December 7, 1995
The Honorable Franklin Freeman, Secretary
North Carolina Department of Correction
214 West Jones Street
Raleigh, North Carolina 27626-0540
Re: Advisory Opinion — Assigning Two Inmates to a Single Bed on a Shift Basis ("Hot
Bunking"); 1995 Session Laws Chapter 507, Section 19.2
Dear Secretary Freeman:
You state that in response to the North Carolina General Assembly’s directive, the Department of
Correction has developed a plan to assign two inmates to a single bed on a shift basis at Lincoln
Correctional Center. See 1995 N.C. Sess. Laws ch. 507, sec. 19.2. This penological management
technique, also known as "hot bunking", arranges inmates’ daily activities in such a manner that
two or more different groups of inmates may occupy the same dormitory space and bed during
different portions of each 24-hour day. In compliance with the Legislature’s further directive that
the Department consult with the Attorney General " . . . to ensure that such an arrangement will
not violate the State’s obligations under law" Id., you present a series of questions concerning the
lawfulness of hot bunking in general and as specifically proposed in the Department’s plan
entitled The Feasibility of Sleeping Inmates in Shift, "Hot Bunking" Lincoln Correctional Center.
This advisory opinion responds to your questions.
You ask:
With what legal standards must the Department comply in order to ensure that a pilot project
bunking inmates in shifts does not violate the State’s obligations under law?
The primary legal standard with which the practice of hot bunking must comply is the eighth
amendment’s prohibition against "cruel and unusual punishment." Hot bunking also must comply
with constitutional standards which protect inmates’ rights to be provided adequate living
conditions and services including the rights to medical treatment, to send and receive mail, to
have access to the courts and to express their religious beliefs. Hot bunking also must comply
with statutory and regulatory standards governing the operation of prisons as well as the
requirements of applicable court orders and settlement agreements.
You also ask:
Would bunking inmates in shifts at Lincoln Correctional Center violate the State’s obligations
under law if undertaken pursuant to the 6 July 1995, Department of Correction proposal entitled
The Feasibility of Sleeping Inmates in Shift, "Hot Bunking" Lincoln Correctional Center?
Our research indicates that no federal court has published an opinion specifically addressing the
constitutionality of hot bunking. However, the United States Supreme Court has held that
assigning two inmates to a cell originally designed to house only one is not per se
unconstitutional. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Bell
v. Wolfish, 441 U.S. 520, 99 S.Ct. 1961, 60 L.Ed.2d 447 (1979). The federal courts also are likely to conclude that hot bunking is not per se unconstitutional and decide whether it complies with constitutional standards by evaluating whether the practice, as implemented at a specific correctional facility, has a significant, adverse impact upon inmates’ living conditions and the services required to be provided to them under the Constitution.
In the context of prisons, the Constitution generally requires they be operated in a safe and secure manner. More specifically, the Constitution requires inmates to be provided adequate food, clothes, shelter, sanitation, medical attention and physical safety. See Newman v. State of Alabama, 559 F.2d 283 (5th Cir. 1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3174, 57 L.Ed.2d 1160 (1978). Hot bunking will not violate constitutional standards provided the conditions as a whole at the facility, including hot bunking, do not have a "mutually enforcing effect that produces the deprivation of a single, identifiable human need." Strickler v. Waters, 989 F.2d 1375 (4th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993), citing Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Although we cannot state with certainty that the federal courts will conclude that your Department’s proposal for hot bunking at Lincoln Correctional Center meets constitutional standards, it is our opinion that the plan complies with both the North Carolina Constitution and the Constitution of the United States and will provide safe and secure conditions for both the inmates and staff.
No state law prohibits hot bunking in general or as specifically proposed in the Department’s plan. Neither does hot bunking conflict with any of the Department’s duties and responsibilities imposed under Chapter 148 to supervise, control and maintain custody of prisoners. We have made no attempt to determine which state and local health and safety regulations are applicable to the Lincoln Correctional Center because the plan states, and therefore we assume, that hot bunking can be implemented at the facility in compliance with these regulations. Therefore, we conclude hot bunking, as proposed to be implemented under the Department’s plan, would not violate the State’s statutory or regulatory obligations.
No consent agreement or court order governs the operation of Lincoln Correctional Center. Therefore, hot bunking would not violate the State’s obligations under court-imposed standards.
Finally, you ask:
If the Department of Correction’s proposal for bunking inmates in shifts at Lincoln Correctional Center does not violate the State’s obligations under law, may the Department implement the plan at other prisons without risk of violating the State’s obligations under law?
Although hot bunking at Lincoln Correctional Center as proposed in the Department’s plan passes constitutional muster and does not violate state laws and regulations, it is our opinion that hot bunking should not be implemented at other prison facilities until the Department of Correction has reviewed carefully whether enhanced services and support staff are required to operate the specific facility within constitutional standards. Increasing the inmate population at any prison facility without commensurate increases in services and support staff may impact negatively upon living conditions at the facility and could rise to the level of a constitutional violation. The proposed increases in services and staff at Lincoln Correctional Facility which will allow hot bunking to be implemented safely and effectively there while maintaining living conditions above the constitutional floor, may not be sufficient or workable at another facility. Furthermore, in those prison facilities operating under federal court supervision, the Department
of Correction must first notice the court prior to implementing hot bunking. We trust this advisory opinion has been responsive to your inquiry. William N. Farrell, Jr.
Senior Deputy Attorney General
W. Dale Talbert
Special Deputy Attorney General