# Opposition — Bell v. Wolfish

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1211%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 520

## Text

te A

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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 - 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

4,

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‘
‘
‘

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).

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ee

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

ee

i anal bu., 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
© of storage and sanitation problems (see Brief on Ap- cases, the specific €onditions of confinement for which the
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)

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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).

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Dies a
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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

13

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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.

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

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

15

a

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).

16

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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.

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Oe ee ee ee

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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. |
'
i
i

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). |

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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-

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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.

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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.

20

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 :
is conducted upon every inmate following every contact visit. g © observe a search, but what,

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).

t

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

22
21

I
‘ 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.

A

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.

—- © eo wee ene

**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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1211%3A04. Public record. Not legal advice.