complaint. A major drawback to the agreement, as recognized by the court and the objecting inmates, is that the DOC will be able to maintain a “chain gang” policy by shackling inmates on an individual basis. However, there is no evidence provided to the court that the named plaintiffs and their counsel have failed to pursue their claim as consideration for the DOC’s agreement to cease the practice of shackling inmates together. Indeed, the named plaintiffs did not even include the individual-chain practice in their complaint or any of their amended complaints. Further, the court is satisfied that should an inmate wish to challenge the DOC’s practice with regard to the use of individual chains at work sites, the settlement agreement does not preclude such an inmate from doing so. A settlement implicitly means settling for less than all that is sought; it is “a reasoned choice of a certainty over a gamble, the certainty being the settlement and the gamble being the risk that comes with going to trial.” Paradise, 686 F.Supp. at 1446. Here, the settlement agreement gives the plaintiffs more relief than they could have obtained by pursuing their claims in court in terms of longevity, and leaves open the possibility for future challenges to the DOC’s use of individual chains. With one exception, discussed below, the court approves the terms of the settlement agreement. The settlement agreement provides that the plaintiffs’ eighth-amendment challenge will be dismissed with prejudice. As the Magistrate Judge correctly noted, this provision substantially curtails one of the agreement’s stated remedies for breach: that the plaintiffs may reinstate their challenge in federal court. “[A] stipulation of dismissal with prejudice ... at any stage of a judicial proceeding, normally constitutes a final judgment on the merits which bars a later suit on the same cause of action.” Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501-02 (11th Cir.1990) (citation omitted). So as to fully protect the rights of members of the putative class to enforce this agreement, the court will approve the settlement with the modification that the chain-gang claim be dismissed without prejudice. 2. Whether the Agreement Is Legal and Good Public Policy The court has already discussed whether the settlement .agreement complies with the PLRA, and has concluded that it does. None of the interested parties has contested the legality of the settlement agreement and, with the exception of the provision dismissing the case with prejudice, the court does not find any cause to contest the agreement’s legality. The court also finds that the agreement is good public policy. The putative class of plaintiffs articulated legitimate safety concerns relating to the DOC’s practice of chaining inmates together, and the agreement, if enforced, will obviate the vast majority of those concerns. What the agreement does not eliminate, particularly the risk of psychological injury, it also does not preclude from resolution. Thus, the court is satisfied that any deficiencies contained in the settlement agreement can be remedied in the future, if necessary, through future challenges. With the modification discussed above, the court therefore approves the settlement agreement between the parties. 3. Class Certification In settling the chain-gang claim, the DOC Commissioner agreed to withdraw his opposition to the plaintiffs’ motion for class certification only as it pertained to the chain-gang claim. Accordingly, this court has continually referred to the plaintiffs as a putative class when discussing the fairness of the settlement agreement. However, the Supreme Court has indicated, in somewhat different circumstances, that in approving a settlement agreement in a class-action litigation, a federal court must also ensure that the settling class meets the class-certification criteria of Rule 23 of the Federal Rules of Civil Procedure. Amchem Prods., Inc. v. Windsor, 521 U.S. 591,-, 117 S.Ct. 2231, 2248, 138 L.Ed.2d 689 (1997). As the Court noted in Amchem, the “proposed settlement classes sometimes warrant more, not less caution on the question of certification.” — U.S. at -- n. 16, 117 S.Ct. at 2249 n. 16. Although the Supreme Court in Amchem was dealing with a settlement class “opting-out” of litigation, the Court’s statement, that “Federal courts ... lack authority to substitute for Rule 23’s certification criteria a standard never adopted — that if a settlement is ‘fair,’ then certification is proper,” applies to the facts at hand with equal force. Thus, the fairness of the agreement is irrelevant if the 'court finds the plaintiffs fail to meet the criteria for class certification. In their complaint, the plaintiffs requested certification of a class of “all present and future Alabama inmates who have been or may be assigned to work in chain gangs.” Rule 23(a) of the Federal Rules of Civil Procedure sets forth the following prerequisites for class certification: “One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” As stated above, the exact size of the class is difficult to estimate given the fluctuations of the prison population, as well as the number of inmates who may be assigned to chain-gang labor in the future. However, having previously estimated the class size as numbering 2,700 inmates, the court finds that the plaintiffs have clearly met Rule 23(a)(l)’s numerosity requirement. The second and third requirements of commonality and typicality are also clearly met. Here, the named plaintiffs have sought declaratory and injunc-tive relief in their challenge to the DOC’s practice of shackling five inmates together. The named plaintiffs, like many other members in the putative class, have been assigned to the chain gang in the past and could potentially be reassigned to the chain gang in the future; moreover, the requested declaratory and injunctive relief would inure to the benefit of all members of the putative class. Though there certainly may be some factual differences between the individual class members and the nature and severity of their treatment on the chain gang, such individual differences do not defeat certification because there is no requirement that every class member be affected by the institutional practice or condition in the same way. See, e.g., Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.1985) (typicality not defeated by the varying fact patterns and varying degrees of injury underlying each class). The fourth requirement, adequacy of representation, has also been met. In determining this issue, the court must inquire into “the adequacy of both the named representative and class counsel.” 5 James Wm. Moore et al., Moore’s Federal Practice § 23.25[3][a] at 23-113. “The determination that a party would adequately protect the interest of a class is factual and depends on the circumstances of each case.” Eastland v. Tennessee Valley Auth., 704 F.2d 613, 618 (11th Cir.1983). Here, the court finds, based on the record before it, that Austin, Hayes, Elliot, and Guess, have not only demonstrated their commitment to this litigation, but have also demonstrated to the Magistrate Judge a “cooperative spirit” toward their attorneys. The court is also satisfied with the adequacy of their counsel, which is an institutional public interest advocacy group that has experience in handling class-action suits. Besides meeting the prerequisites of Rule 23(a), the putative class must also meet one of the types of actions described in Rule 23(b). Rule 23(b)(2) requires the court to be satisfied that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Class certification under Rule 23(b)(2) is particularly appropriate in the prison litigation context where only injunctive and declaratory relief are sought. See, e.g., Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), aff'd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). The court is therefore satisfied that the requirements of Rule 23 have been met and certifies the class of plaintiffs for the purposes of the chain-gang settlement agreement. III. SETTLEMENT OF TOILET-FACILITIES CLAIM The plaintiffs first raised their allegations concerning the adequacy of toilet facilities for chain-gang inmates in their first amended complaint. There, and in their subsequent amended complaints, the plaintiffs claimed that the only toilet facility provided to inmates assigned to chain-gang labor was a “portable chamber pot behind a make-shift screen next to the road.” The plaintiffs charged that the DOC did not provide inmates with toilet paper or with facilities for them to wash their hands after using the chamber pot and before eating lunch. They also stated that because the chamber pot was not always available, inmates were often forced to squat on the ground and to defecate in public. Either with or without the chamber pot arrangement, the prisoners were forced to relieve themselves while chained to the other inmates, which severely compromised their privacy. .The plaintiffs contend that these practices created unsanitary conditions and deprived them of their basic human dignity; they also claim that the prison officials’ deliberate indifference to these conditions resulted in the infliction of cruel and unusual punishment upon them in violation of the eighth and fourteenth amendments. The class members challenging the adequacy of the toilet facilities are identical to the class certified for the chain-gang settlement, discussed supra; thus, the court does not need to repeat the settlement class inquiry here. After resolving the chain-gang claim through a settlement agreement, the parties were able to reach a second agreement on the toilet-facilities claim. Recognizing that some of the plaintiffs’ concerns had been remedied by the cessation of chaining inmates together, specifically the inmates’ lack of privacy in the use of the toilet facilities, the parties agreed that the DOC would promulgate a standard operating procedure, which would apply to all outside work squads supervised by the DOC. This standard operating procedure would include the following provisions: soap, water, and toilet paper will be provided to all inmates; there will be one portable toilet for every squad of 40 inmates; the portable toilet will be equipped with a heavyweight canvas screen; for medium custody inmates who labor on prison grounds (as opposed to those inmates who labor on public highways), and for whom no toilet facilities are available, reasonable efforts will be made to allow privacy for those who need to relieve themselves; and a shovel or other instrument will be provided to such medium security inmates for the purpose of digging a hole when an inmate must defecate and no toilet facility is available. The agreement also states that within four to eight months after the court approves the settlement, the Commissioner will conduct an unannounced inspection of these toilet facilities, and will take any corrective action necessary to ensure compliance with the standard operating procedure. The results of such inspections, as well as any corrective measures, will be reported to the plaintiffs’ counsel. The plaintiffs also agreed to dismiss their claim against the Commissioner without prejudice, and to waive their right to seek fees and costs. The parties filed a joint motion for preliminary approval of the settlement agreement and attached a proposed order that set out the procedures for giving notice to the class, as well as the form of the notice itself. However, the Magistrate Judge did not sign this order, and a search of the record reveals no further instructions regarding the notice to the class or a fairness hearing. Although the court concludes that the settlement agreement is legal and is not against public policy, see Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir.1985), the court is unable to evaluate the underlying fairness of the agreement without obtaining the views of the members of the class. The court will therefore enter an additional order instructing the parties to give the members of the class notice of the settlement agreement, and to review any objections members of the class may have to the agreement. Following this process, the court will conduct a fairness hearing. IV. CLASS CERTIFICATION AS TO REMAINING CLAIMS Before addressing the two remaining claims in the litigation- — the visitation policy for those inmates assigned to the “Alternative Thinking Unit” (ATU) and the use of the hitching post — the court will address whether the putative class meets the class certification requirements set out in Rule 23, and if so, how many classes should be certified. The Magistrate Judge found that two classes of inmates should be certified: (1) present and future Alabama inmates who have been or may be assigned to work in chain gangs; and (2) present and future Alabama inmates who have been or may be placed on the hitching post. The court agrees that two classes should be certified pursuant to Rule 23. However, for the reasons that follow, the court will redefine the first class to include only those present and future Alabama inmates who have been or may be assigned to the ATU, a shock incarceration program in Alabama’s penal system. As stated, the plaintiffs originally filed this lawsuit to challenge the DOC’s use of chain gangs. Two days later, the plaintiffs amended their complaint to include allegations that inmates “who refuse to go out on the chain gang are tied to a post with their hands handcuffed above their heads and are forced to stand on an uneven surface in an open-air cell all day in the hot sun.” The plaintiffs later moved to amend their complaint to allege that the DOC’s use of the “hitching post,” the restraining bar to which the inmates who refuse to work are handcuffed, violates the eighth and fourteenth amendments. The hitching post is a horizontal bar “made of sturdy, nonflexible material,” located on the prison grounds, and positioned “no more than 50 feet from an officer.” According to the DOC’s regulations, an inmate will be placed upon the hitching post either for refusing to work or otherwise disrupting a work squad. Thus, the use of the hitching post applies to all inmates who are assigned work duties in prison, whether these duties include labor in chain gangs or other forms of work. By contrast, the plaintiffs’ claim regarding visitation privileges affects a smaller group of inmates. The plaintiffs first raised their visitation-privileges claim in their revised second amended complaint. There, they stated that “Chain gang inmates are denied any visitation for the entire length of their stay on the chain gang.” The plaintiffs claim that this practice “violates their right to freedom of association under the First and Fourteenth Amendments to the United States Constitution.” The plaintiffs’ allegations imply that every inmate assigned to chain-gang labor is denied visitation-. However, during oral argument before this court on the DOC Commissioner’s objections to the Magistrate Judge’s recommendation, the parties made clear that not all inmates assigned to chain-gang labor were placed in the ATU, and only ATU inmates were denied visitation for the entire period of their placement within the unit, or 90 days. Thus, the issue is whether all present and future inmates who are assigned to the ATU and all present and future inmates who are denied visitation privileges for 90 days should be certified as two separate classes. Although the plaintiffs requested class certification in a slightly different form, this court is permitted under Rule 23(c)(4) of the Federal Rules of Civil Procedure to shape class definition so as to limit the class to the claims raised. “Rule 23(e)(4) empowers courts to define an appropriate class, whether by accepting the proposed class, limiting the class to certain issues, or creating subclasses. Thus, a complaint’s proposed class definition does not bind the court, and Rule 23(c)(4) provides [the court] with some latitude in redefining the class.” 5 James Wm. Moore et al., Moore’s Federal Practice § 23.05[3] (3d ed.1997). Having established the parameters of these two classes, the court will next determine whether they satisfy the elements of Rule 23 of the Federal Civil Rules of Procedure. In order to represent a class of allegedly similarly-situated individuals, the proposed named plaintiffs must demonstrate that “(1) the class is so numerous that join-der of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). Here, Rule 23(a)(l)’s requirement of nu-merosity has clearly been satisfied for both classes. The Magistrate Judge noted that neither the plaintiffs nor the DOC Commissioner presented evidence reflecting the number of inmates who have been placed on the hitching post since 1993, but that the Commissioner’s trial exhibits, “which do not purport to reflect the totality of those inmates,” indicate that over 200 inmates have been placed on the hitching post. This evidence, combined with the fact that any inmate assigned to work duty is eligible for placement on the hitching post, and that the number of the inmates placed on the hitching post has increased constantly during this litigation, renders the class so numerous so as to make joinder impracticable. With regard to the number of inmates assigned to the ATU, it is likewise difficult for the court to pinpoint an exact number based on the evidence before it. The Magistrate Judge stated that “well over 2,000 inmates have been assigned to the chain gang and have had their visitation rights suspended for the time that they served on it.” As discussed above, it appears that not all inmates assigned to chain-gang labor were in the ATU; some were placed on the chain gang for disciplinary violations. However, even assuming that some percentage of inmates placed on the chain gang were not assigned to the ATU, it is clear that the number of inmates placed in the ATU, or who are eligible for placement in the ATU, or who have been placed in the ATU during the course of this litigation, is sufficient to meet Rule 23(a)’s numerosity requirement. See Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D.Ala.1993) (Albritton, J.) (The “commonsense approach” to class certification “has led courts to certify classes in cases ... which involve issues of common concern to inmates even when the potential class size is ... somewhat undefined.”) (citations omitted). Rule 23(a)(2) and (3)’s requirements of commonality and typicality “tend to merge.” Wyatt v. Poundstone, 169 F.R.D. 155, 164 (M.D.Ala.1995) (Thompson, J.) (citing General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 2370 n. 13, 72 L.Ed.2d 740 (1982)). “Both requirements serve to ensure that the ‘maintenance of a class action is economical’ and that the ‘named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’” Id. However, there is no requirement that the named plaintiffs’ injuries be identical to those sustained by the class members; it is sufficient under Rule 23 that the harm complained of be common to the class. Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir.1988). Thus, although inmates in the two classes may have had different experiences on the hitching post or when assigned to the ATU, the members of each class are bringing the same constitutional challenge to the same set of policies and procedures implemented by the DOC. Moreover, the named plaintiffs’ claims are identical to the class members’ claims. The Magistrate Judge found that when the case was filed, the named plaintiffs were assigned to chain-gang labor and were being denied visitation. When they amended their complaint to include the hitehing-post claim, the plaintiffs added two named plaintiffs, Warren Leatherwood and Kervin Goodwin, both of whom had been placed on the hitching post. The court therefore finds the claims of the named plaintiffs are common and typical of the class. The court has already examined the issue of adequacy of representation in its discussion of class certification for purposes of the settlement agreement. The court reaffirms its findings that the class representatives and their counsel will adequately and diligently represent the class members’ interests. Thus, the plaintiffs have met all of Rule 23(a)’s requirements for class certification of the two classes. In addition to the above four elements, the class must meet one of the three conditions stated in Rule 23(b) that make a class action the preferable mode of handling the lawsuit. The plaintiffs have sought certification under Rule 23(b)(2), which states “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Here, the plaintiffs have brought a constitutional challenge to published policies and procedures, as well as the Commissioner’s means of implementing such policies and procedures. The plaintiffs seek only injunctive and declaratory relief regarding these policies and procedures. As stated in the court’s discussion regarding class certification for purposes of the settlement agreement supra, class certification under Rule 23(b)(2) is particularly appropriate in the prison litigation context where only injunctive and declaratory relief are sought. See, e.g., Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), aff'd sub nom, Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). The court finds that the requirements of Rule 23 have been met and will certify the following two classes of plaintiffs: (1) A class defined as all present and future Alabama inmates who have been or may be assigned to the ATU. (2)A class defined as all present and future Alabama inmates who have been or may be placed on the hitching post. V. VISITATION-PRIVILEGES CLAIM The plaintiffs’ first claim concerns the DOC’s visitation policy for those inmates assigned to the ATU. The ATU, briefly described above as a shock incarceration program, is designed for repeat offenders or recidivists, and parole violators. Prisoners are placed in the ATU either by DOC classification, if they are a repeat offender or have violated a term of parole, or by an Alabama trial court judge during sentencing. According to the Commissioner, “The entire purpose of the ATU unit is oriented around creating a respect for authority, instilling self-discipline....” Inmates assigned to the ATU are segregated from the general inmate population and are placed in a separate ATU dormitory, also referred to as the “chain gang dormitory.” The ATU inmates are assigned to at least eight hours of physical labor per day. All visitation is denied to ATU inmates for 90 days, although at the time the visitation claim was filed, visitation to ATU inmates was generally denied for 180 days. In contrast, inmates assigned to the general prison population at Alabama prisons receive visitation on weekends. As alternatives to visitation, ATU inmates may make collect phone calls and exchange written correspondence with outsiders. According to the Commissioner’s expert witness, Alabama is the only state to implement a blanket, time-based denial of visitation policy. As explained in further detail below, the plaintiffs contend that these alternatives to visitation are inadequate substitutes for visitation, and also claim that the 90-day denial of visitation violates their right to freedom of association. The Magistrate Judge agreed, and concluded that the DOC’s visitation policy for ATU inmates unreasonably impinged upon the plaintiffs’ first-amendment rights. The Commissioner has objected to the Magistrate Judge’s conclusion on the following grounds: (1) Convicted felons retain no first-amendment right to freedom of association; (2) The Magistrate Judge incorrectly concluded that the DOC Commissioner had not stated a clear objective for the denial of visitation; (3) The Magistrate Judge erred in finding the visitation policy violated the plaintiffs’ first-amendment right because of lack of alternative means of expression; (4) The Magistrate Judge erred in finding the DOC Commissioner’s exhibits concerning alternatives to visitation “irrelevant”; (5) The Magistrate Judge erred in finding that permitting ATU inmates to have visitors would not burden the DOC; and (6) The Magistrate Judge’s conclusion that restrictions placed on ATU inmates, aside fi*om the denial of visitation policy, were sufficient to accomplish the prison administrators’ penological ob-jeetives was erroneous and violates the degree of deference required by the Supreme Court. As will be discussed further below, the court will sustain all but the DOC Commissioner’s first and fifth objections to the Magistrate Judge’s recommendation. The court makes two preliminary remarks before addressing the plaintiffs’ constitutional claims. First, although the parties have stipulated that visitation is “generally denied” to ATU inmates for 90 days, it is not clear from the record that visitation is automatically restored after 90 days. Rather, the information provided to the inmates, as well as the representations made by the DOC Commissioner’s counsel and experts, indicates that the denial of visitation can be reinstated after the 90 days expires if an inmate has not “graduated” from the ATU program or is assigned to another term of the ATU. The “orientation” to ATU inmates at Limestone Correctional Facility warns the inmates: “Behave, if you want another job and more privileges and the opportunity for programs. If you don’t behave, you could stay here indefinitely.” According to Gary DeLand, the Commissioner’s expert, the denial of visitation serves as an incentive for inmates to behave while assigned to the ATU so as to “earn back” the visitation privilege: “Certainly a prisoner who found ways to delay or manipulate the system and not make all of his work assignments would also know, perhaps, that the visiting might be if affected by that process to encourage a prisoner to get through that process and get off the chain gang at the appropriate time, and have his visiting restored to him, it would certainly seem a legitimate approach on the part of prison administrators.” In addition, the Commissioner himself testified that he did not know wheth