Petitioners Brief — Bell v. Wolfish

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Ky Court, U.

FILE D> |

No. 77-1829 NOV 24 1978

Iu the Supreme Court of the ature erie oe

OCTOBER TERM, 1978

GRIFFIN B. BELL, ET .L., PETITIONERS

Vv.

LOUIS WOLFISH, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE PETITIONERS

WADE H. McCREE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

KENT L. JONES

Assistant to the Solicitor General

SIDNEY M. GLAZER

KATHLEEN A. FELTON

Attorneys

Department of Justice

Washington, D.C. 20530

i ER ee

SE SEE CR ES OT

CII R I III acececccccsecnsecctitctsenesstenceeeneicves

Constitutional and statutory provisions in-

volved

ee eel

I. Double bunking of pretrial detainees in

the residential rooms at the Metropoli-

tan Correctional Center has not been

shown to violate the Due Process Clause..

II.

The Due Process Clause does not re-

quire the government to demon-

strate a “compelling necessity” to

justify all “restrictions and priva-

tions” resulting from pretrial con-

I a iia ceettntaastiatniaiatiemninines

. The courts below erred in conclud-

ing, on a motion for summary judg-

ment, that double-celling of pretrial

detainees at the MCC violates the

Due Process Clause .....................-.-.-

Regulations that are reasonably related

to the governmental interest in main-

taining jail security and order must be

Ee on Se ne or

Argument—Continued

A. The rule forbidding receipt of pack-

ages from outside the jail was

shown to be a reasonable response

to valid security concerns ................

B. The Bureau of Prisons regulation

that restricts the receipt by in-

mates of hardback books to those

mailed directly from publishers is a

reasonable response to security and

administrative requirements ............

C. The visual body cavity inspection

conducted after contact visits is a

reasonable security requirement ......

. The practice of excluding pretrial

detainees from their residential

rooms during routine room inspec-

tions is justified by the need to

avoid disruption of an important

. security procedure —.......2.002000.0......

I ii i i es |

CITATIONS

Adamson v. California, 332 U.S. 46 ........

Ambrose v. Malcolm, 414 F.Supp. 485

Aptheker v. Secretary of State, 378 U.S.

SEE Spainaiipeiiognipabiiapentinemigapeaiii ci ita

Res Deh es iar Pa ie

Bell v. Manson, 427 F.Supp. 450

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

Bijeol v. Nelson, 579 F.2d 423

Cases—Continued Page

Brandenburg v. Ohio, 395 U.S. 444 _...... 31

Campbell v. McGruder, 580 F.2d 521 ........ passim

Chambers v. Maroney, 399 U.S. 42 ........ 74, 76

Dandridge v. Williams, 397 U.S. 471 ........ 32, 41

Daughtery v. Harris, 476 F.2d 292, cert.

denied, 414 U.S. 872 .......... 73

Day-Brite Lighting, Inc. v. Missouri, 342

SE ee 28

Detainees of Brooklyn House of Detention

v. Malcolm, 520 F.2d 392.......... 9, 13, 37, 52, 53

Dombrowski v. Pfister, 380 U.S. 479 ....... 69

Dunn v. Blumstein, 405 U.S. 330 31

Duran v. Elrod, 542 F.2d 998 _............ 24, 42, 43

Estelle v. Gamble, 429 U.S. 97 22

Feeley v. Sampson, 570 F.2d 364 .............. passim

Ferguson v. Skrupa, 372 U.S. 726 ......... 28

Frontiero v. Richardson, 411 U.S. 677 .... 42

Gerstein v. Pugh, 420 U.S. 103 _......... 36

Giampetruzzi v. Malcolm, 406 F.Supp.

PEE eS roe 73

Griswold v. Connecticut, 381 U.S. 479....31, 33, 47

Guajardo v. Estelle, 482 F.Supp. 1373 .. 63, 64

Hampton v. Holmesburg Prison Officials,

SE 24, 38

Healy v. James, 408 U.S. 169 .... 57

Hodges v. Klein, 412 F.Supp. 896 _........ 73

Hutto v. Finney, No. 76-1660 (June 23,

IE aie eee ee 22

Ingraham v. Wright, 430 U.S. 651 _....... 23, 29, 41

Jackson v. Indiana, 406 U.S. 715 43

Jacobson v. Massachusetts, 197 U.S. 11... 30

Jones v. North Carolina Prisoners’ Labor

Union, 433 U.S. 119 00. passim

Kelley v. Johnson, 425 U.S. 288 29-30

Cases—Continued Page

Kennedy v. Mendoza-Martinez, 372 U.S.

a eee 39

Kunz v. New York, 340 U.S. 290 ............. 69

Kusper v. Pantikes, 414 U.S. 51 .............. 30

Lakeside v. Oregon, No. 76-6942 ................

Lanza v. New York, 370 U.S. 139 -....... 47, 71, 78

Lindsey v. Normet, 405 U.S. 56 -............... 32, 41

Loe v. Armistead, No. 77-2039 (4th Cir.

BE a = ee a 24

Main Road v. Aytch, 565 F.2d 54....42, 44, 59, 60

Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307 ........................-.-- 32

McDonald v. Board of Election, 394 U.S.

BOR .ncncocsssassssssatiiecenataaaianeeeaeennael 38

McNeil v. Director, Patuxent Institution,

407 US. BEB cuccssseieen 43

Meachum v. Fano, 427 U.S. 215 ............. 22, 23

Meyer v. Nebraska, 262 U.S. 390....29, 30, 31, 33

Milliken v. Bradley, 433 U.S. 267 ........... 42

Moore v. City of East Cleveland, 431 U.S.

GG .xcacrsercinrecrinnnintiniiaiaeemnnia passim

NAACP v. Button, 371 U.S. 415 00000000... 69-70

Nebbia v. New York, 291 U.S. 502 _...... 30

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

ye er ES a es 12

Olsen v. Nebraska ex rel. Western Refer-

ence & Bond Association, 313 U.S. 236.. 30

Padgett v. Stein, 406 F.Supp. 287 ............ 42

Palko v. Connecticut, 302 U.S. 319 ......... 29

Paris Adult Theatre I v. Slaton, 413 U.S

OD ...nsssssccmsnstsstiiasiiiais 47

Patterson v. Morrisette, 564 F.2d 1109 _... 43

Paul v. Davis, 424 U.S. 693 200. 29, 47, 48

Pell v. Procunier, 417 U.S. 817... passim

Cases—Continued Page

Penn El v. Riddle, 399 F.Supp 1059 ........ 73, 74

Poe v. Ullman, 367 U.S. 497 ................--.--- 29, 35

Procunier v. Martinez, 416 U.S. 396 -....... 56, 57

Roe v. Wade, 410 U.S. 113 ..................... 31, 33, 47

Rhem v. Maleolm, 507 F.2d 333 -............... 13, 26

San Antonio School District v. Kodriguez,

i 32

Shapiro v. Thompson, 394 U.S. 618 -....... 31, 37

Shelton v. Tucker, 364 U.S. 479 -.............. 31, 37

Smith v. California, 361 U.S. 147 ............ 69

Stack v. Boyle, 342 U.S. 1 ..................-.... 36, 38-39

Stanley v. Georgia, 394 U.S. 557 ............. 31

Stanley v. Illinois, 405 U.S. 6465 -............... 33

Tate v. Short, 401 U.S. 395 -......--..-.. 37

Taylor v. Kentucky, No. 77-5549 (May

ft ae “we 37

Thornhill v. Alabama, 310 U.S. 38 caidas 69

Tinker v. Des Moines School District, 393

RE TEST SIE IEE ee a 57

United States v. Brignoni-Ponce, 422 U.S.

AE SCA DSR TR A 74

United States v. Dawson, 516 F.2d 796... 47

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

cert. denied, 435 U.S. 1000 -........0...... 47, 60, 79

United States v. Hitcheock, 467 F.2d

1107, cert. denied, 410 U.S. 916 _......... 78

United States v. Lovett, 328 U.S. 303 .... 23

United States v. Martinez-Fuerte, 428

TEES ee a 73-74

United States v. Mauro, No. 76-1596

A 5

United States v. Park, 521 F.2d 1381 .... 71

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

cert. denied, 415 U.S. 982 .....00 71

Cases—Continued Page

United States v. Strumes, 549 F.2d 831... 47

United States ex rel. Tyrrell v. Speaker,

ER Aor 43

Village of Belle Terre v. Boraas, 416 U.S.

OE Si eae oe ee nN 34

Whalen v. Roe, 429 U.S. 589 0.000. 30, 47, 48

Whitney v. California, 274 U.S. 357 ........ 28

Woods v. Daggett, 541 F.2d 237 —............. 66

Constitution and statutes:

United States Constitution:

First Amendment ...............................- passim

Fourth Amendment ........ 3, 11, 47, 57, 70, 74

Fifth Amendment ..........................--.--- passim

Sixth Amendment .......000000000000-2.2. 15

Eighth Amendment ............................ passim

Fourteenth Amendment ...................... 29

Administrative Procedure Act, 5 U.S.C.

a 13

Bail Reform Act of 1966, 18 U.S.C. 3041

et seq.:

Se 3

| ESR ae eee 36, 59

I a 36

I al 4,11,13

I 11,13

Miscellaneous:

W. Blackstone, Commentaries (1977) ........ 36

43 Fed. Reg. 30576 (July 17, 1978)........ 66

vil

Miscellaneous—Continued

Gunther, The Supreme Court, 1971 Term,

Foreword: In Search of Evolving Doc-

trine on a Changing Court: A Model

for a Newer Equal Protection, 86 Harv.

8 ne eee

Note, Of Interests, Fundamental and Com-

pelling: The Emerging Constitutional

Balance, 57 B.U.L. Rev. 462 (1977)...

Iu the Supreme Court of the United States

OcTOBER TERM, 1978

No. 77-1829

GRIFFIN B. BELL, ET AL., PETITIONERS

LouIs WOLFISH, ET AL.

ON WRIT OF “ERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

A, la-37a) is reported at 573 F.2d 118. The opinions

of the district court (Pet. Apps. F and G, 74a-225a)

are reported at 439 F. Supp. 114 and 428 F. Supp. 333.

JURISDICTION

The judgment of the court of appeals (Pet. App.

B, 38a-39a) was entered on January 24, 1978. On

(1)

April 14, 1978, Mr. Justice Marshall extended the

time for filing a petition for a writ of certiorari to

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

Justice Marshal} further extended the time for fil-

ing a petition for a writ of certiorari to and includ-

ing June 23, 1978. The petition was filed on that

date and was granted on October 2, 1978 (A. 97).

The jurisdiction of this Court rests upon 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the Due Process Clause requires that

the validity of double-celling of pretrial detainees be

judged by a standard of “compelling necessity’ and

without consideration of the administrative and fi-

nancial circumstances that have led to adoption of

the challenged practice.

2. Whether the governmental interest in main-

taining jail security and order justifies rules that

(a) prohibit receipt at the jail of packages contain-

ing items of food or personal property; (b) prohibit

receipt at the jail of hardbacked books that are not

mailed directly from publishers or bookstores; (c)

require inmates to expose body cavities for visual in-

spection as part of the search conducted after con-

tact visits with persons from outside the detention

center; and (d) authorize the exclusion of pretrial

detainees from their rooms during routine inspections.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

The right of the people to be secure in their

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

reasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

The Fifth Amendment to the United States Con-

stitution provides in part:

No person shall be * * * deprived of life,

liberty, or property, without due process of law

The Eighth Amendment to the United States Con-

stitution provides:

Excessive bail shall not be required, nor ex-

cessive fines imposed, nor cruel and unusual

punishments inflicted.

18 U.S.C. 3041 provides in part:

For any offense against the United States, the

offender may, by any justice or judge of the

United States, or by any United States magis-

trate, or by any chancellor, judge of a supreme

or superior court, chief or first judge of the

common pleas, mayor of a city, justice of the

peace, or other magistrate, of any state where

the offender may be found, and at the expense

of the United States, be arrested and imprisoned

or released as provided in chapter 207 of this

title, as the case may be, for trial before such

court of the United States as by law has cogni-

zance of the offense. * * *

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

The Bureau of Prisons, under the direction of

the Attorney General, shall—

(1) have charge of the management and

regulation of all Federal penal and correctional

institutions;

(2) provide suitable quarters and provide for

the safekeeping, care, and subsistence of all per-

sons charged with or convicted of offenses against

the United States, or held as witnesses or other-

wise;

(3) provide for the protection, instruction and

discipline of all persons charged with or con-

victed of offenses against the United States * * *.

STATEMENT

1. The federal Metropolitan Correctional Center

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

Foley Square courthouse. The primary objective of

the MCC is to house persons who are being detained

in custody prior to trial for federal criminal of-

fenses in the Southern and Eastern Districts of New

York and the District of New Jersey. In addition,

the MCC houses some convicted inmates who are

awaiting sentencing or transportation to federal

prison or who are serving their sentences in a service

capacity at the MCC (Pet. App. 4a-5a, 200a-202a).’

The MCC was constructed in 1975 to replace the

aging federal West Street facility, which ha” been

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

MCC was designed, it was intended to incorporate the

most advanced and innovative features of modern

correctional design. As the court of appeals stated,

“it represented the architectural embodiment of the

best and most progressive penological planning”

(Pet. App. 4a). The key design element of the fa-

cility is the modular or unit concept, in which a

number of self-contained residential units replace the

traditional cellblock jail construction. The typical

unit consists of approximately 48 private rooms (or

six larger dormitory rooms) adjoining or opening

onto common multi-purpose rooms to which the de-

tainees have free daytime access.” The common areas

include facilities for food preparation and dining,

recreation, and education. Each of the units also

has an adjacent area for receiving visitors. By

eliminating any need for frequent, scheduled move-

1 Many of the convicted inmates at the MCC are prisoners

who have been lodged at the facility under writs of habeas

corpus ad prosequendum or ad testificandum issued to secure

their presence at forthcoming trials. To the extent these

include state prisoners against whom federal detainers have

been lodged, they cannot be returned to state custody because

of the Interstate Agreement on Detainers. See United States

v. Mauro, No. 76-1596 (May 23, 1978).

2 The period of free access varies from 15 to 17 hours per

day (Pet. App. 4a).

ments of detainees into different functional areas of

the facility, it was expected that the modular design

would “humanize staff-inmate relations and provide

a more ‘homelike’ atmosphere, affording inmates

greater privacy and freedom than jails of earlier con-

struction” (Pet. App. 4a-5a).°

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

pacity of approximately 400 inmates, or an increase

of one-third over the West Street facility (A. 89-91).*

These plans were later revised and expanded so that

at the time the MCC opened the planned capacity was

449 inmates, or approximately 50 percent greater than

at the old jail (Pet. App. 6a, 115a).

During the period that the MCC was under plan-

ning and construction, the number of persons com-

mitted to pretrial custody began to rise at an un-

precedented rate (ibid.). When the MCC was opened,

the Bureau of Prisons employed several measures

in an effort to manage the unexpected flow of persons

committed to that facility. The Bureau located per-

sons awaiting deportation proceedings at other fed-

eral facilities and eliminated the planned community

treatment center, or “half-way house,” at the MCC

* As the court of appeals noted, the residential atmosphere

of the facility is enhanced by carpeting and by clear exterior

windows without bars (Pet. App. 5a).

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

inmates (J.A. 2122, 2375). “J.A.” refers to the Joint Appendix

in the court of appeals.

(J.A. 1657).° The Bureau also arranged to expedite

the transfer of inmates to prisons upon sentencing

and contracted with private half-way houses for ad-

ditional bedspace (A. 22, 64-65).

Despite these efforts, however, the inmate popula-

tion at the MCC began to rise above its planned

capacity within a short time after its opening. In

November 1975, in order to provide sleeping space

for this increased number of inmates, the MCC began

to replace single beds with bunk beds in some of the

residential rooms used to house pretrial detainees

(A. 21).° Similarly, the Bureau installed bunk beds

in the dormitory rooms in order to double the ca-

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

periods of unusual influx of persons into the facility,

a small number of detainees and inmates were pro-

vided with temporary sleeping space in the common

areas of the modular units (A. 23). These persons

were transferred to residential rooms as soon as

space became available (7bid.).

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

after the MCC was opened—Louis Wolfish, then a

pretrial detainee at the facility, initiated this action

’ These changes freed 108 spaces for the housing of pre-

trial detainees and convicted inmates at the MCC (J,A. 1266-

1267, 2501-2502, 2521-2522).

* The district court noted that 121 of the B89 residential

rooms had been “designated” for double-occupancy as of the

time of its decision (Pet. App. 203a). The number of rooms

actually housing two inmates, however, did not exceed 73, and,

of these, only 35 were rooms in units designated to house

pretrial detainees (A. 33-34; J.A. 82).

by filing a petition for a writ of habeas corpus in

the United States District Court for the Southern

District of New York. The petition alleged that

overcrowding and other improper conditions at the

MCC made confinement at that facility unconstitu-

tional.’ The district court certified the case as a class

action on behalf of all persons confined at the MCC

(Pet. App. 7a) ; the litigation has thus simultaneously

implicated the rights of both pretrial detainees and

sentenced inmates with regard to their conditions of

confinement.

In its two opinions and several orders in this case,

the district court declared unlawful and enjoined

numerous separate aspects of the MCC administra-

tion. In evaluating the lawfulness of conditions of

confinement for pretrial detainees under the Due

Process Clause, the court stated that, since detainees

are “presumed to be innocent and held only to ensure

their presence at trial, ‘any deprivation or restric-

tion of * * * rights beyond those which are necessary

for confinement alone, must be justified by a com-

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

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

crowding; undue length of confinement; improper monitoring

of personal mail; improper strip searches after contact visits ;

inadequate visiting hours; inadequate access to legal mate-

rials; inadequate recreational, educational and employment

opportunities; inadequate telephone service; restrictions on

religious freedoms; restrictions on the purchase and receipt

of items of personal property; inadequate and unsanitary

food; objectionable uniforms; poor ventilation; insufficient

staff; unannounced transfers; and inadequate services for

non-English-speaking inmates (Pet. App. 7a-8a and n. 7).

pelling necessity.’” (Pet. App. 89a, quoting De-

tainees of Brooklyn House of Detention v. Malcolm, 520

F.2d 392, 397 (2d Cir. 1975) ). While the court noted

that the rights of convicted inmates must be meas-

ured under the different standard of the Eighth

Amendment, the court concluded that convicted in-

mates at the MCC must be treated equally with de-

tainees in terms of essential living conditions because

it would be “cruel and unusual” to treat them as an

“inferior minority” at the MCC (Pet. App. 213a).

Applying these legal standards, the court granted

the inmates’ motion for partial summary judgment

and enjoined the practice of double-bunking pretrial

detainees or convicted inmates in a single residential

room at the MCC (Pet. App. 207a-213a). The court

relied largely on its visual inspection of the facility

and on evidence presented in other cases (id. at 205a

and n.5, 207a-211a) to reject the government’s claim

that triable issues of fact exist and that double-

bunking provides adequate and reasonable housing

at the MCC. The court noted that there is “a good

deal of contrary expert opinion about the physical

and psychological effects of confining two prisoners

in one room or cell” (id. at 210a).*° The court con-

*The government presented the affidavit of Dr. Walter

Menninger, who stated that “ ‘double-bunking’ as practiced

at the MCC should not have any significant detrimental effects

on the physical or psychological health of the inmates at that

institution” (A. 31-32). The respondents presented no evi-

dence on this issue in their motion for summary judgment.

The court’s reference to conflicting psychiatric testimony was

to evidence presented in a different lawsuit involving a dif-

ferent pretrial detention facility (Pet. App. 208a-210a).

cluded, however, that it was not required “to litigate

over and over again general propositions about mat-

ters of human experience” (id. at 21la). The court

stated that other litigation had established that double-

bunking in a single cell causes “fundamental denials

of decency, privacy, personal security, and, simply,

civilized humanity” (id. at 21la). Although the court

acknowledged that there were substantial factual dis-

tinctions betwen the conditions at the MCC and at the

“facilities involved in the prior cases, the court found

nothing at the MCC to justify a departure from the

earlier decisions (id. at 208a, 211a).

Following a month-long trial on remaining issues,

the court held unlawful and enjoined the doubling of

sleeping quarters in the dormitory areas and the use

of common recreational areas to provide temporary

sleeping facilities when all other quarters were oc-

cupied (Pet. App. 121a-126a). The court concluded

that the crowding resulting from these practices

abridged the inmates’ rights to privacy and decent

accommodations, was not justified by any sufficient

governmental interest, and was therefore unconstitu-

tional (Pet. App. 116a-121a).

In addition to the holdings based on the Due

Process Clause and the Eighth Amendment, the court

found that other practices at the MCC violated spe-

cific constitutional guarantees applicable to both pre-

trial detainees and convicted inmates. The court held

that the First Amendment rights of all persons con-

fined at the MCC were violated by the Bureau of

Prisons’ “publisher only” rule, which at the time

prohibited the receipt of all books and magazines

mailed from outside the facility except those mailed

directly from publishers or book clubs. The court

refused to accept the security justifications advanced

in support of this practice (Pet. App. 215a-216a).

The court also held that the requirements that (i)

detainees remain outside their rooms during routine

inspections,’ and (ii) detainees and convicted inmates

expose their body cavities for a visual inspection as

part of a routine search conducted following contact

visits, were not justified by a sufficient governmental

interest in security or prison administration. The

court held that the former of these two practices

violated the retained right of privacy of pretrial de-

tainees, and the latter constituted an unreasonable

search in violation of the Fourth Amendment (Pet.

App. 147a-157a). Finally, with regard to the issues

that are presented for decision by this Court, the

district court invalidated the prohibition against re-

ceipt of packages containing food and items of per-

sonal property by inmates (id. at 162a-166a).”

* The court did not strike the MCC rule requiring convicted

inmates to vacate their rooms during routine inspections (Pet.

App. 157a). The court stated that although the justification

for the practice was not “compelling,” it was sufficient to make

the search procedure reasonable and therefore sustainable

in the case of convicted inmates (ibid.).

” The court apparently based this ruling on the fact that

the Bureau of Prisons’ enabling legislation creates duties to

“care” for prisoners and to provide prisoners with “suitable

quarters,” 18 U.S.C. 4042, 4081, and that these duties are

4. On appeal, the Second Circuit largely affirmed

the district court’s holdings under the Due Process

Clause, while rejecting the district court’s reliance

on the Eighth Amendment. The court of appeals

stated that, under the Eighth Amendment

[a]n institution’s obligation * * * is at an end

if it furnishes sentenced prisoners with adequate

food, clothing, shelter, sanitation, medical care,

and personal safety.

Pet. App. 13a, citing Newman v. State of Alabama,

559 F.2d 283, 291 (5th Cir. 1977). The court of

appeals rejected the district court’s reasoning that it

is cruel and unusual to house prisoners in conditions

worse than detainees are housed in the same facility,

and remanded for the district court to determine

whether the housing for convicted inmates at the

enforceable to prevent arbitrary and capricious maladminis-

tration (Pet. App. 88a-84a). Following the trial, the court

relied on this legislation and on the Due Process Clause to hold

unlawful and enjoin several other aspects of confinement at

the MCC. For example, the court enjoined MCC regulations

imposing limitations on visits from family, friends, attorneys,

and co-defendants (Pet. App. 129a-149a) ; limitations on tele-

phone service and commissary privileges (id. at 11la-115a,

140a-143a) ; limitations on the use of the visiting room bath-

room (id. at 134a-135a) ; and requirements for the use of an

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

tively required the MCC to increase the materials available in

a law library at the facility (id. at 102a-106a) and enjoined the

MCC from retaining any detainee or inmate at the facility

for a period in excess of 60 days without the inmate’s written

consent (id. at 96a-98a). The district court did not indicate

in each case whether it was relying on a statutory or consti-

tutional basis for its various holdings.

MCC was constitutionally “adequate” (Pet. App. 19a-

20a).™

With regard to the scope of protection afforded

pretrial detainees by the Due Process Clause, the

court of appeals indicated that the district court had

articulated the correct legal standard but had mis-

applied the standard in some situations. The court

reiterated the Second Circuit’s view that pretrial

detainees may be subjected to “only those ‘restric-

tions and privations’ which ‘inhere in their confine-

ment itself or which are justified by compelling neces-

sities of jail administration’” (Pet. App. 12a, quot-

ing Rhem v. Malcolm, 507 F.2d 338, 336 (2d Cir.

1974) ; Detainees of the Brooklyn House of Detention

v. Malcolm, supra, 520 F.2d at 397). The court

stated that neither fiscal necessity nor administra-

tive convenience could justify restrictions on the

rights of detainees (Pet. App. 12a). At the same

time, however, the court stated that “the institution

“ The court of appeals also held (Pet. App. 14a-15a) that

the district court erred in relying on the Bureau of Prisons’

enabling legislation to strike several specific administrative

practices as arbitrary and capricious. See note 10, supra. The

court of appeals noted that 18 U.S.C. 4042 and 4081 confer

broad discretion on the Attorney General to safekeep and care

for inmates. The court concluded that the administration of

federal prisons constitutes “agency action * * * committed to

agency discretion by law” and is therefore exempted from

judicial review by the Administrative Procedure Act, 5 U.S.C.

701(a) (2) (Pet. App. 14a-15a). On this basis, the court of

appeals reversed the district court’s holdings that the bath-

room in the visiting area must be kept unlocked and that

prison authorities must make local and long-distance tele-

phone service available to MCC inmates (Pet. App. 15a-17a).

must be permitted to use reasonable means to insure

that its legitimate interests in security are safe-

guarded” and that the courts should not “second-

guess the expert administrators on matters on which

they are better informed” (id. at 12a-13a).

On the issue of double-bunking of detainees, the

court concluded that “the administrators of the MCC

have made no showing of compelling necessity” to

justify the invasion of personal privacy involved (id.

at 17a), and it prohibited double-celling in rooms

intended for one individual (id. at 18a-19a). Ap-

plying the same analysis, the court held that doubling

the number of inmates housed in the dormitory areas

was unjustified, but remanded for the district court to

determine “whether any number of inmates in excess

of rated capacity could be suitably quartered within

the dormitories” (id. at 21a, 23a).”

The court of appeals agreed with the district court

that several other aspects of confinement at MCC vio-

lated the First Amendment and Fourth Amendment

12 The court recognized that convicted inmates, rather than

detainees, are presently quartered in the dormitory areas.

The court referred to a decision involving pretrial detainees,

however, in directing the discrict court to redetermine the

constitutional capacity of the dormitory areas (Pet. App. 22a,

citing Ambrose v. Malcolm, 414 F. Supp. 485 (S.D. N.Y.

1976) ).

aces also remanded to the district court for it to deter-

mine whether, in light of changed conditions resulting from

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

sufficiently tolerable that the order limiting incarceration of

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

should be rescinded (Pet. App. 24a-25a).

rights of both convicted inmates and pretrial de-

tainees.” Specifically, the court rejected asserted se-

curity concerns and upheld the district court’s order

enjoining the “publisher only” rule that limited the

receipt of books and magazines by inmates at the

MCC (id. at 26a-29a). The court also held that there

were no sufficient security or administrative justifica-

tions for the MCC policies (1) that prohibit the

receipt of packages containing food and personal

items by detainees and convicted inmates (id. at 32a-

33a), (2) that require detainees and convicted in-

mates to expose their body cavities during routine

searches conducted after contact visits (id. at 29a-

30a), and (3) that prevent detainees from observing

searches of their rooms (id. at 30a-32a), and it ac-

cordingly prohibited continuation of these practices."

8 Relying on the Sixth Amendment right to counsel and the

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

the court of appeals affirmed the orders of the district court

that require an expansion of the MCC library and mainte-

nance of extended visiting hours for attorneys (Pet. App.

35a-36a).

™ The court of appeals reversed the ruling of the district

court that inmates must be permitted to possess typewriters

for their personal use in their rooms. It stated that the dis-

trict court had improperly rejected “the MCC’s judgment

that * * * particular problems of security, storage, and theft

[ would arise] from inmates’ ownership of typewriters * * *”

(u’. at 33a). The court of appeals also reversed the district

court’s determination that inmates should not be required to

wear uniforms, holding (id. at 34a) that

che MCC has demonstrated a legitimate security interest

in readily identifying inmates that outweighs the inmates’

understandable desire to control their own appearance.

—_—

SUMM/ RY OF ARGUMENT

In evaluating the constitutionality of conditions of

pretrial confinement, the court of appeals concluded

that pretrial detainees retain the “rights afforded to

unincarcerated individuals” (Pet. App. 1la) and that

it is therefore not enough for conditions of confine-

ment merely to “comport with contemporary stand-

ards of decency prescribed by the cruel and unusual

punishment clause * * *” (ibid.). The court held

that the Due Process Clause requires that pretrial

detainees be subjected to only those “restrictions and

privations” that “inhere in their confinement itself

or which are justified by compelling necessities of

jail administration” (Pet. App. 12a). Applying this

analysis to evaluate the permissibility of double-

bunking detainees in the residential rooms at the

MCC, the court refused to consider governmental

fiscal and administrative requirements and concluded

that the practice was unconstitutional because the

government “made no showing of compelling neces-

sity” to justify the infringement of privacy imposed

by double celling (id. at 17a).

We submit that the court erred both in its analysis

of the general requirements of due process and in its

application of that analysis to evaluate the housing

conditions afforded pretrial detainees at the MCC.

We readily acknowledge that there are significant

differences material to the present inquiry between the

due process rights of convicted inmates and of pre-

trial detainees. Although the most fundamental lib-

erty interest of the detainee—his rigi* to move freely

in society—has been extinguished by tiie proceedings

leading to his commitment, he nevertheless retains

significant liberty interests which those proceedings

have not impaired. But even accepting the premise

that the liberty interests retained by pretrial de-

tainees are essentially equivalent to those of other

citizens, this Court has never held that the govern-

ment must justify every restriction and privation

imposed on citizens by a compelling necessity. Under

this Court’s decisions, unless government action af-

fects an aspect of fundamental liberty, the action

need only be shown to be reasonable in light of the

government’s legitimate interests.

The initial decision to detain a person suspected

of committing a crime involves, of course, a funda-

mental deprivation of liberty. But the government’s

right to impose this substantial deprivation is a

necessary aspect of its responsibility to enforce the

criminal law and is not challenged in this case. In

evaluating the particular aspects of confinement once

detention is ordered, it may be that some institutional

restrictions implicate interests that this Court has

recognized as fundamental] liberties (i.e., First

Amendment freedoms) and that a compelling govern-

mental justification would therefore be required to

support the government’s practice. Other restric-

tions of confinement, however, impinge only upon the

inmates’ understandable desire to live comfortably

during detention (7.e., possession of items of personal

property). While it may be assumed that the gov-

ernment may not impose arbitrary restrictions or

purposeless restraints on such interests, the justifi-

cation for governmental action affecting these inter-

ests need not be compelling.

In accomplishing the important governmental in-

terest in producing the detainee for trial, the govern-

ment must “make the everyday administrative de-

cisions necessary to run” jails as places of pretrial

confinement, adopt rules to “maintain the security

of the jail, [and] generally [seek] to sustain the

institution of pretrial detention at a feasible cost.”

Campbell v. McGruder, 580 F. 2d 521, 528, 531

(D.C. Cir. 1978). Where conditions of confinement

not implicating fundamental constitutional guaran-

tees are challenged under the Due Process Clause, it

is the reasonableness of the practices that determines

whether they should be sustained, and the reasonable-

ness must be assessed in light of the valid govern-

mental objectives they are designed to foster. There

may be occasions where the practice impinges on

particularly substantial liberty interests whose char-

acter is such that the courts should examine with

particular care the governmental justifications to as-

sure that they support the challenged restraint. The

due process analysis of the court of appeals, however,

improperly circumscribes the governmental interests

that may justify practices and conditions of pretrial

detention by broadly requiring a compelling justi-

fication for all restrictions and privations of con-

finement.

The difficulties inherent in the analysis of the court

of appeals are reflected in its conclusion that double-

celling in the residential rooms at the MCC violates

due process because no “compelling necessity” was

shown to support the practice. To be sure, as the

court of appeals observed, double-celling affects the

individual interest in privacy. The cases in this Court

that have defined certain privacy interests as funda-

mental have never suggested, however, that the in-

terest requires a literal, physical separation of in-

dividuals, especially in the context of institutional

care or confinement. It may be that, under the anal-

ysis adopted by a plurality of this Court in Moore v.

City of East Cleveland, 431 U.S. 494 (1977), the

interest in privacy and human dignity implicated

by housing pretrial detainees in relatively confined,

non-private quarters is such that the courts should

carefully examine the practice to ensure that it is

fairly and substantially related to the government’s

valid interests. Even under this approach, however,

pretrial housing conditions significantly affecting per-

sonal privacy should be upheld if, upon a careful

examination, they are found to satisfy a minimum

standard of decency and humane treatment and to

be reasonable in light of the government’s substan-

tial administrative and fiscal concerns.

In this case, however, the court of appeals ex-

pressly refused to consider the administrative and

fiscal interests of the government in upholding the

determination, on a motion for summary judgment,

that double-celling is unconstitutional. The record

before the district court on the summary judgment

motion provided no basis for a conclusion that the

practice of double-bunking as implemented at the

MCC fails to afford minimally decent and humane

conditions or is unreasonable in light of a careful

examination of the government’s legitimate interests.

The court of appeals therefore should have vacated

the entry of summary judgment and remanded for

further proceedings in which the nature and justifica-

tion for the practice in the particular context of the

MCC would be considered.

In its evaluation of institutional restrictions that

are designed to promote security and order at the

MCC, the court of appeals recognized that main-

tenance of security and order is a compelling or in-

herent necessity of jail administration and that an

“institution must be permitted to use reasonable

means to insure that its legitimate interests in se-

curity are safeguarded” (Pet. App. 12a-13a). The

court also noted that under this Court’s decision in

Jones v. North Carolina Prisoners’ Labor Union, 433

U.S. 119 (1977), the administrative determination as

to the needs of institutional security and order is

entitled to substantial deference and the courts should

not “second-guess the expert administrators on mat-

ters on which they are better informed” (Pet. App.

13a). In reviewing several specific institutional se-

curity practices claimed to abridge the constitutional

rights of both pretrial and convicted inmates at the

—/

MCC, however, the court of appeals misapplied these

principles in rejecting the determination of the cor-

rectional officials that the challenged practices serve

the facility’s substantial interest in security and

order.

The government’s correctional authorities and other

correctional experts testified in the district court that

the restriction on the receipt of packages from out-

side the facility, and on the receipt of books mailed

from individuals other than publishers, were neces-

sary to preserve order and to limit the introduction

of contraband into the facility. Similarly, these cor-

rectional experts established the significant security

concerns that support the need to perform a visual

inspection of body cavities as part of the search

conducted following contact visits and the need to

exclude detainees from their rooms while routine

room inspections are conducted. In each instance,

however, the courts below rejected the evaluation of

the correctional experts as to the security interests

implicated by the institutional practices.

In doing so, the court failed to identify any sub-

stantial evidence suggesting that the government’s

security concerns were exaggerated or unreasonable.

Nor did the court identify any alternative security

procedures that would otherwise satisfy the govern-

ment’s reasonable concerns. The court’s rejection of

the government’s security concerns simply represents

its disagreement with the judgment of jail officials

regarding the security problems that exist and the

means required to contro] them. It is precisely this

type of unguided substitution of judicial for correc-

tional judgment as to the needs of institutional se-

curity that this Court has held to be inappropriate.

ARGUMENT

DOUBLE BUNKING OF PRETRIAL DETAINEES IN

THE RESIDENTIAL ROOMS AT THE METROPOLI-

TAN CORRECTIONAL CENTER HAS NOT, BEEN

SHOWN TO VIOLATE THE DUE PROCESS CLAUSE

In recent years, federal courts have become increas-

ingly familiar with litigation brought by convicted

inmates challenging various conditions of their con-

finement. E.g., Hutto v. Finney, No. 76-1660 (June

23, 1978); Jones v. North Carolina Prisoners’ Labor

Union, 433 U.S. 119 (1977); Estelle v. Gamble, 429

U.S. 97 (1976); Meachum v. Fano, 427 U.S. 215

(1976). In such cases, the courts have accorded

“wide-ranging deference” to the determination of

prison administrators to implement correctional policy

and protect institutional security and order, Jones v.

North Carolina Prisoners’ Labor Union, supra, 433

U.S. at. 125, 128, while at the same time affording

some protection for constitutional rights whose loss is

not “implicit in incarceration.” Id. at 125; Pell v.

Procunier, 417 U.S. 817, 822 (1974).

While certain express constitutional guarantees,

such as the First Amendment right of free speech,

have been held to remain applicable in the prison con-

text, this Court has recognized that a convicted prison-

er’s generalized interest in liberty under the Due

Process Clause affords no independent substantive re-

straint on correctional confinement:

[G]iven a valid conviction, the criminal defend-

ant has been constitutionally deprived of his

liberty to the extent that the State may confine

him and subject him to the rules of its prison

system so long as the conditions of confinement

do not otherwise violate the Constitution.

Meachum v. Fano, supra, 427 U.S. at 224. Accord-

ingly, the court of appeals was correct in stating in

this case (Pet. App. 13a) that a convicted prisoner’s

challenge to conditions of confinement draws no in-

dependent force from the Due Process Clause and

must instead be based on express constitutional re-

straints on government action, such as the Eighth

Amendment’s prohibition against cruel and unusual

punishment.

The due process issues in this case, however, prin-

cipally concern pretrial detainees rather than ,con-

victed inmates. Pretrial detainees, who have been

ordered confined while awaiting trial and have not

been convicted of any crime, retain a generalized in-

terest in liberty under the Due Process Clause that

has not been effectively extinguished by the order of

confinement. At a minimum, due process of law

would require that punishment not be inflicted, nor

correction undertaken, prior to an adjudication of

guilt. Ingraham v. Wright, 430 U.S. 651, 671-672

n.40 (1977); United States v. Lovett, 328 U.S. 303.

317 (1946). |

It is common ground among us, the respondents,

and the court of appeals that the Eighth Amend-

ment’s prohibition against cruel and unusual punish-

ment requires that convicts committed to the custody

of the government and confined in custodial institu-

tions must be afforded decent and humane living con-

ditions with regard to such essentials as housing,

food, clothing, and medical care. Duran v. Elrod,

542 F. 2d 998, 999-1000 (7th Cir. 1976). While the

Eighth Amendment is not directly applicable to de-

tainees, the minimum levels of decency required in

connection with the confinement of convicts are, we

agree, applicable to the conditions of confinement of

pretrial detainees pursuant to the Due Process Clause.

Ibid.; Feeley v. Sampson, 570 F. 2d 364, 370 (1st

Cir. 1978). See also Loe v. Armistead, No. 77-2039

(4th Cir. Aug. 16, 1978), slip op. 9; Hampton v.

Holmesburg Prison Officials, 546 F. 2d 1077, 1079-1080

(3d Cir. 1976).“% We also do not contest the proposi-

tion that conditions of housing, food, and medical care

that fail to satisfy these basic standards of decency may

1s We note in this connection, however, that the content

of the minimum required conditions may vary to some extent

on the basis of the nature and purpose of the confinement.

It is arguable, for instance, that individuals committed to the

custody of the government in civil commitment proceedings

must be supplied higher levels of medical care than the min-

ima that would be satisfactory in the case of pretrial detainees

or convicts. And in distinguishing between the minimum

conditions that may be permissible in various contexts, dura-

tion of confinement is surely an important factor; conditions

that may not be physically or psychologically injurious to per-

sons detained for a relatively brief period might prove unac-

ceptable for longer term confinement.

not be defended by reference to considerations of

administrative convenience or limited financial re-

sources.”

It is our position, elaborated more fully below (see

pages 50-53, infra), that the record in this case pro-

vides no support for a conclusion that the housing con-

ditions for pretrial detainees at the MCC fall below the

minimum levels of decency generally applicable to

persons committed to government custody. The more

substantial questions presented in this case concern

the extent to which pretrial detainees retain con-

stitutional liberty interests that entitle them to better

conditions of confinement than are required for con-

victed inmates and the difference, if any, in the

standards by which courts should assess claimed in-

fringements of such liberty interests in the context

of confinement of persons not convicted of crime.

The court of appeals, invoking the presumption of

innocence, held in this case that pretrial detainees

retain “the rights afforded unincarcerated individ-

uals” (Pet. App. lla), and that therefore “it is not

enough that [their] conditions of incarceration * * *

merely comport with contemporary standards of

decency prescribed by the cruel and unusual punish-

ment clause * * *” (ibid.). Rather, the court stated

that the Due Process Clause requires that pretrial

detainees be subjected to only those “restrictions and

** While administrative and fiscal considerations may not

justify such conditions, they would, in our view, remain rele-

vant to the problem of shaping an appropriate remedy to

eliminate objectionable conditions.

privations” that “inhere in their confinement itself

or which are justified by compelling necessities of

jail administration” (Pet. App. 12a, quoting Rhem v.

Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)). It

asserted that, in evaluating the conditions of pretrial

confinement, “cries of fiscal necessity * * * [and]

administrative convenience” cannot justify institu-

tional privations or restrictions (Pet. App. 12a).

Applying this analysis to the practice of double bunk-

ing detainees in the residential rooms at the MCC,

the court stated that “the administrators of the

MCC have made no showing of compelling necessity

to justify the substantial abrogation of personal

privacy imposed by double-celling” and thus con-

cluded that the practice was unconstitutional (id. at

17a).

We submit that the court erred both in its analysis

of the general requirements of due process and in its

application of that analysis to evaluate the housing

conditions afforded pretrial detainees at the MCC.

We argue below that the court’s error stems from the

application of an incorrect standard for evaluation

of the pretrial detainees’ challenge to the conditions

of pretrial confinement at the MCC and from the

court’s failure to recognize the legitimate govern-

mental administrative and fiscal concerns that bear

on the propriety of the institutional practice. We

then argue that the court erred in upholding the

grant of summary judgment on this issue, thereby

precluding the development of facts material to a

proper analysis of the sufficiency of the housing con-

ditions at the MCC.

A. The Due Process Clause Does Not Require The Gov-

ernment To Demonstrate A “Compelling Necessity”

To Justify All “Restrictions and Privations” Result-

ing From Pretrial Confinement

The premise underlying the due process analysis

of the court of appeals is that, since a pretrial de-

tainee must be presumed to be innocent, he is entitled

to “the rights afforded unincarcerated individuals”

(Pet. App. lla). Reasoning from this premise, the

court concluded that pretrial detainees may not be

subjected to any “restrictions and privations” during

pretrial confinement except those that inhere in the

nature of confinement or that are justified by “com-

pelling” governmental necessities (id. at 12a).

Even accepting the premise that the liberty inter-

ests retained by pretrial detainees are essentially

equivalent to those of other citizens, the court’s con-

clusion does not follow. This Court has never held

that the government must justify every “restriction

or privation” that it imposes on citizens by a “com-

pelling necessity.” The analysis employed by the

Court under the Due Process Clause has been more

complex. And while there may be room for debate

in the present context about the extent to which the

courts may properly scrutinize the reasonableness of

various conditions of confinement unrelated to rec-

ognized fundamental interests, there is no basis for

the court of appeals’ conclusion that these conditions,

or any particular aspect of them, must be justified by

compelling governmental necessity to pass constitu-

tional muster.

1. In determining the extent to which individual

liberties are afforded substantive protection from gov-

ernment regulation, the Court has been careful to

avoid assuming the role of a “ ‘superlegislature to

weigh the wisdom of legislation.’” Ferguson v.

Skrupa, 372 U.S. 726, 731 (1963), quoting Day-Brite

Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952).

A cautious sensitivity to the very legitimacy of any ap-

plication of the Due Process Clause to impose sub-

stantive, as contrasted with procedural, restrictions

on government action frames the backdrop to the

Court’s “substantive due process” decisions. See, ¢.g.,

Whitney v. California, 274 U.S. 357, 373 (1927)

(Brandeis, J., concurring); Moore v. City of East

Cleveland, 431 U.S. 494, 537-538 (Stewart, J., dis-

senting) ; id. at 542-544 (White, J., dissenting).”

Thus, while the Court has articulated a broad

range of interests that come within the concept of

17 Although the Court regularly proceeds on the assump-

tion that the Due Process Clause has more than a pro-

cedural dimension, we must always bear in mind that the

substantive content of the Clause is suggested neither

by its language nor by preconstitutional history; that

content is nothing more than the accumulated product of

judicial interpretation * * *.

Moore Vv. City of East Cleveland, 431 U.S. 494, 543 (White, J.,

dissenting). See also Adamson Vv. California, 332 U.S. 46, 68

(1947) (Black, J., dissenting).

“liberty” * and has stated that these aspects of

liberty may not be subjected to “arbitrary [restraints

that are] without reasonable relation to some purpose

within the competency of the State to effect,” Meyer

v. Nebraska, 262 U.S. 390, 400 (1923); see Kelley v.

4* An initial inquiry in every case involving a claim to due

process protection is whether an interest in “life, liberty, or

property” has been affected by the challenged governmental

action. U.S. Const. Amend. V; Ingraham v. Wright, supra, 430

U.S. at 672; Paul v. Davis, 424 U.S. 698, 711-712 (1976).

The Court’s decisions initially suggested an expansive con-

tent to the concept of liberty protected under the Due Process

Clause:

[Liberty] denotes not merely freedom from bodily re-

straint but also the right of 1. individual to contract, to

engage in any of the common occupations of life, to

acquire useful knowledge, to marry, establish a home

and bring up children, to worship God according to the

dictates of his own conscience, and generally to enjoy

those privileges long recognized at common law as essen-

tial to the orderly pursuit of happiness by free men.

Meyer v. Nebraska, 262 U.S. 390, 399 (1928). In the process

of determining the extent to which the Due Process Clause of

the Fourteenth Amendment incorporated the restrictions of

the Bill of Rights to state action, the Court’s decisions sug-

gested that only liberties that are fundamental or “ ‘implicit in

the concept of ordered liberty’ ” became secure from state in-

terference. See Adamson V. California, 332 U.S. 46, 54 (1947),

quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937).

Nonetheless, the court has recently approved the analysis of

Justice Harlan, dissenting in Poe v. Ullman, 367 U.S. 497, 542-

543 (1961), that “liberty” “is a rational continuum which,

broadly speaking, includes a freedom from all substantial arbi-

trary impositions and purposeless restraints * * *.”” See Moore

v. City of East Cleveland, 431 U.S. 494, 502 (1977) ; id. at 545

(White, J., dissenting). See also Ingraham v. Wright, supra,

430 U.S. at 673, quoting with approval Meyer v. Nebraska,

supra, 262 U.S. at 399.

Yoarstw™

Johnson, 425 U.S. 238, 247 (1976); Nebbia v. New

York, 291 U.S. 502, 525 (1934); Jacobson v. Massa-

chusetts, 197 U.S. 11, 30-31, 35-37 (1905), the Court

has recognized that it is ordinarily inappropriate for

the judiciary to substitute its evaluation of the need

for and utility of legislation or administrative regu-

lation for the determination made by the politically

responsible branches of government. E.g., Whalen v.

Roe, 429 U.S. 589, 597 (1977); Olsen v. Nebraska

ex rel. Western Reference & Bond Association, 313

U.S. 236, 246 (1941). Thus, it has been stated that

the “liberty” ordinarily protected from governmental

intrusion by the Due Process Clause is not freedom

from all forms of government restriction, but instead

freedom from arbitrary and purposeless government

action. Moore v. City of East Cleveland, 431 US.

494, 502 (1977) (plurality opinion); id. at 547

(White, J., dissenting). See also Meyer v. Nebraska,

supra, 262 U.S. at 400.

At the same time, however, where the legitimacy

of the courts’ substantive function under the Due

Process Clause has been anchored in a textual limita-

tion on the powers of government established by other

specific provisions of the Constitution, such as the

right of free speech or the right of assembly, the

Court has required more than “a mere showing of a

legitimate state interest” to justify legislation “that

broadly stifles the exercise of fundamental personal

liberties.” Kusper v. Pontikes, 414 U.S. 51, 58-59

(1973); Bates v. City of Little Rock, 361 U.S. 516,

524 (1960). Government action interfering with such

fundamental constitutioual liberties must be sup-

ported by a “compelling” justification of governmen-

tal necessity. See, e.g., Roe v. Wade, 410 U.S. 113,

155 (1973); Stanley v. Georgia, 394 U.S. 557, 563-

564 (1969) ; Shapiro v. Thompson, 394 U.S. 618, 634

(1969) ; Griswold v. Connecticut, 381 U.S. 479, 481-

486 (1965). This heightened judicial protection

against governmental interference with liberties that

are explicitly guaranteed by the Constitution has alse

been thought applicable under the Due Process Clause

to those “peripheral rights” that are necessary to

“mak[e] the express guarantees fully meaningful.”’

Griswold v. Connecticut, 381 U.S. 479, 483. (1965).

On this basis, it has been held that the liberty interests

that are “fundamental” and entitled to searching

judicial scrutiny include not only the right of asso-

ciation, Shelton v. Tucker, 364 U.S. 479, 486 (1960),

the right to free speech, Brandenburg v. Ohio, 395

U.S. 444, 448 (1969), the right to vote, Dunn v. Blum-

stein, 405 U.S. 330, 336 (1972), and the right to in-

terstate travel, Shapiro v. Thompson, 394 U.S. 618,

629-630 (1969); Aptheker v. Secretary of State, 378

U.S. 500, 505 (1964), but also a freedom of personal

choice in matters of marriage and family life that is

inherent within the several limitations on govern-

mental authority over private conduct established by

the Bill of Rights. Griswold v. Connecticut, 381 U.S.

479, 485-486 (1965) (marital relationship). See,

e.g., Roe v. Wade, 410 U.S. 118, 152-153 (1973)

(abortion) ; Meyer v. Nebraska, supra (child rearing

and education).

While an interest need not be specifically guaran-

teed by the Constitution in order to come within the

sphere of “liberty” protected by the Due Process Clause

(see note 18, supra), those aspects of personal freedom

that are considered so fundamental as to justify

strict judicial scrutiny are nevertheless sharply

limited. The Court has held that even important per-

sonal interests that are basic to economic and social

life fall outside the area of special judicial com-

petence and protection where the right is not “ex-

plicitly or implicitly guaranteed by the Constitution.”

San Antonio School District v. Rodriguez, 411 U.S.

1, 33 (1973) (education). See also Massachusetts

Board of Retirement v. Murgia, 427 U.S. 307, 312

(1976) (employment) ; Lindsey v. Normet, 405 U.S.

56, 74 (1972) (decent housing); Dandridge v. Wil-

liams, 397 U.S. 471, 485 (1970) (welfare benefits).

We are aware of only one context in which the

Court has recognized a category of personal interests

that, although not “fundamental” within the meaning

described above, are nonetheless afforded enhanced

judicial protection under the Due Process Clause. In

Moore v. City of East Cleveland, supra, the Court

held invalid under the Due Process Clause a single-

family zoning ordinance that narrowly defined the

types of relatives that may live together as a “family”

and thus materially interfered with “the choice of

[relatives] * * * to live together.” 431 U.S. at 512.”

»” Justice Stevens concurred on the separate basis that the

zoning ordinance was an arbitrary interference with the

Justice Powell noted in the plurality opinion that al-

though the interest that relatives possess in living

together is technically different from a parent’s “free-

dom of choice with respect to childbearing,” or _

“the rights of parents to the custody and vompanion-

ship of their own children,”™ or the “traditional

parental authority in matters of child rearing and

education,” ” id. at 500-501," nonetheless the free-

dom of relatives to live together is an interest that is

“deeply rooted in this Nation’s history and tradition,”

id. at 503, and “may not lightly be denied by the

State.” Jd. at 506. Although a “compelling” justifi-

cation for the state interference with this protected

liberty interest was not required,” Justice Powell con-

homeowner’s right “to use her own property as she sees fit.”

431 U.S. at 513, 514. Chief Justice Burger and Justices Stew-

art, White and Rehnquist dissented.

* See Roe v. Wade, supra; Griswold v. Connecticut, supra.

** See Stanley v. Illinois, 405 U.S. 645, 651 (1972).

*2 See Meyer v. Nebraska, supra.

* As Justice Stewart observed in his dissent, id. at 534-538,

the prior cases protecting family relations were premised on

the belief that the associational interests at issue in these

cases contributed to the enhancement of “substantively pro-

tected constitutional right[s],” id. at 538 (i.e., First Amend-

ment freedoms), or were “ ‘implicit in the concept of ordered

liberty,’” id. at 537. See also id. at 549-550 (White, J., dis-

senting).

* By contrast, a “compelling” or “powerful countervailing

interest” was required by the Court to justify governmental

intrusion in marital or family privacy in the cases referred

to by Justice Powell. £.g., Roe v. Wade, supra, 410 U.S. at

155; Stanley v. Illinois, supra, 405 U.S. at 651. See also Gris-

wold v. Connecticut, supra, 381 U.S. at 485.

cluded that the Court “must examine carefully the

importance of the governmental interests advanced

and the extent to which they are served by the chal-

lenged regulation.” Jd. at 499. Justice Powell

analyzed the State’s “legitimate goals” in single-

family zoning and concluded that they were only

“marginally” enhanced by the narrow definition of

“family” in the ordinance. Jd. at 500. While this

evidence of governmental justification would ordi-

narily be sufficient to uphold government action af-

fecting non-fundamental personal interests, see id. at

538 (Stewart, J., dissenting); Village of Belle Terre

v. Boraas, 416 U.S. 1, 8 (1974), it was not adequate

to withstand the heightened scrutiny invoked by the

plurality in Moore.

The decision in Moore thus reflects some movement

away from the two-tier classification of liberty be-

tween “fundamental” and “non-fundamental” inter-

ests, and suggests that a middle range of interests

that are “deeply rooted in this Nation’s history and

tradition” may be entitled to enhanced, though not

strict, judicial supervision. Even if the Court were

to adopt such a mid-level scrutiny in particular con-

texts, it would nonetheless remain the rule that the

government must demonstrate a “compelling” justifi-

cation for its action only when a “fundamental” per-

sonal liberty has been infringed. Where “deeply

rooted” personal interests that are less than “funda-

mental” are subjected to governmental regulation,

the analysis in Moore suggests that a “particularly

careful scrutiny of the state needs asserted to justify

their abridgement” may be called for;* it remains

clear, however, that a compelling government objec-

tive is not required. 431 U.S. at 502, quoting Poe v.

Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dis-

senting).

Accordingly, the conclusion of the court of appeals

that every “restriction and privation” of pretrial

confinement can be justified only by a compelling

governmental necessity would be proper only if each

“restriction and privation” imposed on pretrial de-

tainees implicates a fundamental interest protected

by the Constitution. For the reasons set forth below,

this broad proposition cannot be sustained, nor, in-

deed, can it be shown that the particular privations

involved in double-bunking invade such interests.

2. The initial decision to detain a person suspected

of committing a crime involves, of course, a funda-

mental deprivation of personal liberty. But the gov-

ernment’s right to impose this substantial deprivation

is not challenged. While other means of assuring an

accused’s presence at trial are preferred under both

** Professor Gunther has suggested that such an enhanced

evaluation of the extent to which a legislative classification

advances a legitimate governmental objective “in actuality,

not merely in conjecture,” may be appropriate under the

Equal Protection Clause. Gunther, The Supreme Court, 1971

Term, Foreword: In Search of Evolving Doctrine on a Chang-

ing Court: A Model for a Newer Equal Protection, 86 Harv.

L. Rev. 1, 21 (1972).

constitutional and statutory provisions,” the legiti-

macy of pretrial detention has always been recognized

as a necessary aspect of the government’s responsi-

bility to enforce the criminal law.” “‘[T]he State’s

duty to control crime,’” Gerstein v. Pugh, 420 U.S.

103, 112 (1975), “justifies in the first instance the

institution of pretrial detention.” Campbell v. Mc-

Gruder, 580 F.2d 521, 528 (D.C. Cir. 1978). More-

over, the accused receives the provedural protection of

a judicial hearing and a determination of probable

cause prior to commitment. Gerstein v. Pugh, supra.

The court of appeals did not dispute that the gov-

ernment permissibly may deprive a suspected crimi-

nal of his essential freedom to move at will in society

pending his trial on the criminal charges. Nor did

the court dispute that confining the individual in an

institutional pretrial facility was an appropriate

means of achieving the governmental objective. The

court reasoned, however, that since a person com-

mitted to pretrial detention is presumed to be in-

nocent, he retains the same liberties possessed by

“unincarcerated individuals,” subject only to such

26 The Eighth Amendment prohibits excessive bail and fed-

eral statutes guarantee a right to the establishment of baii

in non-capital cases. See Stack v. Boyle, 342 U.S. 1, 4 (1951).

The Bail Reform Act of 1966 established a liberal policy

favoring pretrial release whenever conditions imposed upou

release, including a bail bond, will “reasonably assure the ap-

pearance of the person as required.” 18 U.S.C. 3146. See 18

U.S.C. 3148.

27 See Gerstein v. Pugh, 420 U.S. 108, 114-116 (1975); 4

W. Blackstone, Commentaries 300.

restrictions as “inhere in confinement” or are justi-

fied by compelling governmental necessities. While

the court emphasized that “[t]his standard of com-

pelling necessity is neither rhetoric nor dicta” (Pet.

App. 12a), the court provided scant guidance con-

cerning the nature of the detainees’ retained liberty

interest that would invoke such an exacting scrutiny

of the conditions of pretrial confinement.”

In large part, the court appears to rely on the

“presumption of innocence” as a fundamental right

that must be guarded from improper governmental

intrusion. Reliance on the presumption of innocence

does not, however, support the court’s broad holding.

The presumption of innocence is a procedural rule

that allocates the burden of proof in criminal trials

and, as such, is an aspect of the accused’s right to a

fair trial. Taylor v. Kentucky, No. 77-5549 (May

30, 1978), slip op. 5-12. Without denigrating the

significance of the retained liberty interests of in-

dividuals in pretrial detention, we must agree with

the observation of the Third Circuit that the pro-

** The authority from which the Second Circuit has derived

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

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

520 F.2d 392, 397 (2d Cir. 1975), the court found authority

for its test in Shapiro v. Thompson, 394 U.S. 618 (1969) (right

of interstate travel), Tate v. Short, 401 U.S. 395 (1971) (equal

protection violated by additional imprisonment based on in-

ability to pay a fine), and Shelton v. Tucker, 364 U.S. 479

(1960) (teacher’s First Amendment rights infringed by a

school board policy requiring disclosure of personal associa-

tions). These cases fall far short of articulating any rationale

for the Second Circuit’s rule.

cedural guarantee of the presumption of innocence

has no discernible relevance to the determination of

the detainee’s substantive rights during confinement.

Hampton v. Holmesburg Prison Officials, supra, 546

F.2d at 1080 n.1.

-We would not disagree, of course, that if some

discrete condition of confinement could be identified

that materially hampered the detainee’s interest in

obtaining a fair trial (of which the presumption of

innocence is simply one subsidiary component), that

particular aspect of confinement would be “constitu-

tionally suspect and [could] be justified only by the

most compelling necessity.” Campbell v. McGruder,

supra, 580 F.2d at 532. But there is no basis for

an assumption (and the court of appeals did not

conclude) that every “privation or restriction” dur-

ing confinement has such an effect. To the extent

that the court of appeals has relied on the presump-

tion of innocence as the basis for its constitutional

standard, the court’s invocation of the “compelling

necessity” requirement is thus plainly overbroad. Cf.

McDonald v. Board of Election, 394 U.S. 802, 807-

808 (1969). See also Note, Of Interests, Fundamen-

tal and Compelling: The Emerging Constitutional

Balance, 57 B.U.L. Rev. 462, 500 (1977).

It has been suggested that the presumption of in-

nocence has at least some substantive content as “a

shield that prevents ‘the infliction of punishment

prior to conviction.’” Campbell v. McGruder, supra,

580 F.2d at 529, quoting Stack v. Boyle, supra, 342

— ———

U.S. at 4.” But this theory also falls short of pro-

viding support for the broad substantive due process |

requirement formulated by the court of appeals in

this case. It cannot reasonably be contended that

every “restriction and privation” imposed during pre-

trial confinement amounts to punishment that may not

constitutionally be inflicted prior to conviction for a

crime. See Bijeol v. Nelson, 579 F.2d 423, 424 (7th

Cir. 1978). This Court has often observed the dis-

tinction between punitive sanctions and regulatory

restraints, and noted that the latter may be imposed

without any finding of criminal guilt. Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 167, 168 (1963)

(citing cases).” If any particular aspect of pretrial

** The court of appeals in Campbell did not suggest that a

rule of compelling necessity was required to assure that pun-

ishment was not inflicted prior to conviction. Instead, the

court stated that each pretrial restriction must be “carefully

examined” to assure that it is justified by the government’s

legitimate interests (including security, fiscal economy and

administrative feasibility) in maintaining pretrial] detention

facilities. 580 F.2d at 531. See page 45, infra.

“In determining whether sanctions or restrictions are

punitive or regulatory, the Court emphasized the following

criteria in Kennedy v. Mendoza-Martinez, supra, 372 U.S. at

168-169 (footnotes omitted) :

Whether the sanction involves an affirmative disability

or restraint, whether it has historically been regarded

as a punishment, whether it comes into play only on a

finding of scienter, whether its operation will promote

the traditional aims of punishment—retribution and de-

terrence, whether the behavior to which it applies is

already a crime, whether an alternative purpose to which

it may rationally be connected is assignable for it, and

confinement constituted improper punishment under

the standard articulated in these cases, it would, of

course, be impermissible prior to conviction. More-

over, the government may not invoke the objective of

punishment in support of general institutional prac-

tices and conditions of confinement for pretrial de-

tainees." But there is no basis for any assumption

(and, again, the court of appeals did not find) that

every institutional restraint during pretrial confine-

ment will be designed for, or result in, punishment

prior to conviction.

If a literal interpretation were given to the Second

Circuit rule—that all restrictions and privations im-

posed during pretrial detention must be justified by a

compelling necessity—the rule would thus sweep too

broadly.* While it may be that some aspects of pre-

whether it appears excessive in relation to the alternative

purpose assigned are all relevant to the inquiry, and may

often point in differing directions.

* By contrast, restrictions on convicted prisoners may be

reasonably related to any valid penological objective such as

deterrence of future crime, protection of society, and rehabili-

tation of the offenders, as well as to institutional concerns for

security, order, and administrative feasibility. Pell v. Pro-

cunier, supra, 417 U.S. at 822-823. See Jones v. North Caro-

lina Prisoners’ Labor Union, supra, 433 U.S. at 129-130.

* Although the court of appeals stated that its standard of

compelling necessity is “neither rhetoric, nor dicta” (Pet.

App. 12a), it is at least questionable whether the Second Cir-

cuit intended its rule to be applied vigorously. For example,

the court upheld the restriction against detainees’ possession

of typewriters on the basis of the needs of “prison adminis-

tration” (Pet. App. 33a). In any event, the court failed con-

trial confinement implicate interests that this Court

has recognized as fundamental liberties (e.g., First

Amendment freedoms, see Feeley v. Sampson, 570

F.2d 364, 369 (1st Cir. 1978)), many “restrictions

and privations” of confinement impinge only upon

the inmates’ understandable desire to live comfortably

luring detention (t.e., possession or receipt of items

of personal property). In other contexts not involv-

ing the impact on liberty associated with a confine-

ment situation, this Court has determined that the

important personal interests in housing or in basic

economic well-being do not constitute fundamental

interests requiring strict judicial scrutiny. £.g.,

Lindsey v. Normet, supra; Dandridge v. Williams,

supra.” Although it may be assumed that the govern-

ment may not impose arbitrary restrictions or pur-

poseless restraints on these personnel interests,” see

Moore v. City of East Cleveland, supra, 431 U.S. at

502, the justification for government action affecting

such interests need not be “compelling.” Instead, un-

der the traditional due process analysis employed -by

this Court, unless an institutional practice or condi-

sistently to apply the approach of first determining the na-

ture of the constitutional interest affected by the government-

al restriction before determining the appropriate standard of

governmental justification.

* And, of course, an individual’s free exercise of rights

over his property has not been thought fundamental, but rath-

er subject to reasonable restriction.

“ “There is, of course, a de minimis level of imposition

with which the Constitution is not concerned.” Ingraham Vv.

Wright, supra, 430 U.S. at 674.

tion of confinement infringes a specific, fundamental

constitutional guarantee, see Campbell v. McGruder,

supra, 580 F.2d at 532 (right to a fair trial) ; Feeley

v. Sampson, supra, 570 F.2d at 370 (First Amend-

ment), the basic requirement of due process is satis-

fied if the condition or practice is reasonable in light

of the valid government objectives in maintaining jail

order and security and of substantial considerations

of fiscal economy or administrative feasibility.” Jd.

at 370-371; Main Road v. Aytch, 565 F.2d 54, 574~

(3d Cir. 1977); Duran v. Elrod, 542 F.2d 998, 999

1001 (7th Cir. 1976) ; Padgett v. Stein, 406 F. Supp¥’.

287, 295 (M.D. Pa. 1975). See also Campbell v. Mc- %

Gruder, supra, 580 F.2d at 531.

We do not mean, by pointing out that many condi-

tions of confinement impinge on liberty interests of a

kind that have not been considered fundamental and

therefore need not be justified by a showing of com-

pelling necessity, to suggest that the retained liberty

interests of pretrial detainees are insignificant or that

they may be constricted by administrative whim.

While the most fundamental aspect of the liberty of

an accused individual committed to pretrial confine-

ment—his right to move freely in society at large like

his fellow citizens—has been extinguished by the pro-

ceedings leading to his commitment, he nevertheless

retains significant liberty interests that are not en-

85 Fiscal constraints and administrative convenience would

not suffice to justify the curtailment of fundamental liberties.

Milliken v. Bradley, 433 U.S. 267, 291 (1977); Frontiero v.

Richardson, 411 U.S. 677, 690 (1973).

joyed by those who have been convicted. His situation

is closely comparable to that of a person confined

after a civil commitment proceeding. In that analog-

ous context, the Court has stated that “[a]t the least,

due process requires that the nature and duration of

commitment bear some reasonable relation to the pur-

pose for which the individual is committed.” Jackson

v. Indiana, 406 U.S. 715, 738 (1972). See McNeil v.

Director, Patuxent Institution, 407 U.S. 245, 249-250

(1972).

The courts of appeals have generally agreed that

the essential objective of pretrial confinement is to

insure the detainees’ presence at trial. E.g., Feeley v.

Sampson, supra, 570 F.2d at 369; Patterson v. Morris-

ette, 564 F.2d 1109, 1110 (4th Cir. 1977); Duran v.

Elrod, supra, 542 F.2d at 999-1000; United States ex

rel. Tyrrell v. Speaker, 535 F.2d 823, 827 (3d Cir.

1976). As the court noted in Campbell v. McGruder,

supra, 580 F.2d at 529, however:

If the government could confine or otherwise in-

fringe the liberty of [pretrial] detainees only to

the extent necessary to ensure their presence at

trial, house arrest would in the end be the only

constitutionally justified form of detention.

* Since persons committed to pretrial detention have not

been judged guilty of any crime, administrative restrictions

and other conditions of pretrial confinement may not be jus-

tified by penological objectives such as deterrence of future

crime, protection of society or rehabilitation of offenders.

Feeley v. Sampson, supra, 570 F.2d at 369 n.3. See also note

31, supra.

Thus, recognition of the legitimacy of the practice

of pretrial detention requires further that recognition

be given to the government’s legitimate interest in

managing “the institution of pretrial detention in an

administratively feasible manner.” Campbell v. Mc-

Gruder, supra, 580 F.2d at 529. In accomplishing the

important governmental interest in producing the

detainee for trial, the government must “make the

everyday administrative decisions necessary to run”

jails as places of pretrial confinement, ibid., adopt

rules to “maintain the security of the jail, [and] gen-

erally [seek] to sustain the institution of pretrial

detention at a feasible cost.” Jd. at 531.° Where

conditions of confinement not affecting fundamental

constitutional guarantees are challenged under the

Due Process Clause, it is the reasonableness of the

practices that must be considered in determining

whether they should be sustained, and the reasonable-

ness must be assessed in light of these valid govern-

mental objectives. I[bid.; Feeley v. Sampson, supra,

570 F.2d at 370-371; Main Road v. Aytch, supra, 565

F.2d at 57.

We do not mean to suggest that jail administrators

should be allowed to justify any condition of confine-

3t It is difficult to perceive any limit to the court of appeals’

proposition that administrative feasibility and fiscal economy

may not be considered in evaluating the constitutionality of

conditions of pretrial confinement (Pet. App. 13a). The test

adopted by the court of appeals simply assumes for the judici-

ary the task of legislating the portion of the public fisc to be

allocated to the comfort and privacy afforded to persons con-

fined to institutional life.

ment merely by claiming some connection, however

tangential, with the needs of jail management. In

determining whether the conditions are justified by

considerations of cost and feasibility, we think that

the existence of more suitable alternatives would

properly bear on the reasonableness of the decision

of jail authorities to adopt the challenged practice.

See Feeley v. Sampson, supra, 570 F.2d at 374. More-

over, there may be occasions, as the court of appeals

suggested in Campbell v. McGruder, supra, 580 F.2d

at 531, where the practice impinges on particularly

substantial liberty interests whose character is such

that the courts should examine with particular care

the governmental justifications to assure that they

support the particular restriction involved. * And, as

* The court of appeals in Campbell noted that “infringe-

ments on liberties not deemed fundamental might not in gen-

eral be subject to the strictest scrutiny.” 580 F.2d at 531.

The court suggested, however, that some form of enhanced

scrutiny of the sufficiency of the governmental justification

for practices involving pretrial detention is justified to pro-

tect the presumption of innocence and the detainees’ right

not to be punished until proven guilty. 580 F.2d at 531. To

assure that the various restrictions and privations imposed

on pretrial detainees do not accumulate to constitute pro-

hibited punishment, the court concluded that a careful exami-

nation of the reasonableness of the government’s purpose is

required. /bid.

This formulation of the appropriate standard of review

parallels Justice Powell’s description of the enhanced scrutiny .

appropriate under the Due Process Clause where government-

al action affects personal liberties that are “deeply rooted” in

the Nation’s history and tradition. Moore v. City of East

Cleveland, supra, 431 U.S. at 503. See pages 32-35, supra.

we indicated at the outset (pages 24-25, supra), in each

challenge to a condition of pretrial confinement under

the Due Process Clause, the government must show

that the restrictions imposed satisfy requirements of

basic decency and are accomplished in a “reasonable,

and hence humane, manner.” Feeley v. Sampson,

supra, 570 F.2d at 370.

The due process analysis adopted by the court of

appeals in this case, however, too broadly requires a

“compelling” justification for all “restrictions and

privations” of confinement. The court’s decision im-

properly circumscribes the governmental interests

that may justify, as reasonable, the practices and con-

ditions of pretrial detention.

8. The difficulties inherent in the due process

analysis of the court of appeals are illustrated in its

evaluation of the practice of double-bunking in resi-

dential rooms at the MCC. The court stated that the

government must demonstrate a “compelling neces-

sity to justify the substantial abrogation of personal

privacy imposed by double-celling” (Pet. App. 17a).

But the court’s invocation of a retained right to

privacy for pretrial detainees does not justify its re-

fusal to consider the government’s legitimate admin-

istrative and fiscal justifications for double-celling.

The cases in this Court that have defined certain

privacy interests as fundamental have never sug-

gested that the interest requires a literal, physical

separation of individuals, especially in the context of

institutional care or confinement. As the Court ex-

——

plained in Whalen v. Roe, 429 U.S. 589, 598-600

(1977) :

The cases sometimes characterized as protecting

“privacy” have in fact involved at least two

different kinds of interests. One is the individual

interest in avoiding disclosure of personal mat-

ters, and another is the interest in independence

in making certain kinds of important decisions.

The right to privacy has been drawn from several

specific constitutional guarantees which together

shelter activities that take place within “ ‘the sanctity

of a man’s home,’” Griswold v. Connecticut, supra,

381 U.S. at 484; Paris Adult Theatre I v. Slaton,

413 U.S. 49, 66 n.13 & 67 (1973), and areas of per-

sonal and family decision-making, Roe v. Wade,

supra, 410 U.S. at 152-153; see Paul v. Davis, 424

U.S. 693, 712-713 (1976). There is no basis in the

reasoning of these cases to support an extension of

the constitutional privacy interest to include a right

to be separated from other persons during confine-

ment in a jail or other institution.”

Although the detainees’ interest in personal privacy

during pretrial confinement is not within the consti-

*° The conclusion that privacy interests have generally dim-

inished scope in the jail context is consistent with Lanza Vv.

New York, 370 U.S. 139, 143 (1962), where the Court, in as-

sessing a Fourth Amendment claim, observed that “a jail

shares none of the attributes of privacy of a home, an automo-

bile, an office, or a hotel room.” See also United States Vv.

Hearst, 563 F.2d 1331, 1345 (9th Cir. 1977), cert. denied, 435

U.S. 1000 (1978); United States v. Strumes, 549 F.2d 831

(8th Cir. 1977) ; United States v. Dawson, 516 F.2d 796 (9th

Cir. 1975).

tutional privacy right identified as fundamental by

this Court, it nonetheless represents an aspect of in-

dividual liberty that we would not denigrate. If this

Court is prepared to adopt the view of the plurality

in Moore that there is a narrow category of interests

that, although not fundamental, are so profoundly

anchored in the traditions of our society that their

restriction must be examined with particular care by

the courts, it may conclude that the interest in pri-

vacy and human dignity implicated by housing pre-

trial detainees or civil committees in relatively con-

fined, non-private quarters is such an interest. But

such an approach would only justify an insistence

that the restriction be shown by the government to

be fairly and substantially related to its valid in-

terests. It affords no basis for elevating the de-

tainee’s interests in comfort and privacy to the di-

mension of a fundamental constitutional right pro-

tected from governmental infringement except upon

a showing of compelling governmental necessity. See

Whalen v. Roe, supra, 429 U.S. at 600; Paul v. Davis,

supra, 424 U.S. at 713.

If no consideration could be given to fiscal or ad-

ministrative constraints in determining appropriate

conditions of pretrial confinement, it is difficult to

articulate any limit to the court of appeals’ application

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

any room to hold more than one inmate could logically

result. Even the court of appeals, however, has not

extended its reasoning to dormitory rooms, having

instead indicated that they may be used to house 10

or more inmates (Pet. App. 2la-23a). In the context

of pretrial detainees’ housing conditions significantly

affecting personal privacy, the requirements of due

process should thus be satisfied if the conditions of

confinement are carefully examined and found to

satisfy a minimum threshold of decency and humane

treatment and to be reasonable in light of the govern-

ment’s substantial administrative and fiscal concerns.

See Feeley v. Sampson, supra, 570 F.2d at 374; pages

44-46, supra.

B. The Courts Below Erred In Concluding, On A Motion

For Summary Judgment, That Double-Celling of Pre-

trial Detainees At The MCC Violates The Due Process

Clause

Although an inquiry into the reasonableness of

government action necessarily entails a factual ex-

amination of the means employed and their relation-

ship to legitimate government objectives, the courts

below conducted a very limited analysis of the par-

ticular circumstances justifying the practice of

double-bunking in the residential rooms of the MCC.

Indeed, the court of appeals expressly refused to con-

sider the administrative and fiscal interests of the

government in its evaluation of the permissibility of

the practice (see Pet. App. 12a, 19a). The court

thus disregarded efforts made by the Bureau of

Prisons to stem the unprecedented flow of inmates

into the facility (pages 6-7, supra) and the need to

retain inmates at the MCC for the convenience of

their trials in nearby courts. The court also gave

no consideration to the fiscal restraints within which

the Bureau operates or to the costs that would be

incurred in altering operating procedures or in using

or constructing additional facilities. Nor did the

court consider the fact that the enhanced capacity of

the MCC facility obtained by double-bunking permits

more pretrial detainees to be maintained in the New

York area, close to their homes, families, and attorneys,

rather than dispersed to federal correction facilities

in distant locations primarily designed for convicted in-

mates.” Since these concerns are critical to the de-

termination of whether double-bunking in the resi-

dential rooms at the MCC was a reasonable, non-

arbitrary administrative response to the needs of jail

management, e.g., Campbell v. McGruder, supra, 580

F.2d at 531; Feeley v. Sampson, supra, 570 F.2d at

371, it was error for the court of appeals to exclude

them from consideration.

Nor does the record in this case support any con-

clusion, on a motion for summary judgment, that the

practice of double-bunking as employed at the MCC

fails to provide minimally decent and humane living

conditions. See Feeley v. Sampson, supra, 570 F.2d at

371. Although the government maintained in the

district court that the question whether double-

bunking in the residential rooms affords minimally

decent accommodations involves material issues of

fact that remain in dispute (Pet. App. 202a), the

*° Indeed, there is no basis in the record even for concluding

that a majority of the inmates themselves would prefer single-

celling in the face of the changes in other conditions that

might accompany elimination of double-celling.

government nonetheless submitted the affidavit of an

experienced correctional psychologist who concluded

that “ ‘double bunking’ as practiced at the MCC

should not have any significant detrimental effects on

the physical or psychological health of the inmates at

that institution” (A. 31-32)." The factors that led to

this conclusion were (A. 32) :

(a) the architectural design and finish of the

residential rooms and common areas which con-

vey a non-penal atmosphere and a sense of open-

ness; and (b) the limited period of confinement

of any given inmate to the room itself, both in

terms of time each day (locked in only for sleep-

ing hours and two court periods), and length of

stay (majority of pre-trial inmates are in the

MCC 20 days or less).

The affidavit stated further (ibid.) :

Although the area of some of the residential

rooms used for double-bunking may not be ideal,

I have not seen any evidence that the ‘“double-

celling” practice at the MCC has caused any un-

toward effects on individual inmates. It does not

appear to be psychologically destructive or an

unacceptable deprivation of privacy; and there is

no evidence it has prompted any increase of

" This case differs from Campbell v. McGruder, supra,

which involved smaller and less pleasant rooms in a tradi-

tional cell block environment. In Campbell there was an ex-

press finding that double-celling in those restrictive conditions

“ ‘results in both physical and psychological damage to the

inmates * * *.’” 580 F.2d at 536.

deviant sexual or aggressive impulses or tend-

encies.

The district court reasoned, however, that even

though the government’s affidavit was unrebutted by

any testimony or contrary expert evidence in the

record of this case (see note 9, supra), it was un-

necessary to consider evidence on the issue of the

physical or psychological effects of double-celling

at the MCC (Pet. App. 210a-21la). The dis-

trict judge inspected the residential rooms at the

MCC and noted that some of them were “musty and

unpleasant smelling” and that each possessed a single

open toilet (Pet. App. 207a). The court concluded

that no testimony was needed to assist its judgment

as to the “humiliation and denials of minimal privacy”

inherent “when two people are thrown into single cells

like these” (Pet. App. 21la). The court stated that

it was not required to litigate general propositions

about matters of human experience (Pet. App. 211la)

because “this case is controlled by the principles of

Detainees of Brooklyn House of Detention v. Malcolm,

520 F.2d 392 (2d Cir. 1975), and a growing list of de-

cisions condemning double celling as unconstitutional”

(Pet. App. 207a).

The court of appeals upheld the grant of summary

judgment, stating that “[t]he infringements on priva-

cy and personal dignity” observed in the Detainees case

are “inherent in double-celling in rooms intended for

one individual * * *.” (Pet. App. 17a-18a, 18a-19a.)

The court emphasized that inmate testimony in the

Detainees case (id. at 18a, as amended by id. at 41a)

revealed that double-celling had produced nu-

merous disagreements over the choice of activi-

ties within the room, and had spawned fights,

charges of theft, and frequent involuntary physi-

cal contact as two inmates passed each other in

the narrow aisle of walking space.

But the conditions presented by double-bunking in

the residential rooms at the MCC are markedly dif-

ferent from those observed in Detainees. The cells

involved in Detainees were only 40 square feet in

size; most of the residential rooms at the MCC are

70-80 square feet, while others are substantially

larger. (Compare Pet. App. 208a, 212a with 520

F.2d at 395.) Pretrial detainees at the MCC are con-

fined to their rooms for only 7-8 hours per day (or

about half as long as in the Detainees case), during

most or all of which they are presumably asleep, and

their rooms open into modern and well-decorated

multipurpose facilities instead of long barren pas-

sageways as in Detainees. (Compare Pet. App. 208a

with 520 F.2d at 395.) While the record in Detainees

reflected substantial inmate discomfort associated

with the harsher conditions at that jail, there was no

evidence before the court to justify any similar con-

clusion in this case. Indeed, the unrebutted affidavit

of the government’s psychiatric expert stated that

the practice of double-bunking in the residential

rooms at the MCC was neither physically nor psy-

chologically injurious and did not impose “an un-

acceptable deprivation of privacy” (Pet. App. 210a).

In sum, the record before the district court pro-

vided no basis for a conclusion that the double-

bunking of pretrial detainees as implemented at the

MCC either fails to afford minimally decent and

humane conditions “ or was unreasonable in light of

a careful examination of legitimate administrative

and fiscal requirements. Rather than imposing, in

effect, a rule that double-celling is per se unconsti-

tutional, the court of appeals should have vacated the

entry of summary judgment and remanded for a more

particular evaluation of the nature of and justification

for the practice in the precise context of the MCC.“

“ In this regard, it is noteworthy that the court of appeals

reversed the district court’s holding that double bunking in

the residential rooms at the MCC was unconstitutional for

sentenced inmates. The court noted that the record was insuf-

ficient to support a finding that double-celling at the MCC fell

below the minimum standard of adequate housing required by

the Eighth Amendment (Pet. App. 20a). Other courts that

have considered this issue have concluded that the require-

ment of minimal decency for pretrial housing conditions is

essentially equivalent to the Eighth Amendment standard.

See page 24, supra. There is thus no basis, either in law or

on the record of the case, for the court to have reached a dif-

ferent disposition with regard to pretrial detainees in this

case.

** As was stated in our petition (Pet. 16-17 n.13), the At-

torney General has established a Federal Corrections Task

Force in the Department of Justice to formulate recommenda-

tions for national corrections standards and a federal correc-

tions policy regarding conditions of confinement for both

sentenced prisoners and pre-trial detainees. Draft Federal

Standards have been issued by the Task Force. Among the

various provisions of the draft Standards is a proposal that

all cells and detention facilities that have been “rated” for

single occupancy should be used to house only one inmate. If

REGULATIONS THAT ARE REASONABLY RE-

LATED TO THE GOVERNMENTAL INTEREST IN

MAINTAINING JAIL SECURITY AND ORDER MUST

BE UPHELD

In its evaluation of institutional restrictions th-t

are designed to promote security and order at the

MCC, the court of appeals took a different approach

than with other challenged conditions. The court rec-

ognized that maintenance of security and order is a

compelling or inherent necessity of jail administra-

tion, and it stated that an “institution must be per-

mitted to use reasonable means to insure that its

legitimate interests in security are safeguarded”

(Pet. App. 12a-13a). The court noted that under this

Court’s decision in Jones v. North Carolina Prisoners’

Labor Union, supra, the administrative determina-

tion as to the needs of institutional security and order

this proposal were to be adopted, it would be implemented

over a reasonable period of time, and the rated capacity of the

facility would be subject to periodic review.

As of the date of this filing, the draft standards remain

under continued study within the Department of Justice and

have not been adopted by the Attorney General. The draft

standards expressly note that they intend to confer no rights

or legal cause of action. If the proposed standards, or an

amended version of the standards, are at some time adopted by

the Department, they would not purport merely to satisfy

constitutional minima, but to represent an adoption of liberal

administrative goals. By contrast, this case raises the claim

that single occupancy of the residential rooms at the MCC is

compelled by the Due Process Clause of the Fifth Amendment

to the Constitution.

is entitled to substantial deference and acknowledged

that the courts should not “second-guess the expert

administrators on matters on which they are better

informed” (Pet. App. 13a). In reviewing several

specific institutional security practices claimed to

abridge the constitutional rights of inmates at the

MCC, however, the court of appeals rejected the de-

termination of correctional officials that the chal-

lenged practices serve the facility’s substantial inter-

est in security and order. The court held that these

security practices were unjustified interferences with

the retained constitutional rights of both detainees

and convicted inmates, and it enjoined further appli-

cation of the rules at the MCC.

While the court of appeals purported to follow the

principle of deference to correctional judgment in

matters of security established) in Jones v. North

Carolina Prisoners’ Labor Union, supra, we submit

that the court’s holdings in fact constitute, on the

record of this case, an impermissible intrusion into

the affairs of jail management. We do not dispute

that cor.victed prisoners and pretrial detainees alike

retain those constitutional rights that are consistent

with the nature of their confinement, and that courts

must guard against unwarranted interference with

these retained interests. Procunier v. Martinez, 416

U.S. 396, 405 (1974). Im the case of pretrial de-

tainees, moreover, as we have indicated (pages 23-

25, supra) these rights encompass retained due

process liberty interests not possessed by convicts.

Nonetheless, this Court has noted that there are cer-

tain “limitations on constitutional rights * * * which

are implicit in incarceration,” Jones v. North Caro-

lina Prisoners’ Labor Union, supra, 433 U.S. at 125,

and that both First and Fourth Amendment rights

during confinement must be evaluated “in light of the

special characteristics of the * * * environment.”

Procunier v. Martinez, supra, 416 U.S. at 410, quot-

ing Tinker v. Des Moines School District, 393 U.S.

503, 506 (1969). See also Jones v. North Carolina

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

Pell vy. Procunier, supra, 417 U.S. at 822; cf. Healy

v. James, 408 U.S. 169, 189 (1972).

One of the essential characteristics of institutional

confinement that has been recognized to be of “cen-

tral” importance is the need to preserve internal

security and order. Pell v. Procunier, supra, 417 US.

at 823. It is a basic requirement of institutional life

that the safety of inmates and correctional personnel

be preserved and that the facility be safeguarded

from escape. Indeed, if administrators were disabled

from imposing reasonable restrictions designed to

preserve the safety and order of the institution, suc-

cessful operation of a jail or prison would not be

possible. Accordingly, even when an institutional re-

striction impinges on basic constitutional freedoms,

such as the right of free speech, if the practice is

reasonably related to the central objective of main-

taining jail security and order, it should be upheld.

Jones v. North Carolina Prisoners’ Labor Union,

supra, 433 U.S. at 129-130; see Campbell v. Mc-

Gruder, supra, 580 F.2d at 531.

In this connection, it is appropriate to accord sub-

stantial deference to the expertise of qualified correc-

tional officials in the determination of institutional

security requirements.“ Pell v. Procunier, supra, 417

U.S. at 826-828 ; see also Feeley v. Sampson, supra, 570

F.2d at 373. Moreover, in weighing the legitimacy of

security concerns, the burden is not on correctional au-

thorities to show affirmatively that elimination of a par-

ticular restriction would be detrimental to the mainte-

nance of security or order. Jones v. North Carolina

Prisoners’ Labor Union, supra, 433 U.S. at 128. In-

stead, courts should ordinarily defer to the expert judg-

ment of correctional administrators and limit judicial

inquiry to those occasions when “substantial evidence”

indicates “that the officials have exaggerated their

“* Several experienced and highly qualified correctional au-

thorities testified to explain the necessity for the challenged

security practices at the MCC. These included Norman A.

Carlson (Director of the Bureau of Prisons; previously Ex-

ecutive Assistant to the Director of the Bureau of Prisons and

case supervisor at the federal penitentiaries at Leavenworth,

Kansas, and Ashland, Kentucky) (J.A. 2281) and Larry F.

Taylor, the Warden of the MCC, the officials responsible for

evaluating and implementing security practices at the federal

facility. Also testifying on petitioners’ behalf were Dr. George

M. Camp (Deputy Commissioner of New York State Division

of Criminal Justice Services; previously the Director of Mis-

souri Correctional Services and Assistant Commissioner of

Corrections for New York City) (J.A. 1879-1380), and

Roberts Wright (Associate Executive Director of American

Correctional Association; previously the Warden of West-

chester County Penitentiary; Member of the New York State

Board of Parole and Commissioner of Corrections of West-

chester County) (J.A. 1527), who provided an independent

evaluation of the security measures at the MCC based upon

their experience at other facilities. .

response” to the security risks occurring during insti-

tutional confinement. Jbid.; Pell v. Procunier, supra,

417 U.S. at 827. )

The fact that both pretrial detainees and convicted

inmates are affected by the security measures at the

MCC should not alter this basic analysis, and indeed

the court of appeals did not differentiate between the

constitutional claims of pretrial detainees and con-

victed inmates in reviewing the challenged security

practices. The paramount institutional concern for

preserving the safety of inmates and correctional per-

sonnel and safeguarding the facility against escape

applies equally to pretrial confinement and convicted

incarceration. Main Road v. Aytch, 565 F.2d 54,

57 (3d Cir. 1977); see also Campbell v. McGruder,

supra, 580 F.2d at 531. There is no basis for

any assumption that pretrial detainees pose any

lesser security risk; indeed, the evidence indicates

that the security difficulties are at least as great in

pretrial confinement as in convicted incarceration.”

** While people charged with but not convicted of crimes

are presumed to be innocent, that presumption does not in

any way ease the task of the jail administrator. Prudence

dictates that the jail administrator assume that pretrial de-

tainees pose much the same risk to jail security and order

and risk of escape as convicted inmates. Indeed, pretrial

detainees constitute a subset of those charged with crime

that may reasonably be thought to pose more significant se-

curity risks, since their detention has been crdered after a

bail hearing at which money bail has been set only for indi-

viduals whose appearance cannot be reasonably assured by

any less drastic condition. 18 U.S.C. 3146. As a result, those

who are detained prior to trial are often individuals charged

with serious crimes or with records of prior offenses. Addi-

And the expertise required to evaluate the need for

particular security practices in both contexts is pos-

sessed by correctional administrators rather than the

courts. See Jones v. North Carolina Prisoners’ Labor

Union, supra, 483 U.S. at 128. Accordingly, other

courts have held, as the court of appeals assumed in

this case, that when institutional security is the jus-

tification for a given restriction, even though funda-—

mental constitutional rights may be implicated, there

is no basis for distinguishing pretrial detainees from

convicted inmates. Feeley v. Sampson, supra, 570

F.2d at 371, 373; Main Road v. Aytch, supra, 565

F.2d at 57; United States v. Hearst, supra, 563 F.2d

at 1345-1346 n.11.

The court of appeals was thus correct in stating

that, with regard to both pretrial detainees and con-

victed inmates, the “institution must be permitted to

use reasonable means to insure that its legitimate

interests in security are safeguarded” (Pet. App.

12a-13a). The court also correctly observed that the

courts should not “second-guess the expert adminis-

trators on matters on which they are better informed”’

(id. at 18a). The court failed, however, properly to

tionally, unlike the situation in more long-term correctional

facilities, the inmate population at a pretrial facility is transi-

ent and has not been screened by individualized classification

procedures used in connection with convicted prisoners. ‘ihe

specific likelihood of particular detainees being a greater or

lesser security risk is not ordinarily established. Prudent

security practice thus requires that correctional officials adopt

measures that will avert both high and low risk security

breaches at pretria] facilities. (J.A. 1393-1398, 1531-1532).

ee ee a ee

eee =

tiie

apply these principles in its evaluation of the several

specific security restrictions challenged in this case.

A. The Rule Forbidding Receipt Of Packages From Out-

side The Jail Was Shown To Be A Reasonable Re-

sponse To Valid Security Concerns

Inmates at the MCC are not permitted to receive

packages from outside the facility containing items

of food or personal property. Government corrections

officials testified in the district court that the restric-

tion on the receipt of such packages was necessary to

avoid fighting, stealing, and extortion among inmates,

and also to limit the introduction of items of contra-

band into the facility.“ These officials testified to the

serious opportunities that packages provide for the

undetected concealment of contraband items, noting

that problems range from “the traditional file in the

cake” to the concealment of drugs “in heels of shoes,

[or] seams of clothing” (A. 80). The Warden ob-

served that the inspection process would constitute

an enormous drain on staff resources and that even

a thorough inspection would not reliably detect con-

cealed items (A. 67; see id. at 80, 85). He also noted

that the introduction of personal property into the jail

increases the risks of thefts and inmate conflict (A.

67-68, 79).

The district court dismissed these security concerns

as “dire predictions” (Pet. App. 162a) and held that

the MCC’s restriction against receipt of packages was

** The testimony also noted the storage and sanitation prob-

lems that would result from the introduction of food packages

(A. 67, 80).

arbitrary and capricious (id. at 163a-164a). The

court stated that both convicted inmates and pretrial

detainees should “be free to retain or receive at least

items of the kind available on order from the [MCC’s]

commissary” (id. at 166a) and directed the MCC to

promulgate “suitable regulations” regarding the re-

ceipt of packages (ibid.). The court of appeals af-

firmed the findings of the district court, adding only

that more permissive rules exist at other facilities

and that there is “no indication that this greater

liberality has resulted in unmanageable difficulties”

(id. at 32a-33a).

Neither of the courts below identified the consti-

tutional nature of the inmates’ interest in receiving

packages containing items of personal property while

in custody. There is no suggestion in either of the opin-

ions below that restrictions on the use of property in

this context implicate any fundamental liberty, such

as the right of free speech or expression. Nor do

they, in our view, impinge upon basic aspects of

privacy or human dignity that we have suggested

above might justify careful judicial evaluation. In

any event, assuming that an interest in liberty or

property is implicated by the challenged restriction,

the record affords no support for the courts’ conclu-

sion that the restriction on the receipt of packages at

the MCC is unreasonable.

Corrections officials testified to the serious security

concerns justifying the restriction on the receipt of

packages at the MCC. The contrary determination

of the district court simply represents its disagree-

2 mare!

ment with the judgment of jail officials regarding

the security problems that exist and the means re-

quired to control them (see Pet. App. 32a). But it is

precisely this sort of unguided substitution of judicial

for administrative judgment as to the needs of insti-

tutional security that this Court has held to be inap-

propriate. The unrebutted testimony in this case was

that the problems of security and order would be sig-

nificant if packages were allowed at the MCC. There

was no “substantial evidence” in the record, or indeed

any evidence at all, indicating that the testimony of

the correctional experts was disingenuous or exag-

gerated. Jones v. North Carolina Prisoners’ Labor

Union, supra, 433 U.S. at 128. See also Guajardo v.

Estelle, 432 F. Supp. 1373, 13886 (S.D. Tex. 1977)

(“the potential security risk from packages is sub-

stantial and * * * problems of inspection are severe”’ ).

In this situation, the institutional restriction should

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

rections officials} have not been conclusively shown

to be wrong.” Jones v. North Carolina Prisoners’

Labor Union, supra, 433 U.S. at 132."

*' The court of appeals should have applied here the same

analysis it applied in a subsequent portion of its opinion in

concluding (Pet. App. 33a) that

the MCC’s judgment that the particular problems of se-

curity, storage, and theft arising from inmates’ owner-

ship of typewriters must override the desire of some to

possess them.

The same principle of deference to correctional judgment ap-

plies whether typewriters or other items of personal property

are involved.

The court of appeals’ suggestion that’ other insti-

tutions allow receipt of packages without any “indi-

cation” of “unmanageable difficulties” (Pet. App.

33a) does not constitute adequate evidence that the

Bureau’s concerns for security in this regard are

unreasonable or exaggerated. See Jones v. North

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

132. The absence of testimony concerning difficulties

encountered at other institutions is not “substantial

evidence,” or indeed “evidence” at all, in the record

of this proceeding. Moreover, the statement of the

court of appeals establishes, at most, that some other

facilities may regard the security risks as more man-

ageable.“ This conclusion is not, however, universally

shared. See Guajardo v. Estelle, supra, 432 F. Supp.

at 1386. As the First Circuit noted in an analogous

context, there may often be “legitimate differences of

opinion among state and local authorities as to what

practices are safe within their particular institu-

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

The unrebutted testimony in this case was that the

security problems would be significant if packages

were allowed at the MCC. The determination of cor-

rectional authorities that “there is potential danger”

in allowing the receipt of packages should not have

been dismissed as arbitrary and capricious by the

‘**In view of the limited nature of the individual interest

involved in this context, the restriction om packages at the

facility would be justifiable even if the administrative interest

was merely that of avoiding ‘““manageable’”’ burdens on security

personnel.

~~ ae

——

court of appeals. See Jones v. North Carolina Prison-

ers’ Labor Union, supra, 433 U.S. at 133 n.9.

Nor is the court’s intrusion into matters of ad-

ministrative judgment made defensible by the dis-

trict court’s ostensibly narrow requirement that the

MCC adopt regulations to aliow receipt of packages

containing “at least items of the kind available on order

from the {MCC’s] commissary” (Pet. App. 166a). The

security risks are created by the fact that packages

arrive from outside the facility; ingenuity can be em-

ployed to conceal items of contraband and weapons in

food and standardized personal items, as well as other

kinds of property. Moreover, to the extent that pack-

ages contain only such personal items as are already

made available to inmates in the facility’s commis-

sary, the requirement that packages containing such

items be allowed into the facility increases security

risks without achieving any practical difference in

the inmates’ living conditions. The court’s decision

has thus improperly overridden and injured the sub-

stantial administrative interest in security and order

at the MCC without identifying any personal liberty

interest advanced or protected by its action.

B. The Bureau Of Prisons Regulation That Restricts

. The Receipt By Inmates Of Hardback Books To Those

Mailed Directly From Publishers Is A Reasonable

Response To Security And Administrative Require-

ments

The courts below enjoined enforcement at the MCC

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

the time this case was before the district court, this

_ _xule, which applies to all Bureau facilities, permitted

inmates to receive books and magazines only if the

materials have been mailed directly from publishers.“

Federal corrections experts testified in this case to

the serious risk to security and order that results

when bound materials are mailed to inmates from

unidentified sources outside the facility. Hardback

books are especially serviceable as a means for smug-

gling drugs or money into the jail; detection of items

secreted in the bindings or between the pages of these

materials is difficult, and a thorough inspection would

often result in partial or total destruction of the ma-

terials (A. 24). The “publisher only” rule is de-

signed to avoid this substantial problem of detecting

hidden contraband while still accommodating the in-

mates’ legitimate desire for access to reading ma-

terials. The courts below, however, rejected the

Bureau’s security and administrative justifications

and invalidated the rule. The court of appeals held

that the rule “significantly intrude[s]” upon the in-

mates’ First Amendment rights (Pet. App. 26a) and

concluded that the MCC could “adequately protect its

legitimate interests merely by inspecting books and

magazines for contraband” (ibid.).”

* As recently amended, the rule allows receipt of such ma-

terials from bookstores as well as publishers. 43 Fed. Reg.

80576 (July 17, 1978). The Bureau is also in the process of

changing the rule to allow receipt of paperback books and

magazines from any source.

5° The Second Circuit distinguished Woods v. Daggett, 541

F.2d 237 (10th Cir. 1976), which upheld the Bureau's “pub-

ie tA a a

The court of appeals erred initially in its con-

clusion that the “publisher only” rule meaningfully

interferes with a substantial First Amendment in-

terest. The rule allows books and magazines to be

received if mailed from any publisher (and now from

bookstores as well). There is no suggestion in the

record that this alternative means of obtaining read-

ing materials»is burdensome or insufficient. See Pell

v. Procunier, supra, 417 U.S. at 827-828. To the

limited extent that the rule conceivably might in-

crease the cost of obtaining published materials, this

Court has held that where “other avenues” remain

available for the receipt of materials by inmates, the

loss of “cost advantages does not fundamentally im-

plicate free speech values.” Jones v. North Carolina

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

(emphasis in original). Furthermore, the MCC has

a “relatively large” library for use by inmates, which

mitigates any possible harshness of the rule (Pet.

App. 26a-27a, 216a). In light of the alternative

lisher only” rule, on the ground that that case concerned a

maximum security facility (Pet. App. 26a-27a n.26). The

court stated that the convicted inmates and pretrial detainees

at the MCC pose a far smaller security risx (ibid.). There is

nothing in the record to support *his conclusion. Indeed, the

testimony of Bureau of Prisons officiafe established that the

risk of contraband smuggling at the MCC would be substantial

without the “publisher only” rule (A. 24) and also noted

that detainees and inmates pose equivalent security risks. See

note 45, supra. The appropriate deference to correctional

administrators allows them, and not the courts, to determine

the needs of security in these situations. Jones v. North Caro-

lina Prisoners’ Labor Union, supra, 433 U.S. at 128.

channels that remain open for the receipt of materials

by inmates and the fact that the rule “operates in a

neutral fashion, without regard wo the content of the

expression,” the “publisher only” rule does not ma-

terially affect the freedom of expression retained by

inmates at the facility. See Pell v. Procunier, supra,

417 U.S. at 828.

Moreover, the court of appeals misplaced the bur-

den of proof in rejecting the administrative and se-

curity justifications. Even assuming that First

Amendment rights were marginally implicated by

the challenged rule, the burden is not on the govern-

ment to show that the rule is necessary to avert a

“present danger” to security and order. Jones Vv.

North Carolina Prisoners’ Labor Union, supra, 433

U.S. at 128. Instead, the restriction should be upheld

so long as the government’s security concerns are

reasonable and not shown by substantial evidence to

be an exaggerated response. /bid.; Pell v. Procunier,

supra, 417 U.S. at 827.

The Bureau established its substantial need for

strict supervision of these materials and the unman-

ageability of item-by-item inspection. In rejecting

this evidence, the district court. concluded only that

the government’s justification swept too broadly. The

court stated that “[i]t is evident that * * “ literature

published in paper or soft covers does not present the

danger [government witnesses] cite’ (Pet. App.

215a). While it is our view that this conclusion is

unsupported in the record of this case and is indeed

inconsistent with the testimony that contraband may

be concealed between the pages of such materials,

making administrative detection difficult, the Bureau

has now proposed to amend its rule to allow the

receipt of paperback books from any source. Ac-

cordingly, we do not ask this Court to review the

district court’s holding in the limited context of

paperback books and soft covered materials.”

Assuming arguendo the correctness of the district

court’s conclusion with regard to the security risks

presented by paperback and soft covered materials,

the court’s analysis does not in any event support a

total invalidation of the Bureau’s restriction on the

receipt of published materials.“ Specifically, there

* Although the Bureau of Prisons proposes to amend its

nationwide rule to allow the receipt of paperback books and

soft covered materials from any source, the Bureau retains

its concern that even exhaustive inspection of these materials

cannot detect all concealed contraband. The Bureau regards

hardback materials as the more dangerous source of risk to

institutional security, however, and proposes to retain the

“publisher only” rule in this limited context only.

* Any application of “overbreadth” analysis in this context

to strike the entire regulation for its partial deficiency would

be improper. The cases in which overbreadth analysis has

been employed identify two interests to be protected. First,

the doctrine may apply where the prohibition attacked is so

vague in application that it occasions uncertainty for conduct

entitled to special protection. See Smith v. California, 361

U.S. 147, 151 (1959); Kunz v. New York, 340 U.S. 290

(1951); Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940).

Second, the doctrine is applied to modify ordinary rules of

standing and ripeness to permit a litigant to raise the “chill-

ing effect” of legislation on fundamental liberties as a basis

for seeking an immediate adjudication of its validity. See

Dombrowski v. Pfister, 380 U.S. 479, 486 (1965); NAACP

is no evidence or finding below that would support

any conclusion that the rule, as applied to hardback

books, is unjustified as a reasonable security precau-

tion. Instead, the only evidence introduced on the

issue indicates the reasonableness of the rule, at least

with regard to hardback materials, as a moderate and

limited response to a significant security concern.

Even when weighed against the asserted First

Amendment interest implicated by the restriction,

“these institutional reasons are sufficiently weighty to

prevail.” * Jones v. North Carolina Prisoners’ Labor

Union, supra, 433 U.S. at 133.

C. The Visual Body Cavity Inspection Conducted After

Contact Visits Is A Reasonable Security Requirement

Inmates at Bureau of Prisons facilities, including

the MCC, are required to expose their body cavities

for visual inspection as part of the strip search con-

ducted after contact visits with persons from outside

the facility. The courts below held in this case that,

unless there is probable cause to believe that the in-

mate is secreting contraband, this intrusive form of

inspection violates the Fourth Amendment.

v. Button, 371 U.S. 415, 433 (1963). But ripeness and stand-

ing are not at issue here, and the challenged regulation is not

vague in effect. The scope of relief could properly be limited

to an injunction against application of the rule to all but

hardback materials. As is discussed in the text, there is no

basis in the record for any broader ruling.

°° The claimed restriction on First Amendment interests

resulting from the “publisher only” rule, see page 67, supra, is

materially attenuated by the availability of paperback books

from any source under the Bureau’s amended policy.

The district court and court of appeals recognized

that both detainees and convicted inmates relinquish

“some part of those rights to privacy and protection

against unreasonable searches and seizures possessed

by unincarcerated members of society,” and that

searches reasonably related to the security of cus-

todial facilities must be permitted (Fut. App. 29a; see

id. at 148a). See also Lanza v. New York, supra,

370 U.S. at 143; Bonner v. Coughlin, 517 F.2d 1311,

1316-1317 (7th Cir. 1975); United States v. Savage,

482 F.2d 1371, 1372-1373 (9th Cir. 1973), cert. de-

nied, 415 U.S. 932 (1974). The courts concluded,

however, that the evidence presented in this case

revealed “little actual utility” to the practice (Pet.

App. 30a), and that, in view of the intrusive nature

of the search and the availability of less intrusive

alternatives, the routine visual inspection of body

cavities following contact visits was an unreasonable

search procedure.

a. The court of appeals concluded that the visual

inspection of body cavities following contact visits

was of “little actual utility” because the government

“proved only one instance in * * * several years [at the

MCC] when contraband was found during a body

cavity inspection” (Pet. App. 30a). Substantial evi-

dence has been documented in this record (A. 74-76)

and elsewhere (e.g., United States v. Park, 521 F.2d

1381, 1382 (9th Cir. 1975) ), however, of inmate at-

tempts to secrete contraband items into an institution

by concealing them in body cavities. The risk of such

attempts is especially significant following contact

visits with persons from outside the correctional fa-

cility, because such visits “present a unique opportun-

ity for passing contraband, including weapons and

drugs, into the Jail.”* Feeley v. Sampson, supra, 570

F.2d at 373. Correctional officials testified in this case

that visual inspection of body cavities is necessary, as

part of the strip search following contact visits, not

only to discover but also to deter the smuggling of

weapons, drugs, and other contraband into the facility

(A. 70-72, 88-84). As another court observed in up-

holding a similar search procedure in Bell v. Manson,

427 F. Supp. 450, 452 (D. Conn. 1976) (inmates re-

turning from court appearances) :

This type of search enables correctional officers

to thwart attempts by returning inmates to

smuggle in drugs, money, weapons and other

items of contraband which may be small enough

to be concealed in a body cavity. Moreover, the

detainee’s knowledge that such a search will be

conducted has a beneficial deterrent effect.

Precisely because of the usefulness of the visual

inspection as a means of detecting and deterring

“The district court conceded that inmates could secrete

objects in rectal and genital areas during the loosely moni-

tored contact visiting procedure at the MCC (Pet. App. 15la).

During the trial, the judge asked the government’s expert

witness whether “a fully-dressed inmate could feasibly or

with any frequency secrete contraband in the recum {sic] or

something like that?” The witness answered “Absolutely. I

know of cases where it has happened” (A. 71).

security violations, the procedure has been upheld by

several courts as a constitutionally reasonable search

following contaet visits.“ E.g., Hodges v. Klein, 412

F. Supp. 896 (D. N.J. 1976); Giampetruzzi v. Mal-

colm, 406 F. Supp. 836 (S.D. N.Y. 1975); ef.

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

denied, 414 U.S. 872 (1973); Bell v. Manson, supra.

The conclusion of the court of appeals in this case that

the search procedure is of “little actual utility” simply

disregards this substantial evidence and improperly

substitutes the court’s judgment for that of corrections

officials as to the security need served by the visual

search procedure. See Jones v. North Carolina Prison-

ers’ Labor Union, supra, 433 U.S. at 128; Bell v. Pro-

cunier, 417 U.S. at 827; Bijeol v. Benson, 404 F.

Supp. 595 (S.D. Ind. 1975); Penn Ei v. Riddle, 399

F. Supp. 1059 (E.D. Va. 1975).

b. In determining the reasonableness of particular

search procedures, it is ordinarily unnecessary to in-

quire into the availability of less intrusive alterna-

tives for conducting the search. As was noted in

United States v. Martinez-Fuerte, 428 U.S. 543, 556-

557 n.12 (1976), “[t]he logic of * * * elaborate less-

restrictive-alternative arguments could raise insuper-

able barriers to the exercise of virtually all search-

* The district court noted that if an object is inserted be-

yond the anal sphincter, it would not be detected by the visual

inspection procedure. The court agreed, however, that the

search procedure “may serve as a deterrent to people planning

to secrete and import forbidden things” (Pet. App. 150a-

15la).

and-seizure powers.” Moreover, the Fourth Amend-

ment requires only that the search not be “unreason-

able’; it does not require the government to employ

only the “most reasonable” search procedures. See

Chambers v. Maroney, 399 U.S. 42, 51-52 (1970).

Nonetheless, as the district court stated in this

case (Pet. App. 151la), the determination whether a

particular search procedure is constitutionally reason-

able requires “attention to the total setting” of the

search. If the legitimate needs of institutional secu-

rity can be accomplished by significantly less intrusive

measures, it may be unreasonable to impose the

greater restriction where the lesser would suffice. Cf.

United States v. Brignoni-Ponce, 422 U.S. 873, 883

(1975). Such an analysis may be especially appro-

priate in the narrow context involved here, where the

nature of the challenged search procedure implicates

notions of personal dignity and decency.” But in de-

termining the sufficiency of alternative measures to

satisfy the legitimate needs of institutional security,

the evaluation of correctional officials must be accorded

substantial deference. E.g., Jones v. North Carolina

Prisoners’ Labor Union, supra, 433 U.S. at 128; Penn

El v. Riddle, supra, 399 F. Supp. at 1062. As is dis-

cussed below, the evidence and findings in this case do

* The inmate is nut touched by security personnel at any

time during the visual search procedure. A psychiatrist testi-

fied at trial that the visual inspection would not result in any

emotional injury to the inmates (A. 82). The district court

concluded that the visual search is uniquely personally affron-

tive even if not emotionally damaging (Pet. App. 150a-153a).

not identify any sufficient alternative to the visual

inspection procedure.

The district court. suggested that metal items could

be detected by less intrusive forms of inspection, such

as metal detecting equipment employed by airline

security personnel (Pet. App. 15la). The court rec-

ognized, however, that drugs and other types of

contraband would escape such inspection and that

“some contraband will continue to make its way into

jails and prisons” (id. at 152a). It is obvious that

contraband does not have to be metallic to be danger-

ous or otherwise to pose a risk to institutional secu-

rity. Indeed, drugs and money alone can create Sub-

stantial risks to security and order and the safety

of inmates. The less intrusive alternative posited by

the district court thus falls significantly short of

meeting the legitimate objectives of the visual search

procedure following contact visits.

Another alternative, not discussed by the court

below, would be to monitor individual contact visits

constantly and closely in an effort to assure that

inmates have no opportunity to secrete contraband

items. Such constant and close monitoring, however,

would severely tax available institutional resources.”

* It is apparent that individualized monitoring of contact

visits would substantially increase the space, and number of

correctional personnel, devoted to this particular aspect of

the institutional program. Indeed, it is questionable whether

the visiting facilities available at the MCC could be adapted

to individualized visiting procedures. These matters were, in

any event, not explored by the courts below.

Moreover, it would disrupt the privacy, confidentiality

and personal intimacy that contact visitation is in-

tended to afford.“ These interests are independently

significant and entitled to substantial weight in eval-

uating the reasonableness of the visitation procedure

selected by correctional officials at the MCC. The

courts below, however, did not evaluate the feasibility

or desirability of such an alternative. On this record

it cannot be said that the choice of correctional offi-

cials to provide for intimate and largely unsupervised

contact visits, and to require a complete search fol-

lowing such visits, was not the preferable and reason-

able choice. Cf. Chambers v. Maroney, supra, 399

U.S. at 53-54.

In sum, given the difficult task of accommodating

inmate interests and correctional security require-

ments, the search procedure selected at the MCC to

guard against the introduction of contraband into

the facility following contact visits falls within the

range of appropriate discretion afforded correctional

officials. See Jones v. North Carolina Prisoners’ Labor

Union, supra, 433 U.S. at 126.

58 The Draft Correctional Standards (see note 43, swpra)

propose that in circumstances where close and continuous

monitoring of inmate contact visits occurs, strip searches with

visual body cavity inspections not be required. Even if this

proposal is eventually adopted, it would have no application

at the MCC. The MCC allows many visitors and inmates to

meet in the visiting rooms at one time, and the supervision of

such visits is intentionally relaxed to allow for intimate and

confidential contact.

D. The Practice Of Excluding Pretrial Detainees From

Their Residential Rooms During Routine Room In-

spections Is Justified By The Need To Avoid Disrup-

tion Of An Important Security Procedure

In a portion of its decision applying to pretrial de-

tainees only, the court of appeals held that detainees

must be allowed to observe routine inspections of their

quarters. Substantial testimony was introduced be-

fore the district court to demonstrate that permitting

detainees to observe room inspections would lead to

unnecessary friction between detainees and security

personnel and would allow detainees to attempt to

frustrate the objectives of the search by distracting

personnel and moving concealed contraband from one

room to another ahead of the search party.” The dis-

trict court held, however (Pet. App. 156a), that

[a]t least until or unless [the correctional offi-

cials] can show a pattern of violence or other dis-

ruptions taxing the powers of control * * * the

security argument for banishing inmates while

their rooms are searched must be rejected.

°° One of the correctional experts testified (A. 78) :

* * * the requirement that prisoners not be in the immedi-

ate area obviously has its basis again in the requirements

of security.

It is quite obvious that if a group of officers start a

searching process of a housing area at the MCC, if it bea

corridor or an area of rooms or in a typical jail if it were

a cell block, unless all prisoners are removed from that im-

mediate area, there are a wide variety of opportunities

for the confiscation of contraband by prisoners who may

have such in their possession and cells.

It can go down the toilet or out the window, swallowed,

a wide variety of methods of confiscation of contraband.

The court concluded that the institutional justifica-

tions for the rule were insufficient to override the

detainees’ retained right of privacy (ibid.).° The

court of appeals affirmed, stating that “[w]e see no

reason whatsoever not to permit a detainee to observe

the search of his room and belongings from a reason-

able distance. This is a small privilege * * *” (id. at

31a).

There are two significant errors in the lower

courts’ analysis of this issue. First, the courts failed

to identify any relevant interest in liberty that is

affected by the exclusion of detainees from their

rooms during routine inspections. The district court

stated that excluding detainees from room inspections

infringes their interest in privacy. The court’s con-

clusion, however, does not withstand analysis. To

suggest that detainees have a reasonable expectation

of privacy with regard to physical objects kept within

their cell ignores the realities of institutional con-

finement. See, e.g., Lanza v. New York, supra; United

States v. Hitchcock, 467 F.2d 1107 (9th Cir. 1972),

cert. denied, 410 U.S. 916 (1973). While routine in-

spection of quarters may reveal either contraband

or lawful items that an inmate would prefer not to be

discovered, it would seem beyond dispute that such

6° The district court accepted the government’s claim that

the practice of excluding inmates from their rooms during

routine inspections made the search more administratively

feasible and thus held that, with regard to convicted inmates,

the practice is permissible (Pet. App. 157a). Since respond-

ents did not cross-appeal, the application of the room search

rule to convicted inmates is no longer at issue.

inspections represent an appropriate security precau-

tion that is permissible as a reasonable search under

the Fourth Amendment. See United States v. Hearst,

supra, 563 F.2d at 1337. Indeed, neither court below

suggested that the practice of performing routine

inspections was, by itself, improper. The requirement

that detainees remain outside their rooms while such

lawful inspections are performed results in no addi-

tional interference with the detainees’ subjective pri-

vacy interest. The search of all physical objects will

occur whether the detainees are allowed to watch or

not. The requirement that detainees remain outside

their rooms during the inspection merely facilitates

the safe and efficient performance of the search, it

does not independently infringe the detainees’ pri-

vacy. While it may be only “a small privilege” to

allow detainees to observe room inspections (Pet. App.

31a), there is no constitutional content to the privi-

lege sought.

Second, the district court erred in placing the

burden on the administrators to prove “a pattern of

violence or other disruptions” (id. at 156a) to justify

the exclusion of detainees from room inspections. Con-

sidering the absence of any identifiable liberty inter-

est implicated by the challenged rule, the govern-

ment’s interest in administrative convenience is alone

sufficient to justify the exclusion of inmates from

routine room inspection. Moreover, where the possi-

bility of a security risk exists, correctional officials

“must be permitted to act before * * * the eve of a

riot.” Jones v. North Carolina Prisoners’ Labor

Union, supra, 433 U.S. at 132-133. The burden is

not on the government to establish that the precau-

tion of excluding detainees during room inspections

is necessary to avert a “ ‘present danger to security

and order.’” Id. at 128. The testimony of correctional

experts established that, in their judgment, if de-

tainees were allowed to observe room inspections, the

security of the institution, and of the guards them-

selves, would be placed at risk (A. 26, 66, 73). In

view of the appropriate deference accorded correc-

tional officials in the determination of security re-

quirements, the absence of substantial evidence in the

record to show that these concerns are exaggerated,

and the limited nature of the inmate interest involved,

this rule should have been sustained.

CUNCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

KENT L. JONES

Assistant to the Solicitor General

SIDNEY M. GLAZER

KATHLEEN A. FELTON

NOVEMBER 1978 . Attorneys

® oo. 8. Coveenmant paintings orrice; 1978 2762638 205

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