Full opinion text
SUPPLEMENTAL OPINION & ORDER BAER, District Judge. On April 26, 2001, this Court issued an order (the “April 26 Order”) that directed: (1) the City of New York (“City”) and the Department of Corrections (“Department”) (collectively, “defendants”) to take specific actions to remedy “current and ongoing” violations of federal law that this Court identified in 14 New York City jails (“prospective relief’) and (2) the Office of Compliance Consultants (“OCC”) to monitor certain aspects of the prospective relief. Subsequent to the docketing of the April 26 Order, the parties separately submitted motions for reconsideration of the April 26 Order which sought, inter alia, that the Court make: (1) an explicit ruling on whether the Prison Litigation Reform Act (“PLRA”) forecloses the continuation of OCC; (2) provision-by-provision determinations that the relief imposed was necessary, narrowly drawn and no more intrusive than necessary to correct the violation of the federal right in accordance with the language of the PLRA; (3) the modification or elimination of certain provisions of the April 26 Order; and (4) certain technical changes. For the reasons discussed below, plaintiffs’ motion for reconsideration is granted in part and denied in part, defendants’ motion for reconsideration is granted in part and denied in part. Further, the Court appoints John H. Doyle III as the new OCC Director. 1. THE CONTINUATION OF OCC DOES NOT VIOLATE THE PLRA Both parties request, that the Court expressly decide whether OCC can coexist with the PLRA. Defendants argue that it cannot because the PLRA limits court-authorized agents to special masterships, whose appointment and responsibilities are specifically governed by the statute; plaintiffs disagree. See 18 U.S.C. § 3626(f). Under the PLRA, a special master is appointed through a collaborative procedure between plaintiffs and defendants, and is confined to a limited set of activities, which does not include monitoring, the essential activity of OCC. See 18 U.S.C. § 3626®. “Limitations on powers and duties. — A special master appointed under this subsection— (A) may be authorized by a court to conduct hearings and prepare proposed findings of fact, which shall be made on the record; (B) shall not make any findings or communications ex parte; (C) may be authorized by a court to assist in the development of remedial plans; and (D) may be removed at any time, but shall be relieved of the appointment upon the termination of relief.” Id. Because OCC is a monitoring body, whose director is selected in a manner other than that which is statutorily prescribed, defendants argue that OCC is precluded by the PLRA. Had the April 26 Order created rather than merely continued OCC, defendants’ argument might be persuasive. OCC is not now, and never has been, a special master as defined by the PLRA. However, OCC is lawful in my view — not because, as plaintiffs initially argue, the PLRA’s special master provisions leave intact the power of courts to appoint entities of a different stripe, like OCC — but for the reason that OCC as a long extant organization is not subject to the subsequently enacted PLRA. A. The History of OCC The instant opinion is the latest installment in a long line of decisions/orders concerning OCC by this and other courts. In 1975, pretrial detainees in certain New York City jails brought seven related class actions alleging that the conditions of their confinement violated their constitutional rights. In 1978-79, the City and plaintiffs’ counsel entered into consent decrees to address and remedy those conditions of confinement. In 1982, the consent decrees were consolidated for enforcement before the Honorable Morris E. Lasker who ordered, pursuant to the agreement between the parties, the creation of an agency called the Office of Compliance Consultants (“OCC”) to monitor defendants’ compliance with the consent decrees. Between 1982 and 1987, the parties consented to several renewals of OCC’s mandate. Thereafter, it was continued by orders dated October 1987, September 1989, July 1991, January 1993, January 1995, January 1997 and September 2000. During the period 1982 — 2000, the Court periodically adjusted the scope of OCC’s responsibilities, the intensity of its activities, and the nature of its operations. Contrary to the argument of defendants, OCC did not pass out of and come back into existence with each such order. Since 1982, OCC has performed essentially the same monitoring role over the same jail system in the same litigation. Moreover, the test of whether an entity is old or newly created is not whether the entity as it exists today perfectly resembles the entity of before. All entities change over time. Although OCC’s authorization was for some years renewed by a series of orders with specified end dates, it was never the expectation of this Court that OCC would cease to exist on those dates, nor do I believe that is was the expectation of the parties. The sunset provisions built into the earlier OCC renewals did not anticipate the end of OCC without regard to the status of the litigation; rather, they (1) reflected the Court’s expectations (repeatedly frustrated) that defendants would promptly comply with the consent decrees, and (2) provided a mechanism for the Court to actively supervise OCC, target its operations and provide its personnel some sense of the job’s duration. Defendants’ suggestion that such provisions bear out their claim that OCC has not been a continuous entity is plainly unjustified. Further, defendants’ statements that “it is the sheerest artificiality to consider OCC to be a continuing monitor,” (Def.s’ memo re OCC, March 21, 2001 at 11), and that the OCC is “little more than a shell,” id., is at best, inaccurate and disingenuous. Defendants correctly point out that OCC’s activities have been curtailed in recent years; however, defendants fail to acknowledge that the reduction of OCC’s activities ensued from defendants’ legal challenge to the consent decrees and the Court’s subsequent hearings, during the pendency of which OCC’s activities had to be put largely on hold. Defendants’ argument suggests the following: OCC ceased to exist because of defendants’ unsuccessful litigation to escape the consent decrees and OCC’s supervision thereof. I am not persuaded. B. Retroactivity: Application of the PLRA to OCC To determine whether to apply a statute enacted after the events in suit, this court must determine whether Congress intended that the statute be retroactive. See Landgraf v. U.S.I. Film Prod., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). If Congress did not clearly express its intent, I must conclude that the statute is not retroactive and therefore decline to apply the statute where so doing would have a “retroactive effect.” Id. at 260, 268, 114 S.Ct. 1483 (noting the strong presumption against the retroactive application of statutes); INS v. St. Cyr, — U.S. -, 121 S.Ct. 2271, 2287-88, 150 L.Ed.2d 347 (2001) (“Metro-active statutes raise special concerns”). Few courts have analyzed whether and how the special master provisions of the PLRA apply to pre-existing court-authorized institutions. See Coleman v. Wilson, 933 F.Supp. 954 (E.D.Cal.1996) (refusing to apply the PLRA’s provision concerning the compensation of special masters to a previously appointed master); Madrid v. Gomez, 940 F.Supp. 247 (N.D.Cal.1996) (same). With respect to § 803(d)(3), a different provision of the PLRA that imposes caps on attorneys’ fees, the Supreme Court held in Martin v. Hadix, 527 U.S. 343, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999), that § 803(d)(3) applies to cases that were pending when the PLRA was enacted. In so holding, the Martin Court distinguished between fees earned for work performed prior to the PLRA’s enactment and work performed thereafter. With respect to the latter, the Court found that “there is no retroactivity problem” since attorneys were on notice of the statutory fee structures. With respect to fees for pre-PLRA work, however, the Court concluded that § 803(d)(3) did not apply, since the section “does not clearly express congressional intent that it apply retroactively,” id. at 354, 119 S.Ct. 1998, and because its application would have the retroactive effect of upsetting the reasonable expectations of the parties. See id. at 360, 119 S.Ct. 1998. Regrettably, Martin is of limited application here. Martin concerned a different statutory provision and doesn’t speak to the question of whether the' continuation of a court-authorized monitor is precluded by the PLRA. See generally Landgraf, 511 U.S. at 280, 114 S.Ct. 1483 (“there is no special reason to think that all the diverse provisions of the [Civil Rights Act of 1991] must be treated uniformly for such purposes”). However, Martin does indicate that' the PLRA special master provisions do not have retroactive effect, because, like § 803(d)(2) at issue in that case, § 3626(f) contains no statement that Congress intended retroactive application and does not otherwise clearly express congressional intent to that effect. See Martin, 527 U.S. at 354, 119 S.Ct. 1998; see also St. Cyr, 121 S.Ct. at 2287-2288 (“[a] statute may not be applied retroactively, however, absent a clear indication from Congress that it intended such a result”). Indeed, the consistently prospective language of § 3626(f) (court “may appoint” a master; “shall appoint” a master; “shall request” lists from the parties) suggests a contrary intent. Thus, it is clear that § 3626(f) does not apply retroactively; what is less clear, however, is whether applying § 3626(f) to OCC would impermissibly cause a retroactive effect. Put another way, is it retroactive to limit OCC to a PLRA special mastership? Defendants take the position that retroactivity is not an issue since the remedial order implicates only future conduct, and that whatever OCC has been to date, going forward it must hew to the PLRA line. See Landgraf, 511 U.S. at 273, 114 S.Ct. 1483 (“application of new statutes passed after the events in suit is unquestionably proper in many situations”). Plaintiffs, on the other hand, argue that (1) the prospective language of § 3626(f) clearly expresses Congress’ intent that the provision not apply to ongoing entities like OCC, and (2) application of the special mastership would create a retroactive effect, because so doing would attach new legal consequences to past acts—i.e., the parties’ agreement to settle the case, plaintiffs’ agreement to forego enforcement litigation in favor of the informal process that OCC has monitored for many years, and this Court’s decision to rely upon OCC. See Martin, 527 at 343, 119 S.Ct. 1998 (“[t]he inquiry into whether a statute operates retroactively demands a common sense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment”) (quotations omitted). Plaintiffs’ arguments are persuasive. By its terms, § 3626(f) refers to future events and does not apply to pre-enactment court authorizations. See § 3626(f) (court “may appoint” a master, “shall appoint” a master, “shall request” lists from the parties.) The prospective language of § 3626(f) stands in marked contrast to § 3626(a)(1) which explicitly provides for retroactive application. See § 3626, Note, Effective and Applicability Provisions (“provision governing “prospective relief’ shall apply with respect to all prospective relief whether such relief was originally granted or approved before”). Congress’ use of exclusively prospective language in defining masterships to assist in the remedial phase, juxtaposed with its explicit direction that a neighboring provision governing “prospective relief’ be applied retroactively, indicates Congress’ intent that the special masters provisions apply only to newly-created court authorizations. See Lindh v. Murphy 521 U.S. at 330-338, 117 S.Ct. 2059 (where Congress expressly provided for retroactive application in one provision of the AEDPA, silence in another provision created a “negative implication” that Congress intended prospective application when it had not expressly provided for retroactive application); Ghana v. Holland, 226 F.3d 175 (3rd Cir.2000) (holding that the “express language of § 1997e(a), which provides that ‘no action shall be brought’ until the prisoner exhausts administrative remedies, demonstrates Congress’ intent that the exhaustion requirement apply only to new actions”). Moreover, even had § 3626(f) not indicated Congress’ intent to the contrary, applying the special master provision to extant institutions like OCC would have an impermissible retroactive effect. OCC has been an integral part of the remedy here since soon after the commencement of this litigation, and to change its role at this late stage conflicts with settled expectations of both the parties and the Court. For this reason alone, precedent dictates that OCC continue without limitation by the PLRA. See Landgraf, 511 U.S. at 265 (“Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted”). In St. Cyr, the most recent Supreme Court decision on the subject, the INS argued that amendments to the immigration laws, which eliminated the right of immigrants convicted of certain crimes to seek waivers of deportation, did not have retroactive effect because the power to grant relief from deportation is “inherently prospective.” See St Cyr., 121 S.Ct. at 2292. The Court conceded that it had characterized deportation as “looking prospectively to the respondent’s right to remain in this country in the future,” id. (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984)), but rejected the INS’ argument, reasoning that many immigrants had pleaded guilty and waived their constitutional right to a trial with the understanding that so doing would increase their chances of obtaining waivers of deportation in future INS proceedings. Here, plaintiffs entered into consent decrees with defendants, foregoing their right to proceed to trial, with the understanding that a court-authorized agent would monitor the jails until their deficiencies had been remedied. The application of § 3626(f) to OCC would disrupt the settled expectations of plaintiffs ■ and deprive them of the benefits they forewent by entering into the consent decrees. My decision not to apply § 3626(f) to OCC is reinforced by the profound consequences that would follow were I to conclude otherwise. In Martin, the case upon which defendants principally rely, the issue was how much plaintiffs’ attorneys should be.paid for post-judgment monitoring work that they had already performed in a prison litigation. Although that issue implicated concerns of fairness to counsel, the Court’s decision to award attorneys’ fees calculated upon PLRA rates for work performed after the statute’s enactment did not foreclose counsel’s continued representation of his/her clients, alter the defining qualities of the legal relationships between the parties, or adversely impact the post-judgment monitoring being performed by plaintiffs’ counsel. Martin was fundamentally a backward-looking decision which queried how much money was owing for work already performed and had little effect on future conduct, either in that case or in others. Here, as in St. Cyr, the issue is quite different than Martin. Because OCC is a monitoring body, and because monitoring is not permitted under § 3626(f), to label OCC a special master is to render unlawful an institution upon which this Court has relied in fashioning its approach to the litigation for many years. Nor is § 3626(f) akin to the jurisdictional statutes discussed in Landgraf which oust federal courts of jurisdiction, since, as the Landgraf Court itself observed, “[application of a new jurisdictional rule usually takes away no substantive right but simply changes the tribunal that is to hear the case.” Id. at 274, 114 S.Ct. 1483. If OCC is ousted, nothing may replace it. The touchstone in Landgraf, Martin and St. Cyr of the retroactivity analysis is whether applying the provision would attach legal consequences to prior events or relationships. In my view, there is little that could alter the parties’ and the court’s relationship vis a vis one another and with OCC more than the termination of OCC’s legal existence. “The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.” Id. at 270, 114 S.Ct. 1483. And, “[a]ny test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have sound ... instinet[s].” (quotation marks omitted). Id. In accord with the approach suggested by the foregoing statements, a California district court held that fee limitations for special masters do not apply to special masters appointed before the PLRA. “The transfer of the cost of the Special Mastership at this juncture not only imposes a substantial new burden on the judiciary for its previous decisions, but it also injects uncertainty into an on-going remedial process and alters its existing balance.... [Tjhere is clearly no guarantee that [federal] funds will continue to be forthcoming or will not be subject to restrictions that may significantly impair the Court’s ability to effectuate full and effective relief. Of course any such impairment would also interfere with the plaintiffs’ rights to such relief. Completely relieving defendants of any obligation to bear the cost of the Special Mastership may also undermine incentives to proceed efficiently and may even provide contrary incentives to delay.” Madrid, 940 F.Supp. at 253-254. The court’s concern in Madrid, that application of the PLRA would damage the on-going remedial process, is exactly the concern here. There is no doubt that defendants will remedy the “current and ongoing” violations faster when monitored by OCC than if left to their own devices and that the departure of the OCC would have a immediate disruptive effect. Ironically, applying the statute to OCC would mean that defendants, who fought to vacate the consent decrees and failed because of continuing violations of constitutional minimums, lost the battle but won the war. They will have destroyed a long-standing monitoring institution that helped bring the light of day to those constitutional failures. It stretches credulity to believe that Congress intended such a perverse result. In Martin the Supreme Court held that applying the PLRA fee provisions to work performed prior to the effective date of the statute would impermissibly alter the previously agreed upon fee arrangements. Informing the Court’s holding, however, was the very real concern that application of a statute not cause “manifest injustice.” Martin, 527 U.S. at 360, 119 S.Ct. 1998; see also St. Cyr, 121 S.Ct. at 2291 (focusing on “the potential for unfairness in the retroactive application of IIRIRA § 304(b)”). To eliminate OCC, it seems to me, would do precisely that. II. THE APRIL 26 ORDER COMPLIES WITH § 3626(a)(1) The April 26 Order marked what I thought was the end to a lengthy process, throughout which the parties enjoyed extensive opportunities to make arguments to the Court and participate in the tailoring of the remedial order. On May 8 — If) and May 15-17, 2000 (“May 2000 hearings”), I heard extensive testimony from present and former detainees, executives from the Department and experts about environmental conditions at the facilities. The Court issued an opinion on January 9, 2001 (“January 2001 opinion, 2001 WL 359488”), and a second on March 23, 2001 (“March 2001 opinion, 2001 WL 282705”) (collectively, “environmental health opinions”) that together partially granted the motion of defendants to terminate the environmental health provisions of the consent decrees. Sadly, in both opinions the Court found that many of the City’s jails continued to have numerous “current and ongoing” environmental violations. In connection with the January 2001 opinion, the Court requested recommendations from the parties on how to remedy the “current and ongoing” violations identified in the opinion. The Court made a similar request in the March 22, 2001 opinion. ■ In an effort to close the gaps between the parties’ recommendations, the Court held a conference in Chambers, and later solicited jointly agreed upon text for the remedial order, as well as argument with respect to disputed language. On April 26, 2001, the Court issued ■ the “Order On: Environmental Conditions,” which incorporated much of the parties’ agreed-upon provisions and took into consideration various concerns raised by one or both of the parties. A PLRA Needs-Narrowness-Intm-siveness ' (1) Prospective relief. — (A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1). On its face, the PLRA requires that before imposing prospective relief a court must find that such relief is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. Those courts that have construed this obligation have found that it is not sufficient to simply state in concluso-ry fashion that the requirements of the remedial order satisfy the statute; rather, district courts must make “particularized findings, on a provision-by-provision basis, that' each requirement imposed by the [Order]' satisfies the needs-narrowness-intrusiveness criteria, given the nature of the current and ongoing violation.” See Cason v. Seckinger, 231 F.3d 777, 785 (11th Cir.2000); Ruiz v. United States, 243 F.3d 941; 950-951 (5th Cir.2001); Castillo v. Cameron County, 238 F.3d 339, 354 (5th Cir.2001). Plaintiffs urge this Court to depart from the holdings of these courts and adhere to the general rule that findings need only be “adequate to allow a clear understanding of its ruling.” Fasolino Foods Co., Inc. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1058 (2nd Cir.1992). Certainly, this Court’s lengthy opinions and the April 26 Order more than suffice to “allow a clear understanding” of this Court’s remedial order. Only an overdose of denial could suggest a lack of clarity as to what this Court determined was required to correct constitutional violations and why. Moreover, the prospective relief provided for in my April 26 Order is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right,” id, all of which was either noted in my opinions or in the conferences with counsel. I have grave doubts that the PLRA requires findings on a “provision-by-provision” basis. Notably, § 3626(a)(1) neither explains what it means for a court to “find” that relief is appropriate nor makes clear what portions of a .remedial order “any prospective relief’ refers to. It cannot be said that § 3626(a)(1) is unambiguous, or clearly expresses Congress’ intent to depart from the traditional standard— findings sufficient to allow a “clear understanding” of the ruling — in favor of a.painfully exacting standard under which courts make such findings on a paragraph by paragraph, or even sentence by sentence, basis. To interpret the PLRA to require more than a general finding that the prospective relief is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right,” in my view, elevates formalism over substance and construes the PLRA as devising pitfalls for conscientious courts who have convened hearings, weighed extensive quantities of evidence, rendered detailed opinions, and drafted narrow and specific remedial orders. Requiring courts, in effect, to reproduce and expand upon all of their factual findings in a remedial order is duplicative, wasteful of judicial resources, and highly inefficient. Further, the asserted “factual findings” requirement is not an opportunity to relitigate “current and ongoing” violations, and should not be allowed to operate as such. Not surprisingly, and probably unavoidably, much of what the parties ostensibly submitted' in connection with the “particularized findings” represents little more than an effort to regain what they lost at the hearing. However, in light of some, in my view, unfortunate appellate rulings, and to avoid yet more delay in the remediation of truly depressing environmental conditions, I will so proceed. B. OCC: Needs-Narrowness-Intrusiveness The April 26 Order consists of two discrete parts. The first sets forth the structure, resources and mandate of OCC; the second directs defendants to take specific remedial actions to correct current and ongoing violations. This latter section alone constitutes “prospective relief’ within the meaning of § 3626(a)(1). OCC is exclusively a monitoring body, and monitoring itself, independent of the conditions to be monitored, cannot be relief. Monitoring merely informs the court and the parties where the defendants are in the process of providing the ordered relief. To find otherwise would conflate relief with the means to guarantee its provision. Because the needs-narrowness-intrusiveness test of § 3626(a)(1) applies only with respect to “prospective relief,” the Court need not make specific findings about OCC. Thus, the Court shall not make specific findings with respect to OCC (¶¶ 1-10 of the April 26 Order), other than to observe that the nearly twenty year history of incomplete compliance with the consent decrees amply attests to the need for external monitoring, and that the April 26 Order (1) directs OCC to monitor only those conditions which this Court found to constitute “current and ongoing” violations in the environmental conditions opinions, (2) reduces the scope of OCC’s monitoring from previous orders in recognition of the remedial work defendants have completed, and (3) provides OCC with limited resources that are sufficient only to carry out its narrow range of activities. My personal view is that a more robust OCC would substantially compress the time it takes to correct the constitutional violations, release this Court from its role and provide minimal standards for thousands of detainees. However, with an eye to the PLRA and in the interest of minimizing the burden on defendants, the April 26 Order preserved OCC’s limited role. C. General Principles For Performing The Needs-Narrowness-Intrusiveness Test The decision to engage in a provision-by-provision, needs-narrowness-intrusiveness analysis leads the court into uncharted waters. Neither the PLRA itself nor the appellate courts that have construed it provide guidance as to how, specifically, a court should go about finding that “relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” § 3626(a)(1). How many and what kinds of facts this Court needs to recite in support of its conclusion that a provision is PLRA compliant appears to be a question of first impression. Thus, assuming that the PLRA requires a detailed needs-narrowness-intrusiveness analysis, a conclusion that I do not share, it seems essential to identify the principles implicit in the PLRA with respect to that analysis. The court defines a “provision” for purposes of the “provision-by-provision” analysis as the paragraph or paragraphs of the April 26 Order that concern a specific environmental condition — i.e., sanitation, temperature, ventilation, heating, lighting, noise, and clinical and medical areas. A particular requirement does not lack for sufficient findings if the provision of which it is a part is amply supported. The PLRA provides only that “prospective relief’ requires factual findings. It does not dictate that for every action required by a court (no matter how minor) there be a concomitant factual finding, nor is there any reason to beheve that Congress intended such an onerous burden. Requiring factual findings for each type of relief is consistent with the language of the PLRA and satisfies Congress’ desire that courts account for the necessity of the relief they order. Further, to conclude otherwise would either condition the adequacy of a court’s findings upon the paragraph structure of the remedial order, or, at its logical extreme, force the court into the absurd position of having to make a separate analysis for every word in the order. Agreements between the parties— as provided in the Proposed Order (“Prop.Order”), jointly drafted by the parties at the invitation of the Court—are evidence that those provisions incorporated into the April 26 Order comply with the needs-narrowness-intrusiveness analysis, and constitute the kind of findings arguably required by the PLRA. Cf. Cason, 231 F.3d at 785 n. 8 (“Of course, we do not mean to suggest that the district court must conduct an evidentiary hearing about or enter particularized findings concerning any facts or factors about which there is no dispute. The parties are free to make any concessions or enter into any stipulations they deem appropriate.”) While the fact of agreement in the Proposed Order may not be sufficient to establish that a provision incorporated in the April 26 Order meets the needs-narrowness-intrusiveness test, it constitutes strong evidence to that effect. Similarly, the existence of a Department policy that either resembles a requirement in the April 26 Order or, if taken at face value, renders the requirement redundant, does not militate against the necessity of such requirement. Prospective relief is necessary where conditions fall below constitutional minimums, whether or not such conditions would exist if defendants observed their own rules. Indeed, rather than evidencing that a court-imposed requirement is not compliant with the PLRA, the fact of an applicable Department policy attests to narrowness and unobtrusiveness of that requirement. Requiring the Department to follow its own rules can hardly be either too broad or too intrusive. With regard to objections to temporal deadlines'—as opposed to the relief itself— to the extent that deadlines require “prospective relief’ findings at all, the Court cannot determine that a deadline is other than narrowly drawn and unobtrusive unless defendants proffer clear counter-arguments and alternative dates. Defendants object that this approach as an impermissible shift of the needs-narrowness-intrusiveness burden to them, but such an objection misses the essential point that by providing defendants any time at all to implement the ordered relief the Court allows defendants to further trespass on detainees’ constitutional rights. Contrary to what appears to be defendants’ view, the Department’s pre-existing, internally-generated renovation schedules are not the measure of whether a deadline complies with the PLRA. If defendants want to delay the remedy beyond the dates assigned by the Court—after considerable input from defendants—it is incumbent upon defendants to provide a good reason. That defendants had already intended to perform the ordered work but according to a different timeframe does not constitute a good reason. D. Provision-By-Provision Findings Sanitation (¶ 11, 13 of the April 26 Order) In the environmental health opinions, I found that the sanitation at AMKC (except for the medical areas), ARDC, GMDC, RMSC, JATC, GRVC, NIC, OBCC, MDC, BKHD, QHD, West, VCBC, and BXHD fell far below constitutional mínimums. The Court directed in ¶¶ 11 and 13 of the April 26 Order, as amended by this decision, that defendants take certain actions to achieve minimum constitutional standards at the 14 facilities. Those actions, which are necessary to cure the constitutional violation, narrowly drawn, and as unobtrusive as possible, are to: (a) clean and sanitize various hygiene and sanitation facilities at least once per day and power wash the showers with a bleach solution once per quarter; (b) complete shower replacement by August 1, 2002; (c) clean and sanitize living areas once per week; (d) clean cells upon vacancy; (e) clean and sanitize mattresses between uses by different detainees; (f) provide a ventilated janitor closet with supplies and store cleaning implements in places that are clean and ventilated and (g) provide detainees with food storage containers. (a) personal hygiene and sanitation facilities; power washing of showers Defendants object only to the power washing portion of this requirement. However, in light of this Court’s finding that “[sjoap scum and mildew were observed in many showers ...,” January 2001 opinion, 2001 WL 359488, *26, and defendants’ representation that power washing is “[gjenerally done once every couple of months (T840),” id., requiring quarterly power washings with bleach is, if anything, overly narrow and unobtrusive. Defendants’ objection that power washing may damage tiling is not an excuse to forgo basic hygiene, but rather additional evidence that the bathrooms are falling apart. (b)shower replacements In many cases, the conditions of the bathrooms are so desperate as to make replacement the only viable means to achieve constitutional standards. See PL Post-Hearing Brief Re: Environmental Health and Related Issues, at 59-66 (which findings the Court adopts). As of the May 2000 hearings, defendants had begun a long term shower renovation project, involving: roof repair; replacement of showerheads, water and drainage lines; and installation of new walls, ceilings and mechanical ventilation. In connection with such projects, and in an effort to devise a remediation strategy consistent with defendants’ ongoing efforts, the April 26 Order required defendants to “submit a complete list of the shower replacement schedules to OCC by July 2, 2001, with completion dates for the work, which dates shall not extend beyond August 1, 2002.” April 26 Order, ¶ lib. Defendants, who agreed in the Proposed Order to the submission of “a complete list of shower replacement schedules,” (Prop. Order at 8), characterize this deadline as not achievable, and request an extension of 1.5 years until January 30, 2004. This Court has no desire to impose unrealistic deadlines upon defendants, but defendants do not establish the necessity for a 1.5 year extension by claiming that August 1, 2002 is too soon and asserting that the Department’s existing plans call for a longer schedule. Strangely, here and in other temporal aspects of the remedial order the defendants appear to believe that the Department’s existing plans to be my guide. They are not! Given this Court’s finding that the conditions of the showers are unconstitutional, I do not have the flexibility to accommodate defendants’ preferences while detainees are subject to unconstitutional conditions. Nor, I might add, should the City be willing to countenance such a state of affairs in its prisons. (c) cleaning living areas Due to the evidence of widespread failure to observe basic sanitation practices, (January 2001 Opinion, 2001 WL 359488 *25-26), it is necessary for the Court to adopt a general rule that defendants must clean living areas once per week. Defendants have made no substantive objection to this requirement, which goes no further than to insist on basic sanitary practices. Moreover, since a Department policy already imposes a similar obligation, this requirement merely makes it a contempt of Court for defendants to fail to follow their own procedures. See id; Def.s’ Post-Hearing Memorandum, at 67. (d) cleaning cells upon vacancy In the Proposed Order, defendants agreed that cells “shall be thoroughly cleaned upon becoming vacant,” but objected to plaintiffs proposal, subsequently adopted by the Court in the April 26 Order, that the Court identify those activities that define a “thorough cleaning.” Prop. Order at 10. Defendants’ objection is misplaced. The mandated activities are not mere elaborations of the “thorough cleaning” requirement, but follow directly from the Court’s findings, as set forth in the environmental conditions opinions, and reiterate requirements imposed elsewhere in the Order. For example, the activity of “repairing or replacing damaged or obscured light shields,” (April 26 Order ¶ lid) derives from the “evidence of soiled light shields,” id. at *26, and exists as a free-standing requirement under ¶ 17e of the April 26 Order. Similarly, the requirements that mattresses be sanitized or replaced are the necessary corollaries of the obligation to provide detainees with sanitized mattresses in good repair. See April 26 Order ¶ lie. Given defendants’ agreement that cells should be cleaned, and their agreements in other portions of the Proposed Order that mattresses should be sanitized, light shields and ventilation registers cleaned, and radiators repaired, it is self-evident that the ordered relief is not excessive or intrusive. (e) mattresses In holding that unsanitary conditions in the jails violated detainees’ constitutional rights, the Court found “that detainees are routinely exposed to unsanitary mattresses, which poses a direct risk to health.” January 2001 opinion, 2001 WL 359488 *26. Sanitizing and/or replacing mattresses after use by one detainee and before use by another is the only means to stop the spread of germs and the growth of bacteria. During my April 2001 visit to Rikers Island, I noted that the overwhelming majority of mattresses were either uncovered, torn or soiled. My own admittedly unscientific findings are entirely consistent with the testimony of Dr. Powitz at the May hearings. See id.; May 2000 hearings, T646. This narrowly defined requirement is not intrusive; indeed the Department’s own housekeeping manual and states that any mattresses with holes, rips, or tears should be replaced. See DX F-29 at 6510. (f) janitor’s closets; (g) food storage containers Defendants have made no objections to these requirements, which go no further than to require defendants to engage in basic sanitary practices, which they claim to do already and profess an intent to continue. In the Proposed Order, the parties agreed to both of the requirements. See Prop. Order at 12-13. Indeed, the Court adopted defendants’ version of ¶ llg concerning janitor’s closets because plaintiffs’ proposal that the Court specify the kinds of supplies the closet must include was insufficiently narrow and unduly intrusiveness. Id. Temperature (¶ 14 of the April 26 Order) This Court found that class members are subject to unconstitutional extremes of temperature at AMKC, ARDC, BKHD, GMDC, GRVC, JATC, NIC, QHD, OBCC, and RMSC. See January 2001 Opinion, 2001 WL 359488 *13-18. Thereafter, the Court directed in ¶ 14 of the April 26 Order that defendants implement a monitoring program devised to be as narrowly drawn and unobtrusive as possible at the above-listed facilities. The parties agreed on most aspects of such a program. Where they disagreed, the Court generally acceded to defendants’ requests and so conformed the relevant provisions of the April 26 Order. Thus, the Court (1) adopted defendants’ view about when testing should occur (in the parlance of the April 26 Order, “testing days”); (2) required that 40%, as opposed to plaintiffs request of 100%, of the modular and sprung housing units be monitored on testing days; and (3) limited testing personnel to the OCC-EHOs, and did not permit OCC to use “designees” from the Department (as plaintiffs proposed) unless the OCC-EHOs prove unable to complete the monitoring and the Court approves a staff enhancement plan that includes “desig-nees.” See April 26 Order ¶ 14; Prop. Order at 16-19. In any event, since the temperature monitoring program is “monitoring” to be coordinated by OCC, as opposed to “prospective relief,” ¶ 14 is not subject to the needs-narrowness-intrusiveness test. See supra section re “OCC: needs-narrowness-intrusiveness.” Ventilation (¶ 15 of the April 26 Order) Inadequate ventilation constitutes a “current and ongoing” violation because the absence of ventilation — the supply of fresh air and the exhaust of impure air— carries significant, adverse health consequences. See January 2001 opinion, 2001 WL 359488 *6-7; March 2001 Opinion, 2001 WL 282705 *2. In the wake of this finding, the Court directed in the April 26 Order that defendants take certain narrowly drawn actions, constituting the least intrusive means to correct the violations, at ARDC, GMDC, GRVC, JATC, MDC, NIC, OBCC, the mental observations units at AMKC, RMSC, and the intake areas at QHD and BKHD. Specifically, the Court required: (a) annual inspection and balancing of ventilation systems; (b) completion of those repairs necessary to restore functional ventilation by dates certain, including repairing the roof fans at ARDC by July 31, 2001; (c) 'adequate ventilation in bathroom and shower areas; (d) spacing beds such that the heads of sleeping prisoners are at least 6 feet apart; (e) operational windows; and (f) information about ventilation problems in intake areas. (a) annual inspection and balancing of ventilation systems With respect to the annual testing requirement, defendants objected that their inspection schedule for heating and cooling systems, which are included in Directive 3900, is sufficient. See Prop. Order at 23. In fact, Directive 3900 concerns only heating systems and does not address ventilation or cooling systems at all; and, in any event, the pre-existence of a directive that required defendants to test heating systems would only affirm the compliance of this Court’s requirement with the PLRA. See Defendants’ Exhibit F-20 at 14. Defendants do not otherwise object to the requirement that ventilation systems be inspected, tested and repaired before May 15 of every year, but they do object to the requirement that mechanical ventilation systems be balanced annually, alleging that this is not generally done in the industry and that ventilation systems are balanced only when they are installed. See Declaration of Vincent Clara in Support of Def.s’ Motion For Reconsideration, ¶ 19. However, testimony to the contrary by Deputy Commissioner Tsu (May 2000 hearings, T1213) and Dr. Powitz, plaintiffs’ expert, (id, T485-86) is more persuasive than the affidavit of Vincent Cara. Moreover, the April 26 Order expressly provides that rebalancing need not be done annually if the manufacturer’s specifications dictate a different schedule. Defendants have not alleged that annual balancing is unduly burdensome. (b) completion of repairs necessary to restore functional ventilation by dates certain Defendants objected to the requirement that ventilation repairs be completed before July 1, 2001. However, they did not propose an alternative date, nor did they submit the inventory of such repairs that they promised on April 15, 2001, which they said was necessary to assess the time required for completion. See Prop. Order at 24. (c) adequate ventilation in bathroom and shower areas This requirement, agreed to by the parties in the Proposed Order (see Prop. Order at 24), is an expression of the general requirement that defendants provide adequate ventilation in all jail areas. It is included here as an independent item in the April 26 Order in recognition of the calamitous state of many of the bathrooms (to a large degree as a result of poor ventilation) and shower areas, some of which I have personally visited. See January 2001 Opinion at *82 (describing mildewed and decrepit bathroom and shower areas). In many jails, poor or no ventilation in shower rooms causes such unrelieved humid conditions that showers grow mold and deteriorate, tiles fall off the walls and dislodge from the floor, paint neeis off of walls and ceilings and metal framing rusts away. See PX 123, 126, ? 32, 133, 134, 137-141, 145, 153, 164-67, 170-72, 176-185,198-191. (d)bed spacing — heads 6 feet apart Plaintiffs’ environmental expert, Dr. Powitz, testified that beds should be placed such that prisoners’ heads are 6 feet apart because droplets emanating from one person’s mouth remain airborne for at least three feet but generally not as far as 6 feet. See Tr. 690-91. Upon this and other uncontradicted testimony, the Court determined that defendants’ failure to so space its beds was a “current and ongoing” violation. There is no need to make further findings about this requirement of the April 26 Order, because the requirement is by definition necessary to correct the violation. Defendants agreed to this requirement in the Proposed Order, and only later raised an objection to the 6 foot standard. See Prop. Order at 24. Defendants also object to the July 2, 2001 headline for the implementation of the 6 foot standard because achieving the standard would require moving beds, and the beds are bolted to the floor. While it may be that this is labor-intensive, it is also true that moving beds, as opposed to detainees, for example, is but one means to achieve the 6 foot standard. Defendants protest that there are limited available bed spaces to which detainees could be moved, but I note that the population at Rikers has contracted substantially in recent years, thereby freeing up bed spaces. Also, defendants’ proposal (with regard to a different provision of the April 26 Order), that temperature violations be corrected by moving detainees from living areas that are too hot or too cold, further indicates that there are available living areas that could be used to spread out detainees. (e) operational windows Operational windows are necessary for ventilation and temperature control. (See findings re ¶ 16 infra regarding the importance of functioning windows in temperature regulation). There is ample evidence that non-functioning windows contribute to inadequate ventilation and excessive heat. See T129-30 (Thompson); T77 (Browne); T549, T553, T558 (Powitz); PX 106 at P00049 (Powitz notes); PX 365 at 15 (Feeney notes). This requirement is not overly intrusive, since it requires only that defendants repair non-functioning windows, a routine task in any building. Defendants object on the grounds that (1) defendants may have. to replace rather than repair certain windows, (2) a complete repair/replacement program is not the least intrusive relief because a single broken window is not a constitutional violation, and (3) the relief appropriate to the Court’s finding of unconstitutional temperature is to direct defendants to move detainees out of housing areas where temperatures are either too hot or too cold. Defendants’ first argument fails because operable windows are necessary to avoid temperature extremes, and the PLRA does not excuse defendants from necessary, if expensive, repairs. Defendants’ second argument is equally unavailing because a comprehensive repair program is the only rational means to correct the system-wide violation, and is far less intrusive than the Court making window-by-window repair/replace determinations. Defendants’ final argument is also unacceptable because the evidence convinces me that defendants would not be sufficiently responsive to changes in housing area temperatures and because, if fully implemented, such a program would be more intrusive and burdensome on defendants than the ordered relief. (f) information about ventilation problems in intake areas. Defendants make no objection to the requirement that they provide “information about the frequency and causes of malfunctioning or non-functioning mechanical ventilation in intake areas, as well as the amount of time it takes to restore fully functioning ventilation in various foreseeable circumstances.” April 26 Order ¶ 15f. Intake areas often hold detainees who have just been admitted to jail and have not yet been medically screened for infectious diseases. They are extremely crowded at times of high traffic in and out of the jail. Functioning ventilation is therefore particularly important in intake areas “to reduce the infectious burden on those coming through the system ... [where] you want dilution ventilation as much as humanly possible.” T651 (testimony of Dr. Powitz). Heating (¶ 16 of the April 26 Order) The Court found that class members are subject to unconstitutional extremes of temperature at AMKC, ARDC, BKHD, GMDC, GRVC, JATC, NIC, QHD, OBCC, and RMSC, See January 2001 opinion, 2001 WL 359488 *13-18. To give effect to this finding, the Court directed defendants in ¶ 16 of the April 26 Order to take certain actions, which are narrowly drawn and the least intrusive means to remedy the identified heating violations. Specifically, ¶ 16 requires that defendants: (a) annually test heating systems and certify that they are in full repair by October 15 of each year; (b) maintain radiators and radiator covers in good repair; and (c) prior to the end of winter ensure that windows are fully operational, repair broken windows promptly, and not house inmates in cells or dormitory areas during winter months where the windows are broken or cannot be closed or sealed. The factual findings applicable to the temperature monitoring provision (¶ 14 of the April 26 Order, as discussed supra) are equally applicable to the heating provision as they derive from the same temperature regulation problem. (a)annually test heating systems and certify that they have done so Defendants make no objection to annual testing of heating systems and state that such inspections already take place, but do object to the October 15, 2001 deadline to complete repairs of windows that do not close. Since the heating season is now well over, an October 15 deadline affords time enough to make repairs. Further, since the deprivation of warmth to detainees is a constitutional violation (January 2001 Opinion, 2001 WL 359488 *13), and considering that after October 15 temperatures at Rikers island, which is a harsh, environmentally exposed environment, : "e likely to drop quickly, extending defendants’ deadline would be a license to subject detainees to unconstitutional conditions for yet another winter. (b) maintain radiators and radiator covers in good repair The parties agreed to this requirement in the Proposed Order (see Prop. Order at 27) and is made necessary by the findings with respect to “a” above. (c) windows must be unbroken and fully operational Defendants object to the requirement that windows be operational during the winter, on the grounds that it is sufficient for them to be closed and sealed to maintain proper temperatures. However, because there was substantial evidence of excessive heat during the winter, keeping the windows operational is necessary to protect detainees from temperature extremes. Of this need, I can personally attest. Certain of the modular units that I visited in early April 2001 (during the Department’s “heating season”) were sweltering, despite the open windows all around. Had those windows been sealed, the detainees, many of whom were stripped to their waists, would have been at considerable medical risk. Defendants also objected to the requirement that prisoners not be housed during the winter months in living areas where windows cannot be closed or sealed or windowpanes are broken. See Prop. Order at 28. This requirement necessarily follows from the holding that the Constitution protects detainees from exposure to extreme temperatures and the determination that detainees housed in cells with broken windows are often exposed to extreme cold. Lighting (¶ 17 of the April 26 Order) The Court found that detainees are subject to constitutionally inadequate lighting at all of the defendants’ jails, with the exceptions of ARDC and AMKC. See January 2001 opinion, 2001 WL 359488 *27-31. In so holding, the Court found that “[ijnadequate lighting in the Department’s jails can be traced to several problems (1) non-working light fixtures (2) inadequate light bulb wattage and (3) obstructed light shields.” Id. at *28. In light of that finding, the Court directed defendants in ¶ 17 of the April 26 Order to take certain actions which are narrowly drawn and the least intrusive means to correct the violations. Specifically, the Court directed defendants to: (a) ensure that 20 foot-candles of light be provided at bed or desk level in all cells and dormitories at GMDC, RMSC, JATC, GRVC, NIC, OBCC, MDC, BKHD and QHD; (b) ensure that in the medical areas of GMDC, NIC and RMSC there be no less than 30 foot-candles of general lighting and 100 foot-candles of task lighting in specific, functional!y defined areas; (c) implement the foot-candle standards by a date certain; (d) identify and clean all light shields by a date certain; and (e) not house prisoners in cells with lights that do not work. (a) 20 foot-candle standard In the January 2001 opinion, the Court held that 10 foot-candle lighting in cells and dormitories is constitutionally inadequate, but deferred the determination of whether a 20 or 30 foot-candle standard is necessary to remedy the violations. See January 2001 opinion, 2001 WL 359488 *27 (“[t]he inadequacy of the 10 foot candle standard is made plain by the fact that the Department endorsed an upgrade from 20 foot candles to 30 foot candles in 1993”). It is the Court’s view that the adoption of a foot-candle standard is necessary and the least intrusive means to give effect to the Court’s holding. In the April 26 Order, over plaintiffs’ objections the Court directed defendants to adopt the lesser 20 foot standard despite the Court’s significant reservations about its sufficiency. See April 26 Order ¶ 17a. Further, rather than directing the Department to install bulbs of a particular wattage, the Court confined its ruling to the less intrusive requirement that prisoners must have 20 foot-candles of light at desk or bed level. It is within defendants’ discretion how to achieve that standard. See Prop. Order at 30-31. (b)lighting in medical areas The April 26 Order requires 30 foot-candles of general lighting and 100 foot-candles of task lighting in areas where patients are examined or medication is stored, prepared, dispensed or otherwise handled. See April 26 Order ¶ 17b. In the Proposed Order, plaintiffs’ sought 50 foot-candles of general lighting and 100 foot-candles of task lighting based upon Dr. Powitz’s testimony and the Standards of the Illuminating Engineer Society of North America. See Prop. Order at 34; T611-615; PX 103. Defendants objected to the 50 foot-candle standard and instead recommended the OSHA standard of the 30 foot-candle standard. Although the Court has reservations about the adequacy of the 30 foot-candle standard in medical facilities, the April 26 Order adopted defendants’ proposal so as to ensure that defendants’ obligations did not exceed constitutional mínimums. Defendants also favored a 90 foot-candle standard for task lighting, but the Court determined that the 100 foot-candle standard is constitutionally imperative given the safety risks posed by inadequate light in patient treatment areas. See Prop. Order at 34 (“Defendants ... would accept a standard of 90 ft.cd. for task lighting”). Moreover, even if 90 foot-candles of task lighting meets minimum standards, which I do not believe is the case, the additional 10 foot-candles of lighting does not render the 100 foot-candle unduly broad or intrusive. (c) implementation deadlines The April 26 Order directed defendants to implement the foot-candle standards by August 1, 2001 except to the extent that capital renovations are required. See April 26 Order ¶ 17d. Defendants object on the ground that meeting the 20 foot-candle standard will require painting cell walls and taking other time intensive actions; however, defendants could meet the standard by installing higher wattage bulbs and, in any event, have provided no reason why three months is insufficient time to apply a, coat of paint or hit upon some other means to enhance lighting. Defendants’ further objection — that the August 1, 2001 deadline poses particular problems at BKDC, QDC and JATC where capital renovations may be required — is misplaced since the April 26 Order obliged defendants only to identify capital renovations by August 1, 2001 (for completion by January 3, 2002). (d) identify and clean all light shields by a date certain In the January 2001 opinion, the Court found that constitutionally inadequate lighting was, in part, traceable to obstructed light shields. See January 2001 opinion, 2001 WL 359488 *28. Defendants object to the imposition of any completion date for identifying and cleaning or replacing light shields that are discolored, painted over, or obscured, on the sole ground that this responsibility is ongoing and any completion date is inappropriate. See Prop. Order at 32-33. The defendants have missed the point. The completion date of August 1, 2001 refers to an initial system wide cleaning and replacement effort. See April 26 Order ¶ 17d. The second sentence of the paragraph refers to their obligation to maintain the light shields in a clean and un-obscured state. These provisions are the least intrusive remedies first, to get the light shields cleaned up, and second, to keep them that way. Noise (¶ 18 of the April 26 Order) Paragraph 18 directs defendants to certify that the diesel generators are being used for backup purposes only at RMSC and ARDC. Defendants have already provided this certification. Clinical & Medical Areas (¶ 19 of the April 26 Order) In both the environmental health opinions, the Court found that the sanitary conditions at the clinical and medical areas of GMDC, NIC and RMSC are constitutionally inadequate. See January 2001 opinion, 2001 WL 359488 *34-35; March 2001 opinion, 2001 WL 282705 *6. In furtherance of that holding, the Court directed in ¶ 19 of the April 26 Order that defendants take certain narrowly drawn actions which are as unobtrusive as possible. Specifically, the Court directed that defendants: (a) maintain the clinic and infirmary areas at NIC, GMDC and RMSC in a clean and sanitary condition and (b) assign cleaning crews to NIC, GMDC and RMSC for twice daily cleanings. See April 26 Order ¶ 19. (a) maintaining clean and sanitary conditions Defendants did not object substantively to any provisions of this requirement, but said that its subject matter is addressed in their internal directive, (Prop. Order at 41); however, Directive 3903, from which the requirements of this paragraph are taken has been in effect since 1995, and obviously did not cure the violation. See DX F-22 at 7-10. Therefore, the inclusion of the specific requirements enumerated as 1-10 in ¶ 19 of the April 26 Order are necessary to ensure that constitutional standards are achieved. Since defendants’ regulations requi