502us2$26I 01-22-99 08:32:58 PAGES OPINPGT
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RUFO v. INMATES OF SUFFOLK COUNTY JAIL Stevens, J., dissenting
The increase in the average number of pretrial detainees is, of course, a change of fact. Because the size of that increase had not been anticipated in 1979, it was appropriate to modify the decree in 1985.6 But in 1985, the steady progression in the detainee population surely made it foreseeable that this growth would continue. The District Court’s finding that “the overcrowding problem faced by the Sheriff is neither new nor unforeseen,” Inmates of Suffolk County Jail v. Kearney, 734 F. Supp. 561, 564 (Mass. 1990), is amply supported by the record. Even if the continuing increase in inmate population had not actually been foreseen, it was reasonably foreseeable. Mere foreseeability in the sense that it was an event that “could conceivably arise” during the life of the consent decree, see ante, at 385, should not, of course, disqualify an unanticipated development from justifying a modification. But the parties should be charged with notice of those events that reasonably prudent litigants would contemplate when negotiating a settlement. Given the realities of today’s society, it is not surprising that the District Court found a contended that Bell expressed a policy preference in favor of double celling. This distinction is well described by the United States, appearing as amicus curiae: “Bell v. Wolfish . . . , which rejected a challenge to the constitutionality of double-celling, did not represent a policy decision endorsing such housing. In contrast, in amending the Railway Labor Act, Congress weighed the merits of various labor policies and specifically endorsed union shops. The amendment thus conflicted with the consent decree’s prohibition of such clauses. Bell, in contrast, cast no doubt on the propriety of the single-cell requirement to which the parties here had agreed.” Brief for United States as Amicus Curiae 20, n. 9. 6 It should be noted that the figures cited by the Court, ante, at 386, n. 9, are drawn from a projection prepared before 1979. (The projection is published in a report dated January 1, 1979. See App. 61, 69.) By 1982, respondents believed that the 1979 projections underestimated the future inmate population. See Record, 2 App. 642–648. In 1985, petitioners knew that the average number of male prisoners detained in 1984 had been 320 instead of the projected number of 236. Id., at 642–650.
