Petition — Bell v. Wolfish

Paeerenry armen

Supreme Court, U. §,

77-1829 | FiveD |

No. ‘ JUN 28 1978

—

MICHAEL ROOAK, JR, CLR

Iu the Supreme Court of the United States. .-—

OCTOBER TERM, 1977

GRIFFIN B. BELL, ET AL., PETITIONERS

’.

LOUIS WOLFISH, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

WADE H. McCREE, JR.,

Solicitor General,

JOHN C. KEENEY,

Acting Assistant Attorney General,

KENT L. JONES,

Assistant to the Solicitor General,

SIDNEY M. GLAZER,

KATHLEEN A. FELTON,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Goleiens ee 1

I iain cceinsctiineniincinincenannantiititaldaitsitis 2

Questions presented $$ _______. 2

Constitutional and statutory provisions in-

ig i a alclaniilamentalel 3

ig ee eine ea ean 4

Reasons for granting the writ —......____. aes 15

Conclusion __.......... Ag Pe TOO Re 42

pn la

ee 38a

pS 5 a ce ae

CI TD seinen tnvinisnatinmnnrmatsigeasicininimn Ta

ET AI AE ER

imei Ft 74a

Pe ETRE

CITATIONS

Cases:

Bell v. Manson, 427 F. Supp. 450 38

Bijeol v. Benson, 404 F. Supp. 595 _ 38

Bonner v. Coughlin, 517 F.2d 1311 39

Campbell v. McGruder, No. 75-1350, de-

cided March 30, 1978 _ _ ___15, 19, 23, 28, 29

Dandridge v. Williams, 397 U.S. 471... 28, 29

Daugherty v. Harris, 476 F.2d 292, certio-

rari denied, 414 U.S. 872... __. 38

Detainees of Brooklyn House vie Detention

v. Malcolm, 520 F.2d 392 . 8-9, 13, 21

I

Cases—Continued Page

Duran v. Elrod, 542 F.2d 998 _..... rede ets 19, 26

Feeley v. Sampson, 570 F.2d 364. 15, 18, 22,

23, 29, 39

—— v. Malcolm, 406 F. Supp.

836 - ne 38

Griswold ' v. Connecticut, 381 ‘Uz S. ‘AT9 22, 28

Hampton v. Holmesburg Prison Oficiale,

546 F.2d 1077 _ ‘ 19

Hodges v. Klein, 412 F. Supp. 896 | 38

Hoitt v. Vitek, 361 F. Supp. 1238 .. 39

Jackson v. Indiana, 406 U.S. 715 ~~. 24

Jones v. North Carolina Prisoners’ Labor

Union, Inc., 483 U.S. 119.18, 23, 24, 25, 26,

31-32, 34, 35, 37, 41

Lanza v. New York, 370 U.S. 189 _ 28, 32, 39, 41

Main Road vy. Aytch, 565 F.2d 54 __._... 18, 31

McNeil v. Director, Patuxent Institution,

407 U.S. 245 . saece 24

Nebbia v. New York, 291 U.S. 502 ro Eee 22

Newman v. State of Alabama, 559 F.2d

aE aos 12

Padgett v. Stein, 406 F. ‘Supp. 287 - ea 18

Patterson v. Morrisette, 564 F.2d 1109 ~ 21

Pell v. Procunier, 417 U.S. 817. _ 23, 24, 26, 31,

32, 36, 37, 40

Penn El v. Riddle, 399 F. Supp. 1059 — 38

Procunier v. Martinez, 416 U.S. 396 —_ __ 17, 24,

31, 32

Rhem v. Malcolm, 507 F.2d 333 _.__ _ _9, 18, 22

Roe v. Wade, 410 U.S. 113 _........- 28

Shapiro v. Thompson, 394 U.S. 618. _. 21

Shelton v. Tucker, 364 U.S. 479 —----... 21

Smith v. Shimp, 562 F.2d 423 41

Tate v. Short, 401 U.S. 395 —............ 21

III

Cases—Continued Page

Taylor v. Sterrett, 532 F.2d 462 - 31

Tinker v. Des Moines School District, 393

U.S. 503 _ See 32

United States v Vv. . Hearst, 563 F. 2d 1331. 31

United States v. Park, 521 F.2d 1381... _ 39-40

United States v. Savage, 482 F.2d 1371,

certiorari denied, 415 U.S. 932 . 39

West Coast Hotel Co. v. Parrish, 300 U. S.

379 - pee sek 22

Woods \ v. Daggett, ‘541 F. 2a 237 | ee aT 38

Constitution and statutes:

United States Constitution:

First Amendment ...._ 10, 18, 21, 23, 32, 36

Fourth Amendment .._—____ 3, 11, 32, 39, 41

a cies 3

Due Process Clause 12, 15, 17, 18,

19, 21, 22

Sixth Amendment asa 14

Eighth Amendment... —__— oe

Administrative Procedure Act, 5 U.S.C.

7T01(a) (2) rg RT ET 12

18 U.S.C. 3041 _. WDE. Se Reread 3

18 U.S.C. 4042 _. NE eS

18 U.S.C. 4081 BN ee eas i)

Miscellaneous:

Note, Constitutional Limitations on the

Conditions of Pretrial Detention, 79

Yale L.J. 941 (1970) 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No.

GRIFFIN B. BELL, ET AL., PETITIONERS

Vv.

LouIs WOLFISH, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The Solicitor General, on behalf of the Attorney

General of the United States, the Director of the

Bureau of Prisons, and the Warden of the Metro-

politan Correctional Center, petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. la-37a) is reported at 573 F.2d 118. The opin-

ions of the district court (Apps. F and G, infra,

(1)

2

pp. 74a-225a) are reported at 428 F. Supp. 333 and

439 F. Supp. 114.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, pp. 38a-39a) was entered on January 24, 1978.

On April 14, 1978, Mr. Justice Marshall extended the

time for filing a petition for a writ of certiorari to

and including May 24, 1978. On May 15, 1978, Mr.

Justice Marshall further extended the time for filing

a petition for a writ of certiorari to and including

June 23, 1978. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Due Process Clause requires that

every “restriction and deprivation” imposed on per-

sons detained in federal custody pending trial on

criminal charges (“pretrial detainees”) must be jus-

tified by a “compelling necessity.”

2. Whether the housing provided to pretrial de-

tainees at the Metropolitan Correctional Center is

reasonable in light of valid governmental objectives

and is constitutionally sufficient.

3. Whether the governmental interest in maintain-

ing jail security and order justifies rules that (a)

prohibit receipt at the jail of packages containing

items of food or personal property; (b) prohibit re-

ceipt at the jail of books and magazines that are not

mailed directly from publishers; (c) require inmates

to expose body cavities for visual inspection as part

of the search conducted after contact visits with per-

sons from outside the detention center; and (d) au-

thorize routine inspections of the rooms of pretrial

detainees in their absence.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

The Fifth Amendment to the United States Consti-

tution provides in part:

No person shall be * * * deprived of life,

liberty, or property, without due process of

==,

The Eighth Amendment to the United States Con-

stitution provides:

Excessive bail shall not be required, nor exces-

sive fines imposed, nor cruel and unusual punish-

ments inflicted.

18 U.S.C. 5041 provides in part:

For any offense against the United States, the

offender may, by any justice or judge of the

4

United States, or by any United States magis-

trate, or by any chancellor, judge of a supreme

or superior court, chief or first judge of the

common pleas, mayor of a city, justice of the

peace, or other magistrate, of any state where

the offender may be found, and at the expense of

the United States, be arrested and imprisoned or

released as provided in chapter 207 of this title,

as the case may be, for trial before such court

of the United States as by law has cognizance of

the offense. * * *

18 U.S.C. 4042 provides in part:

The Bureau of Prisons, under the direction of

the Attorney General, shall—

(1) have charge of the management and regu-

lation of all Federal penal and correctional in-

stitutions ;

(2) provide suitable quarters and provide for

the safekeeping, care, and subsistence of all per-

sons charged with or convicted of offenses against

the United States, or held as witnesses or other-

wise;

(3) provide for the protection, instruction, and

discipline of all persons charged with or con-

victed of offenses against the United States * * *.

STATEMENT

1. The federal Metropolitan Correctional Center

(MCC) is located in New York City adjacent to the

Foley Square courthouse. The primary objective of

the MCC is to house persons who are being detained

in custody prior to trial for federal criminal offenses

5

in the Southern and Eastern Districts of New York

and the District of New Jersey. In addition, the MCC

houses some convicted inmates who are awaiting

sentencing or transportation to federal prison or who

are serving their sentences in a service capacity at

the MCC (App. A, infra, pp. 4a-5a; App. G, infra,

pp. 200a-202a).

The MCC was constructed in 1975 to replace the

aging federal West Street facility, which had been in

use in New York City since 1928. At the time the

MCC was designed, it was intended to incorporate the

most advanced and innovative features of modern cor-

rectional design. As the court of appeals stated, “it

represented the architectural embodiment of the best

and most progressive penological planning” (App. A,

infra, p. 4a). The key design element of the facility

is the modular or unit concept, in which a number of

self-contained residential units replace the traditional

cellblock jail construction. Each unit consists of ap-

proximately 48 private rooms (or six larger dormi-

tory rooms) adjoining or opening onto common multi-

purpose rooms to which the detainees have free day-

time access." The common areas include facilities for

food preparation and dining, receiving visitors, rec-

reation and education. By eliminating any need for

frequent, scheduled movements of detainees into dif-

ferent functional areas of the facility, it was expected

that the modular design would “humanize staff-

The period of free access varies from 16 to 19 hours per

day (App. A, infra, p. 4a).

inmate relations and provide a more ‘homelike’ at-

mosphere, affording inmates greater privacy and free-

dom than jails of earlier construction” (App. A,

infra, pp. 4a-5a).

2. Initial plans for the MCC provided for a ca-

pacity of approximately 400 inmates, or an increase

of one-third over the West Street facility (A. 2376-

2377).’ These plans were later revised and expanded

so that at the time the MCC opened the planned

capacity was 449 inmates, or approximately 50 per-

cent greater than at the old jail (App. A, infra,

p. 6a).

Just prior to the opening of the MCC, the number

of persons committed to pretrial custody began to rise

at an unprecedented rate (ibid.). The Bureau of

Prisons employed several measures in an effort to

manage the unexpected flow of persons committed to

the MCC. The Bureau located persons awaiting de-

portation proceedings at other federal facilities and

eliminated the planned community treatment center,

or “half-way house,” at the MCC (A. 1657).* The

Bureau also arranged to expedite the transfer of in-

2 As the court of appeals noted, the residential atmosphere of

the facility is enhanced by carpeting and by clear exterior win-

dows without bars (App. A, infra, p. 5a).

’“A ” refers to the Joint Appendix in the court of appeals.

The population at the West Street facility had been 285-300

inmates (A. 2122, 2375).

* These changes provided 108 additional spaces for the hous-

ing of pretrial detainees and convicted inmates at the MCC

(A. 1266-1267, 2501-2502, 2521-2522).

7

mates to prisons upon sentencing and contracted with

private half-way houses for additional bedspace

(A, 1483-1485, 1188).

Despite these efforts, however, the inmate popula-

tion at the MCC began to rise above its planned

capacity within a short time after its opening. In

November 1975, in order to provide sleeping space

for this increased number of inmates, the MCC began

to replace single beds with bunk beds in some of the

residential rooms used to house pretrial detainees

(A. 124-125).° Similarly, the Bureau installed bunk

beds in the dormitory rooms in order to double the

capacity of those areas (A. 1184-1185). During brief

periods of unusual influx of persons into the facility,

a small number of detainees and inmates were pro-

vided with temporary sleeping space in the common

areas of the modular units (A. 2528, 1040-1041).

These persons were transferred to residential rooms as

soon as space became available (A. 2529).

3. On November 28, 1975—less than four months

after the MCC was opened—Louis Wolfish initiated

this action by filing a petition for a writ of habeas

corpus in the United States District Court for the

Southern District of New York. The petition alleged

that overcrowding and other conditions at the MCC

*The district court correctly noted that 121 of the 389

residential rooms had been “designated” for double-occupancy

as of the time of its decision (App. G, infra, p. 203a; A. 177).

The number of rooms actually housing two inmates, however,

did not exceed 73, and, of these, only 35 were rooms in units

designated to house pretrial detainees (A. 124-125, 82).

‘\

made the confinement at that facility unconstitu-

tional. The district court subsequently certified the

case as a class action on behalf of all persons confined

at the MCC (App. A, infra, p. 7a). The litigation

has thus simultaneously implicated the rights of both

pretrial detainees and convicted inmates with regard

to the conditions of their confinement.

In its two opinions and several orders in this case,

the district court declared unlawful and enjoined no

fewer than 20 separate aspects of the MCC adminis-

tration. In analyzing the various challenges to con-

ditions of confinement at the MCC, the district court

applied the following legal standards:

(i) Since detainees must be presumed innocent

until proven guilty, and since the sole justifica-

tion for their confinement is custody and not

punishment, the Due Process clause requires that

“any deprivation or restriction of * * * rights be-

yond those which are necessary for confinement

alone, must be justified by a compelling necessity”

(App. F, infra, p. 89a, citing Detainees of Brook-

® The petition, as amended, alleged a multitude of constitu-

tional violations at the MCC. These included, intev alia, over-

crowding; undue length of confinement; monitoring of per-

sonal mail; improper strip searches after contact visits; inade-

quate visiting hours; inadequate access to legal materials; in-

adequate recreational, educational and employment opportuni-

ties; inadequate telephone service; restrictions on religious

freedoms; restrictions on the purchase and receipt of items of

personal property; inadequate and unsanitary food; objection-

able uniforms; poor ventilation; insufficient staff; unannounced

transfers; and inadequate services for non-English speaking

inmates (App. A, infra, pp. 7a-8a and n. 7).

lyn House of Detention v. Malcolm, 520 F.2d 392,

397 (C.A. 2); Rhem v. Malcolm, 507 F.2d 333,

336-337 (C.A. 2));

(ii) The Bureau of Prisons’ enabling legisla-

tion creates duties to “care” for prisoners and

to provide prisoners with “suitable quarters,” 18

U.S.C. 4042, 4081, and these duties are enforce-

able to prevent “arbitrary” and “capricious” mal-

administration (App. F, infra, pp. 83a-84a) ; and

(iii) The Eighth Amendment requires that

convicted inmates at the MCC be treated equally

with detainees in terms of essential living con-

ditions because it would be “cruel and unusual”

to treat them as an “inferior minority” at the

MCC (App. G, infra, p. 213a) ;

Applying these standards, the court held unlawful!

and enjoined the double-bunking of pretrial detainees

in a single cell (App. G, infra, pp. 207a-212a) and

the doubling of sleeping facilities in the dormitory

rooms (App. F, infra, pp. 12la-126a). The court

found that the crowding resulting from the use of

bunk beds in these areas abridged the inmates’ rights

to privacy and decent accommodations, was not justi-

fied by any sufficient governmental interest, and was

therefore unconstitutional (App. F, infra, pp. 116a-

121a; App. G, infra, p. 211la).”

* The court similarly enjoined the MCC from providing even

temporary sleeping facilities in the common areas at the de-

tention center (App. F, infra, p. 116a). The use of double-

bunking procedures for convicted inmates at the MCC was

stricken under the Eighth Amendment, on the theory that it

would be cruel and unusual to treat prisoners as an “inferior

minority” at the facility (App. G, infra, p. 218a).

a i

10

The court also held unlawful under the Due Process

Clause and Bureau of Prisons legislation several other

aspects of confinement at the MCC that the court

found to be unduly restrictive.* For example, the

court enjoined MCC regulations concerning limita-

tions on visits from family, friends, attorneys and

co-defendants (App. F, infra, pp. 129a-140a) ; limita-

tions on telephone service and commissary privileges

(id. at 11la-115a, 140a-143a) ; limitations on the use

of the visiting room bathroom (id. at 134a-135a) ;

prohibitions against receipt of packages containing

food and items of personal property by inmates (id. at

162a-166a); and requirements for the use of an in-

mate uniform (id. at 166a-169a). The court also

affirmatively required the MCC to increase the mate-

rials available in a law library at the facility (id. at

102a-106a) and enjoined the MCC from retaining

any detainee or inmate at the facility for a period

in excess of 60 days without the inmate’s written con-

sent (id. at 96a-98a).

In addition to the holdings based on the Due Proc-

ess Clause and the Bureau of Prisons legislation, the

district court found other practices at the MCC to

violate specific constitutional guarantees applicable to

both pretrial detainees and convicted inmates. The

court held that the First Amendment rights of per-

sons confined at the MCC were violated by the random

inspection of letters mailed out of the facility, and by

8 The district court did not indicate in each case whether it

was relying on a statutory or constitutional basis for its vari-

ous holdings.

ll

the MCC rule that prohibits receipt of any books and

magazines that are not mailed directly from “pub-

lishers only.” The court refused to accept the security

justifications argued in support of these two prac-

tices (App. G, infra, pp. 215a-216a, 221a-222a). The

court also held that the requirements that (i) detain-

ees remain outside their rooms during routine inspec-

tions,’ and (ii) detainees and convicted inmates expose

their body cavities for a visual inspection following

contact visits, are not justified by a sufficient govern-

mental interest in security or prison administration.

The court held that the former of these two practices

violates the retained right of privacy of pretrial de-

tainees, and the latter constitutes an unreasonable

search in violation of the Fourth Amendment (App.

F, infra, pp. 147a-157a).

4. On appeal, the Second Circuit largely affirmed

the district court’s holdings under the Due Process

Clause, but rejected the district court’s reliance on the

Eighth Amendment and the Bureau of Prisons leg-

islation.

With regard to the Eighth Amendment, the court

of appeals stated that

[a]n institution’s obligation under the eighth

amendment is at an end if it furnishes sentenced

prisoners with adequate food, clothing, shelter,

sanitation, medical care, and personal safety.

* The court did not strike the MCC rule requiring convicted

inmates to vacate their rooms during routine inspections

(App. F, infra, p. 157a).

Ee EE Te ee ae

12

App. A, infra, p. 18a, citing Newman v. State of

Alabaina, 559 F.2d 283, 291 (C.A. 5). The court of

appeals rejected the district court’s reasoning that it

is cruel and unusual to house prisoners in conditions

worse than detainees are housed in the same facility,

and remanded for the district court to determine

whether the housing for convicted inmates at the

MCC was “adequate” (App. A, infra, pp. 19a-20a).

With regard to the enabling legislation of the Bu-

reau of Prisons, the court of appeals noted that these

statutes confer broad discretion on the Attorney Gen-

eral to safekeep and care for inmates. The court con-

cluded that the administration of federal prisons

constitutes “agency action * * * committed to agency

discretion by law” and is therefore exempted from

judicial review by the Administrative Procedure Act,

5 U.S.C. 701(a)(2) (App. A, infra, pp. 14a-15a).

The court of appeals therefore reversed the district

court’s determination that certain conditions of con-

finement at MCC violated the Bureau of Prisons’ en-

abling legislation.”

With regard to the scope of protection afforded pre-

trial detainees by the Due Process Clause, the court

of appeals indicated that the district court had articu-

lated the correct standard but had misapplied the

standard in some situations. The court reiterated the

1° On this basis, the court of appeals reversed the district

court’s holdings that the bathroom in the visiting area must be

kept unlocked, and that prison authorities must make local

and long-distance telephone service available to MCC inmates

(App. A, infra, pp. 15a-17a).

13

Second Circuit’s view that pretrial detainees may be

subjected to “only those ‘restrictions and privations’

which ‘inhere in their confinement itself or which are

justified by compelling necessities of jail administra-

tion’” (App. A, infra, p. 12a, quoting Rhem v. Mal-

colm, supra, 507 F.2d at 336; Detainees of the Brook-

lyn House of Detention v. Malcolm, supra, 520 F.2d

at 397. The court stated that neither fiscal necessity

nor administrative convenience could constitute a com-

pelling justification for intrusive regulation (App. A,

infra, p. 12a). At the same time, however, the court

indicated that where the institution’s “legitimate in-

terests in security” are involved, the court should be

deferential and not “second-guess the expert adminis-

trators on matters on which they are better informed”

(id. at 12a-13a).

The court evidenced little difficulty in applying this

complex standard. For example, on the issue of

double-ce!ling of detainees, the court concluded sim-

ply that “no showing of compelling necessity’ had

been made to justify the invasion of personal privacy

involved (id. at 17a). Applying the same analysis,

the court held that double-bunking in the dormitory

areas was unjustified, but remanded for the district

court to determine “whether any number of inmates

in excess of rated capacity could be suitably quartered

within the dormitories” (id. at 21a, 23a)."

™ The court also remanded to the district court for it to

determine whether, in light of changed conditions resulting

from this litigation, the nature of confinement at the MCC is

now sufficiently tolerable that the order limiting incarceration

of all detainees at the MCC to a period of less than 60 days

should be rescinded (App. A, infra, pp. 24a-25a).

14

Several other aspects of confinement at MCC were

similarly held to constitute impermissible “restric-

tions and privations” that were not justified by com-

pelling governmental interests. Specifically, the court

of appeals held that there was no sufficient justifica-

tion for the MCC policy prohibiting receipt of pack-

ages containing food and personal items by inmates

(id. at 32a-33a). The court also determined that

governmental security interests did not justify the

MCC rules that prohibit detainees from observing

searches of their rooms and that require detainees

and convicted inmates to expose their body cavities

during searches conducted after contact visits (id. at

29a-32a). Finally, the court rejected asserted secu-

rity concerns and upheld the district court’s order

enjoining the random inspection of outgoing mail! and

the “publisher only” rule that limits the receipt of

books and magazines by inmates at the MCC (id. at

26a-29a).”

The court of appeals reversed the ruling of the dis-

trict court that inmates must be permitted to possess

typewriters for their personal use in their rooms. The

court of appeals stated that the district court had

improperly rejected “the MCC’s judgment that * * *

particular problems of security, storage, and theft

[would arise] from inmates’ ownership of typewrit-

12 Relying on the Sixth Amendment right to counsel and the

due process right of prisoners to have access to the courts, the

court of appeals also affirmed the orders of the district court

requiring an expansion of the MCC library and of visiting

hours for attorneys (App. A, infra, pp. 35a-36a).

15

ers * * *” (id. at 33a). The court of appeals also

reversed the district court’s determination that in-

mates should not be required to wear uniforms, hold-

ing (id. at 34a) that

the MCC has demonstrated a legitimate security

interest in readily identifying inmates that out-

weighs the inmates’ understandable desire to

control their own appearance.

REASONS FOR GRANTING THE WRIT

This case raises several important questions con-

cerning the rights of pretrial detainees to challenge

the conditions of their confinement. The court of

appeals has articulated a requirement under the Due

Process Clause that every restriction imposed on pre-

trial detainees during confinement r ust either be

inherent in the concept of confinement or be supported

by a “compelling necessity.” This constitutional

standard has been expressly rejected by the First

Circuit inseeley v. Sampson, 570 F.2d 364, 371,

which requires\nstead that a restriction imposed dur-

ing confinement have a “reasonable rela-

tionship” to valid g mental objectives. The Dis-

trict of Columbia Circuit, in Campbell v. McGruder,

No. 75-1350, decided March 30, 1978, has elaborated

still a third due process standard that is based on con-

siderations different from those relied on by eithe:

the First Circuit or the court of appeals in this case.

It is important that this conflict among the circuits

be resolved, both because of the significant volume of

PCM EES

16

litigation concerning the rights of pretrial detainees

that has occurred and will continue to arise in the

absence of dispositive guidance by this Court, and also

because of the substantial practical impact of the

decision in this case on the administration of the

federal Metropolitan Correctional Center.

Moreover, in its invalidation of several specific re-

strictions and practices of confinement at the MCC,

the court of appeals has rejected the determination

of corrections officials that these challenged practices

serve the government’s compelling interest in main-

taining security and order within the facility. In

holding these practices to be invalid, the court of

appeals failed to comply with decisions of this Court

requiring that deference be given to determinations

made by correctional officials as to the needs of se-

curity and has created a conflict among the courts

of appeals as to the validity of these specific institu-

tional practices. In order to resolve this conflict

among the courts of appeals, the petition for a writ

of certiorari should be granted.”

18 The decision of the district court constituted, in our view,

an excessive intrusion into the minutiae of administration of

the MCC, which the rulings of the court of appeals did much

to ameliorate. In general, however, we continue to disagree

with virtually all of the determinations of the court of appeals

that struck down particular practices of the Bureau of Prisons

in administering the MCC. Nevertheless, in order to avoid

unduly complicating this Court’s task should it elect to grant

review in this case, we have not presented for review every

adverse ruling. For example, the additional library require-

ments upheld by the court of appeals are not considered likely

to be of significant utility to inmates, on the basis of the

17

1. Prior to 1970, none of the courts of appeals had

confronted the question of the nature of the limitation

imposed by the Due Process Clause on the conditions

of confinement for pretrial detainees. Since that time,

however, at least three different constitutional stand-

ards have been articulated by the various courts of

appeals. The government has argued in this case

that in reviewing practices of detention for pretrial

detainees under the Due Process Clause, unless a

practice abridges a specific, fundamental right guar-

Bureau of Prisons’ experience stocking libraries at its many

institutions around the country, and the Bureau believes that

the money expended to meet this requirement could be better

spent for inmate welfare in other ways. Moreover, we believe

there has been an insufficient showing of need for injunctive

relief with regard to attorney visiting hours. In both in-

stances, however, the Bureau has concluded that the adverse

impact of the decision is sufficiently localized and limited that

review by this Court at the present time is not deemed

necessary.

Similarly, we believe that the restriction against random

inspection of outgoing mail is not reconcilable with this Court’s

decision in Procunier V. Martinez, 416 U.S. 396, 413-414.

Nevertheless, the Bureau is independently considering termi-

nation of its present mail inspection practices, and we have

accordingly determined not to present the issue of the legality

of such practices to the Court in this petition.

The Attorney General has established a Federal Corrections

Task Force in the Department of Justice. The Task Force is

to present to the Attorney General recommendations for na-

tional corrections standards and a federal corrections policy

regarding conditions of confinement for both sentenced prison-

ers and pretrial detainees. We will advise the Court in a sup-

plemental filing if any pertinent policy determinations are

made by the Attorney General as a result of the Task Force

investigation.

Fe

18

anteed by other provisions of the Constitution, the

practice should be upheld if it is reasonably related

to the objective of confirement and the inherent needs

of the institution for security, order and safety. Fur-

thermore, in determining whether living conditions

during confinement are decent and reasonable, con-

sideration should be given to cost, administrative

feasibility, and available practical alternatives.

The First Circuit, in Feeley v. Sampson, supra, has

articulated a due process analysis that is consistent

with the government’s position in this case. In Feeley,

the court held that the Due Process Clause requires

the governi.ient to accomplish the custodial objectives

of pretrial confinement “in a reasonable, and hence

a humane, manner.” 570 F.2d at 370. The court de-

clined to require a “compelling necessity” or “strict

scrutiny” evaluation of challenged institutional re-

straints that do not affect specific constitutional guar-

antees, such as the First Amendment. The court stated

that an over-broad application of the standard of com-

pelling necessity would fail to give appropriate weight

to the several valid governmental objectives in pre-

trial confinement, and would result in an impermissi-

ble second-guessing of institutional determinations

made by corrections officials. Jd. at 371, citing Jones

v. North Carolina Prisoners’ Labor Union, Inc., 433

U.S. 119, 127-128. See also Main Road y. Aytch, 565

F.2d 54, 57 (C.A. 3); Padgett v. Stein, 406 F. Supp.

287, 295 (M.D. Pa.).*

%* In situations not involving specific constitutional guaran-

tees, the Seventh Circuit has applied a due process standard

19

The District of Columbia Circuit has adopted a due

process analysis that differs in its critical concepts

from that adopted by the First Circuit, but levies

essentially similar requirements. In Campbell v. Mc-

Gruder, supra, the court emphasized that pretrial

detainees have a retained liberty interest that “is

rooted in the presumption of innocence” (slip op.

13), and that a principal corollary of the presump-

similar to that adopted by the First Circuit. See Duran v.

Elrod, 542 F.2d 998, 999, 1001 (C.A. 7) (restrictions must be

“reasonably” necessary to secure the governmental interest;

various interests, including fiscal constraints, may be con-

sic ered).

** The Third Circuit has expressed substantial doubt as to

the relevance of the “presumption of innocence” in establish-

ing substantive restraints on government action under the

Due Process Clause.

We note that some courts have apparently relied upon

the “presumption of innocence” in cases involving pretrial!

detainees. However, we do not believe that principle

serves as the source for those substantive rights. Rather,

the presumption allocates the burden of proof. It is a

principle of evidence, 9 J. Wigmore, Evidence § 2511 (3d

ed. 1940), acting as the foundation for the procedural due

process requirement of proof beyond a reasonable doubt.

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d

368 (1970); see also Leland Vv. Oregon, 343 U.S. 790, 802-

803, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (Frankfurter,

J., dissenting). If the “presumption of innocence” is read

literally to apply to all pretrial procedures, it is impossible

to justify bail or pretrial detention, both of which are

restraints imposed upon an accused despite the presump-

tion. * * *

Hampton V. Holmesburg Prison Officials, 546 F.2d 1077, 1080

n.l (C.A. 3).

20

tion of innocence is the constitutional prohibition

against the infliction of any punishment prior to con-

viction (id. at 13-14). The court stated that, in order

to assure that the conditions of confinement do not

accumulate to effect what amounts to improper pun-

ishment (id. at 17),

each restriction of the jail regimen must be care-

fully examined to determine if it is justified by

substantial necessities of jail administration. To

evaluate these necessities we will look to the needs

of the state to produce the detainee for trial, to

maintain the security of the jail, or generally to

sustain the institution of pretrial detention at

a feasible cost.

The court stated that a compelling necessity would

be required to justify any practice that is “likely to

impair a detainee’s mental or physical health” (id.

at 18), or negatively affect the detainee’s prepara-

tion or presentation of his defense at trial (id. at

18-19).

The Second Circuit has formulated a more exact-

ing and less flexible due process standard, which

proscribes all “restrictions and privations” inflicted

on detainees that are not justified by the “compelling

necessity” of detention or the “inherent” concept of

confinement (App. A, infra, p. 12a). The court has

stated that, in evaluating the conditions of confine-

ment, “cries of fiscal necessity * * * [and] adminis-

21

trative convenience” cannot justify institutional pri-

vations or restraints (ibid.)."

The courts of appeals are thus in open disagree-

ment as to the correct standard to be applied in re-

viewing challenges by pretrial detainees to conditions

of confinement under the Due Process Clause. The

conflict among the circuits cannot be resolved without

the aid of this Court.

b. The due process standard adopted by the court |

of appeals in this case lacks substantial support in

the decisions of this Court. The premise underlying

the Second Circuit’s rule is that, since a pretrial de-

‘© The Fourth Circuit has adopted a standard in these cases

that parallels the Second Circuit test in that it severely limits

the governmental objectives that may be considered in justifi-

cation of any restraint on pretrial detainees. Patterson v.

Morrisette, 564 F.2d 1109 (C.A. 4).

‘' The authority from which the Second Circuit has derived

its broad “compelling necessity” test is tangential at best. In

Detainees of the Brooklyn House of Detention v. Malcolm, 520

F.2d 392, 397 (C.A. 2), the court found authority for its test

in Shapiro Vv. Thompson, 394 U.S. 618 (right of interstate

travel), Tate v. Short, 401 U.S. 395 (equal protection violated

by additional imprisonment based on inability to pay a fine),

and Shelton v. Tucker, 364 U.S. 479 (teacher’s First Amend-

ment rights infringed by a school board policy requiring dis-

closure of personal associations). These cases fall far short

of providing direct support for the Second Circuit's rule.

The other principal authority relied on by the Second Cir-

cuit is a law school note, Constitutional Limitations on the

Conditions of Pretrial Detention, 79 Yale L.J.941 (1970). The

due process analysis of the Note focuses on cases involving

statutory construction of civil commitment legislation, in

which the courts inferred a legislative intent to authorize only

the “least restrictive” confinement. Jd. at 949.

Zz

tainee must be presumed to be innocent, he may not

be deprived of the rights possessed by other citizens

except to the extent that such deprivations are justi-

fied by compelling governmental necessities (App. A,

infra, p. 12a; see Rhem v. Malcolm, 507 F.2d 333,

336 (C.A. 2)).

An initial defect in the analysis of the Second Cir-

cuit is that it has never been the law that the govern-

ment must justify all “restrictions and privations”

that it imposes on citizens by a “compelling neces-

sity.” Instead, it is the ordinary rule that

the guaranty of due process * * * demands only

that the law shall not be unreasonable, arbitrary

or capricious, and that the means selected shall

have a real and substantial relation to the object

sought to be obtained.

Nebbia v. New York, 291 U.S. 502, 525; West Coast

Hotel Co. v. Parrish, 309 U.S. 379. Only where “fun-

damental” individual rights are infringed has the gov-

ernment been required to show that “compelling”

necessities justify the challenged action. See Griswold

v. Connecticut, 381 U.S. 479, 481-486 (citing cases).

The Second Circuit’s rule of “compelling necessity”

would be justified under the Due Process Clause only

if every “restriction and privation” imposed on pre-

trial detainees implicates a fundamental interest pro-

tected by the Constitution. But this position would

seem difficult to maintain. The initial decision to de-

tain the inmate is itself, of course, a fundamental

deprivation of liberty. But such detentions are im-

ee ee eT ee ee

— —

23

plicitly authorized by the Constitution and are justi-

fied by the zovernmental interest in controlling crime;

furthermore, the prisoner is afforded a hearing prior

to commitment. See Campbell v. McGruder, supra,

slip op. 10-11; Feeley v. Sampson, supra, 570 F.2d

at 369 n. 4. With regard to the conditions of confine-

ment once detention is ordered, it may be that some

aspects of confinement implicate interests that the

Court has recognized as “fundamental” (7.e., First

Amendment freedoms; see Feeley v. Sampson, supra,

570 F.2d at 369). Other “privations” of confinement,

however, may more directly impinge only the in-

mates’ understandable desire to live comfortably dur-

ing detention (i.e., receipt of food packages, type-

writer in the cell). This Court has never elevated

the individual’s interest in economic comfort to the

level of a fundamental constitutional interest. See

Dandridge v. Williams, 397 U.S. 471, 484-487." If a

literal interpretation were given to the Second Circuit

rule—-that all “restrictions and privations” imposed

during pretrial detention must be justified by a com-

pelling governmental interest—the rule would seem

to sweep too broadly.”

18 And, of course, an individual’s free exercise of rights over

his property has not been thought fundamental, but rather

subject to reasonable restriction.

»® Such a broad rule is especially inappropriate in this case

because the fact of confinement itself imposes limitations on

constitutional rights “which are implicit in incarceration.”

Jones V. North Carolina Prisoners’ Labor Union, 433 U.S. 119,

125. See Pell v. Procunier, 417 U.S. 817, 822.

24

In the analogous context of the due process re-

straints applicable to civil commitment, the Court has

stated that “[a]t the least, due process requires that

the nature and duration of commitment bear some

reasonable relation to the purpose for which the indi-

vidual is committed.” Jackson v. Indiana, 406 U.S.

715, 738. See McNeil v. Director, Patuxent Institu-

tion, 407 U.S. 245, 249-250. This basic requirement

of due process is equally applicable in the context of

pretrial confinement. In Procunier v. Martinez, 416

U.S. 396, 404, the Court has emphasized the ‘“Hercu-

lean obstacles to effective discharge” of the duties of

prison administrators. In the context of pretrial con-

finement, no less than with convicted prisoners, these

duties include maintaining internal order and disci-

pline and securing the institution against unauthor-

ized access or escape. See ibid. Considerations of in-

stitutional order and security are “peculiarly within

the province and professional expertise of corrections

officials, and * * * courts should ordinarily defer to

their expert judgment in such matters.” Jones v.

North Carolina Prisoners’ Labor Union, 433 U.S. 119,

128, quoting Pell v. Procunier, 417 U.S. 817, 827.

As the First Circuit has stated in Feeley v. Sampson,

supra, 570 F.2d at 369-371 and n. 4, however, a

requirement that every aspect of confinement be

strictly reviewed to ensure that it directly accom-

plishes a compelling governmental objective is inher-

ently inconsistent with a proper recognition of the

legitimacy of the purpose of confinement and the

25

deference appropriately due to officials charged with

the safe and efficient accomplisiiment of this difficult

task.”

Accordingly, here, as in the context of civil commit-

ment, the basic requirement of due process should be

that the conditions and practices of confinement be

reasonable in light of the valid government objec-

tives in jail administration. [bid.; Campbell v. Mc-

\ Gruder, supra, slip op. 17. These objectives include

“the needs of the state to produce the detainee for

trial, to maintain the security of the jail, or gen-

erally to sustain the institution of pretrial detention

at a feasible cost.” Jbid. In each challenge to a con-

dition of authorized pretrial confinement under the

Due Process Clause, the government must show that

the restrictions imposed are justified by these limited

purposes and are accomplished in “a reasonable, and

hence a humane, manner.” Feeley v. Sampson, supra,

570 F.2d at 370, 371."

2 The court of appeals recognized in this case that mainte-

nance of security is a “compelling necessity” of confinement.

As discussed at pp. 30-41, infra, however, the court of appeals

failed to adhere to the requirement in Jones Vv. North Carolina

Prisoners’ Labor Union, 433 U.S. 119, that deference be given

to the determination of the needs of security by corrections

officials.

21 We acknowledge that application of this test to pretrial

confinement may well require more favorable conditions of

detention than are required for convicted prisoners. Restric-

tions on convicted prisoners may be reasonably related to any

valid penological objective such as deterrence of future crime,

protection of society, and rehabilitation of the offenders, as

well as to institutional concerns for security, order, and admin-

26

The due process analysis of the court of appeals

in this case, however, has too broadly required a

“compelling” justification for all “restrictions and

privations” of confinement. The court’s decision has

also too narrowly circumscribed the government in- .

terests that may justify, as reasonable, the practices

and conditions of pretrial detention.

2. The difficulties inherent in the due process anal-

ysis of the court of appeals are illustrated in its

evaluation of the practice of using bunk beds in the

residential rooms at the MCC. The court of appeals

reasoned that this practice is unconstitutional be-

cause “the administrators of the MCC have made no

showing of compelling necessity to justify the sub-

stantial abrogation of personal privacy imposed by

double-celling” (App. A, infra, p. 17a). We submit

that the court has erred in this conclusion, both in

its failure to recognize the legitimate governmental

interests in administrative feasibility and fiscal econ-

omy, and in its evaluation of the extent to which

legitimate personal expectations of privacy uave been

abridged.

The court stated that the use of a 75-square-foot

room to provide sleeping quarters for two inmates

affords the inmates “virtually no space for minimal

privacy or in which to avoid the other’s presence”

istrative feasibility. Pell v. Procunier, supra, 417 U.S. at 822-

893. See Jones V. North Carolina Prisoners’ Labor Union,

supra, 433 U.S. at 129-130. The legitimate objectives of con-

finement are far more limited for pretrial detainees. See

Duran V. Elrod, 542 F.2d 998, 999-1000 (C.A. 7).

27

(id. at 18a). The court relied on testimony from a

prior case involving rooms of only 40 square feet in

which double-celling of inmates had been accompanied

by fights, disagreements, charges of theft and fre-

quent involuntary contact between the inmates (ibid.,

as amended by Appendix C, infra, p. 41a, citing

Detainees of the Brooklyn House of Detention v.

Malcolm, supra.)** Application of the factual analy-

sis of the prior case in the substantially different

context of the MCC is highly questionable. At the

MCC, detainees share nearly twice as much space in

their residential rooms, are confined to their rooms

for only 7-8 hours per day (or about half as long as

in the Detainees case), during most or all of which

they are presumably asleep, and their rooms open

into modern and well-decorated multipurpose facili-

ties instead of a long barren passageway as in De-

tainees. (Compare App. G, infra, p. 208a, with 520

F.2d at 395.) Furthermore, the expert testimony

introduced by the government in this case concluded

that double-bunking in the MCC residential rooms

22 The district court entered summary judgment on this issue

after touring the facility, holdi.g that the decision in De-

tainees was dispositive against the use of double-celling at the

MCC (App. G, infra, pp. 207a-211la). The district court relied

significantly on the fact “that the rooms were designed and

built to hold a single person, not more” (id. at 205a), and

that double-celling results in “unwanted intimacy” (id. at

206a). The court stated that it was not required to relitigate

“general propositions about matters of human experience”

and concluded that the decision in Detainees established that

double-celling was inherently indecent (id. at 21la).

28.

would have no “significant detrimental effects on the

physical or psychological health of the inmates at

that institution” (7d. at 209a).*

Even assuming that the court could permissibly

have concluded that a significant abridgment of the

inmate’s personal privacy results from the use of

bunk beds in the residential rooms, there is no basis

in the decisions of this Court for the further conclu-

sion that interference with privacy in this context

must be supported by a “compelling” justification.

The cases in this Court that have defined a constitu-

tional privacy interest have never suggested that this

interest requires a physical separation of all persons,

especially in the context of institutional care or con-

finement.* Indeed, in Lanza v. New York, 370 U.S.

139, 143, the Court indicated that an individual’s

generalized interest in privacy lacks substantial

weight during institutional confinement in a jail fa-

cility. The government’s concerns for administrative

convenience and fiscal necessity should therefore prop-

erly be considered in determining whether institu-

tional abridgment of this aspect of personal privacy

is justified as reasonable and humane government

23 This distinguishes this case from Campbell v. McGruder,

supra, slip op. 29, in which the District of Columbia Circuit

upheld a decision banning double-bunking in 48-square-foot

cells on the basis of a finding that the conditions were “likely

to impair the mental and physical health of the detainees.”

24 The privacy cases have focused on the individual’s control

over his or her procreative choices. Roe v. Wade, 410 U.S. 113,

147-164; Griswold v. Connecticut, 381 U.S. 479.

ae

action. See Campbell v. McGruder, supra, slip op. 17:

Feeley v. Sampson, supra, 570 F.2d at 370, 371.”

The court of appeals expressly refused to consider

the administrative and fiscal interests of the govern-

ment in its evaluation of the permissibility of double-

celling at the MCC (App. A, infra, p. 19a). The

court disregarded efforts made by the Bureau of

Prisons to stem the unprecedented flow of inmates

into the facility (pp. 6-7, supra) and the need to re-

tain inmates at the MCC for the convenience of their

trials in nearby courts. The court also gave no con-

sideration to the fiscal constraints within which the

Bureau operates or to the costs that would be required

in altering operating procedures or in using or con-

structing additional facilities.

We do not mean to suggest that jail administrators

should be allowed to justify any condition of confine-

ment merely by claiming some connection, however

tangential, with the needs of jail management. In

determining whether the conditions are justified by

** In the absence of a restriction on a basic constitutional

right, the government’s interest in allocating finite public re-

sources is a legitimate factor to be considered even when

basic personal or economic needs of individuals are at stake.

Dandridge Vv. Williams, 397 U.S. 471, 479-480. If no considera-

tion is given to fiscal restraints in pretrial confinement, it is

difficult to perceive any limit to the court of appeals’ applica-

tion of its “privacy” concept: a per se ban on the use of any

room to hold more than one inmate wouid seem to result.

Even the court of appeals, however, has not extended its rea-

soning to dormitory rooms, having instead indicated that they

may be used to house 60 or more inmates (App. A, infra,

pp. 2la-23a).

considerations of cost and feasibility, the existence of

more suitable alternatives would bear on the reason-

ableness of the decision of jail authorities. See Feeley

v. Sampson, supra, 570 F.2d at 374. Moreover, the

level of care provided may not fall below a minimum

threshold of decency and humane treatment. /d. at

370. The court of appeals did not rely upon any evi-

dence that, in the specific context of the facilities pro-

vided at the MCC, the practice of double-bunking in

residential rooms fails to provide minimally decent

housing. The court’s reliance upon the detainees’ in-

terest in privacy, and upon evidence of indecent condi-

tions in a prior case involving substantially smaller

quarters and a different institutional environment,

does not support any such finding in this case. Rather

than impose, in effect, a rule that double celling is

per se unconstitutional, the court of appeals should

have vacated the entry cf summary judgment and

remanded for an evidentiary hearing as to the jus-

tification for the practice in the particular context

of the MCC.

3. The court of appeals recognized that mainte-

nance of security and order is a compelling or in-

herent necessity of jail administration, and it stated

that an “institution must be permitted to use reason-

able means to insure that its legitimate interests in

security are safeguarded” (App. A, infra, pp. 12a-

13a). In applying this standard to several specific

institutional security practices claimed to abridge the

constitutional rights of inmates at the MCC, however,

31

the court of appeals rejected the determination of cor-

rectional officials that the challenged practices serve

the facility’s substantial interest in security and

order. The court held that these security practices

were unjustified interferences with the retained con-

stitutional rights of both detainees and convicted in-

mates,” and it enjoined further application of the

rules at the MCC.

The court’s holdings represent an impermissible in-

trusion into the affairs of jail administration, in dis-

regard of this Court’s decision in Jones v. North Caro-

lina Prisoners’ Labor Union, 433 U.S. 119, Pell v.

Procunier, 417 U.S. 817, and Procunier v. Martinez,

416 U.S. 396. We do not dispute that convicted pris-

oners and pretrial detainees alike retain constitu-

tional rights that are consistent with the nature of

their confinement, and that courts must guard against

unwarranted interference with these retained inter-

ests. Procunier v. Martinez, supra, 416 U.S. at 405.

Nonetheless, there are certain “limitations on consti-

tutional rights * * * which are implicit in incarcera-

tion.” Jones v. North Carolina Prisoners’ Labor

cc

* The district court and the court of appeals did not differ-

entiate between the constitutional claims of pretrial detainees

and convicted inmates in enjoining these security practices.

It has been stated that when institutional security is the justi-

fication for a given restriction, even though fundamental con-

stitutional rights may be implicated, there is no reason for

distinguishing pretrial detainees from prisoners. Main Road

Vv. Aytch, 565 F.2d 54, 57 (C.A. 3); United States v. Hearst,

563 F.2d 1331, 13845-1346 n. 11 (C.A. 9); Taylor v. Sterrett,

532 F.2d 462, 470 n. 11 (C.A. 5).

32

Union, supra, 433 U.S. at 125. For example, both

First and Fourth Amendment rights are necessarily

restricted during imprisonment and must be evalu-

ated “in light of the special characteristics of the

* * * environment.” Procunier v. Martinez, supra,

416 U.S. at 410, quoting Tinker v. Des Moines School

District, 393 U.S. 503, 506. See Jones v. North Caro-

lina Prisoners’ Labor Union, supra, 433 U.S. at 129;

Pell v. Procunier, supra, 417 U.S. at 822; see also

Lanza v. New York, 370 U.S. 139, 143.

This Court has held that the concern to protect

rights specifically guaranteed by the Constitution does

not change the basic standard by which courts are to

review challenged restrictions in a prison context: if

the regulation or practice is reasonably related to the

objective of maintaining jail security and order, it

should be upheld. Jones v. North Carolina Prisoners’

Labor Union, supra, 433 U.S. at 129-130. Further-

more, the burden should not be placed on prison au-

thorities to show affirmatively that the absence of a

particular restriction would be detrimental to the

maintenance of security or order. Jd. at 128. Instead,

courts should ordinarily defer to the expert judgment

of prison administrators and limit judicial inquiry

to those occasions when “substantial evidence” indi-

cates “that the officials have exaggerated their re-

sponse” to the concerns of prison management. Ibid. ;

Pell v. Procunier, supra, 417 U.S. at 827.

In this case, the courts below failed to give proper

recognition to these principles. Before turning to our

discussion of the particular rulings of the court of

appeals that we are challenging on these grounds,

however, we wish to emphasize that we are not con-

tending that 5 Sethe in issue are necessarily

compelled in order to maintain minimum levels of

security or that they may not prove subject to modifi-

cation or amelioration in various particulars, as

prison authorities deem prudent. The Bureau regu-

larly reevaluates the need for various restrictive regu-

lations; indeed, such a reevaluation is presently being

undertaken by the Justice Department’s correctional

task force (see note 13, supra). The issue here does

not concern the details of these policies but the proper

boundary between the duty of the courts to enforce

constitutional obligations and the province of correc-

tional authorities to evolve sensible policies that do

not overstep constitutional limits.

a. The courts below held that the MCC must allow

inmates to receive packages containing items of per-

sonal property (App. A, infra, pp. 32a-33a). Govern-

ment corrections officials testified in the district court

that the rule prohibiting inmates from receiving pack-

ages of personal property was necessary to avoid

fighting, stealing and extortion among inmates, and

also to limit the introduction of items of contraband

into the facility. These officials testified to the serious

opportunities that packages provide for the undetected

concealment of contraband items (A. 1242, 1550-1551,

1686).°° The district court dismissed these security

27 For example, contraband may be sewn into the linings of

garments or concealed in food packages.

34

concerns as “dire predictions” (App. F, infra, p.

162a) and held the restriction against receipt of

packages to be invalid as arbitrary and capricious

(id. at 163a-164a). The court of appeals affirmed the

findings of the district court, adding only that more

permissive rules exist at other facilities and that there

is “no indication that this greater liberality has re-

sulted in unmanageable difficulties” (App. A, infra,

pp. 32a-33a).

Neither of the courts below identified the constitu-

tional nature of the inmates’ asserted right to receive

packages containing items of personal property while

in custody.“ Assuming that such a right may exist,

there is no justification in the record for the courts’

conclusion that it is arbitrary and capricious to deny

inmates that right at the MCC.

Corrections officials testified to the important se-

curity concerns justifying the restriction on receipt

of packages at the MCC. The courts below failed to

give appropriate deference to this testimony. Despite

the courts’ disagreement with the security concerns

of the expert witnesses, there was no “substantial

evidence” in the record indicating that this testimony

was disingenuous or exaggerated. See Jones v. North

Carolina Prisoners’ Labor Union, supra, 433 U.S. at

128. In this situation the regulation should have

been upheld: “It is enough to say that [the correc-

°° There is no suggestion in either of the opinions below

that restricted use of property in this context implicates any

fundamental interest in free speech or expression.

35

tions officials] have not been conclusively shown to

be wrong.” Jd. at 132. The court of appeals should

have applied here the same analvsis it applied in a

subsequent portion of its opinion in concluding that

the MCC’s judgment that the particular prob-

lems of security, storage, and theft arising from

inmates’ ownership of typewriters must override

the desire of some to possess them. [App. A,

infra, p. 33a.]

The same principle of deference to correctional judg-

ment applies whether typewriters or other items of

personal property are involved.”

b. The courts below enjoined enforcement at the

MCC of the Bureau of Prisons’ “publisher only” rule.

This rule, which applies to all Bureau facilities, per-

mits inmates to receive books and magazines only if

the materials have been mailed directly from pub-

lishers. Federal corrections experts testified in this

case to the substantial risk to security and order that

*® The court’s suggestion that other institutions allow receipt

of packages without any “indication” of “unmanageable diffi-

culties” does not constitute adequate evidence that the Bureau’s

concerns for security are improper. See Jones v. North Caro-

lina Prisoners’ Labor Union, 433 U.S. 119, 132. The absence

of testimony concerning difficulties encountered at other in-

stitutions is not “substantial evidence,” or indeed “evidence”

at all, in the record of this proceeding. Moreover, the state-

ment of the court of appeals purports to establish, at most,

that difficulties encountered at other facilities are not “unman-

ageable.” But the Bureau may legitimately seek to avoid

“manageable” as well as “unmanageable difficulties.” The un-

rebutted testimony in this case was that the security problems

would be significant if packages were allowed at the MCC.

36

they believe results when such materials are mailed

to inmates from outside the facility. Books and maga-

zines are especially serviceable as a means for smug-

gling drugs or money into the jail; detection of items

secreted in these materials is difficult, and a sufficient

inspection can often result in partial or total destruc-

tion of the materials (A. 90-92). The “publisher

only” rule is designed to avoid this substantial prob-

lem of hidden contraband while still accommodating

the inmates’ legitimate desire for access to reading

materials. The court of appeals, however, rejected

the Bureau’s security concerns and invalidated the

rule. The court held that the rule “significantly in-

trude[s]” upon the inmates’ First Amendment rights

(App. A, infra, p. 26a) and concluded that the MCC

could “adequately protect its legitimate interests

merely by inspecting books and magazines for contra-

band” (App. A, infra, p. 26a).

The court erred in its conclusion that the “pub-

lisher only” rule meaningfully interferes with a sub-

stantial First Amendment interest. The rule allows

books and magazines to be received if mailed from

any publisher~(and now from bookstores as well).

There is no suggestion in the record that this alter-

native means of obtaining reading materials is in-

sufficient. See Pell v. Procunier, supra, 417 U.S. at

827-828. To the limited extent that the rule may in-

erease the cost of obtaining published materials, this

Court has held that where “other avenues” remain

available for the receipt of materials by inmates, the

= AP pO LS PUR nd

37

loss of “cost advantages does not fundamentally im-

plicate free speech values.” Jones v. North Carolina

Prisoners’ Labor Union, supra, 433 U.S. at 130-131

(emphasis in original).” Accordingly, in light of the

alternative channels that remain open for the receipt

of materials by inmates and the fact that the rule

“operates in a neutral fashion, without regard to the

content of the expression,” the “publisher only” rule

does not substantially affect the freedom of expres-

sion retained by inmates at the facility. See Pell v.

Procunier, supra, 417 U.S. at 828.

Moreover, the court of appeals misplaced the bur-

den of proof in rejecting the Bureau’s security con-

cerns. The Bureau established its substantial need

for strict supervision of these materials and the un-

manageability of item-by-item inspection. There was

no “substantial evidence” in the record suggesting

that these concerns were not genuine, or that the

administrative limitation applies too broadly." Jones

v. North Carolina Prisoners’ Labor Union, supra, 433

U.S. at 128. Rather, the only evidence introduced

* Furthermore, the MCC has a “relatively large” library for

use by inmates, which mitigates to some extent any possible

harshness of the rule (App. A, infra, pp. 26a-27a; App. G,

infra, p. 216a).

“The district court asserted that the security concerns

applied only to hard cover books, and that application of the

“publisher only” rule to soft-back books was therefore over-

broad (App. G, infra, p. 215a). The court’s conclusion is incon-

sistent with the evidence that contraband may be secured be-

tween the pages of such books, making administrative detec-

tion unmanageable (A. 90-92).

38

indicates the reasonableness of the rule as a moderate

and limited response to a significant security concern.

The Tenth Circuit has upheld the Bureau’s “pub-

lisher only” rule in Woods v. Daggett, 541 F.2d 237

(C.A. 10).* The decision of the court of appeals in

this case has thus created a conflict among the cir-

cuits as to the validity of the Bureau’s nationwide

‘publisher only” rule. ;

c. Inmates at Bureau of Prisons facilities, includ-

ing the MCC, are required to expose their body cavi-

ties for visual inspection as part of the strip search

conducted after contact visits with persons from out-

side the facility. This requirement has been upheld

by several courts as a reasonable means of safeguard-

ing correctional facilities against the introduction of

weapons and contraband following contact visits.

E.g., Daugherty v. Harris, 476 F.2d 292 (C.A. 10),

certiorari denied, 414 U.S. 872; Bell v. Manson, 427

F. Supp. 450 (D. Conn.) ; Hodges v. Klein, 412 F.

Supp. 896 (D. N.J.); Giampetruzzi v. Malcolm, 406

F. Supp. 836 (S.D.N.Y.); Bijeol v. Benson, 404 F.

Supp. 595 (S.D. Ind.); Penn El v. Riddle, 399 F.

Supp. 1059 (E.D. Va.). The need for such precau-

tionary measures is justified by the fact that contact

% The Second Circuit distinguished Woods on the grounds

that the case concerned a maximum security facility (App. A,

infra, pp. 26a-27a n. 10). The court stated that inmates at the

MCC pose a far smaller security risk (ibid.). There is nothing

in the record to support this conclusion. Indeed, the testimony

of Bureau of Prisons officials established that the risk of

contraband smuggling at the MCC would be substantia! with-

out the “publisher only” rule (A. 90-92).

visits “present a unique opportunity for passing con-

traband, including weapons and drugs, into the Jail.”

Feeley v. Sampson, supra, 570 F.2d at 373.

The court of appeals held in this case, however, that

unless there is probable cause to believe that the in-

mate is secreting contraband, this relatively intrusive

form of inspection violates the Fourth Amendment.

The court recognized that persons in custody relin-

quish some part of their protection against intrusive

searches to protect the security of custodial facilities

(App. A, infra, p. 29a). See, e.g., Lanza v. New York,

supra, 370 U.S. at 143.* The court ruled, however,

that since the MCC “proved only one instance in the

several years of its existence when contraband was

found during a body cavity inspection,” the proce-

dure is of “little actual utility” at the MCC and is

therefore unjustified (App. A, infra, p. 30a).™

This holding by the court of appeals disregards

substantial evidence documented in this record (A.

1442, 1447-1450), and elsewhere (see United States

* In Hoitt v. Vitek, 361 F. Supp. 1238, 1254-1255 ( D.N.H.),

the court relied on Lanza for the proposition that inmates have

no reasonable expectation of privacy in their cell rooms. Other

courts have held that inmates retain some minimal right to

privacy under the Fourth Amendment, but that this retained

right is subject to reasonable searches undertaken in further-

ance of the institution’s interest in security. E.g., Bonner V.

Coughlin, 517 ¥'.2d 1311, 1316-1317 (C.A. 7); United States Vv.

Savage, 482 F.2d 1371, 1372-1373 (C.A. 9), certiorari denied,

415 U.S. 932.

** This observation wholly ignores the substantial deterrent

effect that such searches inevitably have on efforts to pass

contraband to inmates during contact visits.

40

v. Park, 521 F.2d 1381, 1382 (C.A. 9)), that body

cavity inspections following contact visits discover

and deter attempts to secrete drugs and weapons into

an institution. The court of appeals erred in sub-

stituting its judgment for that of the corrections

officials as to the “actual utility” of this security pro-

cedure. See Pell v. Procunier, supra, 417 U.S. at 827.

The Bureau informs us that the problem of safe-

guarding its facilities from the introduction of con-

traband during contact visits is a significant cor-

rectional security concern and that it is reluctant to

abolish or restrict the relatively liberal policies it now

pursues in allowing contact visits (which many state

correctional systems prohibit or severely limit). Ac-

cordingly, we request resolution by this Court of the

conflict among the circuits created by the decision

below with respect to this issue.

d. Finally, in a portion of its decision applying to

pretrial detainees only, the court of appeals held that

detainees must be allowed to observe routine inspec-

tions of their quarters. Substantial testimony was

introduced before the district court to demonstrate

that permitting detainees to observe room inspections

leads to unnecessary friction and attempts by inmates

to move concealed contraband (A. 1240-1241, 1545-

1546, 1610, 1717-1718). The district court held, how-

ever, that these concerns were not “compelling” and

were outweighed by the detainees’ retained privacy

interests (App. F, infra, p. 156a). The court of ap-

peals affirmed, stating that “[w]Je see no reason

» tha

41

whatsoever not to permit a detainee to observe the

search of his room and belongings from a reasonable

distance. This is a small privilege * * *” (App. A,

infra, p. 3la).

There is no authority for the proposition that per-

sons—either inside or outside of jail—have a privacy

interest that requires that lawful searches of their

premises be conducted in their presence. The fact

that the searches conducted in this case are performed

in a jail, where continual surveillance of quarters has

always been recognized as a necessary condition of

confinement, certainly does not enhance the individu-

al’s claim to privacy under the Fourth Amendment.

See Lanza v. United States, supra, 370 U.S. at 143;

Smith v. Shimp, 562 F.2d 423, 426 n. 2 (C.A. 7).

Furthermore, the court’s conclusion that there is “‘no

reason whatsoever” to refuse to allow detainees to

observe routine room inspection is inconsistent with

the evidence of record in this case (e.g., A. 1240-

1241, 1545-1546, 1610, 1717-1718). Here, as in the

several contexts discussed above, the court of appeals

has failed to give appropriate weight to the unre-

butted security justification established in the testi-

mony of corrections officials.

The necessary and correct result of our defer-

ence to the informed discretion of prison admin-

istrators permits them, and not the courts, to

make the difficult judgments concerning institu-

tional operations in situations such as this.

Jones vy. North Carolina Prisoners’ Labor Union,

supra, 433 U.S. at 128.

42

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted.

WADE H. MCCREE, JR.,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

KENT L. JONES,

Assistant to the Solicitor General.

SIDNEY M. GLAZER,

KATHLEEN A. FELTON,

Attorneys.

JUNE 1978.

* moe ——

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 618, 623—September Term, 1977

(Argued January 6, 1978 Decided January 24, 1978)

Docket Nos. 77-2035, 77-2135

LouIs WOLFISH, et al., PETITIONERS-APPELLEES

Vv.

HONORABLE EDWARD LEVI, et al.,

RESPONDENTS-APPELLANTS

Before:

KAUFMAN, Chief Judge,

TIMBERS and MESKILL, Circuit Judges.

KAUFMAN, Chief Judge:

When the history of our criminal justice system is

chronicled, no doubt one of its most sobering pages

will describe the sad state of this nation’s prisons

and jails. Whether it be in filthy, narrow cells of an

Alabama penitentiary or in overcrowded dormitories

in a Bronx house of detention, we have quartered

2a

individuals, both convicted or merely accused of

crimes, major and minor, under conditions that shock

the conscience of civilized men. To redress these

glaring deficiencies, courts have often been sum-

moned to insure that, at the least, minimum stand-

ards of human decency are met. And, when inhuman

or barbaric conditions, or in the case of pretrial de-

tainees, substantial deprivations not compelled by ad-

ministrative necessity, are discovered, judges should

not hesitate to enter the breach.

But, courts are singularly ill-suited to administer

the minutiae of the daily affairs of prisons. Accord-

ingly, although district courts are empowered with

broad discretion to frame equitable remedies so long

as the relief granted is commensurate with the scope

of the constitutional infraction, a trial judge must

tread carefully in less substantial matters best left

to the expertise of prison officials.

This sprawling appeal, raising a score of issues

concerning conditions and practices of New York’s

Metropolitan Correctional Center (“MCC”), presents

this dilemma in sharp relief. In his decree, Judge

Frankel intervened broadly into almost every facet

of the institution. In most instances, the able district

court judge’s incursion on administrative authority

was well-founded, and cured serious constitutional

deficiencies in the operation of the MCC. But in

other cases we believe a balance more restrained

should have been struck between the court’s power to

redress inmate grievances and deference to prison

administrators. Many of the cited deficiencies, if in-

3a

deed they existed, were not of a kind to require a

chancellor’s decree to bring about compliance.

Of course, the problems presented by such an over-

expansive decree does not fall on the trial judge’s

shoulders alone. In too many cases, the parties’ im-

pulse is to run to the courts as a first resort, no mat-

ter how minor or trivial the problem. The fault in

this respect lies too often with unresponsive or un-

cooperative government officials. And as then Chief

Judge Friendly aptly stated in Negron vy. Wallace,

“there is . . . a responsibility, resting upon all coun-

sel but especially upon those for civil rights organiza-

tions, not to swell the tidal wave of actions under the

civil rights statute by bringing suits for . . . relief

when no need for this exists.” * After wading through

the many aspects of this decree, we can only implore

the litigants in this case to avoid this increasingly

acute problem of “litigation neurosis” * in future dis-

* 436 F.2d 1139 (2d Cir. 1971).

* Id. at 1141.

* See Kaufman, 39 Brooklyn L. Rev. xiii, xiv-xv (1973). The

famous satirical writer Russell Baker commented in a recent

New York Times article that immediate resort to the courts

to solve every problem, no matter how insignificant, has be-

come “a new national habit.” But, using as an illustration a

lawsuit by women students against Yale University, he cogently

observes, “[t]he courthouse solution is not only expensive,

troublesome to the [student] and time consuming, but also

debilitating to her self-esteem, for it reminds her that to cope

with the problem which her mother could solve in an afternoon,

she requires the aid of lawyers, a judge, a jury, witnesses,

transcripts, three years of litigation and two appeals courts.”

Baker, “The Courts of First Resort,” N.Y. Times, July 26,

1977, at 29, col. 1.

4a

putes by resolving petty problems in the administra-

tive arena, without burdening our courts.

I,

In August 1975, when the Metropolitan Correc-

tional Center replaced the converted waterfront ga-

rage on West Street that had served as New York

City’s federal jail for over 45 years, it represented

the architectural embodiment of the best and most

progressive penological planning. Abjuring the cage

motif of traditional cellblock jail construction, the

architects of the MCC, the New York firm of Gruzen

and Partners, well-known for its innovative work in

correctional design, created a series of self-contained

“modular units”. Each unit consisted of approxi-

mately 24 private rooms, or six dormitory rooms,

adjacent to a multi-purpose room, a baleony educa-

tion area and a recreation room to which inmates

were to, and in fact do, have access for 16 to 19 hours

a day.

In the view of Paul Silver, Gruzen’s principal

architect on the MCC project, as well as the numer-

ous other correctional experts who assisted in the

jail’s development,* the modular unit concept was a

sensible alternative to the “illusory freedom” of the

standard jail. By substantially eliminating the need

‘ Among those experts were several witnesses in this case,

including: Norman Carlson, Director of the Bureau of Prisons;

Gary Mote, Assistant Director of Planning and Development

for the Bureau; Dr. Walker W. Menninger; and, William G.

Nagel.

5a

for inmate movement to major facilities within the

institution, the corresponding necessity of locking

inmates in their cells while the staff directed traffic

was reduced and face-to-face contact between in-

mates and their keepers increased. The modular unit

in short, was expected to humanize staff-inmate ~

lations and provide a more “homelike” atmosphere

affording inmates greater privacy and freedom hon

jails of earlier construction.

. The modular unit concept was fully implemented

in the design of MCC. Each of the ten residential

units is furnished with recreational and exercise

equipment, telephones, color televisions, books, food

preparation and dining facilities, and a visiting room.

The residential atmosphere is enhanced by carpeting

and the exterior walls are studded with clear plastic

windows. There are no central dining, recreational,

religious, assembly or work facilities with the excep-

tion of an outdoor recreation area on the roof.

When this action was commenced, the law library,

general library and commissary were all essentially

storerooms from which books and other items could

be ordered. In fact, most inmates, except a selected

cadre of sentenced inmates, may leave their unit only

for one hour of daily recreation on the roof, if the

weather permits, and for sick calls, and court ap-

pearances.

But, Samuel Johnson’s comment, “Hell is paved

with good intentions,”* is particularly appropriate

° Boswell, Life of Johnson, April 14, 1775.

6a

here. While the MCC in operation can by no means

be characterized as an earthly Hades, it nevertheless

has fallen far short of its planners’ expectations.

Their major miscalculation has proven to be a failure

to foresee the influx of more inmates than contem-

plated. Although originally designed to accommodate

a population 50 percent larger than the 300 inmate

capacity of the West Street jail, an unprecedented

rise in pretrial and sentenced commitments commenc-

ing in 1975 quickly forced the MCC to house numbers

significantly in excess of its rated capacity. To

satisfy these demands, the MCC’s administrators have

pressed into service every square foot of space which

conceivably could be used as sleeping space. The

deleterious effects of this overcrowding will be de-

scribed in greater detail. Suffice to say that over-

crowding has destroyed any modicum of privacy for

many pretrial detainees. They find themselves double-

bunked in rooms designed for and, according to Sil-

ver, capable of holding only one. We find even more

disturbing however, the fact that when no rooms are

available, as is customarily the case, new arrivals

are forced to sleep on sofas or cots in the common

areas under the glare of constantly burning lights.

And sentenced inmates have been crammed 20 at a

time into dormitories intended to house only ten.

Moreover, the stresses of serious excess population

have burdened beyond capacity equipment and other

facilities designed for far fewer people.

7a

II.

The consequences of this excessive crowding,

strained by frustrations over the physical curbs re-

sulting from modular confinement and the restric-

tions and degradation that are common generally to

prisoners, led to the institution of this suit. Indeed,

this lawsuit mirrors the difficulties present at the

MCC almost from its inception, for it was com-

menced barely four months after the institution

opened. On November 28, 1975, inmate Louis Wolfish,

proceeding pro se, sought a writ of habeas corpus

because of allegedly unconstitutional conditions at

the facility. A week later, on December 2, 1975, the

action was declared a class action on behalf of all

persons confined at the facility, including pretrial

detainees and sentenced prisoners,” and the Legal

Aid Society was assigned as counsel. On January 11,

1976, the Society filed an amended petition, charging

that inmates had been deprived of their constitutional

and statutory rights because of, inter alia, over-

crowded conditions, lengthy confinements, unneces-

sary restrictions on movement, inadequate visiting

hours, and lack of sufficient employment, recreational

°In addition to pretrial detainees—that is unconvicted indi-

viduals awaiting trial, held at the MCC because they could not

post bail—the MCC holds sentenced prisoners awaiting assign-

ment to another prison facility or who have been designated

to serve their terms at the MCC, sentenced prisoners trans-

ferred to the MCC on writs to testify or stand trial, witnesses

in protective custody, and persons incarcerated for contempt

of court.

8a

and educational opportunities. This litany of woes

touched on almost all aspects of the institution’s con-

ditions and practices.’

In the year following the filing of the amended

petition, Judge Frankel intervened twice to correct

alleged maladministration of the facility. On Janu-

ary 28, 1976, after notices at the MCC heralded a

severe curtailment of visiting hours, he issued a pre-

liminary injunction to maintain the status quo pend-

ing the outcome of the litigation. And on October 1,

1976, after the New York Telephone Company threat-

ened to remove the MCC’s telephones because of a

multitude of fraudulently placed calls, a second pre-

liminary injunction was issued ordering the facility

to maintain and improve its system of local and long

distance telephone services.

ITI.

Upon appellees’ motion, and appellants’ cross-

motion for partial summary judgment, a variety of

other issues were decided on January 5, 1977. Rely-

7 As an indication of the scope of this action, the amended

petition also decried the inadequate phone service; “strip”

searches; room searches outside the inmate’s presence; a pro-

hibition against the receipt of packages or the use of personal

typewriters; interference with, and monitoring of, personal

mail; inadequate and arbitrary disciplinary and grievance pro-

cedures; inadequate classification of prisoners; improper treat-

ment of non-English speaking inmates; unsanitary conditions;

poor ventilation; inadequate and unsanitary food; the denial of

furloughs; unannounced transfers; improper restrictions on

religious freedom; and an insufficient and inadequately trained

staff.

ee ee

——_——

———————

9a

ing on affidavits “recounting undisputed facts” and

upon his own observations in touring the facility,

Judge Frankel enjoined the use of single occupancy

rooms for two inmates (“double-celling”), confisca-

tion of property without supplying receipts, reading

of outgoing mail, and enforcement of a “publisher

only” rule that limits inmates to the receipt of read-

ing materials directly from a publisher or book club.

On the other hand, Judge Frankel upheld the appel-

lants’ practice of opening mail in the presence of

the recipient for the exclusive purpose of discovering

contraband. Rulings on other complaints, including

a severe limitation on the receipt of packages, were

deferred. See United States ex rel. Wolfish v. Levi,

428 F. Supp. 333 (S.D.N.Y. 1977). Appellants filed

a notice of appeal from this order on March 18, 1977.

IV.

Finally, trial of the many remaining issues began

on February 28, 1977 and continued until the end

of the following month. At trial, appellees called

21 witnesses, relying primarily on the testimony of

MCC inmates and four correctional experts; appel-

lants, in turn, summoned 23 witnesses to the stand,

including MCC personnel and a battery of seven

correctional experts.* In addition to hearing this

*Of the 21 witnesses called by the appellees, ten were in-

mates or former inmates of the MCC who had been incar-

cerated in virtually every area of the prison for appreciable

lengths of time. In addition, appellees presented the testimony

of the following correctional experts: Dr. Frank N. Rundle,

coe

-

“~~

10a

testimony and receiving numerous exhibits into evi-

dence, Judge Frankel in his customary conscientious

manner, twice toured the MCC during trial.

On September 15, 1977, the judge decided all the

remaining issues except those related to the ade-

quacy of medical care.* He granted relief on the

issues concerned with classification and movement

between modules, overcrowding, law library facilities,

the commissary, receipt of packages, use of per-

sonal typewriters, social and attorney visitation, tele-

phone service, inmate presence during room searches,

“strip” searches, uniforms, the availability of exer-

cise for those inmates held in administrative deten-

tion, special diets for Muslim inmates, inspection of

“incoming mail”, and women’s “lock-in”. Other

claims, touching on food, staff, and transfers, were

supervising psychiatrist with the Lower East Side Service

Center in New York City; William G. Nagel, Director of the

Institute of Corrections of the American Foundation; Dr.

David Fogel; and, Henry Alter.

Of the 23 witnesses called by the appellants, 14 were em-

ployees of the MCC. They also utilized seven expert witnesses,

four of whom were employees of the Federal Bureau of

Prisons. These experts included Gary Mote, Associate Director

of Planning and Development for the Bureau; Norman Carl-

son, Director of the Bureau, and Dr. William Walter Mennin-

ger. The roster of expert witnesses on both sides of this

litigation is familiar to all who have followed the history of

cases in this Circuit involving the conditions of pretrial

detention.

* The medical issues are presently being tried before the

Hon. Sol Schrieber, U.S. Magistrate, who is sitting as a special

master pursuant to Judge Frankel’s order dated August 30,

1977.

ee ——

lla

dismissed. See United States ex rel. Wolfish v. Levi,

439 F. Supp. 114 (S.D.N.Y. 1977). On October 21,

1977, appellants filed a notice of appeal from this

judgment.”

V.

Constitutional Standards

1. Pretrial detainees

Fundamental to the Anglo-American jurisprudence

of criminal law is the premise that an individual is

to be treated as innocent until proven guilty by a

jury of his or her peers. We have demonstrated our

belief in this basic principle by according to pretrial

detainees the rights afforded unincarcerated indi-

viduals, including, inter alia, rights to free speech,

Wilkinson v. Skinner, 462 F.2d 570 (2d Cir. 1972),

and freedom of religion, Kahane v. Carlson, 527 F.2d

492 (2d Cir. 1975). Accordingly, it is not enough

that the conditions of incarceration for individuals

awaiting trial merely comport with contemporary

standards of decency prescribed by the cruel and

unusual punishment clause of the eighth amendment.

Time and again, we have stated without equivoca-

tion the indisputable rudiments of due process: pre-

*° Subsequently, on November 15, 1977, we granted the ap-

pellants’ request for a stay of portions of the judgment. At

the same time, because of the importance of the issues raised

by the case, we expedited the hearing of this appeal, and

consolidated the appeal from the previous summary judgment

order with the appeal from the final judgment of October 13,

1977.

a ere en

12a

trial detainees may be subjected to only those “re-

strictions and privations” which “inhere in their con-

finement itself or which are justified by compelling

necessities of jail administration.” Rhem v. Malcolm,

507 F.2d 333, 336 (2d Cir. 1974) (“Rhem I”); Rhem

vy. Malcolm, 527 F.2d 1041 (2d Cir. 1975) (“Rhem

IT”); Detainees of the Brooklyn House of Detention

for Men v. Malcolm, 520 F.2d 392 (2d Cir. 1975)

(“Detainees”). This standard of compelling necessity

is neither rhetoric nor dicta. And we have made it

clear that deprivation of the rights of detainees can-

not be justified by the cries of fiscal necessity, Todaro

v. Ward, F.2d , Slip Op. at 156, n.8 (2d

Cir. October 31, 1977), administrative convenience,

Estelle v. Williams, 425 U.S. 501, 505 (1976), or by

the cold comfort that conditions in other jails are

worse, Rhem I, 507 F.2d at 338. See generally Note,

Constitutional Limitations on the Conditions of Pre-

trial Detention, 79 Yale L.J. 941 (1970).

But, we cannot ignore the Supreme Court’s ad-

monition in Procunier v. Martinez, 416 U.S. 396, at

405 (1974):

.... courts are ill-equipped to deal with the in-

creasingly urgent problems of prison administra-

tion and reform. Judicial recognition of that fact

reflects no more than a healthy sense of realism.

See also Newman v. State of Alabama, 559 F.2d 283,

286-87 (5th Cir. 1977).

Accordingly, once it has been determined that the

mere fact of confinement of the detainee justifies the

restrictions, the institution must be permitted to use

13a

reasonable means to insure that its legitimate inter-

ests in security are safeguarded. We may disagree

with the choice of means, but it is not wise for us to

second-guess the expert administrators on matters on

which they are better informed. See Jones v. N.C.

Prisoners’ Labor Union, USS. , 97 S. Ct.

2532 (1977). Concern with minutiae of prison ad-

ministration can only distract the court from de-

tached consideration of the one overriding question

presented to it: does the practice or condition violate

the Constitution?

2. Sentenced Inmates

The parameters of judicial intervention into the

conditions of incarceration for sentenced prisoners

are more restrictive than in the case of pretrial de-

tainees. An institution’s obligation under the eighth

amendment is at an end if it furnishes sentenced

prisoners with adequate food, clothing, shelter, sani-

tation, medical care, and personal safety. The Con-

stitution does not require that sentenced prisoners

be provided with every amenity which one might

find desirable. Newman v. State of Alabama, supra,

559 F.2d at 291.

VI.

Statutory Jurisdiction

; Although the judgment in this case is in substan-

tial part grounded on uncontrovertible constitutional

principles, it seems to wander on occasions into ad-

ministrative matters that can only be described as

14a

trivia. It appears the trial court justified a number

of these intrusions solely on its assertion of a federal

judge’s statutory jurisdiction to oversee the opera-

tion of federal jails and prisons and not on any con-

stitutional infringements.

While it is true that the Administrative Procedure

Act permits a federal court to set aside federal

agency action found to be “arbitrary” or “capricious”,

in violation of a statute, or of the Constitution,” there

is substantial disagreement whether the Act applies

to federal prisons. Compare Clardy v. Levi, 545 F.2d

1241 (9th Cir. 1976) with Ramer v. Saxbe, 552 F.2d

695 (D.C. Cir. 1975). We find it unnecessary to

decide whether the Act would apply if the breach

of a specific statutory mandate by federal prison

officials were established, however, for the Act spe-

cifically exempts entirely from judicial review “agency

action [which is] committed to agency discretion by

law.” * See Greater New York Hospital Ass’n v.

Mathews, 536 F.2d 494 (2d Cir. 1976). The enabling

statutes relied upon by appellees vest this broad un-

reviewable discretion in the Attorney General, merely

requiring him to provide “suitable” quarters, safe-

keeping, care and subsistence for all inmates in his

custody." Accordingly, we cannot find any basis for

1 See 5 U.S.C. § 706 (1976).

2 See 5 U.S.C. § 701 (a) (2) (1976).

12 See 18 U.S.C. § 4042 (1970). See also 18 U.S.C. § 4081

(1970).

l5a

the invocation of statutory jurisdiction in this case.”

The wisdom of the Act’s exemption of matters com-

mitted to agency discretion is only too vividly illus-

trated by the judgment in this case, for, unfortu-

nately, the price of reaching to cure petty incon-

veniences, although motivated by the most humane

instincts, is to fail to reserve the judge’s awesome

power and authority for matters of substance, not

to be diminished by triflings. A striking example is

the section of the decree abolishing the MCC's holiey

requiring visitors to request the key to the visiting

room bathroom from a correctional officer. Although

we understand that the order emanates from the

court’s understandably frustrating attempt to cope

with the MCC’s policy on social visits, which at one

time forced visitors to return to the lobby and endure

a lengthy reprocessing procedure whenever they

wished to use restroom facilities, such a direction,

prohibiting a practice commonly employed by service

stations, or corridor restrooms of major corporations,

could be better dealt with by methods other than

inclusion in a judgment of a federal district court.’’

It would have been advisable also for the trial court

not to become embroiled in the emotion-laden contro-

“In contrast, Citizens to Preserve Overton Park, Inc. Vv.

Volpe, 401 U.S. 402 (1971), relied on by appellees, involved

the violation by the Secretary of Transportation of a specific

statutory mandate requiring him not to approve construction

of a road through a park unless no feasible alternative existed.

** See Negron V. Wallace, 436 F.2d 1139 (2d Cir. 1971).

16a

17a

versy between the parties over the provision of tele-

best be handled : .

phone services. When this litigation commenced, the by the inmate grievance procedure

provided by the Bureau of Prisons, rather than fed-

MCC provided 23 pay telephones for local calls. But

in September 1976, appellants advised counsel for the

appellees that the number of telephones available for

inmate use would be cut in half due to massive losses

incurred by the New York Telephone Company as a

result of fraudulently made telephone calls. On Octo-

ber 1, 1976, the trial court preliminarily enjoined

the reduction, and mandated the installation of 23

telephones for long distance calls. The terms of this

injunction are embodied in the final judgment.

Although pretrial detainees enjoy a first amend-

ment right to communicate by telephone with persons

outside the prison, that right has never been con-

strued to mandate a special level of telephone service.

See e.g., Dillard v. Pritchess, 399 F. Supp. 1225, 1240

(C.D. Cal. 1975). Accordingly, to require the MCC

to return to court whenever it seeks to make any

change, however minor, in its phone service, would

place great strains on overburdened federal judges

and would, in essence, preempt the role of prison

officials.” Disputes of a kind just illustrated would

1% For the same reason we must reverse the district court’s

order requiring the MCC to maintain precisely unchanged its

present schedule for social visits. Pretrial detainees certainly

have a first amendment to contact visits. See, e.g., Miller V.

Carson, 563 F.2d 741, 748 (5th Cir. 1977). Moreover, visits

should be as long as administrative manageability allows. See

Gilmore Vv. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970), aff'd,

404 U.S. 15 (1971). But to require appellants to return to

court whenever they seek to make even minor adjustmer‘s in

pe

eral courts.”

VIL.

Overcrowding

a. Double-celling

Of the 389 rooms in the MCC designed for single

occupancy, 121 were double-celled when Jud e

Frankel banned the practice in January 1977 Sines

the administrators of the MCC have made a show-

ing of compelling necessity to justify the substantial

abrogation of personal privacy imposed by double-

celling, we affirm as to pretrial detainees. We remand

for reconsideration the prohibition on double-cellin

of sentenced inmates for reasons we shal] set forth.

In Detainees of the Brooklyn House of Detention

for Men v. Malcolm, 520 F.2d 392 (2d Cir. 1975)

we found the confinement of two pretrial detatnnss

in a single forty square foot cell in the Brooklyn oni

Queens houses of detention so “dehumanizing as to

constitute an additional hardship beyond the need for

custody in violation of the detainee’s due process and

equal protection rights.” 520 F.2d at 397. The in-

the visiting hours constit

utes an

be cee undue burden on the court

We also strike the i

portion of the order, founded sol

. . * * . : el ,

roan of statutory jurisdiction, which requires the MCC

> a commissary requests every other day rather than once

- See also, our discussion of attire, infra, pp. 1222-1223

** See Department of Justice, Bu

’ reau f +ur -

ment No. 2001.6A (October 16, 1974). of Prisons Policy State-

18a

fringements on privacy and personal dignity which

underlay that decision are also present here.

Visual inspection of the rooms, coupled with the

testimony of architect Paul Silver that double-celling

was a “clear violation of the capability” of the MCC’s

individual rooms, led Judge Frankel to conclude that

their basic structure mandated use by a single occu-

pant. Indeed, the average room affords two inmates

virtually no space for minimal privacy or in which

to avoid the other’s presence. Inmate testimony re-

vealed that double-celling had produced numerous dis-

agreements over the choice of activities within the

room, and had spawned fights, charges of theft, and

frequent involuntary physical contact as the two in-

mates passed each other in the narrow 35 square feet

aisle of walking space.“ Moreover, double-celling sub-

stantially taxed common area facilities. Judge

Frankel found, for example, that insufficient dining

accommodations had created “more pressure to eat

in the cell, with its single chair, open toilet and un-

selected companion.” ”

Appellants argue that the average room at the MCC

is nearly twice as large—75 square feet—-than the

cells involved in Detainees, and that other conditions

at MCC are more pleasant. But we find the lack of

privacy inherent in double-celling in rooms intended

* Similarly, we found in Detainees that the confinement of

two pretrial detainees together not only deprives each of his

privacy but also increases tension and aggressive tendencies.

See 520 F.2d at 396.

1° 428 F. Supp. at 337..

19a

for one individual a far more compelling considera-

tion than a comparison of square footage or the sub-

stitution of doors for bars, carpet for concrete, or

windows for walls. The government has simply failed

to show any substantial justification for double-

celling. In fact, since Judge Frankel’s order in Janu-

ary 1977, the MCC has eliminated double-celling

merely by reducing its permanent work “cadre” of

convicted inmates designated to serve their sentences

at MCC from 103 to 21. Although this diminution of

the “cadre” has made the operation of MCC some-

what more difficult, administrative inconvenience can

never excuse the deprivation of the constitutional

rights of pretrial detainees. Cf. Estelle v. Williams,

425 U.S. 501, 505 (1976). Indeed, the reduction of

the “cadre” has had the beneficial effect of opening

more work opportunities to idle pretrial detainees

and writ prisoners.

The trial court also banned double-celling of sen-

tenced inmates on the ground that to quarter “an

inferior minority of persons . . . in ways found un-

constitutional for the rest” would constitute cruel

and unusual punishment. See 428 F. Supp. at 339.

This, of course, ignores our insistence that different

and higher constitutional standards must be applied

to pretrial detainees than to sentenced prisoners. As

we noted eariier, appellants owe the convicted popu-

lation merely the duty of providing adequate housing.

We expect that on remand the trial court may well

find that double-celling in a 75 square foot room

violates the eighth amendment. Such an arrangement

Se ee ee ne

20a

allows each prisoner only 38 square feet of space in

the individual room, well below accepted standards

recommending the provision of 50 to 75 square feet

of room space per inmate.” But, it appears that the

“cadre” of sentenced inmates is housed in the Honor

Unit, which contains rooms ranging in size from 100

to 150 square feet. We cannot say on the record be-

fore us that placing two sentenced inmates in rooms

so spacious constitutes a per se violation of the eighth

amendment.

b. Balconies

An average of 27 or 28 newly-arrived inmates sleep

in the common areas of the MCC every night. At

trial, individual inmates testified that stays in the

common areas often stretch to a week or more. Since

cots and persone! belongings are inaccessible during

the day, the balconied inmate is accorded, as Judge

Frankel found, “literally zero square feet” of personal

2° See note 22, infra, and the accompanying text. We note

also that the Commission on Accreditation for Corrections of

the American Correctional Association has recommended that

individual cells have a floor area of at least 60 square feet.

See Commission on Accreditation for Corrections, Manual of

Standards for Adult Correctional Institutions, Standard 4142

(August 1977). And in Ambrose v. Malcolm, 414 F. Supp.

485, 492 (S.D.N.Y. 1976), Judge Lasker noted that the Na-

tional Sheriffs’ Association’s Handbook on Jail Architecture

(1975), 62-63, recommends that single occupancy rooms should

average 70 to 80 square feet. But see Inmates of Suffolk

County Jail v. Eisenstadt, 360 F. Supp. 676, 690 (D. Mass.

1973), aff'd, 494 F.2d 1196 (1st Cir.), cert. denied sub nom.

Hall v. Inmates of Suffolk County Jail, 419 U.S. 977 (1974).

2la

living space. Such an inmate has no means of secur-

ing any degree of privacy. Moreover, sleeping is dif-

ficult because the balcony lights burn all night. Since

appellants have offered no explanation for this com-

pletely inadequate housing except administrative con-

venience, we affirm Judge Frankel’s prohibition of the

practice. See Todaro v. Ward, supra, Slip op. at

156, n.8.

ce. Dormitories

The dormitory unit, originally intended to hold ten

inmates in each of its six rooms, now houses 120 sen-

tenced inmates. As a result, the district court found,

the situation within the dormitory unit “is one of

intolerable crowding, strain, and distortion of facili-

ties.” 439 F. Supp. at 136. He ordered that a maxi-

mum of 60 inmates be housed in the dormitory unit.

While concurring in Judge Frankel’s assessment

that operation of the dormitory unit at 200 percent of

“rated capacity”, even when it is used solely for sen-

tenced inmates is unacceptable, we find unwarranted

his refusal to consider whether any number of in-

mates in excess of rated capacity could be suitably

quartered within the dormitories. There is no con-

stitutional magic to the term “rated capacity”. In-

deed, “[t]hose who design prisons are not vested

with either the duty or the power to prescribe consti-

tutional siandards as to prison space.” Newman v.

Alabama, supra, 559 F.2d at 288.

Rather than clinging to the term “rated capacity”

as the constitutional standard, we prefer to adopt

I

22a

Judge Lasker’s approach in Ambrose v. Malcolm, 414

F. Supp. 484 (S.D. N.Y. 1976), where he limited to

29 the number of pretrial detainees who could be con-

fined for 23 hours a day in a cell-block consisting of a

corridor, a small day room, and a dormitory “rated”’

for 24 inmates. The figure was derived from the

American Correctional Association’s standard pro-

viding that each inmate should be allowed a total

of 75 square feet of living space.” To meet the needs

of sentenced inmates, the Fifth Circuit, in Williams

v. Edward, 547 F.2d 1206, 1215 (5th Cir. 1977),

has found 50 square feet of sleeping space adequate.

See also Newman v. Alabama, supra, 559 F.2d at

288." In fact, if 15 * sentenced inmates were housed

21 See 414 F. Supp. at 489, 493.

22 This standard compares favorably with the National

Sheriffs’ Association’s Manual on Jail Administration (1970)

at 39, which suggests 55 square feet of space per bed in a

dormitory, as well as the recommendation of the National

Council on Crime and Delinquency Model Act for the Protec-

tion of Rights of Prisoners (1972) (§ 1b) that not less than

50 square feet of floor space be provided in the sleeping area,

and with Army guidelines providing 55 square feet of sleeping

space per prisoner. See 414 F. Supp. at 492-93. The American

Correctional Association’s Commission on Accreditation for

Corrections has recommended that a minimum of 60 square

feet be accorded each inmate housed in a dormitory unit. See

Commission on Accreditation for Corrections, Manual of

Standards for Adult Correctional Institutions, Standard 4144

(August 1977).

28 We select 15 inmates as an example because Paul Silver

testified that one set of “commonly accepted” criteria in prison

design is the provision of one urinal, one toilet and one shower

23a

in each MCC dormitory, every inmate would be al-

lotted 58 square feet of space in the dormitory room

and 32 additional square feet in the common area.

We therefore remand to the district court for recon-

sideration of this issue.

Physical Constraints of Modular Confinement

As we noted above, except for the “cadre”, the in-

mates of the MCC are permitted to leave their units

only to go to the roof recreation area, sick call, or

to court. This lack of movement severely limits in-

mate opportunities to attend religious services and

educational and recreational programs which are nor-

mally given in only a few of the units. Expert testi-

mony at the trial demonstrated that such restricted

confinement over 'engthy periods of time could have

adverse psychological effects on some inmates. But,

although appellants’ own witnesses conceded that not

all inmates at the MCC require the close custody

inherent in strict confinement in the modular unit

and that classification would permit freer circulation

within the institution, no classification procedure, be-

yond the largely successful attempt to separate pre-

trial detainees from sentenced prisoners, exists at the

MCC. The district court judge properly ordered ap-

for 15 inmates. See Deposition of Paul Silver at 54. Thus, it

appears that sufficient sanitation facilities may exist in the

dormitories to support up to 15 inmates.

24a

pellants to create additional classification guidelines

to permit greater movement within the institution.”

Judge Frankel also decreed that no inmate may be

held without consent at the MCC for more than 60

days. We find the 60-day limitation somewhat arbi-

trary. We agree that excessively long stays in the

MCC may constitute a denial of due process. But,

Judge Frankel’s opinion supplies no factual basig for

the selection of this particular demarcation point.

And, since the statistical evidence in this case indi-

cates that over 90 percent of unsentenced inmates are

released within three months,”* we are not persuaded

that confinement in excess of 60 days transforms the

MCC into a “long-term prison”, as the trial court de-

scribed it, except in several unusual cases.

But, even if the 60-day limitation was warranted

under the conditions existing at the time of trial,

Judge Frankel has now ordered the appellants to

promulgate new classification standards to allow

greater movement within the institution. If suffi-

24 We reject appellants’ protest that classification of pretrial

detainees is impossible for the reasons stated in Rhem I, 507

F.2d at 338.

25 Unfortunately, the statistics used by both the appellants

and appellees in their briefs concern the length of stay of all

inmates, sentenced and unsentenced. Analysis of the corrected

affidavit of Marshall Haines, dated June 13, 1977, reveals that

over half of the unsentenced detainees held in the MCC prior

to trial during the period August 2, 1975 to August 13, 1976

spent ten days or less in the MCC. Three-quarters were re-

leased within a month, and more than 85 percent were released

within 60 days, although one pretrial detainee was incar-

cerated for more than a year.

we

25a

ciently liberal, the new guidelines may considerably

ameliorate those very restrictive aspects of modular

confinement which necessitated the imposition of the

60-day restriction. Accordingly, we direct appellants

to prepare new classification standards within thirty

days of this decision, and remand for reconsideration

of the 60-day rule in light of those standards.

Finally, since the sole constitutional underpinning

for the 60-day requirement was “due process”, and

there was no finding that longer confinement consti-

tuted cruel and unusual punishment, the time limita-

tion should not have been applied to sentenced in-

mates, and should not be so applied if the trial court

chooses to impose a similar time restriction on re-

mand unless he finds that the longer confinement

violates the eighth amendment.

Freedom of Speech and Communication

In the close and restrictive atmosphere of a prison,

first amendment guarantees taken for granted in

society at large assume far greater significance. The

simple opportunity to read a book or write a letter,

whether it expresses political views or absent affec-

tions, supplies a vital link between the inmate and

the outside world, and nourishes the prisoner’s mind

despite the blankness and bleakness of his environ-

ment. Accordingly, courts have jealously protected

the inmate in his exercise of first amendment pre-

rogatives. Procunier v. Martinez, 416 U.S. 396

(1974); Sostre v. McGinnis, 442 F.2d 178, 199 (2d

Cir. 1971) (en bane), cert. denied sub nom. Oswald

26a

v. Sostre, 405 U.S. 978 (1972). Two of the MCC’s

policies, the “publisher only” rule and the reading of

out-going nonprivileged mail, significantly intrude

upon this protected realm.

Pursuant to a policy of the Bureau of Prisons, the

MCC permits inmates to receive books and other pub-

lications from outside the institution only if the item

comes directly from the publisher or a book club.

Ostensibly, the practice is justified by substantial

security problems, giving rise to administrative diffi-

culties in processing reading materials received from

all sources. Judge Frankel noted that the MCC could

adequately protect its legitimate interests merely by

inspecting books and magazines for contraband. He

observed, further, that other institutions have not

recorded untoward experiences with far less restric-

tive rules.

The “publisher only” rule severely and impermis-

sibly restricts the reading material available to in-

mates. We agree with those courts which have struck

down such limitations as inconsistent with both the

first amendment and due process. See, e.g., Cruz v.

Hauck, 515 F.2d 322, 333 (5th Cir. 1975) (‘pub-

lisher only” rule invalidated as to receipt of legal

periodicals); Rhem v. Malcolm, 371 F. Supp. 594

(S.D.N.Y. 1974).*” While it is true that the MCC’s

26 Appellants urge that we follow the reasoning of Woods V.

Daggett, 541 F.2d 237 (10th Cir. 1976) to reach a contrary

result. While Woods upheld a “publisher only” rule, it made

clear it was doing so within the limited context before it:

a

27a

library collection mitigates some of the harshness of

the rule, it is obvious that many books sought by in-

mates are available neither in the library nor directly

from a publisher. And it is inconceivable that the

first amendment rights of an incarcerated individual

do not extend beyond a few, selected titles. Benjamin

v. Malcolm, 75 Civ. 3073 (S.D.N.Y. November 18,

1975).

wre“ personnel also randomly and routinely read

outgoing, nonprivileged mail. The institution’s ad-

ministrators rationalize this inspection as a proper

method of monitoring escape plans or other threats

to security. Judge Frankel concluded that since social

visits and telephone calls are not monitored, the mail

security justification was meaningless. He ordered

the facility to refrain from reading inmate corre-

spondence absent good cause.

The postal carrier may not be turned back at the

jailhouse gate. The right to receive and send mail is

unquestionably protected by the first amendment.

Blount v. Rizzi, 400 U.S. 410 (1971). See also Sigler,

Freedom of the Mails: A Developing Right, 54 Geo.

. . . Nevertheless, while the constitutional claim is not

wholly insubstantial, when we consider the circumstances

of the maximum security institution the size of Leaven-

worth, and the risks involved if searches of materials

sent to such numbers of inmates should not detect contra-

band, we [sustain] the policy in question.

Certainly, the inmates at the MCC cannot be compared to the

admittedly more dangerous population at Leavenworth and,

accordingly, justification of security are far less compelling.

28a

L.J. 30 (1965). The Fifth Circuit, in Taylor v.

Sterret, 532 F.2d 462, 481 (1976), recently observed:

(c]orrespondence is a principal method available

to prisoners to communicate with private and

public individuals or entities .. . . Jail practices

which inhibit this medium therefore create a

serious impediment to a prisoner’s communica-

tive capability.

Indeed, in Procunier v. Martinez, supra, the Supreme

Court acknowledged an inmate’s interest in utilizing

this basic medium when it struck down prison regu-

lations permitting broad censorship of prison cor-

respondence.

It cannot be gainsaid that the reading of mail by

jail officials chills the expression of first amendment

rights by corespondents inside and outside the institu-

tion. It takes little more than common sense to realize

that a tender note, so important to the morale of the

incarcerated individual, might never be penned if the

writer knew that it would first be scrutinized by a

guard.” And, certainly, where social visits and tele-

phone calls are 1eft unmonitored, a spurious claim of

2? Judge Frankel observed that mail can still be inspected for

contraband, and where good cause is shown, outgoing mail

ean be read. See Sostre v. McGinnis, 442 F.2d 178 (1971)

(en banc), cert. denied sub nom. Oswald Vv. Sostre, 405 U.S.

978 (1972). We note, in addition, that Judge Frankel found no

justification for the MCC’s policy not to forware mail. We

tos fail to see any legitimate reason for the continuation of

th.. restrictive practice.

te

security cannot vindicate infringement of so basic

a right.”

Unreasonable Searches and Seizures

When an individual is detained, he or she unfor-

tunately relinquishes some part of those rights to

privacy and protection against unreasonable searches

and seizures possessed by unincarcerated members of

society. Yet, few will dispute that, whatever the cir-

cumstances, the existence of a realm in which privacy

is safeguarded is fundamental to decent treatment of

an inmate. Cf. Griswold v. Connecticut, 381 U.S.

479 (1965). Indeed, every effort should be made to

preserve those conditions which foster human dignity.

See Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th

Cir. 1975). Two practices at the MCC, the removal

of inmates during room searches and bodily strip

searches, denigrate this basic right.

a. Strip Searches

By fav ‘ie most humiliating and degrading pro-

cedure at the MCC is the so-called “strip search.”

After receiving a visitor, every inmate is, without

cause, routinely ordered to strip naked and to dis-

play his armpits and the bottom of his feet. If a

*In Smith v. Shimp, 562 F.2d 423 (7th Cir. 1977), the

Seventh Circuit upheld a practice of reading outgoing, non-

privileged mail. There is no indication in that opinion, how-

ever, whether other means of communication between inmates

and outsiders were left unmonitored. In any event, we decline

to follow the ruling of that court.

30a

male, he must lift his genitals, and bend over to

spread his buttocks for visual inspection. The vaginal

and anal cavities of female inmates are also scruti-

nized. Judge Frankel left the basic strip-search pro-

cedures undisturbed, but found that anal and genital

searches “plunge” the inmate into a “deep level of

degradation and submission” not warranted by the

record before him. See 439 F. Supp. at 147. He pro-

hibited inspection of the genitals and anus unless

there is probable cause to believe that the inmate is

secreting contraband.

While other courts have permitted searches of

body cavities where a substantial security justifica-

tion has been demonstrated, in this case appellants

proved only one instance in the several years of its

existence when contraband was found during a body

cavity inspection. The gross violation of personal

privacy inherent in such a search cannot be out-

weighed by the government’s security interest in

maintaining a practice of so little actual utility. To

speak plainly, in the circumstances presented by this

record, the procedure shocks one’s conscience. See

Rochin v. California, 324 U.S. 167 (1952). Accord-

ingly, we affirm Judge Frankel’s order on strip

searches.

b. Room Searches

During a formal “shakedown” at the MCC, a resi-

dential unit is cleared of inmates and a search con-

ducted. Inmates are not permitted to observe searches

of their rooms. Correctional officers also may bar an

'

'

'

'

'

'

3la

inmate from viewing the more frequent “spot”

searches of a particular room. The practice was in-

stituted ostensibly to minimize conflict between resi-

dents and officers over the search, to remove possible

distractions to those conducting the search, and to

thwart attempts to conceal contraband.

Judge Frankel held that this procedure could not

be countenanced when applied to pretrial detainees.

He found that correctional officers often lacked any

respect for the personal possessions of inmates and

were far from neat, and sometimes destructive, in

conducting searches. Indeed, since inmates suspected

the officers of thievery, searches were a festering

source of tension. In short, the practice in actual

operation, constituted a “regime of absolute and un-

questionable tyranny.” ”

We see no reason whatsoever not to permit a

detainee to observe the search of his room and be-

longings from a reasonable distance. This is a small

privilege to grant him and reassures the detainee’s

already diminished sense of control over self, that he

stili has some small private domain, while at the same

time not interfering with the institution’s security

concern and the removal of possible contraband. See

*° 428 F. Supp. at 342. Judge Frankel also required that

receipts be given for seized property, and that certain minimal

procedures be provided for enabling an inmate to challenge a

seizure. The basic principles of due process which require the

institution to account for such property are so well-established

that we need not dwell long in affirming this aspect of Judge

Frankel’s order. See McClennon V. Rosetti, 460 F.2d 111 (2d

Cir. 1972).

32a

Giampetruzzi v. Malcolm, 406 F. Supp. 836 (S.D.

N.Y. 1975). And, of course, any detainee who be-

comes obstructive may be removed from the vicinity

of his room.

ce. Packages

Inmates at the MCC are not permitted to bring

into the institution or to receive from the outside,

items of personal property, including electric shavers,

typewriters and wrist watches. Moreover, food pack-

ages, with the exception of one package at Christmas,

are forbidden. Appellants defend these limitations,

claiming that personal property brought into the jail

would open the door to buying favors, gambling ac-

tivities, and “strong arm tactics.” The appellants also

urge the food restrictions are necessary to avoid

sanitation and storage problems.

Judge Frankel found these justifications meritless.

He ordered the appellants to promulgate reasonable

regulations to permit receipt of at least items of the

sort available from the commissary.

Other institutions have far more liberal rules gov-

erning the receipt of packages than the severely

restrictive regulations of the MCC. See, e.g., Giampe-

truzzi v. Malcolm, 406 F. Supp. 836, 842 (S.D.N.Y.

1976) (New York City House of Detention) ; /nmates

of Suffolk County Jail v. Eisenstadt, 360 F. Supp.

676 (D. Mass. 1973), aff'd, 496 F.2d 1196 (1st Cir.),

cert. denied sub nom. Hall v. Inmates of Suffolk

County Jail, 414 U.S. 977 (1974). And there is no

indication that this greater liberality has resulted in

a

33a

unmanageable difficulties. Since the district court’s

decree did no more than instruct the MCC to devise

reasonable regulations regarding packages, it is not

inconsistent with the tenet that prison officials should

retain as much control as possible over their institu-

tions. Appellants may appropriately place a ceiling

on the permissible dollar value of goods received into

the institution and restrict the number of packages.

In so doing, it may satisfy its legitimate security and

storage concerns but, at the same time, we are sure

it will not impose draconian limitations.

d. Typewriters

Judge Frankel decreed that inmates should be per-

mitted to possess typewriters, for their personal use.

But we can perceive no constitutional right to a type-

writer as an incident to the right of access to the

courts. See Tarlton v. Henderson, 467 F.2d 200 (5th

Cir. 1972). And while it may be true, as Judge

Frankel-poignantly noted, that “typed papers... .

leap more vividly than handwritten ones to the

watery judicial eye,” such a vivid rhetorical flourish

on the value of the typewriter cannot justify a gross

intrusion into prison administration. In short, the

MCC’s judgment that the particular problems of

security, storage, and theft arising from inmates’

ownership of typewriters must override the desire of

some to possess them.”

* In any event, a limited number of typewriters—one on

each residential unit—is provided to inmates. Their presence,

coupled with the fact that most inmates are represented by

‘

e270?

Attire

Neither pretrial detainees nor sentenced inmates

at the MCC are allowed to wear their own clothes.

Instead, they are issued colored jumpsuits. Appel-

lees claim, and the trial judge found, that these jump-

suits are garish, ill-fitting, degrading and humiliating

to wear. Accordingly, he required the MCC to permit

pretrial detainees to wear their own clothes unless

they volunteer to wear correctional uniforms.

We do not doubt that the jumpsuits are aestheti-

cally obnoxious to some inmates. But the MCC has

demonstrated a legitimate security interest in readily

identifying inmates that outweighs the inmates’ ,un-

derstandable desire to control their own appearance.

Cf. East Hartford Education Association v. Board of

Education, 562 F.2d 838, 860 (2d Cir. 1977) (en

banc).

Certainly, the MCC could satisfy its need to easily

identify inmates in a manner less degrading and

humiliating by requiring, for example, that they wear

shirts and pants of a certain type and color. Indeed,

we urge them to do so. But we would be hard-pressed

to decide that such questions—ultimately of taste—

rise to “litigable magnitude” and are’ not issues to be

resolved by prison administrators. See Kaufman, 39

Brooklyn L. Rev. xiii, xv (1973).

counsel and do not need typewriters on which to fashion legal

documents, argue strongly against allowing personal posses-

sion of typewriters as a necessity for access to the court.

ee eee a

85a

Access to the Courts

When this action was instituted, most attorney

visits were made in the general visiting rooms during

visiting hours—thereby entailing long delays, limit-

ing the attorney’s time with his client, and totally

vitiating confidentiality. Moreover, attorneys fre-

quently found it impossible to go to the MCC during

the brief (4:30 to 6:30-p.m.) attorney visiting hours.

Attorney visits at any other hours required 24 hour

notice to the institution. As a result, an inmate’s

access to legal counsel was often severely constrained.

Prior to trial, the MCC opened a special attorney

visiting room and extended attorney visiting hours

from 8 a.m. to 8 p.m., for seven days a week. The

judgment requires the appellants to maintain this

schedule.

Judge Frankel also ordered that the MCC make its

law library physically accessible to inmates during

reasonable hours, and that the library contain an

adequate collection of federal law materials, includ-

ing the addition of some volumes and the replace-

ment of others. He required the appellants to provide

access to state law materials upon request.

We affirm these orders. As we made clear in Sostre

v. McGinnis, supra, 442 F.2d at 189, “[t]he Consti-

tution protects with special solicitude, a prisoner’s

access to the courts.” See also Bounds v. Smith, 430

U.S. 817 (1977); Johnson v. Avery, 393 U.S. 483

(1969). Indeed, one of the most serious deprivations

suffered by a pretrial detainee is the curtailment of

his ability to assist in his own defense. And sen-

tenced prisoners often experience similar frustra-

tions in bringing their grievances to the attention of

the courts. Appellants’ prior practices in regard to

both attorney visits and the law library unreasonably

burdened the inmate’s opportunity to consult with his

attorney and to prepare his defense, and were prop-

erly enjoined. See Zurak v. Regan, 550 F.2d 86 (2d

Cir. 1977).

VIII.

We regret the prolixity of this opinion, but the

nature of the questions raised in the lower court and

the accumulation of detailed complaints have made

such length unavoidable if we were to deal properly

with the trial judge’s decree. In actuality, we have

here decided not one, but twenty cases relating to

specific conditions at the MCC.” That fact, in all

candor, is ominous, for it represents the growing

involvement of the cotrts in all aspects of prison

administration. Of course, such intercession is ana-

thema to prison administrators whose decisions are

scrutinized. But, in many instances, the actions of

the best intended courts are counterproductive for the

inmates themselves, who could sooner find redress of

their grievances through nonjudicial means, such as

arbitration and mediation or in this case, the Bureau

of Prisons’ inmate grievance procedure.

*1 Except as noted in this opinion, the judgment of the dis-

trict court is affirmed in all respects.

37a

Perhaps, at this juncture, Elbert Hubbard’s cau-

tion that a word to the wise is usually resented will

not prove true. It is important for courts to involve

themselves with those conditions that violate the

Constitution. But it is equally important that courts

be spared from adjudicating petty matters that do

not rise to litigable magnitude and could be resolved

more quickly and more satisfactorily by discussions

between the inmate or his representatives and prison

administrators.

38a

APPENDIX B

UNITED STATES COURT OF APPEALS

FoR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

twenty-fourth day of January one thousand nine hun-

dred and seventy-eight.

Present:

Hon. IRVING R. KAUFMAN

Chief Judge

HON. WILLIAM H. TIMBERS

Hon. THOMAS J. MESKILL

Circuit Judges

77-2035

77-2135

LouIs WOLFISH, HELEN ROMERO, SHERMAN GREENE,

ESTELLA FERNANDEZ, MARYANNE CALLAHAN, MARY

JORDAN, RUTH SMITH, FRANCIS Woops, CARMEN

ESTRADA, BIRCHEL L. CARSON, WILLIE S. McCAR-

THA, JR., CHARMAINE ROBINSON, MILDRED SKEETE,

M. RUSSELL, GERALDINE HARKER, DORIS TORRS,

CYNTHIS EDWARDS, and DANA DYNES, REALTORS-

APPELLEES,

39a

UNITED STATES OF AMERICA, EDWARD H. LEVI, indi-

vidually and as the Attorney General of the United

States of America, NORMAN CARLSON, individually

and as the Director of the Bureau of Prisons of the

United States of America, LARRY TAYLOR, individu-

ally and as the Warden of the New York City Met-

ropolitan Correctional Center of the United States

of America, THOMAS J. CAHILL, individually and as

the United States Attorney for the Southern Dis-

trict of New York, WAYNE B. COLBURN, individu-

ally and as the Director of the United States Mar-

shals Service and FRANK A. JULIANO, individually

and as the United States Marshal of the Southern

District of New York, RESPONDENTS-APPELLANTS.

Appeal from the United States District Court for the

Southern District of New York

This cause came on to be heard on the transcript

of record from the United States District Court for

the Southern District of New York, and was argued

by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgments

of said District Court be and they hereby are af-

firmed in part, reversed in part and the action be

and it hereby is remanded in part to said district

court in accordance with the opinion of this court.

A. DANIEL FUSARO,

Clerk

By ARTHUR HELLER,

Deputy Clerk

40a

APPENDIX C

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the twenty-first day of February, one thousand

nine hundred and seventy-eight.

Present: HONORABLE IRVING R. KAUFMAN,

Chief Judge.

HONORABLE WILLIAM H. TIMBERS,

HONORABLE THOMAS J. MESKILL,

Circuit Judges.

77-2035

77-2135

UNITED STATES OF AMERICA EX REL.

LOUIS WOLFISH, ET AL., PETITIONERS-APPELLEES,

—against—

THE HONORABLE EDWARD LEVI, ET AL.,

RESPONDENTS-APPELLANTS.

Respondents-appellants having filed a motion to

enlarge the time within which respondent-appellants

We 4la

may petition for rehearing, or suggest rehearing en

banc, to and including March 9, 1978 and to stay

issuance of the mandate to April 24, 1978,

IS IS ORDERED:

1) The motion is hereby granted.

2) The final sentence beginning on page 1209 of

the slip opinion is amended to read:

Inmate testimony in Detainees revealed

that double-celling had produced numerous

disagreements over the choice of activities

within the room, and had spawned fights.

charges of theft, and frequent involuntary

physical contact as two inmates passed each

other in the narrow aisle of walking space.”

/s/ Irving R. Kaufman

IRVING R. KAUFMAN

Chief Judge

/s/ William H. Timbers

WILLIAM H. TIMBERS

/s/ Thomas J. Meskill

THOMAS J. MESKILL

Circuit Judges

42a

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

75 Civ. 6000 MEF

UNITED STATES OF AMERICA ex rel.

LOUIS WOLFISH, et al., PETITIONERS

—against—

THE HONORABLE EDWARD LEVI; NORMAN A. CARL-

SON, Director, United States Bureau of Prisons;

LARRY TAYLOR, Warden, Metropolitan Correctional

Center, RESPONDENTS

PARTIAL JUDGMENT

FRANKEL, D. J.:

The petitioner class which, by order of this Court

dated December 23, 1975, consists of all persons

who are or will be confined in the Metropolitan Cor-

rectional Center (“MCC”), 150 Park Row, New

York, New York having moved this Court for partial

summary judgment; and the respondents having

moved for partial summary judgment; and the Court

having ordered summary judgment with respect to

double-celling; receipt of books, periodicals, and other

materials; receipts for the seizure of inmate posses-

sions; and mail; and the Court having granted par-

tial summary judgment in favor of the respondents

on other issues; and the Court having heard testimony

and received other evidence as to other issues in the

ee Chive d an 2 oe

43a

case; and the Court having considered the affidavits,

transcripts, exhibits, and memoranda, and having

toured the facility; and having considered all papers

and proceedings herein; and the Court having dis-

missed certain of petitioners’ claims at the close of

their case; and the Court having rendered its deci-

sion and issued an opinion on September 15, 1977

on all the issues except those relating to health care;

and there being no just reason to delay entry of this

partial judgment, now therefore judgment is enterec

and it is hereby

ORDERED that respondents, their agents, em-

ployees, and successors, and all persons acting in con-

cert with them, be, and they hereby are, enjoined

from confining any member of the petitioner class at

MCC except under the following conditions:

CLASSIFICATION

(1) (a) Within 90 days of entry of this partial

judgment respondents shall prepare and institute a

system to classify and separate pretrial detainees

from sentenced inmates, and classify and separate

those inmates who pose a serious threat of violence,

escape or attempt to escape from those inmates who

do not pose such dangers. Said system of classifica-

tion and separation shall include the following ex-

ceptions:

(i) respondents are permitted to assign both pre-

trial detainees and sentenced inmates to the follow-

ing housing units at the MCC:

44a

(A) the women’s unit;

(B) the protective custody unit;

(C) the high security unit;

(D) the hospital.

(ii) At any time when the MCC is approaching

its capacity, either overall or as to a particular type

of unit under this classification system, respondents

shall use their best efforts to maintain the classifica-

tion and segregation set forth above and, at such

times, should an inmate be assigned to a unit not

otherwise the properly designated one (i.e., a pre-

trial detainee assigned to a sentenced unit), re-

spondents shall reassign such inmates to the prop-

erly designated unit as soon as a room becomes avail-

able in such unit. /

(b) For the purposes of this order, an inmate

convicted of a state, local or federal offense who is

at the MCC pursuant to a writ from any local, state

or federal correctional, detention or penal institution,

whether or not said inmate still has other criminal

charges pending against him, shall be considered and

classified in the same category as a sentenced inmate

and shall not be considered or classified as a pretrial

detainee.

LENGTH OF CONFINEMENT AT THE MCC

2(a) Within 14 days after entry of this partial

judgment, no inmate incarcerated or detained at the

MCC on that date or subsequent thereto may be in-

45a

carcerated or detained at the MCC for a period of

more than 60 consecutive days without said inmate’s

voluntary written consent thereto.

(b) As soon as it is known by officials at the MCC

that an inmate’s incarceration or detention at the

MCC will exceed 60 consecutive days, and in any

event no later than one week prior to expiration of

the aforesaid 60 day period, the inmate shall be in-

formed, by written communication, of his or her right

to be transferred from the MCC. Within five days

after an inmate is advised of his or her right to be

transferred under this provision, said inmate shall

advise the MCC in writing whether he or she wishes

to be transferred or whether he or she wishes to

waive transfer and remain at the MCC. Nothing

contained herein shall preclude the respondents trom

transferring an inmate from the MCC at any time

before or after expiration of the aforesaid 60 day

period.

(c) Within 14 days after entry of this partial

judgment, the respondents shall prepare a written

form for use in notifying those inmates to whom

paragraph 2(b) applies of their rights under para-

graph 2(a) and (b); said form shall also include

the following:

(i) A space wherein the inmate shall notify the

MCC, in writing, of his or her decision to exercise

his or her right of transfer or waive said right,

acknowledging that said decision is being made vol-

untarily;

46a

(ii) A space to indicate the legal status of the

inmate (i.e., pretrial or sentenced) and the date the

inmate was discharged or transferred from the MCC.

(d) Respondents shall maintain and keep a file of

all forms executed by inmates pursuant to paragraph

2(b) and (c), and said file shall be available for in-

spection and copying, upon reasonable notice, by coun-

sel for petitioners.

MUSLIMS’ DIETARY REQUIREMENTS

3(a) Respondents are hereby enjoined from pro-

viding observant Muslim inmates pork-free meals

which consist of deleting the pork item from the meal

and sustituting an extra helping of potatoes or other

vegetable.

(b) Respondents shall forthwith provide observant

Muslims with the same pork-free meals provided to

observant Jews or shall provide said observant Mus-

lims with meals which are substantially identical in

nutritional value to those served to observant Jews.

LAW LIBRARY

4(a) Within 90 days of entry of this partial judg-

ment, respondents shall prepare and submit to the

Court and counsel, for implementation upon approval

by the Court, a plan to provide inmates who are pro

se in any criminai or civil proceeding pending in any

court with physical access for reasonable periods of

time to adequate law library facilities for the purpose

of preparing the documents by which to commence,

maintain or defend such a proceeding notwithstand-

47a

ing that the court before which the inmate is appear-

ing has the discretion to appoint counsel once the

action has begun (18 U.S.C. § 3006(A)(j)), and

whether or not the inmate is represented by counsel

in another proceeding. Nothing contained herein

shall limit the right of the respondents to deny an

inmate physical access to said law library subsequent

to the appointment or retention of counsel in the pro-

ceeding in which said inmate had therefore proceeded

pro se.

(b) The means by which respondents may choose

to comply with the requirements of paragraph 4(a)

include but are not limited to transporting the af-

fected inmates to local Jaw libraries, expanding the

law library facilidies and materials at the MCC and

permitting the affected inmates physical access to

that iaw library, and establishing a program of legal

services within the MCC.

(c) Should respondents elect to comply with the

provisions of paragraph 4(a) by providing the af-

fected inmates with physical access to the law library

facilities within the MCC, respondents shall under-

take as part of their compliance the following meas-

ures:

(i) Prepare an updated and accurate list of all

volumes contained in the MCC law library:

(ii) Acquire and maintain as part of the MCC

law library (and to be included in the list described

in paragraph 4(c) (i)) one set of the Federal Second

and Federal Supplement series extended back to ¢™

48a

1950; volumes presently missing from the series now

stocked; a complete set of the Modern Practice Digest

series; and add the Federal Practice Digest Second

series. Said additions to the law library shall be

made within 90 days of the Court’s approval of the

respondents’ plan for compliance;

(iii) Provide inmates with access to state law ma-

terials through some lending arrangement with local

law libraries;

(iv) Provide adequate space for the law library

so that a reasonable number of inmates may use the

facilities at the same time.

(v) Schedule the hours of operation for the law

library so that it is available for inmate use five

days per week, for a reasonable period each day.

5(a) Respondents shall not prohibit inmates at

the MCC from acquiring or possessing their own

typewriters while incarcerated or detained at the

MCC.

(b) Respondents may inspect said personal type-

writers for contraband before permitting the inmate

to possess and maintain said typewriter at the MCC.

COMMISSARY

6(a) Inmates at the MCC shall be permitted to

submit purchase orders to the MCC commissary on

an every other day basis. A purchase order shall be

filled by the MCC and delivered to the ordering in-

mate within 24 hours after submission of the order.

(b) The commissary order form provided to in-

mates shall include a provision for the inmate to

~- a eines, alla

49a

make a second choice among the available items in

the event that one or more of the inmate’s first choice

of items is not available.

(c) Nothing contained herein shall preclude the

respondents, if they choose, from establishing a com-

missary system which provides inmates with direct

access to the commissary on an every-other-day basis.

(d) Respondents are hereby enjoined from endors-

ing checks or money orders made to the order of an

inmate without the inmate’s written consent thereto.

Respondents may endorse an inmate’s check or money

order only on written consent of the inmate after

written notice that he may refuse to give such con-

sent and that in the event of refusal to consent, re-

spondents will permit said inmate to endorse checks

and money orders. Nothing contained herein shall be

interpreted to require separate written consent for

each check or money order in the event that an in-

mate has signed the above described notice and con-

sent form. An inmate who has given the above-

described consent may, upon written notice delivered

to-his or her unit manager, revoke said consent.

, (e) Respondents shall credit checks to the appro-

priate inmate’s commissary account within 15 days

in the case of checks drawn on a bank located within

the continental United States, and within 30 days in

the case of checks drawn on a bank located outside

the continental United States, from the date that

(i) the check is received and endorsed by the MCC

pursuant to the inmate’s consent as set forth in para-

graph 6(d); or

50a

(ii) the inmate gives the check to the MCC after

said inmate has persona!!y endorsed the check pur-

suant to paragraph 6(d).

The 15-day and 30-day period set forth herein may

be extended for a longer period for good cause com-

municated to the inmate in writing.

CAPACITY OF MCC

7. Within 60 days of entry of this partial judg-

ment, and except as provided in paragraph 9(b)

below, respondents shall not house more than 10 in-

mates in each of the six dormitory rooms on Unit 11

South at the MCC, or more than a total of 60 in-

mates in that unit.

8. Within 30 days of entry of this partial judg-

ment, and except as provided in paragraph 9(b)

below, respondents shall not house inmates on beds

placed in corridors, baleony areas or commons areas.

9(a) Except as set forth below, the inmate popu-

lation at MCC shall not be permitted to increase to

more than 449 inmates, to be allocated among the

units as follows:

‘5 Se Not more than 29 inmates

8rd Floor ......... PERT S HOTS eos aR Not more than 24 inmates

AD 1 Jcetesmesteaennsaniemncnaianialie Not more than 48 inmates

(a aeiaalie chisiieteniilesuidaiadl Not more than 48 inmates

_- ae si in a cldeehienaeinasieninaataie Not more than 48 inmates

i . n cesmasianeumpenpeeeae Not more than 48 inmates

9-N ...... clbasscimantnicutsdanetiatens Not more than 48 inmates

ee. sinnesiciotmnnbiigall Not more than 48 inmates

11-N ...... a ce ee aaa Not more than 48 inmates

Ae A... icaseseeeseadenmmnennnaids Not more than 60 inmates

5la

(b) In the case of an emergency certified in writ-

ing by the Warden, and for a period not to exceed ten

days, the capacity of the MCC may be increased be-

yond 449 as set forth above by temporarily housing

more than 10 inmates in one or more of the dormi-

tory rooms on Unit 11 South, or housing inmates on

beds on a corridor, balcony or commons area in one

or more of the units, or by placing two inmates in

one or more of the individual rooms throughout the

MCC. In the event of such an emergency, a copy of

the written certification from the Warden shall

promptly be forwarded to the Court and counsel for

petitioners; said certification shall set forth the facts

underlying and the reasons for invoking this emer-

gency provision and shall indicate the present extent

of the increase in capacity above 449, and the ex-

pected duration of the emergency. By the end of the

aforesaid 10 day period, the inmate population at

MCC shall be at or below 449 unless this Court, by

specific order, permits otherwise.

SOCIAL AND FAMILY VISITING

10. Respondents shall maintain and continue the

following hours, practices, and procedures for family

and social visits at the MCC:

(a) Visiting hours at the MCC shall be maintained

as set forth below:

52a

Days Hours Unit

Tues-Friday 12:30 PM to 4:00 PM All Units

5:30 PM to 8:30 PM

Saturday 8:30 AM to 12:00 PM 3, 7N, 7S, 11N, 11S

12:30 PM to 4:00 PM 2, 5N, 5S, 9N, 9S,

118

Sunday 8:30 AM to 12:00 PM 2, 5N, 5S, 9N, 9S,

11S

12:30 PM to 4:00 PM 3, 7N, 7S, 11N, 118

When Monday is a legal government holiday, the Sun-

day visiting schedule shall prevail.

(b) Notwithstanding the provisions contained in

paragraph 10(a) above, respondents are permitted

to reduce the visiting hours for the 11-South Dormi-

tory Unit by 31% hours on either Saturdays or Sun-

days at such time as that unit is reduced to a popu-

lation of 60 inmates pursuant to paragraphs 7 and

9 above.

(c) The bathrooms located in the visiting rooms

shall be kept open for use by visitors (but not in-

mates) and shall be locked only by the visitor using

such facility.

(d) Each inmate shall be entitled to receive three

visits per week. Conditions permitting, the maximum

visiting time per visit shall be the entire visiting

period. In the event of overcrowding (more than 25

persons in any visiting room), the visiting room offi-

cer may reduce the visiting time allowed, but in no

event may the duty officer reduce a visit to less than

one hour. Only in the event of extreme overcrowding,

and then only when that determination is made by

TT

53a

the duty correctional supervisor, may a visit be

shorter than one hour. In the event of such extreme

overcrowding, visiting hours may be extended.

(e) Visits are limited to turee persons visiting one

inmate at a single time. An inmate’s children under

the age of 16 are not included in this three-person

limit. If additional family members are present, the

visit should be divided into two groups, each group

visiting for half the allotted visiting period. Each

visiting period shall be counted as one visit for pur-

poses of calculating the number of visits allowed per

week.

(f) Each inmate shall be permitted to identify six

friends or relatives for his or her approved visitors

list. Children under the age of 16 are not to be

counted in the limitation of six visitors. Inmates

shall be permitted regular opportunities, but not more

than once per week, to change the names of visitors

on their approved list.

(g) Respondents shall continue to authorize spe-

cial visits under circumstances authorized prior to

this order.

(h) The hours and procedures described in para-

graph 10(a) through (g) may be reduced or dimin-

ished only after notice to the Court and counsel for

petitioners upon a showing of good cause, and such

reduction or diminution shall not be made less than

30 days after such notice to the Court and counsel

for petitioners, and only after approval by the Court.

54a

ATTORNEY VISITS

11. Respondents shall maintain and continue the

following hours, practices, and procedures for attor-

ney visits at the MCC:

(a) Attorney visits shall be permitted from 8:00

a.m. to 8:30 p.m., seven days per week, with no re-

quirement that prior notice of the visit be given ex-

cept when special accommodations or ‘acilities are

necessary ;

(b) The attorney conference room on the third

floor, consisting of five individual rooms with doors

and ‘a large, common space provided with tables, shall

be maintained;

(c) The MCC shall continue to expedite the proc-

essing of attorneys;

(d) The special filing cabinets for inmate visitors’

lists shall be maintained;

(e) Respondents shall continue to monitor the at-

torney conference area to assure that attorneys are

given prompt entrance to and exit from the confer-

ence ; “ea; and

(f° Attorneys shall be given, after processing, an

idercification pass and will be permitted to proceed

unescorted except if, on a case-by-case basis, it is

determined by respondents that such unescorted ac-

cess would pose a threat to the security of the insti-

tution or individuals therein; and

(g) The hours and procedures described in para-

graph 11(a) through (f) may be reduced or dimin-

ished only after notice to the Court and counsel for

55a

petitioners upon a showing of good cause, and such

reduction or diminution shall not be made less than

30 days after such notice to the Court and counsel

for petitioners, and only after approval by the Court.

VISITS WITH CO-DEFENDANTS

12. Respondents shall permit co-defendants in a

case who are incarcerated or detained at the MCC

to engage in joint legal visits unless a specific court

order is in force directing otherwise.

TELEPHONES

13. Respondents shall continue to provide tele-

phone service for inmates at MCC as set forth below.

(a) Local calls

The current total of 23 pay telephones shall con-

tinue to Xe “restricted dialing,” permitting calls to

only the 212 area code. The distribution of these

telephones shall remain as follows:

Number of Pay

Unit Telephones

Honor Unit

Hospital Unit

3

5-N

5-S

7-N

7-8

9-N

9-S

11-N

11-8

i

& ONNN NNW NW WNW

56a

These telephones shall continue to be available for

inmate use from 6:30 a.m. to 11:00 p.m., except dur-

ing counts or emergencies.

(b) Long-distance calls

(1) Respondents shall continue to operate 22 long-

distance telephones on an 11 trunkline system routed

through the MCC switchboard. These long-distance

telephones shall continue to be distributed as follows:

Number of Long-Distance

Unit Telephones

Honor Unit 2

3 2

5-N 2

5-S :

7-N 2

7-8 2

9-N 2

9-S 2

11-N 2

11-S 4

(2) Inmates shall continue to be permitted to make

(i) collect calls without following the procedures here-

inafter described in subparagraphs (A) through

(F); and (ii) calls charged to their commissary ac-

counts in the manner hereinafter described in sub-

paragraphs (A) through (F) through the MCC long-

distance switchboard. Advance written authorization

by the inmate shall be required for each call an in-

mate wishes to charge to his commissary account.

Such a commissary charge shall be made in the

following manner:

57a

(A) An inmate must convey a written authoriza-

tion for each commissary charge call, including the

telephone number to be called, to the MCC commis-

sary by presenting such authorization to a desig-

nated housing unit officer. A separate authorization

must be submitted for each such call;

(B) If the inmate’s commissary account has a bal-

ance of at least $10 and the requested charge call is

within the continental United States, the written au-

thorization for a commissary charge call must be

presented to the designated housing unit officer at

least four hours prior to the time the inmate wishes

to place the call, and upon its approval by the MCC

commissary, the said authorization shall be delivered

to the long-distance operator;

(C) An inmate whose commissary account reflects

a balance of less than $10 or who wishes to charge

a call to a destination outside the continental United

States shall present the required authorization to the

designated housing unit officer at least 24 hours in

advance of the time the inmate wishes to place the

call so that MCC officials m&y confirm in advance

that the inmate’s account reflects sufficient funds to

pay for the cost of the call;

(D) At the time an inmate wishes to make a com-

missary charge call for which he has previously sub-

mitted written authorization as provided in (2) (A)

through (2)(C), said inmate using the long-distance

telephone in his housing unit, (i) shall identify him-

self to the long-distance operator, and (ii) shall iden-

58a

tify the call he wishes to charge to his commissary

account. The operator, upon determining that the

inmate has provided the appropriate written author-

ization and that the MCC commissary has approved

said call, shall place the call;

(E) Inmates shall be provided a written receipt

for each commissary charge call made; and

(F) If an inmate’s commissary account contains

insufficient funds to meet the requirements of (2) (B)

or (2)(C) above, the long-distance operator shall not

place the requested commissary charge call.

(c) Miscellaneous provisions for long-distance

calls.

(1) All long-distance calls shall be limited in

length to 10 minutes. This 10-minute period shall

commence when the called party answers the tele-

phone.

(2) A sign-up list shall be posted near each long-

distance telephone for collect and pre-paid calls in

order to encourage orderly and equitable use of the

telephones.

(3) Emergency need for a telephone, including in-

stances in which an inmate does not have funds to

pay for a needed telephone call, shall be handled on

a case-by-case basis, as is the current MCC policy.

(4) Inmates lodged in the hospital unit shall be

given access to long-distance telephones on an indi-

vidual basis.

(5) The long-distance switchboard shall be open

eight hours each day, seven days per week, except

during counts or emergencies, from 1:00 p.m. ar 7:00

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p.m. to 9:00 p.m. or 11:00 p.m. as respondents may

determine.

(6) Nothing contained herein shall prohibit the

respondents from requiring inmates to make tele-

phones calls to destinations overseas through the in-

stitutional telephone system rather than the above-

described long distance telephone system.

(d) The hours, procedures and facilities described

in paragraphs 13(a) through (c) above may be re-

duced or diminished only after notice to the Court

and counsel for petitioners upon a showing of good

cause, and such reduction or diminution shall not be

made less than 30 days after such notice to the Court

and counsel for petitioners, and only after approval

by the Court.

MAIL

14(a). Respondents and their employers shall open

incoming “Special Mail” only in the presence of the

inmate for inspection for physical contraband.

(b) “Special Mail” shall include any letter from

any of the following persons or institutions:

(i) letters from attorneys;

(ii) letters from federal courts;

(iii) letters from state courts;

(iv) letters from members or committees of Con-

gress ;

(v) correspondence from embassies and consu-

lates;

—.

60a

(vi) correspondence from the United States De-

partment of Justice or any of its divisions;

(vii) correspondence from state governors;

(viii) correspondence from state attorneys gen-

\ eral; and

(ix) correspondence from prosecuting attorneys.

15. Respondents shall forward mail received at

the MCC for an inmate who has been transferred to

another institution or who has been released.

SEARCHES

16(a). Respondents and their employees are en-

joined from conducting a visual search of the anus

or genitals of an inmate, except that respondents and

their employees are permitted to require an inspec-

tion of the genitals and anus upon a specific and

particular showing of probable cause to believe that

the inmate is concealing contraband in his or her

genital or anal area. Such probable cause must be

recorded in writing, upon sworn statements of first-

hand knowledge, with a written record of the reasons,

results, and circumstances of each such search. A

copy of such written record shall be given to the in-

mate, and a copy shall be maintained and preserved

by the respondents. In the event such examination

occurs, it is to be conducted in private and in the

presence of only those persons whose presence is es-

sential for reasons of security.

(b) Nothing contained in paragraph 16(a) shall

limit the right of respondents and their employees to

6la

require an inmate to undergo the following inspec-

tion after a contact visit:

(i) Remove all clothing including underwear;

(ii) Raise arms, present open hands, lift feet, run

fingers through hair and open mouth;

(iii) Hzve all clothing inspected.

Said inspection shall be conducted in private, in the

presence of only those persons necessary for security.

17({a). Each pretrial detainee, excluding writ

cases as set forth in paragraph 1(b) above, shall be

permitted to observe a search of the residential room,

or sleeping space within a dormitory room, to which

said detainee has been assigned, except that should

a detainee attempt to disrupt the search of his or her

room or dormitory space or remove anything from

his or her room or dormitory during the search said

detainee may be removed from the area of the search

and the search may be continued without said de-

tainee’s presence.

(b) Notwithstanding the requirements of para-

graph 17(a) above, individual residential rooms with-

in the MCC or the six dormitory rooms in Unit 11

South to which pretrial detainees are or may be as-

signed may be searched, without the presence of the

detainee, upon a showing of good cause approved in

each instance in advance in writing by the Chief

Correctional Supervisor, an Associate Warden, or

the Warden. At the time of such a search or as

promptly thereafter as practical, each detainee whose

room or dormitory space was searched pursuant to

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this provision shall be given written notice of said

search.

SEIZURE OF CONTRABAND

18. Within 90 days of entry of this partial judg-

ment, respondents shall prepare and submit to the

Court and counsel, for implementation upon approval

by the Court, a statement of procedures by which an

inmate may contest the confiscation and forfeiture

of personal property. Said procedures shall provide

for the following:

(a) A brief statement to the inmate setting forth

the basis for the seizure;

(b) Notice to the inmate of the right to respond

in a reasonably simple and convenient manner, and

to assert grounds, if any, why the seizure is claimed

to be unwarranted;

(c) A suitable opportunity to meet and answer

controverted evidence thought to warrant confisca-

tion;

(d) A decision setting forth reasons, however

brief.

PACKAGES

19. Within 90 days of entry of this partial judg-

ment, respondents shall prepare and submit t« the

Court and counsel, for implementation upon approval

by the Court, a set of regulations permitting inmates

to receive packages from-.outside the MCC. Said

regulations shall include specifications as to the vol-

ume, frequency and character of the packages in-

mates wili be permitted to receive, and the inspection

a_i

—EE — ee

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procedures to be used in connection with receipt of

such packages.

UNIFORMS

20(a). Sixty days after entry of this partial judg-

ment:

(i) Respondents are enjoined from requiring in-

mates at the MCC to wear the jumpsuit uniforms

presently in use at the MCC.

(ii) Pretrial detainees at the MCC shall be per-

mitted to wear their own clothing unless they con-

sent to wear the uniforms described in paragraph

20(a) (iv) below.

(iii) Sentenced inmates shall be permitted to wear

their own clothing unless the respondents provide

said inmates with the uniform described in paragraph

20(a) (iv) below; upon the issuance of said uni-

forms, sentenced inmates may be required to wear

said uniforms rather than their own clothes. A sen-

tenced inmate may wear the jumpsuits presently in

use at the MCC only if said inmate volunteers to

wear the jumps

This text is long and has been trimmed here. Open the source document for the complete record.