FRANK M. JOHNSON, Jr., Circuit Judge:
This is an appeal from an order of the United States District Court for the Western District of Texas requiring the sheriff and the members of the commissioners court of El Paso County, Texas, to limit the inmate population of the El Paso County jail and to submit weekly reports of conditions at the jail to the district court.
This is not the first time that this controversy has been before this Court. The case began on July 3, 1974, when an inmate of the jail, acting on his own behalf and as a representative of all other El Paso County jail inmates, filed suit for injunctive relief under 42 U.S.C. § 1983 alleging that conditions at the jail violated the United States Constitution and Texas statutory law. On September 25, 1975, after a nonjury trial, the district court found these allegations to be true.
It issued an order requiring the sheriff and the commissioners court to initiate certain remedial programs by January 20, 1976,
to bring the jail into compliance with Tex.Rev.Civ.Stat.Ann. art. 5115 by
September 1, 1977,
and to provide an outdoor area for exercise and a rehabilitative program of recreation by September 1, 1977. With certain modifications irrelevant here, the district court order was affirmed on appeal.
On June 15, 1977, on remand, the district court ordered the defendants to submit reports on their present compliance and their plans for future compliance with the court’s order as modified on appeal. After receiving these reports and denying a request for a hearing, the district court, on October 19, 1977, issued the order that is the subject of this appeal.
The defendants claim that this order is invalid in four respects. First, they contend that the nature of the relief that the order requires cannot legally be provided by the defendants under state law. They argue that compliance with the order’s limitation on inmate population would require the sheriff to violate his statutory duty to accept prisoners
and the commissioners court to violate its duty to stay within spending limits imposed by state law.
This claim has no merit. It is well established that
inadequate funding will not excuse the perpetuation of unconstitutional conditions of confinement, e.
g., Williams v. Edwards,
547 F.2d 1206, 1212-13 (5th Cir. 1977);
Gates v. Collier,
501 F.2d 1291, 1319-20 (5th Cir. 1974);
Mickens v. Winston,
462 F.Supp. 910, 912 (E.D.Va.1978);
Inmates of Boys’ Training School v. Southworth,
76 F.R.D. 115, 119 (D.R.I.1977); nor will an allegedly contrary duty at state law,
Costello v. Wainwright,
525 F.2d 1239,1243 (5th Cir.),
vacated and replaced,
539 F.2d 547 (5th Cir. 1976) (en banc),
replacement rev’d and remanded,
430 U.S. 325, 97 S.Ct. 1191, 51 L.Ed.2d 372 (1977),
original opinion reinstated,
553 F.2d 506 (5th Cir. 1977) (en banc).
The defendants’ second and third claims also fail. Their assertion that the portion of the district court order requiring the submission of weekly reports violates principles of federalism is frivolous, as is their contention that the district court lacked jurisdiction to order the defendants to continue to accept federal prisoners in the manner prescribed by state law.
The defendants are correct, however, in arguing that the trial court erred in failing to conduct further hearings as to the overall conditions at the jail before ordering that the inmate population be limited to 500.
It need not be repeated that federal courts should intervene in the day-today operation of state and local penal and detention systems only with the greatest of reluctance.
Procunier v. Martinez,
416 U.S. 396, 404-05, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974);
Williams v. Edwards,
547 F.2d at 1211-12;
Pugh v. Locke,
406 F.Supp. 318, 328 (M.D.Ala.1976),
aff’d in part sub nom. Newman v. Alabama,
559 F.2d 283 (5th Cir. 1977),
modified sub nom. Alabama v. Pugh,
438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978);
Diamond v. Thompson,
364 F.Supp. 659, 662 (M.D.Ala.1973),
aff’d,
523 F.2d 1201 (5th Cir. 1975). Where constitutional deprivations are established, either in specific instances,
e. g., Johnson v. Avery,
393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (regulation infringing inmates’ right of access to the courts), or by the totality of conditions within an institution, e.
g., Gates v. Collier,
501 F.2d at 1309 (“[e]ach factor separately . . . may not rise to constitutional dimensions; however, the effect of the totality of these circumstances is the infliction of punishment on inmates violative of the Eighth Amendment”), the federal courts may, and must, if the issue is appropriately presented, intervene.
E. g., Hutto v. Finney,
437 U.S. 678, 685-88, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978);
Procunier v. Martinez,
416 U.S. at 405-06, 94 S.Ct. 1800.
See also Newman v. Alabama, supra; Pugh v. Locke, supra.
As indicated above, the federal courts have the power, and the duty, to make their intervention effective. To prevent further constitutional deprivations, a court may order forms of relief not normally required by the Constitution but nevertheless necessary given the circumstances if the court’s efforts are to be successful.
See, e. g., Hutto v. Finney,
437 U.S. at 685-88, 98 S.Ct. 2565 (affirming order forbidding more than 30 days of punitive isolation);
Miller v. Carson,
563 F.2d 741, 751 (5th Cir.
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FRANK M. JOHNSON, Jr., Circuit Judge:
This is an appeal from an order of the United States District Court for the Western District of Texas requiring the sheriff and the members of the commissioners court of El Paso County, Texas, to limit the inmate population of the El Paso County jail and to submit weekly reports of conditions at the jail to the district court.
This is not the first time that this controversy has been before this Court. The case began on July 3, 1974, when an inmate of the jail, acting on his own behalf and as a representative of all other El Paso County jail inmates, filed suit for injunctive relief under 42 U.S.C. § 1983 alleging that conditions at the jail violated the United States Constitution and Texas statutory law. On September 25, 1975, after a nonjury trial, the district court found these allegations to be true.
It issued an order requiring the sheriff and the commissioners court to initiate certain remedial programs by January 20, 1976,
to bring the jail into compliance with Tex.Rev.Civ.Stat.Ann. art. 5115 by
September 1, 1977,
and to provide an outdoor area for exercise and a rehabilitative program of recreation by September 1, 1977. With certain modifications irrelevant here, the district court order was affirmed on appeal.
On June 15, 1977, on remand, the district court ordered the defendants to submit reports on their present compliance and their plans for future compliance with the court’s order as modified on appeal. After receiving these reports and denying a request for a hearing, the district court, on October 19, 1977, issued the order that is the subject of this appeal.
The defendants claim that this order is invalid in four respects. First, they contend that the nature of the relief that the order requires cannot legally be provided by the defendants under state law. They argue that compliance with the order’s limitation on inmate population would require the sheriff to violate his statutory duty to accept prisoners
and the commissioners court to violate its duty to stay within spending limits imposed by state law.
This claim has no merit. It is well established that
inadequate funding will not excuse the perpetuation of unconstitutional conditions of confinement, e.
g., Williams v. Edwards,
547 F.2d 1206, 1212-13 (5th Cir. 1977);
Gates v. Collier,
501 F.2d 1291, 1319-20 (5th Cir. 1974);
Mickens v. Winston,
462 F.Supp. 910, 912 (E.D.Va.1978);
Inmates of Boys’ Training School v. Southworth,
76 F.R.D. 115, 119 (D.R.I.1977); nor will an allegedly contrary duty at state law,
Costello v. Wainwright,
525 F.2d 1239,1243 (5th Cir.),
vacated and replaced,
539 F.2d 547 (5th Cir. 1976) (en banc),
replacement rev’d and remanded,
430 U.S. 325, 97 S.Ct. 1191, 51 L.Ed.2d 372 (1977),
original opinion reinstated,
553 F.2d 506 (5th Cir. 1977) (en banc).
The defendants’ second and third claims also fail. Their assertion that the portion of the district court order requiring the submission of weekly reports violates principles of federalism is frivolous, as is their contention that the district court lacked jurisdiction to order the defendants to continue to accept federal prisoners in the manner prescribed by state law.
The defendants are correct, however, in arguing that the trial court erred in failing to conduct further hearings as to the overall conditions at the jail before ordering that the inmate population be limited to 500.
It need not be repeated that federal courts should intervene in the day-today operation of state and local penal and detention systems only with the greatest of reluctance.
Procunier v. Martinez,
416 U.S. 396, 404-05, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974);
Williams v. Edwards,
547 F.2d at 1211-12;
Pugh v. Locke,
406 F.Supp. 318, 328 (M.D.Ala.1976),
aff’d in part sub nom. Newman v. Alabama,
559 F.2d 283 (5th Cir. 1977),
modified sub nom. Alabama v. Pugh,
438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978);
Diamond v. Thompson,
364 F.Supp. 659, 662 (M.D.Ala.1973),
aff’d,
523 F.2d 1201 (5th Cir. 1975). Where constitutional deprivations are established, either in specific instances,
e. g., Johnson v. Avery,
393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (regulation infringing inmates’ right of access to the courts), or by the totality of conditions within an institution, e.
g., Gates v. Collier,
501 F.2d at 1309 (“[e]ach factor separately . . . may not rise to constitutional dimensions; however, the effect of the totality of these circumstances is the infliction of punishment on inmates violative of the Eighth Amendment”), the federal courts may, and must, if the issue is appropriately presented, intervene.
E. g., Hutto v. Finney,
437 U.S. 678, 685-88, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978);
Procunier v. Martinez,
416 U.S. at 405-06, 94 S.Ct. 1800.
See also Newman v. Alabama, supra; Pugh v. Locke, supra.
As indicated above, the federal courts have the power, and the duty, to make their intervention effective. To prevent further constitutional deprivations, a court may order forms of relief not normally required by the Constitution but nevertheless necessary given the circumstances if the court’s efforts are to be successful.
See, e. g., Hutto v. Finney,
437 U.S. at 685-88, 98 S.Ct. 2565 (affirming order forbidding more than 30 days of punitive isolation);
Miller v. Carson,
563 F.2d 741, 751 (5th Cir. 1977) (affirming order requiring outdoor exercise).
Where, how
ever, no constitutional deprivation is established, the justification for federal judicial intervention evaporates. Although state standards may sometimes serve as a useful guide in a federal court’s determination and redress of constitutional deprivations,
see, e. g., Williams v. Edwards,
547 F.2d at 1214 (state fire and sanitation codes indicate ‘evolving notions of decency’; use of such codes allows federal district judge to minimize intrusion into details of state prison administration),
Adams v. Mathis,
458 F.Supp. 302, 309 (M.D.Ala.1978), a violation of state law, without more, will not justify federal judicial intervention.
Hutto v. Finney,
437 U.S. at 688, 98 S.Ct. 2565 & n.12;
Diamond v. Thompson,
364 F.Supp. at 662.
Cf. Taylor
v.
Sterrett,
600 F.2d 1135 (5th Cir. 1979) (requiring district court that had intervened on basis of state law violation to discontinue exercise of its jurisdiction and dismiss the cause). Unless acting to reme-
dy federal constitutional violations as part of a “totality” approach, federal judges are not to become enmeshed in the minutiae of prison operations.
From the record before us, we find it impossible to determine whether the district court’s 500-inmate limitation on the jail population was tailored to remedy a constitutional violation. Although unconstitutional overcrowding was alleged in the original complaint, the district court never responded to the allegation with recorded findings of fact or conclusions of law. What the record indicates is that the court ordered the 500-inmate limit merely to bring the jail closer to compliance with state law.
As stated above, the imposition of such an order by a federal court is inappropriate.
A limitation on the inmate population of the El Paso County jail may be necessary, but the district court should impose such a limitation only if the court
finds on remand, after a hearing and evaluation of evidence relating to
the totality of conditions
at the jail as they now exist, that the jail is overcrowded and that, considered with all of the other existing conditions, incarceration therein is violative of the prisoners’ constitutional rights.
Although unchallenged by the defendants here, there are other aspects of the district court’s operative orders in this case that may, for the reasons set out above, constitute unwarranted federal judicial intervention in the day-to-day operation of the El Paso County jail.
See Bell v. Wolfish,
441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (setting out test for determining constitutionality of conditions of confinement in facilities housing pretrial detainees). The district court is instructed on remand to review its orders in light of
Wolfish
and the totality of the conditions at the jail as they now exist. The court should continue to exercise its jurisdiction only if and to the extent that it determines that there are continuing deprivations of federal constitutional dimensions.
See Hutto v. Finney,
437 U.S. at 688, 98 S.Ct. 2565 & n.12;
Taylor v. Sterrett,
600 F.2d at 1145-46.
For the above reasons, the portion of the district court order limiting the inmate population at the El Paso County jail is vacated. The case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.
APPENDIX # 1
FINDINGS OF FACT
1.
EXERCISE AND RECREATION:
A. There is no program for exercise and recreation in the jail.
B. Prisoners are confined to their cells for the duration of their sentences or until trial.
C. Prisoners have no exposure either to sunlight or to fresh air.
2.
EDUCATION AND REHABILITATION:
A. The only organized program of education provided at the jail is the Cooks and Bakers School.
B. Ample reading material is available but not distributed to prisoners at scheduled intervals.
C. Prisoners do not have frequent or regular opportunities for legal, religious or personal counseling.
D. No regularly scheduled religious services are provided for the inmates.
3.
MEDICAL CARE:
A. Incoming prisoners are not given medical examinations.
B. Physician-prescribed medications are many times not being provided to inmates as ordered by the physician.
4.
FOOD AND DIET:
A. Inmates of the jail are not now brought to a dining area for each meal.
B. Meals are served to the inmates in their cells.
C. Many times meals received by the inmates are not hot.
D. Many times adequate eating utensils are not provided for inmates.
5.
SUPPLIES AND FACILITIES:
A. On many occasions towels and toilet paper are not available to prisoners.
B. On occasion prisoners are not supplied with clean blankets, mattresses or bunks.
C. On occasion plumbing facilities are left stopped up for extended periods of time.
D. On occasion no hot water is available in the showers.
E. On many occasions inmates are not given the cleaning supplies necessary to maintain their cells in a sanitary condition.
6.
JAIL PERSONNEL, SAFETY AND
SUPERVISION:
A. Inmates, on numerous occasions, have been subjected to beatings by fellow prisoners.
B. Inmates, on occasion, have been subjected to homosexual attacks by fellow prisoners.
C. Many times jail personnel are completely absent from certain floors of the jail for extended periods of time.
D. On many occasions hours will pass without a cell area being visited by jail personnel.
7.
VENTILATION AND LIGHTING:
A. On numerous occasions prisoners are subjected to temperatures not within the range of 65 °F. to 85 °F.
B. The lighting in the area available to prisoners, during daylight hours, is many times not adequate for reading.
8.
SEPARATION OF PRISONERS:
A. On occasion inmates under age 18 are not separated from inmates over age 18.
B. On occasion material witnesses are not separated from other inmates.
C. On occasion first offenders awaiting trial are not separated from other classifications of convicted prisoners.
D. Inmates with communicable diseases are not always separated from other inmates.
9.
DISCIPLINARY
PROGRAM:
A. Jail rules, standards and prisoner rights are not communicated in such a fashion to inmates to insure their awareness of the same.
B. There is no established and published system for hearings for prisoners charged with infractions of the rules or standards of the jail.
10.
PHYSICAL LAY-OUT:
A. The El Paso County Jail does not provide individual one-man or one-woman cells to accommodate not less than 30% of the total designated prisoner capacity of the jail, as required by Art. 5115, V.A.T.S.
B. The El Paso County Jail provides dormitory space to accommodate more than 40% of the total designated prisoner capacity of the jail in violation of Art. 5115, V.A.T.S.
C. The El Paso County Jail does not provide cells, compartments or dormitories for sleeping purposes, designed to accommodate three or more prisoners, which are accessible to a separate dayroom to which prisoners may be given access during the day, as required by Art. 5115, V.A.T.S.
D. The cells, compartments and dormitories designed for three or more prisoners are not provided with one water closet and one combination lavatory and drinking fountain for each twelve prisoners or fraction thereof to be confined therein, as required by Art. 5115, V.A.T.S.
E. In the El Paso County Jail areas used as dayrooms for the confinement of three or more prisoners are not provided with one water closet, one combination lavatory and drinking fountain, and one shower bath for each twelve prisoners or fraction thereof to be confined therein, as required by Art. 5115, V.A.T.S.
F. In the El Paso County Jail the areas used as dayrooms are furnished only with tables, some with benches and some without, and no chairs, as required by Art. 5115, V.A.T.S.
G. The El Paso County Jail does not provide for temporary holding of each person suspected of insanity or who has been legally adjudged in
sane, a special enclosure or room not less than 40 sq. ft. and having a ceiling height of not less than 8 ft. above the floor, with a floor and wall of such enclosure provided with a soft covering designed to protect a violent person, and a hammock not less than 2 ft. 3 in. wide and 6 ft. 3 in. long, made of elastic or fibrous material, as required by Art. 5115, V.A.T.S.
11.
PRESENTLY EXISTING FINANCIAL RESOURCES:
A. That 18 United States Code § 4002 provides that the Director of the Bureau of Prisons may contract with the authorities of any state, territory or political subdivision for the imprisonment, subsistence, care and proper employment of federal prisoners, and that the rates to be paid by the federal government to such a political subdivision “. . . may be such as will permit and encourage the proper authorities to provide reasonably decent, sanitary, and healthful quarters and subsistence for such' persons.”
B. That such a contract exists between the Director of the Bureau of Prisons and the County of El Paso and that thereunder the federal government pays $7.00 per day ($9.00 per day on Oct. 1,1975) for each federal prisoner housed in El Paso County Jail, which totals approximately $300,000.00 a year.
C. That of each such $7.00 amount, $1.25 ($1.50 of the $9.00 amount on Oct. 1, 1975) is put into the “Jail Improvement Fund”, and that the balance goes into the El Paso County General Fund.
D. That the financial budget for the jail is determined by the El Paso County Commissioners and is allocated out of the County General Fund.
E. That the entire budget for the jail is approximately $350,000.00 to $400,-000.00 per year.
F. That the El Paso County Commissioners may allocate such portion of the County General Fund as they deem proper for the operation of the El Paso County Jail.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the subject matter and the parties to this action by virtue of 28 U.S.C. § 1343, 28 U.S.C. § 2201, and 42 U.S.C. § 1983.
2. This cause is properly maintainable as a class action under Rule 23(b)(2), Federal Rules of Civil Procedure.
3. Plaintiffs, inmates of the El Paso County Jail, have been deprived of rights assured them and protected by the 1st, 8th, and 14th Amendments to the Constitution of the United States and 42 U.S.C. § 1983 due to (a) the overall conditions of the El Paso County Jail, and (b) a combination of practices imposed upon them by Sheriff Mike Sullivan.
4. The existing facilities and practices maintained by Defendants are not in compliance with the minimum requirements established by Art. 5115, V.A.T.S.
APPENDIX # 2
Art. 5115. Jails provided
The Commissioners Court shall provide safe and suitable jails for their respective counties, and shall cause the same to be maintained in good sanitary condition at all times, properly ventilated, heated and lighted; structurally sound, fire resistant and kept in good repair. Furthermore, they shall cause the jails in their respective counties to be kept in a clean and healthy condition, provided with water of safe quality and ample quantity and sewer disposal facilities in accordance with good sanitary standards, and provided with clean, comfortable mattresses and blankets, sufficient for the comfort of the prisoners, and that food is prepared and served in a palatable and sanitary manner and according to good dietary practices and of a quality to maintain good health. Such jails shall comply
with the provisions of this Act and with the rules and procedures of the Commission on Jail Standards.1
SUITABLE SEGREGATION
The term “safe and suitable jails,” as used in this Act, shall be construed to mean jails which provide adequate segregation facilities by having separate enclosures, formed by solid masonry or solid metal walls, or solid walls of other comparable material, separating witnesses from all classifications of prisoners; and males from females; and juveniles from adults; and first offenders, awaiting trial, from all classifications of convicted prisoners; and prisoners with communicable or contagious diseases from all other classifications of prisoners. Furthermore, the term “safe and suitable” jails shall be construed to mean jails either now or hereafter constructed, except that, in lieu of maintaining its own jail, any county whose population is not large enough to justify building a new jail or remodeling its old jail shall be exempt from the provisions of this Act by contracting with the nearest available county whose jail meets the requirements set forth in this Act for the incarceration of its prisoners at a daily per capita rate equal to the cost of maintaining prisoners in said jail, or at a daily rate mutually agreed to by the contracting counties.
No person suspected of insanity, or who has been legally adjudged insane, shall be housed or held in a jail, except that such a person who demonstrates homicidal tendencies, and who must be restrained from committing acts of violence against other persons, may be held in a jail for a period of time not to exceed a total of twenty-four (24) hours, during which period he shall be kept under observation continuously. At the end of the twenty-four (24) hour period, such person shall be released or taken to a hospital or mental hospital. Furthermore, for such temporary holding of each person suspected of insanity, or who has been legally adjudged insane, there shall be provided a special enclosure or room, not less than forty (40) square feet and having a ceiling height of not less than eight (8) feet above the floor. Furthermore, the floor and the walls of such enclosure shall be provided with a soft covering designed to protect a violent person, temporarily held therein, from self-injury or destruction. One hammock, not less than two (2) feet, three (3) inches wide and six (6) feet, three (3) inches long, made of elastic or fibrous material shall be provided in each such special enclosure.
SUITABLE SECURITY AND SAFETY
For the purpose of this Act, the term “safe and suitable jails” is further defined to mean jails which provide adequate security and safety facilities by having separate cells or compartments, dormitories, and day rooms, of varying dimensions and capacities for prisoners confined therein, except that, if practicable, no one such cell or compartment shall be designed for confining two (2) prisoners only. Cells or compartments shall be designed to accommodate from one (1) to eight (8) prisoners each, and furthermore, such dormitories and day rooms shall be designed to accommodate not more than twenty-four (24) prisoners each. Furthermore, in each such jail there shall be provided individual one-man or one-woman cells to accommodate not less than thirty per cent (30%) of the total designated prisoner capacity of the jail and dormitory-type space may be provided to accommodate not more than forty per cent (40%) of the total designated prisoner capacity of the jail. All cells, compartments and dormitories for sleeping purposes, where each such cell, compartment or dormitory is designed to accommodate three (3) or more prisoners, shall be accessible to a day room to which prisoners may be given access during the day. Cells for one (1) prisoner only shall have a minimum floor area of forty (40) square feet and all other cells, compartments, dormitories and day rooms (including safety vestibule area) shall have a minimum floor area equal to eighteen (18) square feet for each prisoner to be confined therein. The ceiling height above finished floor shall be not less than eight (8) feet for any cell, compartment, dormitory or day room where prisoners are confined.
The term “safe and suitable jails,” as used in this Act, is further defined to mean that, for reasons of safety to officers and security, the entrance and/or exit to each group of enclosures forming a cell block or group of cells and/or compartments used for the confinement of three (3) or more prisoners shall be through a safety vestibule having one (1) or more interior doors in addition to the main outside entrance door to such cell block, all arranged to be locked, unlocked, opened or closed by control means located outside of any such enclosure or cell block.
SUITABLE SANITATION AND HEALTH
The term “safe and suitable jails” is further defined to mean jails which provide adequate facilities for maintaining proper standards in sanitation and health. Each cell designed for one (1) prisoner only shall be provided with a water closet and a combination of lavatory and drinking fountain, table and seat. Each cell, compartment or dormitory designed for three (3) or more prisoners, shall be provided with one (1) water closet and one (1) combination lavatory and drinking fountain for each twelve (12) prisoners or fraction thereof to be confined therein. Furthermore, all such cells, compartments and dormitories shall be provided with one (1) bunk, not less in size than two (2) feet, three (3) inches wide and six (6) feet, three (3) inches long, for each prisoner to be confined therein. Furthermore, each day room for the confinement of three (3) or more prisoners shall be provided with one (1) water closet, one (1) combination lavatory and drinking fountain and one (1) shower bath for each twelve (12) prisoners, or fraction thereof, to be confined therein. Furthermore, each day room shall be otherwise suitably furnished.
The provision of this Act, as amended, shall become applicable to all jails upon its effective date. The standards prescribed by this Act are minimum standards only. The provisions of this Act are enforceable by the Commission on Jail Standards.1