Alvin Jordan v. Michael S. Wolke, Etc.

SWYGERT, Circuit Judge,

dissenting.

Even applying the standards laid down in Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), which we must, the district court’s judgment should be affirmed. In my opinion the housing conditions in the Milwaukee County Jail violate the detainees’ due process rights. Additionally, I believe the blanket denial of contact visitation constitutes punishment under the Wolfish standard.

I

With respect to the overcrowding issue the facts in Wolfish and in the case at bar are vastly different. In order to demonstrate these differences clearly, the respective circumstances are contrasted in parallel columns below.

Metropolitan Correctional Center, New York City

1— The MCC is made up of living units composed of individual rooms primarily for sleeping which radiate from a central common room. Each unit houses twenty detainees, two to a room.

2— Each MCC room has a total floor space of 75 square feet, or 37% square feet per occupant.

3— Two detainees are assigned to a single private room with a double bunk.

4 — Aside from the individual rooms, the detainees have access during the day to a “common” room with recreational and exercise equipment, telephones, color television sets, books, food preparation center and dining facilities, and a visiting room.

Milwaukee County Jail

1— The Milwaukee facility has traditional cells in units of five, all connected to an outer corridor leading to a “day” room. Each unit houses twenty detainees, four to a cell.

2— Each Milwaukee cell has a total floor space of 90 square feet (9' X 10'), or 22% square feet per occupant.

3— Four detainees are assigned to a single cell with two double bunks. The cells cannot be used for any purpose other than lying in a bunk if another occupant is present.

4— Aside from the cells the detainees have access during the day to a connecting corridor leading to a “day” room, containing a table and a television set. The detainees are confined to their cell blocks except for two hours per week for recreation and visiting.

“The MCC differs markedly from the familiar image of a jail; there are no barred cells, dank, colorless corridors, or clanging steel gates. It was intended to include the more advanced and innovative features of modern design of detention facilities.” Bell v. Wolfish, 99 S.Ct. at 1866 . In contrast, the Milwaukee facility is a traditional jail with barred cells, amid a stark surrounding. The factual differences outlined above serve to distinguish this case from Wolfish . In that case the Supreme Court recognized that the ameliatory features at the MCC required a result that might not be justified when considering conditions found in traditional jails. Mr. Justice Rehnquist wrote:

Respondents’ reliance on other lower court decisions concerning minimum space requirements for different institu *755 tions and on correctional standards issued by various groups is misplaced.

* * * * * *

The cases cited by respondents concerned facilities markedly different from the MCC. They involved traditional jails and cells in which inmates were locked during most of the day. Given this factual disparity, they have little or no application to the case at hand. Thus, we need not and do not decide whether we agree with the reasoning and conclusions of these cases.

Bell v. Wolfish, 99 S.Ct. at 1876 n.27.

The record here permits no doubt about the egregious effect of the excessively cramped space provided for the detainees of the jail and the double-double bunking. It is riot disputed that the smallness of the quarters prevents adequate exercise and other activities during waking hours. This in turn tends to bring about tensions and aggressiveness and violence among the detainees. Moreover, it is not improper to speculate that the housing situation in the Milwaukee County Jail also has a coercive effect on detainees, prompting them to enter precipitous guilty pleas.

For all these reasons I believe the record demonstrates that the living conditions at the Milwaukee jail are punitive as that term has been defined and expanded in Wolfish . The detainees are subjected to severe privations and hardships. The legitimate purpose of secured confinement can be achieved in less cruel ways. But alternative humane housing is not being provided by Milwaukee County simply because it will cost money. The defendants admit as much when they say:

To reduce the 55 four-man cells to two-man, would mean the defendants would have to find placement for 110 pretrial inmates. The jails surrounding Milwaukee County will not house these inmates. For the defendants to hold them in custody will require expensive changes in the construction of or remodeling of other facilities.

Costs should not, however, be balanced against constitutional violations.

II

The issue of contact visitation was not presented to the Supreme Court in Wolfish . But, as Judge Tone notes, the issue must be answered in the light of that case. Again, I regretfully find myself in disagreement with my Brothers.

It is important to put the matter in concrete form. For that reason the following testimony of plaintiff Alvin Jordan is set forth:

Q. During your confinement to the Milwaukee County Jail, Mr. Jordan, did you receive visits from persons outside of jail?

A. Yes.

Q. During these visits were you allowed to have physical contact with these visitors?

A. No.

Q. During these visits, would you be separated by any type of physical barrier?

A. Yes.

Q. Briefly describe that barrier.

A. The barrier was the steel wall that was, I guess that would be to the northeast side of the jail, or north side of the jail; there was a steel wall where the entrance is and it’s got a two glass slots in; let’s see, there are six glass slots altogether, and there is a grille-work under the glass slots where the person can talk to you and you can see the visitor, but you can’t talk with him. If you look at him, conversation is stopped; if you talk with him, then you can’t see him because you have to bend to the grille to hear the conversation, there is no barrier between.

Q. Did the presence of a physical barrier have any effect upon you?

A. Well, certainly.

Q. Will you please describe it?

A. Well, I didn’t feel too comfortable by seeing my visitor by not having, not being able to, say, touch them or hold hands or hug them or anything like that, or give them a kiss or not, you know. I didn’t feel too good about that.

*756 The record does not stop there. Two experts in the correctional field testified for plaintiffs. They agreed that there is a psychological need for detainees to have as much contact as possible with their families and friends. Dr. Thomas Murtón explained:

The less one removes an inmate or an offender from his normal social contacts, the less difficulty there is in moving him back through that tunnel into the normal society. ... So, it has been generally found that where contact visits are allowed that inmate morale is better, that there is more likelihood of maintaining familial ties, that relationships with children are greatly enhanced.

The other expert, Joseph Cannon, confirmed this view. He said that detainees need to maintain as much as possible their relationship with their families. I cannot improve on the overall appraisal of the experts’ testimony as it is set forth in plaintiffs’ brief:

The need for support and love during a time of intense apprehension which jailing creates can be supplied by the ability to touch a loved one, to talk together unseparated by physical barriers or to speak directly without having to use a telephone. The quality of a contact visit allows for the fundamental relationship between a detainee and his family to be continued in a humane and effective way.

Experts’ testimony in other cases reaffirms this evaluation. For example, Judge Lasker in Rhem v. Malcolm, 371 F.Supp. 594, 602 (S.D.N.Y.), aff’d, 507 F.2d 333 (2d Cir. 1974), referred to the testimony of Dr. Karl Menninger:

Dr. Karl Menninger, the psychiatrist of national renown who has studied and written about prison conditions over a long lifetime, deplored noncontact visits as “the most unpleasant and most disturbing detail in the whole prison,” and described them “as a violation of ordinary principles of humanity . . .” As Dr. Menninger put it: “. . the one great thing that he [the inmate] can look forward to is the reestablishment, contact, with this world. Because everybody lives constantly with a lot of contacts established, with you, them, with the judge, with the grocer and so forth. These have all been broken for this man.”

“Now, this makes for a dangerous state of instability, because without these contacts he can’t live psychologically.”

* * * * * *

Dr. Menninger’s conclusion was that the MHD’s visiting system amounted to “dangling a fragment of meat in front of a dog and jerking it away . . .

The judge also referred to the testimony of another expert, Dr. August F. Kinzel, who had served as the staff psychiatrist at the United States Medical Center for prisoners at Springfield, Missouri. Dr. Kinzel agreed with. Dr. Menninger that the MHD’s visiting system caused severe prisoner frustration. He pictured it “. . . like the carrot on a stick that is held in front of the person who can’t quite attain it . .” Rhem v. Malcolm, 371 F.Supp. at 603 .

Finally, we should not write off the determinations of the trial judge in the case before us:

While recognizing that there may be some validity to the defendants’ claim that contact visitation poses a security risk, on balance I believe that such risk may be minimized by carefully screening pretrial detainees and their visitors for contraband. This conclusion is supported in the record by two of the plaintiffs’ experts, who testified that contact visitation programs for pretrial detainees do not pose a threat to the security of a facility which is not controllable by reasonable security methods. Moreover, the testimony of the chief of security at the Waupun state prison must be contrasted with the fact that the prison, which holds only convicted prisoners, has had a contact visitation program for fourteen years; in that time, there is no record of an escape or of a weapon ever having been passed as a result of the program. Thus, I do not believe that the alleged threat to the security of the Milwaukee county jail, posed by contact visitation, *757 justifies the current blanket prohibition on such visitation.

460 F.Supp. 1080, 1084 (E.D.Wis.1978) (citations omitted).

Against this background the blanket denial of contact visitation at the Milwaukee County Jail is punishment under the standard laid down in Wolfish . It is an excessive restriction of detainees’ rights that does not bring about any additional security for the jail. It is unwarranted by any legitimate state concerns. And by any measurement, it is punitive because it deters the effective maintenance of fundamental relationships. If, in an individual situation, non-contact visitation is required for security reasons, the warden should have that discretion. But the invocation of a blanket denial because it reduces costs and eases administrative burdens is no defense to due process violations.

I foresee the time when those who are charged with crime but unable to furnish bail will be afforded more humane treatment than that provided at traditional jails such as Milwaukee. Federal courts, obeying constitutional norms, have led the way in that direction. Unfortunately, this court today has taken a step backward.