Opposition — Bell v. Wolfish

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wa New York, New York

OF ri. ve 'ME CLERK

j SUPREME Courr, us.

No. 77-1829

———EEE—E_

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

GRIFFIN B. BELL, ET AL.,

Petitioners,

-V.-

LOUIS WOLFISH, ET AL.,

Respondents.

APPLICATION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

TO THE /HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES

AND THE AS IATE JUSTICES OF THE UNITED STATES SUPREME COURT.

Respogfents, through their counsel, respectfully request

leave to proceed here in forma pauperis and permission to file

in typewritten form and without payment of fees and costs their

brief in opposition to the Government's petition for a writ of

certiorari. Counsel certifies that, throughout the Proceedings

below, respondents were represented by counsel appointed pur-

suant to the Criminal Justice Act.

kh Ls

YLI§ SKLOOT BAMBERGER

LLIAM E, HELLERST<IN

The Legal Aid Socie:y

Federal Defender Sexvices Unit

531 United States Courthouse

Poley Square

New York, New York 10007

(212) 732-297)

Attorneys for Re spondents.

August 23, 1978

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emer we oe ees e ®

—$—- __-$ —___—__—- —

RECEIVED }

No. 77-1829 AUG 23 1973

ee or

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

GRIFFIN B. BELL, ET AL.,

Petitioners,

-V.-

LOUIS WOLFISH, ET AL.,

Responcents.

CERTIFICATE OF SERVICE

I hereby certify that three copies of the wichin brief in

opposition to a petition for writ of certiorari, end one copy

of respondents ' application to proceed in forma p:uperis, have

been mailed by first class mail to the Solicicor General of the

United States, and that two copies of the brief a:d one of the

application for forma pauperis relief have been mziled to the

United States Attorney for the Southern Distr ct cf New York.

UPHYLIS $ B. MBER 3ER

WILLIAM E. HELLERSTE"N

The —— Aid Scciety,

Federal Defender Ser rices Unit

531 United States Co urthouse

Foley Square

New York, New Yerk 0007

(212) 732-2971

Attorneys fcr Ze: pondents.

New York, New York

August 23, 1978

eee eee

—_—

—

ee ee

—_—— ee ee eee ce

—— eee. ee -

. .

| RECEIVED

AUG 23 1978

Oriicc ur in& CLERK

SUPREME Court, U.S.

No. 77-1829

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

GRIFFIN B. BELL, ET AL.,

Petitioners,

-Vi-

LOUIS WOLFISH, ET AL.,

Respondents.

: BRIEF IN OPPOSITION TO A

j PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PHYLIS SKLOOT 3AMBERGER

WILLIAM E. HELLERSTEIN

The Legal Aid Society

Federal Defender Scrvices Unit

531 United States Courthouse

Folev Square

New York, New York 10007

(212) 732-2971

Attornevs for Respondents.

MICHAEL B. MUSHLIN,

JOHN BOSTON,

Of Counsel.

ae ee ee eee

— —

Collins v. Schgonfield, 344 F.Supp, 257 (D.Md. 1972) eoccosse 18

INDEX

Cooper v. Morin, Index No, 74 1411 (Sup.Ct. Monroe County,

Page . N.Y. March 21, 1975) ee ee re o |

Cruz v. Hauck, 515 F.2d 322 (Sth Cir. 1975S) wcccscccccescsece 18

Daugherty v. Harris, 476 F.2d 292 (10th Cir.), cert,

denied, 414 U.S. 872 (1973)

Table of Cases and Other Authorities Cited eccccccceccccoces ff

{ Opinions Below CeeeeereeeeeeeeesSeeeeeeeeeeeeeeseseeeseeeesess 1

~~ = we eter ee

eereeeeeeeseeeveeeeeeeneeeses 21

| Jurisdiction eeereeeeeeeeeeeeeeeeeeeeeseeeeseeeesesesesseeesesed 1

' Detainees of the Brooklyn House of Detenti f °

ED SGuGRdu oc ccucccccoessucebaseceseonscoss DON x cencson for Men v

| "Malcolm, 520 F.2d 392 (24 Cir, 1975) ..ccccceccccccccce

| Constitutional and Statutory Provisions Involved ........... 2 ——"’ ( r. 1 ) 16

Detainees of the Queens House of Detention v. Malcolm,

| Statement of the Case

73 Civ. 1364 (E.D.N.Y. June 29, 1975)

sere eee ere eee eeeeees 18

A. Prior Proceedings eee er eee eer eeeereeeeeeee ee eeeeeeeee

' Estelle v. Williams, 425 U.s. 501 C2976) wccccccccccccee 19, 39

B. Double-Celling seer ee eee eee eee eee eee eee ee eee eee eee

~—<«——- << --

Cc The Publisher-only Rule Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978) ............ 13

~~ wn Ww WN

Funches v. Beame, 73 Civ. 572 -D.N.Y. ° esee

D. Visual Anal and Genital Searches ........ccceeecce ‘ F eneen SHRe She 00 _

Gi truzzi v. Malcolm, 406 F.Supp. 836 (S.D.N.Y. 1975) ... 21

E. Pretrial Detainees' Observance of Random,

Frequent, and Unannounced Searches of Hodges v. Klein, 412 F.Supp. 896 NJ.

their Cells eeee eee eee eee ee eee eee eee eer eee eeeeee 10 ' a upp (D.N.J 1976)

: Houchins v. KQED U.S. , 46 U.S.L.W. 4830

FP. Receipt of Packages eee ereewr ee eere ee eeer eee e eee eeeeee ll ‘ ‘ _ me

1978)

fe eee eeeeeene 21

UMS TOTOREP SC SO CORDS OSSOHSOLEEEOOSESOEO OC ESSOCCehee 16

Reasons for Denying the Writ

Inmates of Allen County Jail vs Bender, Civ. No. 71 F 32

A. The five conditions of confinement raised

in the petition are unconstitutional under

any of the tests, and therefore this case

is an inappropriate vehicle for the reso-

' lution of the issues presented ..........eceeeeees 12

(N.D.Ind. May 19, 1975)

PSSSSOSSSSSSSOSSSE ESE ESESHOOC CESS 18

Inmates of Milwaukee County Jail v. Peterson, 353 F.Supp.

Se ree oe ee ee ee

—_

1157 (E.D.Wis, 1973) fee ee eee

eoerereeeeeeeeeeseeeeeseeeees 18 !

B. Double-Celling err eee eee e eee eee eee eee eeeeeaeeeeeees 15

—s.

Johnson v, Avery, 393 U.S. 483 (1969)

eeeeeeeseeeeeseeeaeeeeses 19

c. The Publisher-Only Rule er eee eee eee eee eee eeneeweeeee 17 '

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

(1977)

D. Reasonableness of Searches and Seizures

"eee eee 14, 24

Lambert v. Skidmore, Case No. C 274-135 (S.D. Ohio June 16,

1. Visual Anal and Genital Searches ecccesocecces

2. Immates' Presence at Searches of

CHOSE COLLIS .cccccccscccccccccccccccsecccccccs 22 | 1975) PREPRPRSSSSHSSOSS 9090466 000000005666006060c60006e Et

Bo «= EBOREPE CE PAGREGOS ccccccccvccccccccecvcccsoceces 22 Lanza v. New York, 370 U.S. 139 ae ee a a

COMGAUSIOR cocccccccccccccscccccecceces Coeresccevccecscccccccs ae | Lucas v. Wasser, No. 76-1057, Consent Order (S.D.N.Y,.

MEEee Sie OOD cnccccecenccsstsdoceccvesccecees coceeee 16 !

Manicone vy. Cleary, 74 Civ. 575 (E.D.N.Y, June 30. 1975) coe 1S

TABLE OF CASES a —,

ms | Marion County Jail Inmates Vv. Broderick, 74 Ci", 434

Bell v. Manson, 427 F.Supp. 450 (D.Conn. 1976) ........2.. “ o (S.D.Ind. April 12, 1976) ..... TITTT PROS oeceseoescvees 18 |

Benjamin v. Malcolm, 75 Civ. 3073 (S.D.N.Y¥. Aug. 14, 1975) . 18 | Miller v. Carson, No. 74-382-Civ.-J-S (M.D.Pl-. Jan. 31, |

Bijeol v. Benson, 404 F.Supp. 595 (S.D.Ind. 1975) .......... 21 : PE Aenendeuntisbeeds tanec ce oe eees Oc eecccsoces 18 |

Campbell v. McGruder, Docket No. 75-135) (D.C. Cir. ; | Mitchell y. Untreiner, 421 F.Supp. 686 (N.D.Fia. 1976) ..... 1¢

March 30, 1978) SUSSFSSSESOCeOSSSCoeseesvbeeseseovessoeneooesersés 13 : ;

-ii-

ofi-

———

O'Bryan v. County of Saginaw, Mich., 437 F.Supp. 582 ;

: '

(E.D.Mich. 1977) eeeeeeeeeeeeeeeeeee eee eeeeeeeeeeeee eee 18 4 Government Brief on Appeal to the United States Court

Owens-El v. Robinson, 442 F.Supp. 1368 (W.D.Pa. 1978) ...... 18

of Appeals for the Second Circuit, Wolfish v. Levi,

Dee De Bien, GRP O.8.- BAF (ARTS) cccccles cccsccesesoosse

; ! Docket No. 77-2035 eee ee ewe eee eee eee eee ee eee 4, ll, 17, 24

Penn El v. Riddle, 399 F.Supp. 1059 (E.D.Va. 1975) ....e+0++ 21 .

' United States Bureau of Prisons, THE JAIL: ITS OPERATION

Procunier v. Martinez, 416 U.S. 396. (1974) cccceccece AF, 186, AD ;

AND MANAGEMENT (1970) eeeeeaeeeeeeeeeeeeveeevreeeeeeeeeeeeene 16

Rhem v. Malcolm, 37] F.Supp. 595 (S.D.N.Y¥.), affirmed,

507 F.2d 333 (2a Cir. 1974) eee ep eeeeeeeeeeeeneeeeeeeeeee 18

United States Bureau of Prisons Policy Statement

No. 7300.13B, Attachment T (June 24, 1971) ...eeeeeeeee 1Y

United States v. Park, 521 F.2d 1381 (9th Cir. 1975) ....... 20

——— oe ee me

United States Department of Justice, FEDERAL STANDARDS

Watson v. City of Memphis, 373 U.S. 526 (1963) .......ee-e05 17 ||

ee a 4 (2963) | POR CORRECTIONS (Draft June 1978) ..... 16, 17, 21, 22, 24

Woods Vv. Daggett, 541 P.2d 237 (10th Cir. 1976) eee eeveeeeeeee 19

United States Trial Memorandum in Adams and United States

CONSTITUTIONAL PROVISIONS of America v. Mathis, M.D.Ala. Civ. Action No. 74-70-S.13

—— -

—— LA. i a mt

United States Trial Memorandum in Vest et al. anc United

Pirst Amendme t eeeeeeeaeeeeeeeeeeeee eee eeeeeee 2 r 7 7 8

" + ate eo States of America v. Lubbock County Commissioners

Fourth Amendment eee rveoeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 2 a 16 , 22 '

Court et al., N.D.Tex. Civ. Action No. 5-76-53 seeeeeee 132

Fifth Amendment eeneereeeeeeeeeeeeeereeeeeeeeeeeeeeeee l, 2, 7, 23

Sixth Amendment ere eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 2

Eighth Amendment eeeeeoeeeeeeeneeeeeeeeeeeeeeeeeeeneeneeeene 2 ? 7 , 16

Ninth Amendment eeeeoeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 2

OTHER AUTHORITIES

American Bar Association, Tentative Draft on Standards

Relating to the Legal Status of Prisoners, 14

_—— eee ee ee

CrdmeL Rev. 377 (1977) ccccccccccccccccecscccccccccccccse 26

American Correctional Association Commission on Accredi-

tation for Correctional Institutions, MANUAL OF

STANDARDS FOR ADULT CORRECTIONAL INSTITUTIONS

SEER BOTED eecccccescoacsdesvcesedseoesscoeveccecccesecoe

American Correctional Association, MANUAL OF CORRECTIONAL

STANDARDS (1966) eeeeneeeereeereeeeeeeeereee

ee eeereeeeeeeeee 16

American Medical Association, STANDARDS FOR THE ACCREDI-

TATION OF MEDICAL CARE AND HEALTH SERVICES I) JAILS

(Draft Spring 1978) eeeenpeeereeeeeeeeveeeeeuvn eevee eeeeeeeeee 24 |

American Public Health Association, STANDARDS FOR HEALTH !

SERVICES IN CORRECTIONAL INSTITUTIONS (1°76) .......... 24

-iii-

-iv-

eer

2. Whether a total prohibition on the receipt from out-

side the institution of books and other reading matter except

No. 77-1829

from the publisher is violative of the First Amencment,

3. Whether routine visual anal and genital searches

without probable cause after supervised contact visits are

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM. 1977 violative of the Fourth and Fifth Amendments.

—

——

4. Whether prohibiting a non-disruptive pretrial inmate

from observing the search of his cell from a reasonable distance

is violative of the Fourth and Fifth Amendments.

GRIPPIN B,. BELL, ET AL., ‘ 5. Whether a total prohibition on the receipt of personal

Petitioners,

property from outside the institution is violative of the Pifth

Amendment.

-Vi-

LOUIS WOLFISH, ET AL., CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

eres —s ewe

Responcents.

, The inmates of MCC add to those provisions in the govern-

ment's petition the First Amendment to the United States Con-

stitution, which provides:

BRIEF IN OPPOSITION TO A

PETITION FOR WRIT OF CERTIORARI TO ;

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SS ee es ee

—

Congress shall make no law respecting

an establishment of religion, or prohibit-

ing the free exercise thereof; or abridging

the freedom of speech, or of the press; or

the right of the People peaceably to assem-

ble, and to petition the Government for a

redress of grievances,

7. “aA jo | ee

OPINIONS BELOW

ae ee Oar

STATEMENT OF THE CASE

The inmates of the Metropolitan Correctional Center ("MCC").

| A. Prior Proceedings

adopt the statement of the petitioners ("the government") .

A pro Se petition for writ of habeas corpus seeking relief

JURISDICTION

| I from alleged unconstitutional conditions of confinement at the

New York Metropolitan Correctional Center (hereinafter, "MCC"

The inmates of the MCC adopt the statement of the govern- ”

. { was filed on November 28, 1975, by the inmates of that insti-

tution. Thereafter, The Legal Aid Society, Feder: 1 Defender

QUESTIONS PRESENTED é' Services Unit, was assigned as counsel for t}- innates, and an

{

‘ amended petition was filed asserting that the inm tes had been

1. Whether double-celling and overcrowding of pretrial denied their constitutional richts under the *irs_. Fourth,

detainees in the conditions prevailing at the MCC are unconsti- Pifth, Sixth, Eighth, and Ninth Amendments,

tutional under the Fifth Amendment. Pursuant to an order dated December 2, 1975, che case was

———— ~ «

-—— ee =

le ee ee o“*

—- -_ =

* > .

declared a class action under F.R.C.P. 23(b)(1) and (2). See 20a), in practice the institution had desiynated 121 of the

3 ** A.5l1-

Wolfish v. Levi, 406 F.Supp. 1243, 1244-1245 (S.D.N.¥. 1976). cells for the housing of two inmates (App. G at 203a; BR

The inmates moved for partial summary judgment. After a |

tour and examination of the MCC, on January 5, 1977, the dis-

81***). Based on the oapers filed on the summary judgment

motion and on the judge's personal observation of the physical

trict jud granted the motion as to ral of the issues i, conditions of the cells themselves and the consecuences of

insofar as relevant to the issues raised by the government here, | ” pg on the multipurpose rooms which are the heart of

enjoined double occupancy of single-person cells ("double- ) the modular living System at MCC, the judge concluded that

celling") (see infra at 3) and enforcement of the regulation housing two people in these one-person cells was unconstitu-

prohibiting receipt of books and magazines except from pub- tional. (App. G at 206a-209a.)

At the core of the Planning and design of

the MCC was the functional unit managerent

concept, in which "all activities and ser-

vices for detained persons will, whenever

possible, be provided directly in the unit

where these persons are billeted.”

lishers -- the “publisher-only” rule (see infra at 7). Wolfish

v- Levi, 428 F.Supp. 333 (S.D.N.Y. 1977). “

Trial of the remaining issues commenced on February 28,

1977, and continued through March 30, 1977, resulting in a Government Brief on Appeal

to the Second Circuit, Docket

No. 77-2035 (hereinafter

"Brief on Appeal") at 8, ****

record of testimony of approximately 3,000 pages and several

hundred exhibits. The district judge personally visited the

MCC on two additional esions: on March 3 and March 16, 1977 | In fulfillment of this scheme, virtually all activities of

On September 15, 1977, the district judge rendered a deci-

the prison day are consigned to the multipurpose room of each

| ‘

sion on the matters not previously resolved. of relevance to | living unit at the mec, which serves all the inmates pete:

the issues raised in the government's petition, the court pro- the 48 adjoining cells (App. G at 20la-202a). Inmates are not

hibited routine visual anal and genital searches of all inmates

after contact visits exce h babl ; m *With one person to a cell and each dormitory housing an

ys wen Based om gue + ee ge i intended 10 persons (App. A at 2la), the MCC was expected to

house 449 people (Petition for writ of Certiorari at 6, here-

dered that pretrial i t t

P nmates be permitted to observe from a inafter "Pet."). In his affidavit, the warden acknowledged that

oo - <

reasonable distance the routine and limi x the population went up to an “average of well below 600" and

™ mahnmsted searches of their . that, though a projected population of 620 had been avoided up

cells except where good reason prevented it; and enjoined the _ &o this time, he could not accurately predict what the popula-

tion might inc -ase to in the future (A.89).

institution's blanket prohibition of receipt by inmates of **pouble-celling was only one of the threc ways in which the

ckages, requiring that reasco bl lati £ "i population of MCC was increased by the government beyond the

packages, req g asonabie regulations for such re institution's design capacity. The population of the dormitory

ceipt be established. the area was increased to 200% of Capacity -~ from 60 to 120 in-

P government appealed to the court of mates ~~ and housed people, not on an occasicnal >asis (see Pet.

appeals, which affirmed the district court's order on these at 72. but on @ regular and tot Gnere cents: {2 commens arene

and on balconies. The district court enjoined both of these

latter types of housing, limiting the dormitcry population to

its design capacity of 10 inmates per dormitcry urit (App. FP at

125a-129a). The court of appeals sustained the o-der, except

that a remand was ordered to determine whether the dormitories

might provide constitutionally valid housing for some number of

inmates between 10 and 15 (App. A at 22a-23a). Tre government

does not seek the Court's review of these orcers.

issues.

B. Double-Celling

Although the MCC was built primarily as a pretrial deten-

i ***References preceded by "A" are to the joins uppendix filed |

tion facility (App. G at 2062a, 213a; see App. F at 74a)* in- | in the court of appeals.

tended to house one prisoner in each of 389 cells (App. G at ****The government itself emphasize; that the mocular concept

was intended, among other purposes, to afforc som. privacy to

inmates by Providing individual cells (Brief on Appeal at 19),

*References preceded by “App.” are to the appendices to the

government's petition for writ of certiorari.

LL Ee et eam. ae

—_— i me

‘

permitted to visit the general library or the commissary (Stip-

ulation of Pacts A.2532; App. F at llla). ‘The institution con-

tains no recreation yard, no central auditorium, no indoor gym-

nasium, no chapel, no dining room, no shop, no industry, and no

educational facility (App. G at 208a n.6; App. PF at 9la; A.2532).

Rather, any recreational, educational, or religious activity

which may take place, as well as telephoning, showering, eating,

television watching, and physical exercise occur in the modular

unit. Visiting takes place in an adjoining but separate room.

Inmates leave the modular unit only for court appearances, in-

firmary or medical visits, attorney visits, and, weather permit-

ting, one hour of daily recreation on the roof (Stipulation of

Facts A.2532; App. A at Sa; App. F at 80a).

The judge found that the multipurpose room was designed

and furnished for use by the designated number of single-room

occupants (App. G at 207a). The excess population made the

multipurpose area oppressive and “congested, noisy, unworkable

for their intended uses," and he concluded that overcrowding added

to the pressure on the inmate to return to his cell for activi-

ties (App. G at 207a).

As for the cells themselves, the district judge, again

based on uncontradicted information, outlined the conditions

created when two people were housed in an area designed and

constructed, according to Paul Silver, the architect of MCC, to

house one (App. G. at 205a).* The judge found the use of bunk

beds inconsistent with the design of the 7?5-square-foot room.

With the use of bunks, cold air from a vent blew directly on |

the upper bed about a foot above body level. To avoid this, the

inmates blocked the air vents, producing musty and foul-smelling

rooms (App. G at 206a-207a).

The district judge found that,

whereas one inmate had two storaqe drawers urder a Single bed,

*The architect stated:

{T)here is an absoluteness of a room wh.ch

is designed for one person, and to try to

convert it into a two-person room, it's a

clear violation of the capability of that

space....

(App. G at 205a).

— CS eH an + ne»

—_——— A te ee tt

—— =

the use of bunks resulted in no drawer being available or the

presence of only one for use by both residents (App. G at 207a).

He also found that both the single shelf for toiletries and a

second shelf for other items were

and that there was no Place

inadequate for two people,

to hang clothing (App. G at 206a).

With the room containing also a wash basin, an uncovered toilet,

an extension lamp, a desk, and one or two chairs, he determined

that walking space was limited to a narrow aisle running the

length of the room (App. G at 203a). He noted that inmates

were locked into these inadequate cells

one-half hours

for at least seven and

during the night as well as for the daily head

counts (App. G at 208a). Purther, under the modular confinement

concept, these cells are the only place to which an inmate may

escape from the noisy, congested,

rooms.

and "useless" rultipurpose

The judge found that, based on the “plain visual evidence,"

{t}here is no place for each of two people,

assigned by others to this unwanted inti-

macy, to walk or eat or write a letter or

be quiet or be outside another's toilet....

(App. G at 206a).

He concluded:

The open toilet, at mealtimes and in

the middle of the night, remains a stark

centerpiece. The fundamental denials of

decency, privacy, personal security, and

simply, civilized humanity are all in es-

sence the same when two People are thrown

into single prison cells like these. fhe

qualities of threat, nausea, and degrada-

tion are visible and palpable for any cb-

server,

(App. G at 2lla).

In the summary judgment order, the district 5

double-celling# (App. D at Ja).

udge prohibited

The court of appeals affirmed the findings of fact and con-

Clusions of law, observing that double-celling wa; dehumanizing

and an infringement on minimal privacy and Personal dignity,

and resulted in intolerable demands being made by the increased

days upon certification by th a

at Slab” ion by e warden o

*The judge's order permitted double-celling for up to 19

f an emercency (App. D

i <A i ti; i ec ae

oa — ee —-

e — | a Oe. ew comme -_—_——-—

population on the commons areas facilities* (app. A at 17a-18a).

The court of appeals rejected a claim that fiscal conditions and

administrative convenience permitted the unconstitutional over-

crowded conditions (App. A at l2a, 19a).

Cc. The Publisher-Only Rule

eee

The MCC imposed a prohibition on receipt of books, maga-

zines, and other written material from any source other than

publishers and book clubs.** The government argued below, as

here, that the prohibition, commonly known as “the publisher-

only rule,” is necessary to prevent the entry of contraband into

the institution (Pet. at 36).

The district court found the prohibition a violation of

the Pirst and Fifth Amendments (App. G at 215a) and rejected as

inadequate the justification proffered for the prohibition.

However, recognizing that a legitimate correctional interest

existed, the judge ruled that all incoming packages and their

contents might be inspected and searched (App. G at 223a-224a).

The court of appeals affirmed, stating, “the 'publisher-

only‘ rule severely and impermissibly restricts the reading

material available to inmates ... [and is] inconsistent with

both the first amendment and due process” (App. A at 26a).

D. Visual Anal ane Genital Searches

ee ee eee

Following every contact visit, whether with attorney, family

member, or friend, made by an MCC inmate, the inmate was subject

to a strip search. This procedure required that, under the ob-

servation of a correctional officer, the inmate remove all his

clothing, display his hands and armpits, open his mouth, lift

*The issue of double-celling for sentenced prisoners in

cells of larger dimensions was remanded to the district court

for findings under the Eighth Amendment (App. A at 17a, 20a).

**The government's claim that books may ncw be ordered by

inmates from bookstores (Pet. at 36) is not in th. record and

has not been presented to either the district court or the

court of appeals, If the government believes that any uni-

lateral change in its procedures entitles it tc a modification

of the existing order, the appropriate remedy is .n application

to the district court.

—

his genitals, and display the soles of his feet. As part of

this procedure, the inmate is also required to bend over and

spread his buttocks for a visual anal inspection. Por female

inmates, the inspection includes as well a visual vaginal in-

spection.

-_—_—_——

The district judge, although finding the Strip search

“unpleasant, embarrassing, and humiliating" (App. F at 149a),

accepted the opinion of the Bureau of Prisons that a "strip

search may serve as a deterrent to people planning to secrete

and import forbidden things" (App. F at 15la) and sustained

the strip search. However, he found the visual anal and geni-

tal searches to be inherently repulsive and Shocking (App. P

at 153a):

(T]he bending over to Spread buttocks +f

for

anal inspection Plunge[s) the reaction lof

the inmate to the Search) to a level of

deep degradation and submission. The

postures [the inmates] are compelled to

assume are calculated to trigger, in the

officer and inmate respectively, feelings

of sadism, terror, and incipient masochism

that no one alive could have failed to

(App. F at 149a).*

He found the searches not rationally related to security in-

terests, and thus unreasonable (App. F at 153a). The facts

which demonstrated that the search was unreasonable were that |

’

upon entering the institution, the visitor and his clothing ia

thoroughly searched by magnetometer and other devices; that the

admissions officer could have prevented visitors from taking any

item in their Possession to the visiting room; that the inmate

was clothed in a brightly-colored, one-piece jumpsuit that sipped

up the front and which would have to be removed *rom at least |

the torso in order to secrete anything in the ancl or genital

*The district court fou

‘ nd that there had been inci

ee Suggestive remarks an? >anal bu< eerrifvian ea -

or. + poenes: and credited inmate testimony that such "|

inc caused them to forego visits (App. F at 149a)

biel ’ : i

— cavity;* that the social visitor and the inmate were in full view . in the circunstances presented by this

' record, the procedure shocks one's con-

of a correctional officer at all times during the visiting per- : science.

iod; that the inmate was not permitted use of the toilet tacility i (App. A at 30a).

in the visiting room, and the visitor could not use the facility |

i E. Pretrial Detainees’ Observance of Random, Frequent,

without first notifying the correctional officer on duty; that |

“=e ——_e wo —_—=—<

weapons and other dangerous instruments were discoverable by anc_Unannounced Searches of their Cells

metal detectors and other equipment similar to that in common : - ‘The MCC administration randomly and demnniaiies enti

use at airports; and that urine tests were routinely given to either groups of cells or individual doe. - Sineete on nt

detect the use of drugs (App. F at 130a-l3la, 134a-135a, 15la- permitted to observe searches of the units, and are permitted

aay « to observe searches of the individual cells in the apparently

Significantly, the district court found that, based on ! standardless discretion of the correctional officer. Searches

clear and uncontradicted evidence, even if an inmate were to sometimes occur after the inmate is locked into his room, in

insert an object beyond the anal sphincter, it would be unde- which case he is ordered to leave the room while the search

- —— ee

tectable by the visual search conducted by the officer, thus takes place (T.1078; App. F at 154a; A.92-93).*

; Fendering such a visual examination useless (App. F at 150a).** The evidence below also showed that, althouch the MCC

. Purther, the evidence showed that anything held between the | ) staff is directed to leave the searched rooms as they found

buttocks would cause an easily detectable abnormal gait (A.773- | | them (A.1241), correctional officers often leave the searched

| _ 774), making the search superfluous. Based on the specific | / rooms in disarray, with personal items, bedding, and legal

tors in this case, the district court concluded: ; papers scattered about (App. F at 154a).**

Seeensee ce ee ate eee ot : The government asserted below that it was necessary to

athe Ganeae Ge Rlesnetian, ena wn | , exclude the inmates from observing the search in order to pre-

present open hands and arms to demonstrate | vent the destruction of contraband before it could be seized,

the ahsence of concealed objects. ;

and because witnessing searches would antagonize inmates. The

__-. —— —.@ «

(App. F at 153a).***

court found that the i

On appeal, the court of appeals affirmed the district court: present practice of excluding inmates

already raised t »

The gross violation of personal privacy ’ ensions and hostilities (App. F a: 156a) which

inherent in such a search cannot be out- would be reduced b :

weighed by the government's security in- y the remedy (App. F at 154a-155a) and that

terest in maintaining a practice of so destruction of property would be prevented by having the inmate

little actual utility. To speak pleinly,

*The district judge found these uniforms to be unconstitu-

o fm

tional for use by pretrial inmates (App. F at 165a-169a). He mae we Se pages of the trial

did not consider the uniforms in evaluating =he unreasonable- s

ness of the government's assumptions concerning the need for an : . :

visual searches. However, the court of appeals reversed the nstetacne a ae court 's order, anything found ina

district court's holding on uniforms (App. A at i4a), so they seized by a correctional officer. No

* receipt for the seized item was given to the inmate

now become relevant to consideration of the reasonableness of Property seized was turned over to the chief pocerscaene Pane

s searches.

uch cnes : ficer for “yy -—~ if money, for deposit ir the Bureau

**The scientific evidence was confirmed by the fact that no of Prisons fund (Stipulation of Facts at 55).

anal inspection has ever revealed any contraband, and only once ;

did a vaginal inspection reveal an attempt to conceal drugs ; ‘

(App. F at 150a). the court directed that @ procedure be establishec by the in-

[

Stitution for a hearing to determine wheth -

er che seized pro-

. perty was contraband and how the Property shoul

' Of (App. E at 72a; App. D at 62a). a oo

***The judge permitted the searches to be conducted on prob-

able cause (App. F at 153a).

—

-—— — ee eee eee

meee ee

_——-- es

contraband may easily be prevented by a search of incoming pack-

remain at a reasonable distance from the cell.

ages and by control of their size and contents (App. A at 33a).

The court of appeals agreed that

The court of appeals sustained the judgment, requiring rea-

+++ the practice in actual operation, con-

stituted a “regime of absolute and unques-

tionable tyranny."

sonable regulations regarding packages (App. A at 33a). Based

on the evidence presented at trial, the court of appeals noted

We see no reason whatsoever not to

permit a detainee to observe the search

of his room and belongings from a reason-

that other institutions housing inmates needing close custody j

able distance. This is a small privilege have far more liberal rules concerning packages than did the MCC

to grant him and reassures the detainee's

already diminished sense of control over (App. A at 32a).

self, that he still has some small private

domain, while at the same time not inter-

fering with the institution's security es ; REASONS FOR DENYING THE WRIT

concern and the removal of possible contra- |

band.

! A. The five conditions of confinement raised in the | tition

omitted). . are unconstitutional under any of the tests, and therefore

F. Receipt of Packages this case is an inappropriate vehicle for the resolution

of the issues presented.

Except for one food package allowed at Christmas (Stipula- In its petition the government argues that three circuits

tion of Facts at 56; 1.490), the government enforces an absolute | i have formulated differing standards for evaluating the consti-

prohibition on receipt of all packages by ali inmates at the = tutionality of restrictions of pretrial detainee>., These vari-

No personal effects or food may be brought into the institution |

from outside.

ations, it is argued, necessitate review (Pet. at 17-21).

It is our view that this case is an inappropriate vehicle

The :

justifications given below by the government for this for meaningful resolution of whatever actual differences, if

rohibitio

P nm were exclusion of contraband; the prevention of any, the language in these cases may be thoucht to engender.

fighting, stealing, and extortion among inmates; narrowing the

~ .

The opinions and lengthy record in this case compel the conclu-

ap be

gap between those inmates with property and those without; and sion that under any 6f the "standards" expressed in these three

avoidanc

peal at 99-100).

government has chosen to seek review would be held unconstitu-

The district judge found this justification “arbitrary and tional

unacceptable” °

eptable” (App. F at 166a), emphasizing that the government’ The standard articulated below is that pretrial detainees

own practice of selling items from the commissary, including s may be subjected only to those restrictions and privations in-

at substantial cost ° *

cost (App. F at 164a),* belied any real concern herent in confinement or justified by compelling necessities

about fighting, Stealing, and extortion. He concluded that it of jail administration.* Once such necessity is established,

was arbitrary t i

y So permit those inmates with funds to buy from the the means used to ensure legitimate interests in security must |

commissary and to deny those without money the opportunity to be reasonable (App. A at l2a 13a)

—— <eee « >

receive from outside the institution similar items (App. F at *The government's reading that the decision below requires

165a). Sanitation Gnd dee . that every restriction imposed upon pretrial detanees be in- |

ge concerns were held inconsistent with herent in that confinement or Supported by compel ing necessity !

the institution's Own sale of food (App. F at 165e). Entry of | net Ray Rod Rent Me | eg a be affenée’ deteinns we”

States clearly that relief should be afforded detainees when

“substantial deprivations not compelled by administrative neces-

hing secs include snack foods, cosmetic it ies, | | sity, are discoverea* . A at 2a; dded

clothing, radios, and watches. ee ened | = (App a; emphasis added).

| ;

2 12

Dies a

—

SO SS i ce A co

ee ee ae

The standard unde- Campbell v. McGruder, Docket No. 75-1350

(D.C. Cir, March 30, 1978), although linguistically variant,

articulates the same substantive principle:

[A]lthough infringements on liberties not

deemed fundamental might not in general

be subject to the strictest scrutiny

{citations omitted], each deprivation of

the jail environment renders pretrial de-

tention more severe as punishment and thus

further violates the presumed innocence of

the pretrial detainee.... Therefore each

restriction of the jail regimen must be

carefully examined to determine if it is

justified by substantial necessities of

jail administration.

Slip op. at 16-17.

The First Circuit's decision in Feeley v. Sampson, 570 P.24

364 (lst Cir. 1978), which focuses on “whether the actions of

jail authorities are arbitrary or capricious; whether they are

lacking in a reasonable relationship to the limited purpose of

confinement; and whether they are otherwise in accordance with

law" (570 F.2d at.371),* is viewed by the government as sub-

stantially more stringent and the one which should be adhered

to (Pet. at 25 and n.21).**

Whichever standard is applied for review of <he specific

governmental actions presented by the petition, however, that

conduct is unconstitutional. The findings below manifest con-

clusions that in the five specific areas of prison regulation

*Relying on other parts of Feeley v. Sampson, su ra, 570

F.2d at 371, the government equates Kehoe reasonable relation-

ship” standard to one based on minimum standards of humanity

and decency (Pet. at 28-30). However, there, the court was

addressing a strict application of equal protection analysis;

it rejected the idea that any invalid restriction on convicted

people would be automatically unconstitutional when applied to

detainees, but concluded that it was appropriate to enjoin en-

forcement as against both convicted people and detainees of a

restriction which fell below minimum standards of humanity and

decency.

**The government's espousal of the reasonable relationship

Standard in this case -- one of the few involving a federal

prison -- is contrary to the position taken by the United States

in other litigation when State detention facilities are involved.

In those cases, the government has urged adop~ion of the Second

Circuit standard. united States trial memorandum in Adams and

United States of America v,. Mathis, M.D.Ala. Civ. Action No. 74-

a -12; Unit ates trial memorandum in Vest et al. and

United States of America Vv. Lubbock County Commissioners Court

e a “7 . 7 teOX. v. tion °o. = = a "Ge

tt et le

Ae. te

ek. diame. .a

atte

GL: LN CC it, i lt,

raised by the petition, the challenged governmental] conduct was

either arbitrary and capricious or lacked any reasonable rela-

tionship to the limited purpose of confinement. The challenge

by the petition to the decision on each of the five areas --

double-celling (see infra at 15-17); the publisher-only rule }

(see infra at 17-20); visual anal and genital searches (see in-

fra at 20-22); a detainee's presence during the search of his

cell (see infra at 22-23); and receipt of personal property

(see infra at 23-24) -- is little more than an attempt to re-

litigate the findings below.

The government insists that the courts failed to give suf-

ficient deference to the opinions of correctional officials

(Pet. at 18, 24-25 and n.20, 34, 41). However, the decisions

below, and the record upon which they are »ased, demonstrate the

attention, consideration, and deference given to correctional

officers testifying for the government. The opinions expressed

were rejected only where the "beliefs were unreasonable” or the

conditions imposed upon the detainees were an “exaggerated” re- |

sponse to reasonable beliefs (see Jones v. North Carolina Pri-

soners' Union, 433 U.S. 119, 128 (1977)).

Indeed, the deference accorded correctional expertise in

management of the MCC is amply demonstrated by the court of |

appeals’ refusal to interfere with precise regulation of tele-

Phone accessibility, social visiting hours, and commissary

orders (App. A at 16a-17a and n.16).* The court also refrained

from any interference with regulations as to the contents of

packages or property which an inmate may receive and retain in

his cell (App. A at 32a-33a). The court deferred to correc-

tional judgment in the matter of detainee uniforms and clothing, °

despite its own belief that identification of inmetes could be

achieved in a less degrading manner (App. A at 34a).

As for the issves now contested by the coverrment in its

*These issues are not raised by the certiorari petition.

— A th At. th, ih eit. ttl iy

— = — eee |

petition, the evidence warranted no decision other than the one ;

rendered by the court of appeals, irrespective of the “standard” .

the government seeks to apply.

B. Double-Celling

The government's contention that a per se prohibition on

double-celling (Pet. at 29 n.25, 30) was imposed based solely

on an institutional privacy interest (Pet. at 28) and in dis-

regard of administrative and fiscal concerns (Pet. at 28-29)

is erroneous.

While there is considerable support for prohibiting double- |

celling solely on the basis of rated capacity, the courts below

based their judgments on much more (App. G at 206a-209a). Por

example, the court considered the testimony of the architect of

the MCC that he designed each cell for one person, as well as

the effect of double-celling on individual cells and the multi-

purpose areas of the institution (App. G at 205a).

After viewing the prison, the district judge found not only |

that double-celling deprived an inmate of privacy, but that |

actual conditions were simply inadequate for the needs of two

persons. The district judge noted that the size of the cells |

allowed only 37 square feet per person when used to house two

people; that there was a lack of walking space and storage area

for basic toilet items and clothing; and that the air vents were

located so that they blew cold air only one foot from the inmate

who slept in the upper bunk (App. G at 203a, 206a-207a). There

was no place for one person to be alone or “outside another's

toilet (App. G at 206a).

Overcrowding, the court concluded, also rendered planned

commons areas “unworkable for their intended uses," and the im- !

pact of overcrowding on the multipurpose rooms diminished the :

significance of the shorter period for lock-in in cells (App. G 7

at 207a, 208a). These factors led to the ultimate Geveuntination :

that there was a denial of “decencv, privacy, personal eaceenin. 1

and, simply, civilized humanity .., when two people are thrown

into single prison cells like these" (App. G at 2lla). The

court of appeals agreei (App. A at 17a-18a).*

There is a peculiar irony to the government's argument in

support of double-celling because the government has been promi- |

nent in its criticism of that very practice in state and local

facilities.**

The government claims an “individual's generalized interest

in privacy lacks substantial weight during institutional con-

finement in a jail” (Pet. at 28). Lanza v. New York, 370 U.S.

139, 143 (1962), is the authority relied upon. Pirst, Lanza is

inappropriate because the decision below was based on grounds

broader than the single factor of privacy.*** It was premised

on findings that double-celling conditions of the MCC were

degrading (App. G at 2lla) and an infringement on personal dig-

nity (App. A at 17a-18a). Second, Lanza involved the issue of

whether eavesdropping by prison officials on a conversation

between a convicted person and his brother violated the Fourth

Amendment. Nothing in that case implicates a concern with

prison conditions involving the forced confinement of-inmates

*The court of appeals remanded to the district court for

further findings under the Eighth Amendment the question of

use of 21 larger cells to house sentenced prisoners, some of

whom were members of the work force (App. A at 20a; see App. G

at 204a).

**The government's condemnation of double-celling arises be-

cause the practice overtaxes the facility, overworks personnel,

and prevents minimum standards from being met. United States

Bureau of Prisons, THE JAIL: ITS OPERATION AND MANAGEMENT at 102

(1970); see also American Correctional Association, MANUAL OP

CORRECTIONAL STANDARDS at 49 (1966) (the Bureau of Prisons par-

ticipated in the preparation of these standards, see Detainees

of the Brooklyn House of Detention for Men v. Malcolm, 520 F.2d

392, 356 n.5 (3a Cir. 1975). Furthermore, the United States

Department of Justice, FEDERAL STANDARDS FOR CORRECTIONS (Draft

June 1978) (hereinafter, “Draft Federal Standards") provide that

all cells rated for single occupancy actually house only one

inmate (Draft Federal Standards - Physical Plant Standard 002

at 10) and that these cells have at least 60 square feet of

floor space (id,, Standard 004 at 10). The position taken by

the Department of Justice in this case is in direct conflict

with its own draft standards intended to provide “guidelines

for the decent and humane operation of ... corrections and

detention facilities.” Draft Federal Standards, Introduction

at 2.

***The Court recently noted in anoczher context that inmates

have a right to privacy which will be protected. Houchins v.

KQED, U.S. , 46 U.S.L.W. 4830, 4831 n.2 (June 26, 1978).

-_——-—-

in overcrowded conditions for protracted periods.

Whatever administrative convenience in double-celling is

Claimed by the government to exist (Pet. at 28-29), sucn an as-

sertion has never been deemed to override constitutional in-

terests. Estelle v. Williams, 425 U.S. 501, 505 (1976; Pro-

cunier v. Martinez, 416 U.S. 396, 421 (1974). Similarly, it

has long been recognized that protection of constitutional

rights "cannot be made dependent upon any theory that it is less

expensive to deny them than to afford them.” Watson v. City of

Memphis, 373 U.S. 526, 537 (1963). The assertion that the |

government is now prevented from fulfilling its own long-planned

modular living design for the MCC (see Brief on Appeal at 6-9)

by fiscal restraints is absurd in light of the fact that the

Department of Justice is asking others in the country to aban-

don double-celling despite the possible cost, and is planning

to have those incarcerated in federal prisons held in single-

person cells:*

[T]he Department of Justice must -- if the

Standards are to have any meaning -- be will-

ing to embrace the goals and objectives set

forth in the standards and apply those stan-

dards to its own correctional programs....

{I]t is my intention to ask the Bureau of Pri-

sons to submit a plan, which delineates each

Standard which is not currently met, the re-

sources and steps which will be necessary to

meet it and a reasonable time for its accom-

Plishment.

Draft Federal Standards,

Introduction at 2,

Cc. The Publisher-Only Rule

Conceding, as it must, that detainees possess a First

Amendment right to access to books, magazines, and other read-

ing materials, the government maintains that the court below

*Under the Draft Federal Standards, costs do not prevent

an end to double-celling, but will be merely a factor in deter-

mining the plan of implementing double-celling. It is recog-

nized that the time and expense involved in constuction or

renovation of a physical plant to end double-celling may require

"a longer period of time” than other changes, but responsible

officials are expected to “immediatciy develop a plan for meet-

ing the standards” within a reasonab.ie time. Draft Federal

Standards at 39.

-——* +

—————

Oe ee ee ee

———e *

ee oe re

mee

erred in striking down the publisher-only rule because such a

rule did not “meaningfully interfere" with that right. In fact,

the rule severely limits access to reading materials, partic-

ularly to indigent inmates, and constitutes a serious abridge-

ment of First Amendment rights.

Books and magazine subscriptions cost money. As the dis-

trict court noted, indigent inmates are not situated to order

such items (App. F at 215a). The rule also assumes that the in-

ee ee re ee i ee EE EE EE Se ee

mate has knowledge of publishers and their addresses, that he

can communicate easily with publishers or that family or friends

are in a position to assist him in dealing with publishers, and

that the order will be filled and the book delivered during his

stay at the MCC.

Thus, for the vast majority of detainees, the publisher-

only rule, by prohibiting the receipt of reading materials from

their most likely source of family ani friends, significantly i

infringes on First Amendment access to ideas. It is not sur- !

prising that such prohibition has been ill-received by the lower '

federal courts.*

These practical factors of access and expense are of great '

weight in determining whether constitutional protections are |

denied. Thus, in Procunier v. Martinez, supra, 416 U.S. at 419, |

the prohibition on use of law students in prison was held to be

a denial of the right of access to the courts where the location

*Cruz v. Hauck, 515 F.2d 322, 333 (5th Cir. 1975); Rhem v.

MalcoIm, 371 FP. Sup - 595, 634 (S.D.N.Y.), affirmed, 507° F.2a 333

r. 1974); O'Bryan v. County of Saginaw, Mich., 437 P.Supp.

582, 600 (E.D.Mich. 1377) | 446 F.Supp. 436, 443 \.E.D.Mich. 1978);

Owens-El v. Robinson, 442 F.Supp, 1368, 1387-1388 (W.D.Pa. 1978);!

Mitchell v. Ontreiner, 421 F.Supp. 886, 901 (N.D.Fla. 1976):

Marion County Jail Inmates v. Broderick, 74 Civ. 434 (S.D.Ind.

April 12, 1976); Lucas v. Wasser, No. 76-1057, Consent Order at

6 (S.D.N.Y. Sept. 30, 1976); Benjamin v. Malcolm, 75 Civ. 3073 |.

S.D.N.¥. Aug. 14, 1975); Manicone v. Cleary, 74 civ. 575 (E.pD. |

N.Y. June 30, 1975); Detainees of Queens House of Detention vy.

Malcolm, 73 Civ. 1364 (E.D.N.Y. June 29, 1975) {summary judg-

ment without opinion); Lambert vy. Skidmore, Case No. C 2 74-135

(S.D. Ohio June 16, 1975) (consent decree); Inma-es of Allen

County Jail v. Bender, Civ. No. 71 F 32 (N.D.Ina. May 19, 1975) .

(consent decree); Miller:v. Carson, No. 74-382-Civ.-J-s, Order —

and Preliminary Injunction at 14 (M.D.Fla. Jan. 31, 1975); i

v- Morin, Index No. 74 1411 (Sup.Ct. Monroe County, N.Y. |

March 21, 1975); Punches v. Beame, 73 Civ. 572 (=.D.N.¥. July

12, 1974); Inmates of Milwaukee County Jail v. Peterson, 353

F.Supp. 1157, 1168-1169 (E.D.Wis. 1973); Collins y., Schoon field,

344 F.Supp. 257, 281 (D.Mad,. 1972). |

| |

of the prison at a distance from inmates' lawyers prevented the

lawyer from conferring with his client or where the inmate was

unable to pay the costs of the lawyer's trip to the prison. The

publisher-only rule similarly imposes invalid constraints on

First Amendment rights.

Pell v. Procunier, 417 U.S. 817 (1974) (Pet. at 36), fur-

nishes no support for the government's position. There, the

prohibition on individual personal contact between inmates and

reporters did not violate the First Amendment because communi-

cation between them was otherwise available through the mail or

third persons. Id. at 824-826. No adequate alternative is

available when the publisher-only rule is involved. See Pro-

cunier v. Martinez, supra, 415 U.S. at 421; Johnson v. Avery,

333 U.S. 483, 488 (1969).*

The government's contention is that the publisher-only rule

was essential to security interests and should have been re-

spected by the courts below. There was no denigration of that

interest. The court of appeals held only that the prohibition

went far beyond what was required to protect the security in-

terest because a search of incoming material could easily achieve

that end (App. A at 26a-27a; n.27).** The government's own pro-

posed standards corroborate the court's view that the publisher- |

only rule was overbroad. Under these standards, an inmate may

*The court of appeals rejected the government's contention

that the MCC library provided a reasonable alternative, finding

that inmates may choose to read books and magazines not in the

library (App. A at 27a). The decision was correct because in-

mates are not permitted to go to the library, but must request

books from a list and await their delivery. The MCC library is

stocked primarily through donations of books. Newspapers are ‘

available only through the commissary for payment, and magazines |

are obtained from the dead letter section of the Postal Service. :

Books on the units are stripped paperbacks left over from drug- :

store racks (App. F at 108a).

**As both lower courts noted (App. A at 26a n.26; App. F at

217a), Woods v. Daggett, 541 F.2d 237, 240 (lOth Cir. 1976), is

inapposite on these facts. Woods was concerned with the federal

penitentiary at Leavenworth, Kansas -- a maximum security prison

where there had been bizarre efforts to carry con=raband and i

which housed 2,000 convicted inmates with long sentences and

significant prior records (Attachment T to Bureau of Prisons

Policy Statement, No..7300.13B, June 24, 1971). The security

precautions needéd_at Leavenworth are far different from those

needed at a pretrial detention center such as the MCC. Purther,,

to the extent that searching constitutes an administrative in-

convenience, it is not a justification for the prohibition.

Estelle v. Williams, supra, 425 U.S. at 505.

— << —eee «

receive publications from any source, subject to search and in-

spection, except where there is clear and convincing evidence

to justify limitations (Draft Federal Standards - Mail and visit-

ing Standard 002 at 63). There is no valid reason to disturb |

the court of appeals' judgment.

D. Reasonableness of Searches and Seizures

a ee ee SS oe SS eee

l. Visual Anal and Genital Searches

The government complains that the prohibition of visual

anal and genital searches of inmates after contact visits ex-

cept on probable cause is an unwarranted interference with the

necessity to protect against introduction of contraband and

weapons (Pet. at 40). The court concluded that the government's

objectives could be achieved by less drastic means, including

the security measures already in effect.* During a contact

visit, both inmate and visitor are observed by a correctional

officer through the visiting room's glass walls (App. F at 13la)..

All inmates are dressed in brightly-colored one-piece jumpsuits,

zippered in front (A.528), and to insert any item into a genital

Or anal cavity, removal of the uniform from at least the torso

would be necessary (see A.925). The visitor and his belongings

are subject to careful scrutiny by electronic devices before

the visitor leaves the lobby; the visitor may not carry any pack-

ages into the visiting room; the inmate may not use the visiting

room's toilet, and the visitor may do so only upon reauesting

the key from a correctional officer (App. F at 130a, l3la, 134a,

1Sla; App. A at 15a). Thus, there is virtually no opportunity

*United States v. Park, 521 F.2d 1381, 1382 (9th Cir. 1975),

demonstrates this very distinction. There, a visitor attempted

to introduce into the institution a quantity of drugs secreted

in a balloon, intended to be insertec into an inmate's rectum.

The scheme was apparently detected by procedures, not involving

an anal search, which disclosed the package before it could be

concealed by the inmate.

a ee ee ee eee ee

—<— meee

into general population in a secure facili

for anal or vaginal smuggling.* It is also significant that epee bm,

room where there is contact visiti

uncontradicted expert opinion was that the visual search would ng that is not constantly

monitored." Id. Security and t

its MabNniad Schl tieaahtets riche tas nl in aes then a Id., y Control Standard 013 at 37. at

the MCC, contact visits are monitored, and therefore, under the

- SOS Ee ae GF ae ew: ome

at 150a) and that if items were held between the buttocks, that

. government's own standard r i

fact would be disclosei by the unusval gait which would result | S, routine searches are not necessary,

{A.773-774), : 2. Inmates' Presence at Searches of their Cells

Thus, the government's position that contact visits may

The court of a als held t

permit introduction of contraband is not in dispute, having been ppe hat under the Fourth Amendment

it was unreasonable to rohib =

fully accepted by both lower courts. In prohibiting the routine p it pretrial detainees from observ

ing searches of their room

imposition of anal and genital searches, the district court and S from a reasonable distance. The

government claims that ther

the court of appeals took into account the extensive security here is no authority for anyone, free

or in custody, to watch a search d

precautions available to and used by MCC officials, and in ad- , ch, and that the courts below

failed to give appropriate weight to testimony concerning secur

dition, permitted the continuation of the very extensive strip

ity interests (Pet. at 40-41).

search, including removal of all clothing and the raising of

~ oe

SS A, ES Ee ck

: os 6 er Sere

Again the issue is mi . -

arms and the display of hands and soles of feet. Such a search Sconceived. The question is not whe

| ther an individual has the right to ob :

under the circumstances, constitutes a search conducted in a

ee eee ee. ee eee ee

Clothing is thoroughly examined as well (App. F at 153a).**

‘ reasonable manner. The rison's complet

The Department of Justice itself has adopted the approach : P pete and legitimate power

—-.

to search thoroughly a detainee's cell

taken by the courts here. Under the Draft Federal Standards, and all his belongings,

at any time and without cause or reaso » 6

visual inspection of body cavities may be conducted only. where n S unique in the realm

of governmental power. The evidence (A.584-S586; A.625; A.1033-

there is real suspicion “which may be created ... [by] re-entry

j 1034) established that frequently inmate belongings, including

*The government's reference to two instances is imprecise. their legal papers, were *not treated with tenderness;" that

Only one visiting room incident occurred (A.1442), and the dis- —

trict court considered it inadequate to justify the search. As officers who rummaged through clothing drawers and Possessions

to the second incident, there is nothing in the record to show

that the inmate had come from the visiting room (A.1447-1450). left them in disarray; and that such conduct gave rise to a

**The cases cited by the government as constituting a divi- legitimate belief by inmates that searching correctional offi-

sion of authority involve significantly different factual con- cers eithe :

texts from the MCC's closely observed and reculated visits. 7S ¥ stole or removed possessions without authority (App.

Thus, the cases reflect the view that the searches prohibited F at 154a) ;

in this case may be reasonable in other contexts. Daugherty v. a). Preclusion of inmate observation of such routine

, 476 F.2d 292 (10th Cir.), cert. denied, 4.4°U.Ss. se he i

(1973) (no connection with contact visit; a rectal examination ‘ arches, in the view of the court of appeals, constituted a

given by a physician's assistant to an inmate being removed from |

a maximum security prison where there were many known instances |

of contraband and weapons concealed in the rectal cavity); Bell |

v. Ma , 427 F.Supp. 450 (D.Conn, 1976) (search after a trip

outs the institution to court); Hodges v. Klein, 412 F.Supp.

896, 901 (D.N.J. 1976) (search after a totally private contact

visit); Giampetruzzi v. Malcolm, 406 F.Supp. 836 (S.D.N.¥. 1975) |

(anal searches not indicated by the court, but Strip searches

justified because the inmates were categorized as high security

risks after a due process procedure); Penn El v. Riddle, 399 F,

Supp. 1059 (£.D.va. 1975) (items of contraband found In clothing |

or work area of inmate just prior to search); Bijeol y. Benson,

404 F.Supp. 595 (S.D.Ind. 1975) (no facts as to circumstances

of searches),

regime of tyranny (App. A at 3la).

— a

The government countered with the argument that removal of

the inmate prevented transfer of centraband and unnecessary

friction between the inmate and the Searching officer (A.1240-

1241).

oS ee I a Ss

The means adopted to secure legitimate security ssinieadiilln

was, as elsewhere, exaggerated and overbroad. The court of appeals

;

oe ere oe eee

‘ 1 f kage receipt incon-

noted that the inmate could easily be held at a reasonable dis- : of storage and sanitation problems from wate —_

° i i ilit f these items in the

tance (App. A at 3la) which would preclude removal of the pro- ' ene vucthes, given the availed es

; h t's claim that prohibition on packages

perty. The difficult inmate could properly be removed from the ’ snutieution, the goverauent’s clain ¢ ° - .

i f and theft

scene (App. A at 32a). was essential to the prevention of inmate extortion

was also deemed baseless.

Par more serious, in the eyes of the courts below, was |

d that ott i -- even those

adherence to the institution's own goal that inmate property <e auuute eter ehuseve ee

k rity risks -- have permitted receipt of some

be preserved and respected “as much as possible” (App. F at housing nown security risks wave pe P

kages and that c n protective measures are available to

155a). The disregard shown by correctional officers to inmate | packages a oF

ckages allowed to enter the institution* (App. A

property warranted by the evidence was wholly contrary to MCC cease any pacheg . APP

- F at 163a-164a). Thus, the courts accuratel

policy (A.1241), as well as due process. Inmate presence was at 32a; App . = ) 4 Y

iti ll k S a means for exclud-

deemed an important means of curbing such abuse as well as pro- : ee ee eee ae o eens

! b iction. See Jones v.

viding the ancillary benefit of limiting accusations of theft ing contraband to be an overbroad restriction os coees

North Carolina Prisoners' Union, supra, 433 U.S. at 133.

_ (App. F at 155a), thereby reducing existing tensions.

E. Receipt of Packages

The MCC prohibited entirely receipt by inmates of any pack-

xs « «

Pinally, it must be noted that, pursuant to the urgings of

the Court, responsible and informed groups throughout the United

. States have recently undertaken to deal with prison problems

age with the exception of a Single food package at Christmas.

and to formulate standards for the treatment of prisoners, ** Well

The government defends the restriction on the grounds that it

after the commencement of this case in November 1975, the Attor- |

violates no constitutional right and is not arbitrary (Pet. at

0. Miia, Ob She dees cceincet ae q ney General established a Federal Corrections Task Force to cre-

- However, ment acknowledges (Pet. a , the | |

ate a federal correctional policy (Brief on Appeal, fn. at 29).

due process clause is violated by restrictions that lack any

| _ The Draft Federal Standards, prepared by members of the Depart-

substantial relation to the objective sought. As found by the

, ment of Justice,*** was promulgated in June 1978. of signifi-

court, the evidence established that the Package prohibition ‘ :

cance is that the Draft, which hoped to “have relevance coe 60

was nothing less than arbitrary and capricious (App. F at 163a-

the litigating divisions of the Department of Justice" (Intro-

164a). The record demonstrates that the “dire predictions" of

duction at 3), adopts standards contrary to positions taken by

the government witnesses were unsupported by the evidence and

the government in this petition.

belied by experience and the government's own sel f-contradic-

tions (App. F at 162a). The court of appeals agreed (App. A at

32a).

*The court of appeals expressly noted that the correctional

officials were todetermine contents and volume of such packages.

**American Medical Association, STANDARDS FOR THE ACCREDITA-

TION OF MEDICAL CARE AND HEALTH SERVICES IN JAILS (Draft Spring

1978); American Public Health Association, STANDARDS FOR HEALTH

| ‘ SERVICES IN CORRECTIONAL INSTITUTIONS (1976); American Bar As-

, ; sociation, Tentative pratt on Standards Relating to the Legal

tobacco, and toiletries,* the court found the government's fear : Status of Prisoners, 14 Crim.L.Rev. 3 ; American Correc-.

tional Association Commission on Accreditation for Correctional

Institutions, MANUAL OF STANDARDS FOR ADULT CORRECTIONAL INSTI-

TUTIONS (August 1977).

— sw Se

Since inmates with commissary funds could purchase and keep.

in their cells a host of items, such as food, clothing, radios,

EL te ee » Hee

-——— ee --

*Some items were cuite costly, such as sneakers priced at

$18 and radios at $27 (App. F at 164a). As with reading mater-

ial, indigent inmates are far more dependent for these items on

relatives and friends than on their own financial resources.

***The Justice Department group which drafted the proposed

federal standards included Norman Carlson, Director of the

Bureau of Prisons.

23 24

Lt ee ew

ee me em ee ee

_-— oo

These developments make it clear that there is a substan-

tial movement on the part of concerned persons to reform the

process and to change the realities of practice. These changes

may well make it unnecessary for the Court ever to decide some

or all of the issues presented by this case. Moreover, even if

the issues must ultimately be resolved by the Court, the exper-

ience drawn from applying and responding to the new standards

will provide the Court with practical guidance.

CONCLUSION

For the foregoing reasons, the petition for writ of cer-

tiorari should be denied.

Respectfully submitted,

PHYLIS SKLOOT BAMBERGER

WILLIAM E. HELLERSTEIN

The Legal Aid Society

Federal Defender Services Unit

531 United States Courthouse

Foley Square

New York, New York 10007

(212) 732-2971

Attorneys for Respondents.

MICHAEL B. MUSHLIN,

JOHN BOSTON,

Of Counsel.

August 23, 1978 25

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.