# Petition — Bell v. Wolfish > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1211%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 441 U.S. 520 ## Text 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, th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1211%3A01. Public record. Not legal advice.