Leo F. Feeley, IV v. George Sampson, Etc.

COFFIN, Chief Judge

(dissenting).

The court’s opinion, while obviously thoughtful and responsive to understandable concerns, seems to me to proceed from false constitutional premises and to reject virtually all of the case law affecting pretrial detainees. The court begins, soundly enough, by recognizing that detainees have not yet been tried and found guilty and that current authority allows their liberty to be taken “only to the extent necessary to ensure their presence at trial.” When the analysis reaches its end, however, we find that only those restrictions which are inhuman, serve no proper purpose, or are arbitrary and capricious in that they “merely reflect the lack of imagination or energy of local officials” may be judicially corrected. The path the court takes is the following: (1) encroachment on a detainee’s liberty is permitted only if necessity requires it; (2) orderly and secure prisons are necessary to assure the detainee’s presence at trial; (3) deference to local authority requires that a state need meet only a minimal burden to establish the nexus between the treatment of detainees and the goals of prison security. Therefore, the state may impose on pretrial detainees any condition of confinement that it can reasonably relate to its institutional concerns for safety and order in the prison where they are incarcerated. Through this logic the “necessity” of the court’s initial principle is transformed to include the farthest limits of administrative rationality.

I appreciate some of the implicit and explicit premises which have led the court to this conclusion. There is a clear lack of commitment on the part of the body politic to provide significantly increased funding for correctional facilities. Courts in general and federal courts in particular are naturally reluctant to intrude into the administration of state and local government activity. While pretrial detainees are presumptively innocent of the charges against them, they may well be dangerous individuals who pose security risks for custodial authority.

Indeed, the court’s formulation and analysis would comport perfectly with a constitution that guaranteed that “no citizen may be deprived of his liberty without due process of law except for encroachments deemed by legislative or administrative judgments to bear a reasonable relationship to legitimate societal interests.” Such a guarantee would be entirely coherent; it would respect majoritarian decisions as to funding priorities, support institutional efficiency, and minimize federal court intrusions in state and local affairs. But this is not our constitution.

Nor does the overwhelming majority of the many courts which have considered the rights of pretrial detainees so view the constitution. I attempt to marshal the authorities below. But before considering these, I do not wish to appear to do a disservice to the authorities relied on by the court. Perhaps most pertinently the court, in suggesting a new standard with which to evaluate conditions of confinement of pretrial detainees, quotes Supreme Court language that “ ‘At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.’ Jackson v. Indiana, 406 U.S. 715, 738 *378 [ 92 S.Ct. 1845, 1858 , 32 L.Ed.2d 435 ] (1972).” The context in which that quotation is taken from in Jackson , a case involving the indefinite commitment of a person incompetent to stand trial, makes it clear that the Court was referring to the nature of the proceeding through which a state may incarcerate a person indefinitely and that the proceeding in question had not met the most minimal standards of due process. The case says nothing about conditions of confinement or the standards under which they should be evaluated.

I have found only three pretrial detainee cases which appear to provide support for the majority’s standard. Seale v. Manson, 326 F.Supp. 1375 (D.Conn.1971) focused on the rights of two particular detainees, both of whom were accused of serious criminal offenses. However, it is clear that the reasonable relation standard utilized in Seale is no longer the law of the Second Circuit, see Rhem v. Malcolm, 507 F.2d 333, 336-37 (2d Cir. 1974); Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392 , 397 (2d Cir. 1975); United States ex rel. Wolfish v. Levi, 406 F.Supp. 1243, 1247 (S.D.N.Y.1976).

The second case, Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976), appears to present several standards, one of which, “that as a matter of due process, pre trial detainees may suffer no more restrictions than are reasonably necessary to ensure their presence at trial”, is consistent with the court’s opinion in the present case. Other language in Duran suggests a more protective view of detainee’s rights. The opinion specifically permits detainees to present evidence as to whether their privileges can be increased “without jeopardizing the security of the institutions or requiring unreasonable expenditures.” A later Seventh Circuit case strongly suggests that deprivations imposed on pretrial detainees must receive some sort of rigorous scrutiny. In Smith v. Shimp, 562 F.2d 423 (7th Cir. 1977), the court discusses Duran without ever mentioning a “reasonably necessary” standard. Instead, it states that “if conflict between the state’s interest in jail security and the civil liberties of the detainees cannot be avoided or limited by reasonable means, the latter must yield.” Id. at 426. This rule simply states the obvious — that the courts will not uphold unreasonable demands on the part of detainees and that there must be rational limits on their civil liberties if custody is to be maintained. It does not indicate that any “reasonable” deprivation imposed by the state will be upheld irregardless of whether sufficient security and order could be maintained by less restrictive means. Indeed, the court states this specifically, “We may assume that the defendants’ practice would be unconstitutional if the interest in jail security could be protected by less burdensome means.” Id. at 426.

The third case, Main Road v. Aytch, 565 F.2d 54 (3d Cir. 1977), does not detail a specific standard with which to evaluate the conditions of confinement of pretrial detainees, but it does suggest that prison authorities should be given considerable deference in their attempts to maintain security in prisons both for convicted prisoners and pretrial detainees alike. It is difficult to tell how much of the court’s analysis was meant to apply to general conditions of confinement of pretrial detainees and how much of it was limited to the facts of the particular case being adjudicated. The Third Circuit was confronted with a mixed plaintiff class of pretrial detainees and convicted criminals (although the large majority were detainees); the district court had found that governing the two groups under separate regulations would not be feasible; detainees did not receive fewer privileges than their convicted counterparts; and while the privilege sought in the suit, the right to hold group press conferences, was denied, other forms of communication with the press such as mail and individual interviews were permitted. To the extent that the Third Circuit would extend equivalent deference to prison authorities whether they were holding convicted criminals or pretrial detainees in custody in most circumstances, not simply those described above, it provides support for the court’s opinion in the present case.

*379 I would not characterize these authorities as being a doctrinal source for a “reasonable relationship” test. In any event, the almost universal state of authority is in stark disagreement with the court’s analysis. Indeed, the rigorous standard of scrutiny described by the district court below has been approved in both its aspects. Deprivations may be imposed on detainees for legitimate purposes such as institutional security only if such deprivations are justified by “compelling necessity”, see, e. g., Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392 , 397 (2d Cir. 1975); Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974); Martinez Rodriquez v. Jimenez, 409 F.Supp. 582 (D.P.R.1976); United States ex rel. Wolfish v. Levi, 406 F.Supp. 1243, 1247 (S.D.N.Y.1976); Manicone v. Cleary, 74 C. 575 (E.D.N.Y.1975); Brenneman v. Madigan, 343 F.Supp. 128, 138-39 (N.D.Cal.1972); Jones v. Wittenberg, 323 F.Supp. 93 (N.D.Ohio 1971) (“absolute requisite” instead of compelling necessity), aff’d sub nom., Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972), or if the deprivation is the least restrictive alternative available to maintain order and security, see, e. g., Miller v. Carson, 563 F.2d 741 (5th Cir. 1977); Smith v. Shimp, 562 F.2d at 426 (7th Cir. 1977); Rhem v. Malcolm, supra, 507 F.2d at 337 ; Mitchell v. Untreiner, 421 F.Supp. 886 (N.D.Florida 1976); United States ex rel. Wolfish v. Levi, supra, 406 F.Supp. at 1247 ; Manicone v. Cleary, supra; Dillard v. Pitchess, 399 F.Supp. 1225 (C.D.Cal.1975); Cudnik v. Kreiger, 392 F.Supp. 305 (N.D.Ohio 1974); Wilson v. Reame, 380 F.Supp. 1232, 1236 (E.D.N.Y.1974); Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676 (D.Mass.1973); Smith v. Sampson, 349 F.Supp. 268, 271 (D.N.H.1972); Brenneman v. Madigan, supra, 343 F.Supp. at 138 ; Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark.1971); Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I.1970).

The compelling necessity standard is often derived from an equal protection analysis while the concept of least restrictive alternative is rooted in due process doctrine. However, regardless of their doctrinal source the two standards tend to meld together when they are applied. Often what results is the practical rule of thumb that, at the least, the state cannot provide its pretrial detainees with less tolerable conditions of confinement and privileges than it makes available to convicted criminals. United States ex rel. Tyrrell v. Speaker, 535 F.2d 823, 827 (3d Cir. 1976); Rhem v. Malcolm, supra, 507 F.2d at 336 ; Campbell v. McGruder, 416 F.Supp. 100 (D.C.D.C.1975); Martinez Rodriguez v. Jimenez, supra, 409 F.Supp. at 593 ; Miller v. Carson, 401 F.Supp. 835, 839, 864 (M.D.Fla.1975); Dillard v. Pitchess, supra, 399 F.Supp. at 1235 ; Inmates of Suffolk County Jail v. Eisen-stadt, supra, 360 F.Supp. at 686 ; Smith v. Sampson, supra, 349 F.Supp. at 272 ; Conk-lin v. Hancock, 334 F.Supp. 1119, 1121-22 (D.N.H.1971).

This “rule” has the benefit of appealing simplicity, but it is open to the serious criticism that it provides too low a floor for the rights of detainees. See Brenneman v. Ma-digan, supra, 343 F.Supp. at 137-40 ; Hamilton v. Love, supra, 328 F.Supp. at 1191 ; Jones v. Wittenberg, supra, 323 F.Supp. at 100 . This seems obvious on a theoretical level. While the detainee has lost the right to be a fully free citizen, he has not been found guilty of an offense for which he may be punished by constitutionally appropriate procedures. Since no one seriously maintains that prisons for convicted criminals are solely custodial and devoid of punitive dimensions, to equate the conditions under which a detainee may be confined with those imposed on a convicted criminal is irrational and unfair. The more appropriate analogy would be to equate the treatment of a detainee with that of a bailee with the obvious proviso of the additional deprivations necessary to safely keep the detainee in custody. See, e. g., Patterson v. Morrisette, 564 F.2d 1109 at 1110 (4th Cir. 1977); Detainees of Brooklyn House of Detention for Men v. Malcolm, supra, 520 F.2d at 397; Martinez Rodriguez v. Dime-nez, supra, 409 F.Supp. at 594 ; Miller v. Carson, supra, 401 F.Supp. at 856-57 ; Cud-nik v. Kreiger, supra, 392 F.Supp. at 331 ; Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157, 1160 (E.D.Wis.1973).

*380 Unfortunately, the vision of constitutional theoreticians must be tempered by harsh realities. It is one thing to say that pretrial detainees may not be punished as courts have repeatedly held, see Mitchell v. Un-treiner, supra, 421 F.Supp. at 894 ; Miller v. Carson, supra, 401 F.Supp. at 839-40, 867 ; Dillard v. Pitchess, supra, 399 F.Supp. 1232, 1234 ; Inmates of Suffolk County Jail v. Eisenstadt, supra, 360 F.Supp. at 685-86 ; Inmates of Milwaukee County Jail v. Petersen, supra, 353 F.Supp. at 1160 ; Brenneman v. Madigan, supra, 343 F.Supp. at 136 ; Conklin v. Hancock, supra, 334 F.Supp. at 1191 ; Jones v. Wittenberg, supra, 323 F.Supp. at 100 ; it is quite another to insist that such a principle be rigidly enforced. It would be impossible, without playing fast and loose with the English language, for a court to examine the conditions of confinement under which detainees are incarcerated, even after extensive judicial relief, and conclude that their custody was not punitive in effect if not in intent. Yet there are practical limits to the scope of remedial relief available to the courts which make such results unavoidable.

If courts did not look to the conditions of confinement of convicted criminals, they would be adrift between two almost limitless absolutes. The major reason that detainees are subject to harsh conditions of confinement has nothing to do with safety requirements. It is because society has not made available sufficient funds to provide a safe and comfortable custodial environment for them. Indeed, once a detainee has been incarcerated to guarantee his presence, there would seem to be no justification, other than lack of funding, for denying him any of the amenities of life; given enough resources almost any privilege can be given detainees consistent with prison security concerns. Thus, one reason for courts looking to the treatment of convicted criminals for guidance is that it gives them some general sense of minimally acceptable conditions of confinement which society is willing to support.

The other reason is that almost any deprivation can be explained or defended by the justification that it improves the security of a jail or prison. By looking to security arrangements in other prisons, the courts can better evaluate claims that the denial of a privilege is essential to security. If other institutions make that privilege available to their inmates without suffering any significant adverse consequences, courts should reject the unsubstantiated view of prison authorities that the privilege is a security risk. In effect the existence of a privilege in another prison facility raises a presumption that it may be offered detainees without jeopardizing institutional security. That presumption may be rebutted, but only by clear and convincing evidence.

By using the rule that detainees must be treated at least as well as convicted criminals, courts limit their discretion and avoid the temptation of imposing value judgments on society that are not mandated by the constitution. This is the very result the court’s opinion insists a more deferential standard is necessary to achieve. The rule is unfair to detainees under any abstract theory of justice. It permits the innocent to be punished, the accused to be lumped together with those adjudged guilty by a court of law. Still if applied as a strict, minimum with the benefit of the doubt given to the detainees, I believe it is the most practical, workable, and just rule that courts can develop at this time.

Of course the rule has its defects and it is to some extent subject to manipulation. However, if it is applied in the spirit described above, these problems can be surmounted. For example, it is argued that legislatures may simply reduce the quality of conditions of confinement across the board to the lowest common denominator. First of all, they could certainly take such action under a lesser standard; and an absolute standard may stifle progressive flexibility in an effort to prevent potential backsliding. Second, there is no indication that legislatures have responded in this manner in reaction to judicial commands that conditions for detainees be improved. Indeed, many states have not appealed at all or appealed only a small part of the remedies ordered by courts. Third, courts are not *381 expected to apply the standard in a temporal or geographical vacuum. If a privilege existed and was not a threat to institutional security in the past, there is no reason to assume it will be a problem in the future simply because it is no longer offered to the convicted criminal population. Similarly, if a privilege can be safely offered in a majority of the states, courts should require hard evidence as to why it would create safety problems in a particular institution.

Another problem and one raised by the court’s opinion is that comparisons between the detainee population and the criminal population are inexact as to safety needs. This may indeed be the case. A detainee awaiting trial for murder may be more of a threat and require more stringent security precautions than a convicted car thief. I harbor no illusions that the detainee population may not include serious security risks, although I might also note that many detainees differ from bailees solely in their inability to finance their freedom by posting bail. However, just as correctional systems routinely differentiate between minimum, medium, and maximum security risks among convicted criminals, there is nothing to stop them from making similar distinctions, if supported by evidence, between detainees. Not all detainees need be treated alike. What is unacceptable is imposing restraints reserved for maximum security risks on the entire population of detainees simply because they are detainees.

Finally, it may be argued that differences in the physical structure of different prisons make an exact comparison of privileges a poor guide by which to evaluate security requirements. To some extent this is true. I believe a court could take account of these differences by grouping privileges for comparison. Thus, if the structure of one prison limited the number of visitors that could safely be accommodated, it could expand some other associational or communication privilege such as telephone access to compensate for more limited visiting hours. However, what is totally unacceptable is the view that one needless deprivation can be used to justify a further deprivation. Thus, in the instant case detainees are housed in abysmally small rooms approximately 7' X 5 ' in size. There is no justification based on institutional security needs to account for these conditions of confinement. Yet the court argues that because their rooms are smaller than the rooms available to convicted criminals, detainees may not be permitted to have as many or similar personal belongings as convicted criminals because such belongings might “clutter” their rooms. Under this form of analysis, the only floor to the conditions of confinement imposed on a detainee would be gross inhumanity. I believe the contrary to be the case. If the physical structure of a particular jail is such that there is no way that privileges routinely offered to convicted criminals can be made available to pretrial detainees, the constitution prohibits the state from incarcerating detainees in that facility.

Applying the standards I suggest to the particular issues on appeal in the present case, I would disagree with the court’s conclusions on most but not all of them. On some issues, while I believe the district court may have gone further than the constitution requires, I would argue that the plaintiffs are entitled to greater relief than the majority here would permit. On other issues I would affirm the district court’s analysis and conclusions in their entirety. However, since the standard of evaluation I contend the constitution requires has not been adopted by the court, I see little point in detailing exactly how my standard’s application would differ from the altogether different analysis of my brothers. The focus of my dissent is the basic framework of pretrial detainee rights, not the nuances of how different judges might apply particular standards.