Amicus Brief — Bell v. Wolfish

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Supreme Court of the United SpE OO

DEC 20 197¢€

IN THE

Octoser Term, 1978 -

No. 77-1829

GrirFIn B. BELL, et al.,

Petitioners,

—vs.—

Lovis Wo .FisH, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.

AS AMICUS CURIAE

JACK GREENBERG

James M. Nasrirt, III

JOEL BERGER

Betu J. Lier

Steven L. WINTER

Suite 2030

10 Columbus Circle

New York, New York 10019

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Se En cc écwcu ne decancés l

Summary of Argument .............c.000- 3

CE. dG hn bas 0046460% 0k 044s s0e KO eax 4

I. Restrictions Imposed Upon Un-

convicted Pre-Trial Detainees

Should Not Be Upheld by Blanket

Deference to The Claim of Local

Jailers That Such Restrictions

Are Necessary To Maintain Jail

PIED 6 66.6.6:66.606.005600 0060666 0% 4

Il. The Federal Courts Have Inherent

Power To Correct The Conditions

Under Which Persons Awaiting

Trial In The Federal Courts

ee ere 22

III. The Practice of The MCC At Issue

In This Case Were Properly

Enjoined Since They Violated

The Defendants' Statutory

Duty To “Provide Suitable

Quarters" For Pre-Trial

PE 64444 0é0¥45 Se sbadnees se’ 37

EY 046 604.64 5066 b006000804506000 47

TABLE OF AUTHORITIES

Cases

Accardi v. Shaughnessy, 347 U.S 260

(2958) . cccsvceseecescoceseseesees

Armstrong v. Cardwell, 457 F.2d 34

(6th Cir. 1972) ...... “pesocsesoses

Barnes v. Government of the Virgin

Islands, 415 F.Supp. 1218

Co. U.R. IGEe .iccctenseueseee

Barth v. Clise, 79 U.S (12 Wall.)

4GO CIBTL) .cccccceccevesveseoseser

Bay County Jail Inmates v. Bay

County Board of Commissioners,

Civil Action No. 74-10056

(N.D. Mich. Aug. 29, 1974) .......

Benjamin v. Malcolm, 75 Civ.

3073 (8.3.8.%.. Jams Gy BRS? coves

Berkowitz v. United States, 90

F.2d 881 (8th Cir. 1937) .........

Bongiovanni v. Ward, 50 F.Supp.

3 CR. Mone. E008) ccccccweunsouses

Brenneman v. Madigan, 343 F.Supp.

138 (B.D. Gad. IDFR) cesscacecess

Bundy v. Katsaris, TCA 78-1913

(3.3. Fla. Bow. \hy. FORD sescccses

41

36

ll

25

20

24,25,29

25

13

13

Campbell v. McGruder, 416 F.Supp.

100 (D.D.C. 1975), aff'd

and remanded, 580 F.2d 521

DE Ts HOEED cogcecccoesccces

Clardy v. Levi, 545 F.2d 1241 (9th

is MED e6eeeussecccecogscoees

Coffin v. Reichard, 143 F.2d 433

RE EP OP TT OT TEE

Collins v. Schoonfield, 344 F.Supp.

Sr Gs Ge BETES cocccccccccecs

Comm. ex rel. Bryant v. Hendricks,

Dee ie GP GEOVED ccccccccccseces

Conklin v. Hancock, 334 F.Supp. 1119

a as ccc cese

Duran v. Elrod, 542 F.2d 998 (7th

eee eee ted adeeeeces

Ewing v. United States, 240 F.

241 (6th Cir. 1917) ..ccccceceees

Feeley v. Sampson, 570 F.2d 364

i iD ~ccececeeetdeced oss

Funchess v. Beame, No. 73 C 572

(E.D.N.Y. July 12, 1974) ........

Goldsy v. Carnes, 429 F.Supp. 370

(W.D. Mo. 1977), prior opinion,

365 F.Supp. 395 (W.D. Mo.

oo Pree errr r eT Te reTTTITTTTTTe

Grinfell v. Gladden, 241 Ore. 190

(1965), cert. denied, 382 U.S.

MT SeaGUeeeseeedaccececes

PAGE

, 15

, 39

, 35,26

3,8,11,15,19

, 36

, 1]

12

, 25

, 17

, 12

‘ 36

Gulf States Utilities v. Federal

Power Commission, 411 U.S. 747

CEGTSD weccccccccccccosesceseces

Hamilton v. Love, 328 F.Supp. 1182

a et ee eee

Hughes v. Turner, 14 U.2d 128 (1963)

Inmates of The Suffolk County Jail

v. Eisenstadt, 360 F.Supp.

Pe GR. Me. “BOTS? cuccecececes

Inmates of Milwaukee County Jail v.

Peterson, 353 F.Supp. 1157

eh Ci. Pe no ce we ece eee os

In re Gannon, 27 F.2d 362 (E.D.

I el oe a re

In re Jones, 57 Cal.2d 860, 382 P.2d

310, 22 Cal. R. 478 (1962)......

In re Riddle, 57 Cal.2d 848, 372

P.2d 316, 22 Cal. R. 472,

cert. denied, 371 U.S.

Pee GEED Cévcetewsercecicsoces

J.I. Case v. Borak, 377 U.S. 426

GREED Sbben consasincecupeescecs

§ | PUPP TET TT TT LETT TTT

Johnston v. Marsh, 227 F.2d 528

See Ss SOU. dabendeusasases

Jones v. North Carolina Prisoners’

Union, 433 U.S 119 (1977) ......

PAGE

36

3,6,10,20,21

es 10,19

es 25,27,29

ee 36

ee 36

ee 40

pe 35,36

o¢ 25,26,27

es 23

Jones v. Wittenberg, 330 F.Supp. 707

(N.D. Ohio 1971), aff'd sub nom.

Jones v. Metzger, 456 F.2d 854

nh, fie De «Kan cdachoush sas

Lavier v. Kansas, 209 Kan. 442

GROVES ed oedecvvesvcedusseeschetoc

Manicone v. Cleary, No. 74 C 575

(E.D. N.Y. June 30, 1975) .......

Manicone v. Corso, 365 F.Supp. 576

Pe CN .. putea den een eee

Marion County Jail Inmates v.

Broderick, No. IP 72-C-424

(S.D. Ind. March 24, 1976) ......

McGoff v. Rapone, 78 F.R.D. 8

fh eS xr rr

Mehafey v. State, 87 Idaho 228,

Bee CESGS) cccecgevocsscccocceses

Mead v. Parker, 464 F.2d 1108

(9G Cig. 1978) cvccccccedgvesses

Miller v. Carson, 401 F.Supp. 835

(M.D. Fla. 1975), aff'd, 563

F.2d 741 (Sth Cir. 1977) ........

Miller v. United States, 6 F.2d 463

CSe8 Ghee. 1989) cccccccccecsccess

Morgan v. Willingham, 424 F.2d

200 (10th Cir. 1970) ............

PAGE

2,13,16,20

36

13,19

7,8,11,13

11,13,19

45

36

36

13,14,19

24

40

PAGE

PAGE Spector Motor Co. v. McLaughlin,

Be GU. BBS CRBS) cccccceccceces 22

O'Bryan v. County of Saginaw, Mich., Stat 1 Col Tahash. 269

437 F.Supp. 582 (E.D. Mich. wus” “ay” Seip 36

MED 66 nosbs0-01s 006 SOESOHS DEO SERS 13,14,19

Stat l Pringl . Coi ;

OQwens-El v. Robinson, 442 F.Supp. 1368 ction "7 a 7 ams > aoe

in 2. BD <: Viceeeetdenseses tt A 220 (1972) Beco sarog CA et he a lee %6

People ex rel. Brown v. Johnson, 9

; ° Stat . McC , 267 Md. lll

N.Y.2d 482, 215 N.Y.S.2d ~ (ees : 36

44, 174 N.E.2d 724 (1961) ........ ps een ra

Tayl — tt, 344 F.S ;

Perez v. Turner, 462 F.2d 1056 ” “aah >. Son 1972): =v

(10th Cir. 1972), cert. denied, 401 aff'd. 499 F.2d 367 (Sth

U.S. 944 (1973) se eeeeeeecererees 36 a aa a 2,9

Powlowski v. Wullich, 81 Misc.2d Thorpe v. Housing Authority of

895 (Sup. Ct. Monroe County Durham, 393 U.S 268 (1969) ....... 44

DUE “aaceddoscedecesececececocece 13

beet United States v. Smith, 444 F.2d

Principe v. Ault, 62 F.Supp. 279 “3. ESS. eeeerrorrisr ere 28

Scien GREO BOGS) cocecccccnccosess 25

United States v. New York Telephone

Procunier v. Martinez, 416 U.S. Ge. « S06 O.6 BBO CIOFFI) oc clcccecvess 32

8 a a aa ee 21,23

United States ex rel. Wolfish v.

Ramer v. Saxbe, 522 F.2d (D.C. Levi, 439 F.Supp. 114 (S.D.

Cir. 1975) .eeceeeeeeeeeceeereeeee 39 eB eres 18,24,34,39,40,

44

Rea v. United States, 350 U.S.

Sn oh esschecséecncedooes de 31 United States ex rel Wolfish v.

United States, 428 F.Supp. 333

Rhem v. Malcolm, 507 F.2d 333 CRD MT. GU covicsecsccccesecess 22,33,34

Pa; PED donee decietodecescne 6,20

University of California Regents

Rogers v. Warden, Nevada State v. Bakke, U.S. :

Prison, 84 Nev. 534 (1968) ....... 36 (1978) 57 L.Ed.2d 750,

ff Fer Te? TreTrT TET 22

Saia v. Warden of Conn. State aaa

Prison, 25 Conn. Sup. 549, -vii-

Re eee GOED oc cn<ueCoccsececss 36

Vest v. Lubbock County Comm'rs, 444

F.Supp. 824 (N.D. Tex. 1977) .....

Williams v. Richardson, 481 F.2d 358

Pn Gee, See sonkeseenbences ees

Wilson v. Beame, 380 F.Supp. 1232

sce Es BGPP ccccececcesesececs

Wise v. Henkel, 220 U.S. 556 (1911)...

Wolfish v. Levi, 573 F.2d 118 (2d

a. De cotconthea coadsdesecaeuds

Wright v. Henkel, 190 U.S 40

SEED 666-06 6060 eeReé Sev eeseeRneees

Constitution & Statutes

ee ccs wenedsicdee ehés

ee, ee Lc cccecebaucesbveses

Administrative Procedure Act,

are > Sh) | ee errr

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

Se ivuncceseeséesss

BD DibeBe FROG CEOPES conv cdccdscocessx

Be Wellies Been GHOPEE 00s ccovncetosece

18 U.S.C. §$4082(a) (1976) ......ccceees

Federal Power Act, 16 U.S.C. §824c

Sy 4cs 60 Gah Cis Sees cas bs 6usbben

PAGE

14

Pe

37

35,39,45

25

15

15

39

28 , 30

23 , 34,38

23,34, 38

23

46

§5 of Judiciary Act of 1891 ...........

Be Bue GEE SAGO) becccdweteccvces

ae U.B.Gs FESSOR CEOS) cccccetvencess

SS U.8.G. GRSISCG) CASTS) «0 ccccccsiccces

Miscellaneous:

W. Blackstone, Commentaries ...........

Criminal Justice Newsletter,

Vol. 9, No. 23, at 4

SS el ar ee

Developments in Law: Federal

Habeas Corpus, 83 Harv.

Rely De SROPEE Gece eseescecee

re. Mens, Wn Oe 0 c6 6. cbawe obs 08000 44%

Ped. RuGwian BP. GEIS) coccccccccsevcces

Federal Standards For Corrections

[Draft], U.S. Dept. of Justice ..

The President's Commission on Law

Enforcement and the Administra-

tion of Justice, Task Force

Report: Corrections 24

RE wait Krk bao 4b o beds 60d eee ee te

27,37

20 ,35,37,40

37

16

45,46

36

31

36

20,21,40,45

5,6

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. 77-1829

GRIFFIN B. BELL, et al.,

Petitioners,

- ve <

LOUIS WOLFISH, et al.

On Writ of Certiorari to the United

States Court of Appeals for the

Second Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.

AS AMICUS CURIAE

Interest of Amicus*

The NAACP Legal Defense and Educational Fund,

Inc., is a non-profit corporation, incorporated

under the laws of the State of New York in 1939.

* Letters of consent to the filing of this

Brief from counsel for the petitioner and the

respondent have been filed with the Clerk of the

Court.

It was formed to assist Negroes to secure their

constitutional rights by the prosecution of

lawsuits. Its charter declares that its purposes

include rendering legal aid gratuitously to

"Negroes suffering injustice by reason of race who

are unable, on account of poverty, to employ

legal counsel on their own behalf. The charter

was approved by a New York Court, authorizing

the organization to serve as a legal aid society.

The NAACP Legal Defense and Educational Fund, Inc.

(LDF), is independent of other organizations and

is supported by contributions from the public.

For many years its attorneys have represented

parties in this Court and lower courts, and it has

participated as amicus curiae in this Court and

other courts, in cases involving many facets of

the law.

Attorneys for the Legal Defense Fund have

handled many cases involving conditions in pre-

trial detention facilities and discrimination

against pre-trial detainees, including Taylor v.

Sterrett, 344 F.Supp. 411 (N.D. Tex. 1972), aff'd,

499 F.2d 367 (Sth Cir. 1974); Jones v. Wittenberg,

330 F.Supp. 707 (N.D. Ohio 1971), aff'd sub nom.

Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972);

Inmates of the Suffolk County Jail v. Eisenstadt,

360 F.Supp. 676 (D. Mass. 1973); Collins v.

Schoonfield, 344 F.Supp. 257 (D. Md. 1972);

Hamilton v. Love, 328 F.Supp. 1182 (E.D. Ark.

1971). The Legal Defense Fund has a special

interest in the rights of pre-trial detainees

because blacks are disproportionally unable to

post bail and are disporportionately represented

both in local and federal pre-trial detention

facilities.

SUMMARY OF ARGUMENT

This case presents questions of first impres-

sion in this Court affecting the conditions and

practices in jails across this Nation. Restric-

tions imposed upon unconvicted citizens who, for

the most part, are detained solely because they

could not make bail, should not be upheld by

blanket deference to the claims of local jailers

that those restrictions are mandated by security

needs. Rather, the cases of the past decade make

clear that such restrictions are predominantly

rules of administrative convenience. The rules

and practices at issue in this case are in the

same category and should not be upheld.

Ruling on consitutitonal grounds, the courts

below properly declined to defer to such "“ex-

pertise” and enjoined those practices. However,

the rulings below are also sustainable on non-con-

stitutional grounds. The federal courts have

inherent authority to correct the conditions under

which persons who are awaiting trial in the

federal courts, and who are still within the

courts’ jurisdiction, may be detained. In addi-

tion, the practices at issue in this case were

properly enjoined since they violated the defen-

dants' statutory duty to "provide suitable quar-

ters" for pre-trial detainees.

ARGUMENT

POINT I

RESTRICTIONS IMPOSED UPON UNCONVICTED

PRE-TRIAL DETAINEES SHOULD NOT BE UPHELD

BY BLANKET DEFERENCE TO THE CLAIM OF LOCAL

JAILERS THAT SUCH RESTRICTIONS ARE NECES-

SARY TO MAINTAIN JAIL SECURITY

A.

This case presents questions of first impres-

sion for this Court concerning the treatment of

unconvicted citizens in our Nation's jails.

Although the jail at issue here is a new facility

operated by the United States Bureau of Prisons,

the decision in this case will affect the rights

of thousands of pre-trial detainees in every

county jail and local lock-up across the United

States.

Gross inadequacies in the operation of our

local jails have long been the subject of official

criticism. Ten years ago, the President's Commis-

sion on Law Enforcement and the Administration

of Justice stated:

It is probably true that persons who have not

yet been convicted of a crime are subjected

to the worst aspects of the American correc-

tional system. Unconvicted persons, as yet

legally innocent, are almost invariably

subjected to the tightest security

This primary concern for security

imposes regimentation, repeated searches, and

close surveillance on detainees.

The President's Commission on Law Enforcement and

the Administration of Justice, Task Force Report:

Corrections 24 (1967). Five years later, the

American Assembly concluded that

Local jails are even worse than prisons....

In them standards of humanity and decency are

violated, and the presumption of innocence

which is so basic to American Justice is

ignored.

Final Report of the 42nd American Assembly

(1972), quoted in Inmates of the Suffolk County

Jail v. Eisenstadt, 360 F.Supp. 676, 684 (D. Mass.

1973).

The reasons why local jails are operated

under such restrictive measures are not difficult

to fathom. Jails are normally run by local

administrations, the least solvent of all govern-

mental bodies and the most susceptible to politi-

cal pressures against unpopular expenditures ../

Accordingly, there is an inevitable "[a]cute

shortage of resources" resulting in a “shortage of

trained staff and lack of program in many deten-

tion facilities." Task Force Report: Correc-

tions, supra, at 25. Local jails generally are

not operated by highly trained correctional

experts but by local sheriffs and police, "law

enforcement officials [who are] limited to merely

custodial functions." Id. at 23.

Nonetheless, petitioners herein would have

this Court accord “substantial deference" to the

“expertise” of local jailers in any matter

1/ See, e.g., Rhem v. Malcolm, 507 F.2d 333, 342

(2d Cir. 1974).

claimed by them to be related to security. (Brief

for Petitioners, p. 58.) This rule would,

of course, apply not only to the United States

Bureau of Prisons but to every sheriff and

local warden throughout the United States.

Granting such broad and unscrutinized authority to

the keepers of our local jails would, we submit,

be both unwarranted and unwise. As testified to

by the cases that follow, the manner in which such

authority has been wielded in recent years has

proven to be anything but expert.

The district court decisions of the past

decade are replete with examples of pre-trial

detention rules and practices that include the

arbitrary, the self-protective, the convenient,

and the purely bizzare. Many of these rules and

practices have violated even the most basic

constitutional rights. Nearly all have been

justified by local jailers in the name of secur-

ity. For example, in Manicone v. Corso, 365

F.Supp. 576 (E.D.N.Y. 1973), the sheriff had

me ee —— or

decided to ban all newspapers from the jail. The

security rationales proffered for this restriction

were that newspapers might disrupt the prisoners,

particularly when news of crimes or an inmate's

case was reported, and that the accumulations of

papers caused a fire hazard. Id. at 577. The

district court did not defer to such expertise,

but enjoined the practice, observing:

The physical problems of fire control can

be met by less restrictive means than total

censorship. The incendiary nature of ideas

and facts published in newspapers is some-

times bothersome to those in authority; under

our Constitution, such inconvenience is

unavoidable.

A similar practice fell to judicial scrutiny

in Collins v. Schoonfield, 344 F.Supp. 257 (D. Md.

1972). There, the court enjoined the warden from

censoring newspapers merely because they contained

articles critical of his edministration of the

facility.

In Funchess v. Beame, No. 73 C 572 (E.D.N.Y.

July 12, 1974), the warden of the Brooklyn

House of Detention had prohibited detainees from

receiving such supplies as legal size bond, onion

skin paper, carbon paper, manila folders and large

legal envelopes. It was uncontradicted that the

warden imposed this -rule because, by his own

admission, he objected to being named as a defen-

dant in lawsuits brought by the detainees. The

district court enjoined the practice. See also

Taylor v. Sterrett, 344 F.Supp. 411, 422-423 (N.D.

Tex. 1972), aff'd, 499 F.2d 367, 368 (Sth Cir.

1974) (sheriff and other jail officials enjoined

from destroying law books, legal materials and

other legal documents).

Even in cases where the warden's motives may

have been more well-meaning, extraordianay re-

strictions have been imposed upon pre-trial detain-

ees. For example, in Bay County Jail Inmates v.

Bay County Board of Commissioners, Civil Action

No. 74-10056 (N.D. Mich., Aug. 29, 1974), an

undersheriff had refused to send a letter of a

Suicidal detainee to a close relative because he

feared that the letter “would disturb the recip-

ient." Slip op. at 13. The district court in-

validated such censorship.

Strict censorship of mail has, however, long

been the rule in many local jails. And while

- 10 -

jailers have often sought to justify restrictions

on correspondence as requisites of security, many

such restrictions have been ultimately exposed

as rules of purely administrative convenience.

For example, in Inmates of Milwaukee County Jail

v. Petersen, 353 F.Supp. 1157 (E.D. Wise. 1973),

detainees were limited to two pages per letter,

and to one page if both sides of the paper were

used. The “stated purpose" ofthe rule was "to

discourage correspondence and to promote the

convenience of the jail administration in censor-

ing." Id. at 1164. Censorship included the

deletion from outgoing mail, on "security"

grounds, of notice to relatives and friends of the

time and place of the detainee's next court

appearance. Id. The district court ordered an

end to such overbroad mail restrictions. Id. at

1167-68. Similarly, in Vest v. Lubbock County

Commissioners, 444 F.Supp. 824 (N.D. Tex. 1977),

detainees were limited to three pages per letter

and six incoming and outgoing letters per week.

The rule was concededly devised solely to reduce

the amount of time needed for guards to read the

mail; the guards were required to read all mail,

- ll -

and could refuse to mail or deliver any letter

containing language they deemed “abusive.” Id. at

828-29 .2/

Restrictive practices also have been revealed

in cases dealing with visiting. In Manicone v.

Cleary, No. 74 C 575 (E.D.N.Y. Jume 30, 1975), the

warden had prohibited children from visiting their

fathers on the ground that such visits would have

a disturbing effect upon the children. The

district court invalidated the rule, noting that

2/ See also, e.g., Owens-El v. Robinson, 442

F.Supp. 1368, 1387 (W.D. Pa. 1978) (limit of one

page per letter on all outgoing non-legal mail);

Marion County Jail Inmates v. Broderick, No. IP

72-C-424 (S.D. Ind., March 24, 1976) (limit of one

outgoing letter per day; each letter limited to

one piece of paper; letters to be written only on

stationary purchased from the jail's commissary);

Barnes v. Government of the Virgin Islands, 415

F.Supp. 1218, 1234 (D. V.£. 1976) (limits on

number and length of letters); Collins v. Schoon-

field, supra, 344 F.Supp. at 276 (D. Md. 1972)

(warden intercepted, failed to deliver, and

photocopied correspondence of inmates with courts,

attorneys and public officials as well as with

family and friends); Conklin v. Hancock, 334

F.Supp. 1119, 1122 (D.N.H. 1971) (detainee's

letters may not be held up merely because they are

critical of the warden, since "critical or even

insulting letters would not present a clear and

present danger to prison security”).

- 12 -

+

prolonged separation from a parent is also harmful

to a child and that the decision to bring a child

to the jail “is better made by the detainee and

his family than by an arbitrary jail regulation."

Slip. op. at 29. 3/

Foremost among the concerns of local jailers,

of course, is the fear that a detainee may try to

escape. While that concern is obviously a

legitimate one, some of the security restrictions

imposed in this cause have bordered on the ludi-

crous. For example, in Owens-El v. Robinson,

442 F.Supp. 1367 (W.D. Pa. 1978), all detainees at

the Allegheny County Jail in Pittsburgh had for

several years been totally deprived of bed sheets,

“for security reasons." 442 F.Supp. at 1377. The

warden began distributing sheets just before the

case went to trial, although the record revealed

that they were still in short supply. Id. at 1378.

3/ Other jailers, in their "expertise," have

found it necessary to keep children from their

parents. The courts have disagreed, invalidating

such practices. See, e.g., Duran v. Elrod, 542

F.2d 998, 1000 (7th Cir. 1976); Gol: Goldsby v. Carnes,

429 F.Supp. 370, 378 (W.D. Mo. 1977), prior

Opinion, 365 F.Supp. 395, 415 (W.D. Mo. 1973) con-

-l3-

The district court required the warden to provide

a clean change of linen weekly. Order of Jan. 4,

1967, 47.

In Bundy v. Katsaris, TCA 78-0913 (N.D.

Fla. Nov. 1, 1978), a high escape-risk detainee,

accorded outdoor recreation less than once a

month on a 40 square foot rooftop surrounded by a

ten-foot high fence topped with barbed wire, was

nonetheless fitted during the recreation periods

with chains about his waist and wrists, and with

metal leg braces to prevent his knees from flex-

ing. The overall effect was to render the de-

3/ Cont'd.

sent order); O'Bryan v. County of Saginaw, Mich.,

437 F.Supp. 582, 599 (E.D. Mich. 1977); Miller v.

Carson, No. 74-382 Civ.J-5 at 15 (M.D. Fla. Jan.

31, 1975 (preliminary injunction), aff'd, 563 F.2d

741, 748 (5th Cir. 1977); Brenneman v. Madigan,

343 F.Supp. 128, 141 (N.D. Cal. 1972); Jones v.

Wittenberg, 330 F.Supp. 707, 717 (N.D. Ohio 1971);

Powlowski v. Wullich, 81 Misc. 2d 895, 901 (Sup. Ct.

Monroe County 1975). Other cases invalidating

unreasonable restrictions on who may visit a

detainee include: Brenneman, supra, (limit of five

persons tio each detainee's list of visitors);

Marion County Jail, supra, at 7 (limit of three

persons to each detainee's visiting list; limit of

two visitors per week). Even visits by attorneys

have been the subject of severe restrictions.

See, e.g., Mamicone v. Cleary, supra.

- 14 -

tainee "practically immobile." Slip. op. at

3. The- district court, observing that the presense

of guards should be sufficient to prevent escape

from the fenced rooftop, ordered the leg braces

and chains removed and required the warden to

accord the detainee one hour of daily outdoor

recreation. Id. at 12.

In O'Bryan v. County of Saginaw, 437 F.Supp.

582 (E.D. Mich. 1977), the warden deemed it

necessary for security to prevent all detainees

with bail of more than $5000 from attending

religious services. The district court enjoined

the practice as violative of the First and

Fourteenth Amendment rights of the unconvicted

persons. Id. at 600. See also Wilson v. Beame,

380 F.Supp. 1232 (E.D.N.Y. 1974) (detainees in

administrative segregation denied access to

religious services, even though the chapel was a

secure area eleven flights above the ground and

the presence of additional officers was sufficient

to guard against escape).

Overzealousness in the name of security has

also led to severe treatment of detaineees in need

of medical attention. Thus, in Miller v. Carson,

- 15 -

401 F.Supp. 835, 878 (M.D. Fla. 1975), aff'd, 563

F.2d 741 (Sth Cir. 1977), every detainee taken to

the hospital was kept continuously chained to the

hospital bed regardless of his ailment or the

seriousness of the charges pending against him.

Similarly, in Campbell v. McGruder, 416 F.Supp.

100, 104 (D.D.C. 1975), aff'd and remanded, 580

F.3d 521, 551 (D.C. Cir. 1978), handcuffs and leg

irons were used to shackle some detainees to beds;

the district court observed one inmate entering

his third consecutive week under such restraint.

And in Collins v. Schoonfield, supra, 344 F.Supp.

at 278, detainees suffering epileptic seizures,

delerium tremens and mental disorders, as well as

those who had attempted suicide or were undergoing

withdrawal from narcotic addition, were routinely

shackled with iron and other metal restraints in

the jail infirmary; several detainees bore scars

on their wrists and legs as a result of such

treatment.

Cc.

Centuries ago, Blackstone observed that

during the “dubious interval” between arrest and

conviction,

- 16 -

a prisoner ought to be used with the utmost

humanity, and neither be loaded with needless

fetters, or subjected to other hardships than

—_—_

ee

—

purpose of confinement only...

4 W. Blackstone, Commentaries 300. But Black-

stone also despaired that jailers would not heed

this caution. Id.

At issue in this case are not the physical

conditions of .the new Metropolitan Correctional

Center, but the manner in which that jail is

operated to impose "needless fetters" upon uncon-

victed citizens. One district court prophetically

observed that

if a beautiful brand new jail were built, and

Operated the way the present jail is operated,

there would be little improvement in the

difficulties at first, and what improvement

there was would very rapidly disappear.

Jones v. Wittenberg, 330 F.Supp. 707, 712 (N.D.

Ohio 1971), aff'd sub nom. Jones v. Metzger,

456 F.2d 854 (6th Cir. 1972). Here we have a

“brand new jail," but one which is operated

in an unduly restrictive manner. Detainees are

crammed two to a cell, where they mst urinate and

defecate in the close physical presence of one

another. They are forced to undergo humiliating

body cavity searches, accompanied by sadistic and

abusive remarks of the guards, even though less

el le

- 17 -

intrusive security measures would suffice. They

may not observe the searching of their cells, even

though the officers have been known to mishandle

their limited collection of personal property.

They may not receive packages from home, even

though many other correctional systems routinely

permit receipt of such packages without incident.

And, until the Bureau of Prisons abandoned for the

most part the “publisher only" rule (Brief for

Petitioners, p. 69), they could not receive books

or magazines from home despite nearly a score of

court decisions which have invalidated that

retriction throughout the country without untoward

cosulte.’

Petitioners ask this Court to approve these

restrictions by blind deference to the fiat

of jailers, in the name of “security.” but

"almost any deprivation can be explained or

defended by the justification that it improves the

security of a jail or prison." Feeley v. Sampson,

570 F.2d 364, 380 (lst Cir. 1978) (Coffin, C.J.,

4/ The latter two practices are particularly

onerous for impecunious detainees who often cannot

afford to purchase items from the commissary or

new books from publishers and bookstores.

——EE

- 18 -

dissenting). Especially where the restrictions in

question have been successfully abandoned at

numerous other facilities without adverse conse-

quence, courts "should reject the unsubstantiated

view of prison authorities that [a] privilege is

a security risk." 14.2/

In fact, the practices enjoined in this case

are no more necessary to security than those found

to be umreasonable in the cases discussed above.

This "necessity" results solely from the reluc-

tance of the jailer to adopt procedures that are

less convenient for him. Packages can be inspect-

ed before their contents are handed over to

detainees. Visiting can be made secure by vigi-

lent monitoring of the visit -- which already

takes place in full view of institutional offi-

cials, United States ex rel. Wolfish v. Levi,

439 F.Supp. 114, 147 (S.D.N.Y. 1977) -= combined

with careful searches of visitors and the exten-

Sive strip searches of the detainee approved by

the district court. Id. at 148. These surely

5/ Although Chief Judge Coffin's words were

written in dissent, they reflect the view of a

Majority of the three active judges of the First

Circuit. Circuit Judge Bownes was not a member of

the Feeley panel because he had decided the case

as a district judge.

@ 19.<

suffice to render unnecessary routine use of

dehumanizing anal, vaginal, and testicle searches.

Cells can be examined respectfully yet thoroughly

without barring the detainee from observing.

And, as petitioners now concede, most publications

can be safely allowed into the jail regardless of

their source ©!

Nor should this Court be deterred by the

notion that, although the restrictions enjoined

below are undesirable, petitioners should not

be required to abandon them as a matter of consti-

tutional law. The history of jail reform efforts

6/ The Bureau's reluctance until this late

date to modify the "publishers only" rule with

respect to paperback books is a prime example of

undue emphasis upon administrative concerns.

Obviously, a book can be carefully inspected

before it is given to the detainee. It should

come as no surprise that many of the jailers whose

practices were enjoined in the cases cited above

were also strong adherents to the “publishers

only" rule, and that they abandoned that restric~

tion only by court order. See Collins v. Schoon-

field, supra, 344 F.Supp. at 281; Inmates of

Milwaukee County Jail v. Peterson, supra, 353

F.Supp. at 1168-69; Funchess v. Beame, supra;

Miller v. Carson, supra, Order and Preliminary

Injunction at 15 (Jan. 31, 1975); Manicone v.

Cleary, supra, Slip. op. at 44-48; Marion County

Jail Inmates v. Broderisk, supra, Slip. op. at 7,

15; Owens-El v. Robinson, supra, 442 F.Supp. at

1487-88; O'Bryan v. County of Saginaw, Mich.,

supra, 437 F.Supp. at 600.

- 20 -

in recent years is replete with instances of

unheeded administrative proposals, draft standards

and grand jury reports. See, e.g., Jones v.

Wittenberg, supra, 323 F.Supp. 93, 97 (N.D. Ohio

1971), aff'd sub nom. Jones v. Metzger, 456 F.2d

854, 855-56 (6th Cir. 1972) (reports of several

grand juries, professional groups and civic groups

ignored); Inmates of the Suffolk County Jail v.

Eisenstadt, supra, 360 F.Supp. at 681 (D. Mass.

1973) (seven separate governmental reports unimple-

mented for over a quarter of a century); Rhem v.

Malcolm, 371 F.Supp. 594, 604, 607, 609, 616

(S.D.N.Y. 1974), aff'd, 507 F.2d 333 (2d Cir.

1974) (city failed to adopt numerous recommenda-

tions of its own Board of Correction and Environ-

mental Protection Agency, and of State legislative

committee); Benjamin v. Malcolm, 75 Civ. 3073

(S.D.N.Y. January 6, 1976), Slip. op. at 3 (major

riot caused by overcrowding after city once again

ignored warnings of Board of Correction; court

ordered swift end to double celling). In this very

case, we are told that the much-heralded Draft

Federal Standards for Corrections, which support

- 2] -

respondents’ position on nearly every sou,’ ere

merely “liberal administrative goals" which should

not reflect upon the rationality or necessity of

petitioner's restrictive practices. (Brief for

Petitioners, p. 55 n.43.).

The practices condemned in this case are

degrading, humiliating and totally unnecessary.

In the case of unconvicted pretrial detainees,

“the orphans of criminal jurisprudence,"

Inmates

of the Suffolk County Jail v. Eisenstadt, supra,

360 F.Supp. at 688, that alone should be suffi-

cient to render the practices unconstitutional.

As this Court has held,

a policy of judicial restraint cannot encom-

pass any failure to take cognizance of valid

constitutional claims.... When a prison

regulation or practice offends a fundamental

consitutional guarantee, federal courts will

discharge their duty to protect constitutional

rights.

Procunier v. Martinez, 416 U.S. 396, 405 (1974).

7/ See discussion, infra, n.17 & accompanying

text & n.18.

- 22 -

ARGUMENT

POINT II

THE FEDERAL COURTS HAVE INHERENT POWER

TO CORRECT THE CONDITIONS UNDER WHICH

PERSONS AWAITING TRIAL IN THE FEDERAL

COURTS ARE DETAINED

As noted above, the courts below properly

declined to defer to the “expertise” of the

warders of this Nation's jails. In doing so, they

relied on constitutional principles. But the

rulings below are equally well sustained on other,

non-constitutional ground. Ae the trial judge

aptly noted United States ex rel. Wolfish v.

United States, 428 F.Supp. 333, 340 (S.D.N.Y.

1977), the federal character of the Metropolitan

8/ It is settled practice to avoid a decision of

a constitutional issue if a case can be fairly

decided on another ground.

If there is one doctrine more deeply

rooted than any other in the process of

constitutional adjudication, it is that we

ought not to pass on questions of constitu-

tionality ... unless such adjudication is

unavoidable.

Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105

(1944), cited in University of California Regents

v. Bakke, 438 U.S. » 37 L.Ed.2d 750, 847, 98

S.

J.).

Ct. 2733, (1978) (Opinion of Stevens, .

= 23 -

Correctional Center ("MCC") puts this case in a

different posture than the many cases dealing with

similar practices in state pre-trial detention

facilities.” Inmates at the MCC, which is actually

connected to the courthouse, are, for the most

part, confined there by order of federal district

10/

court judges.— Thus, this case poses the

"still surprising open" question:

9/ At the very least, the strong notions of

federalism that are brought into play in cases

where the federal courts are dealing with state

prisons and pre-trial facilities, see, e.g., Jones

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

126 (1977); Procunier v. Martinez, 416 U.S. 396,

405 (1974), are not relevant to this case.

¢

10/ This distinguisfes the instant case from

prior cases dealing with practices in federal

prisons. The statute specifically provides

that: “A person convicted of an offense against

the United States shall be committed ... to the

custody of the Attorney General of the United

States...." 18 U.S.C. §4082(a) (1976). Thus,

when dealing with issues regarding the conditions

of confinement of convicted persons, the courts

properly display some measure of deference to the

discretion of the executive branch of government.

This case, however, involves pre-trial detainees.

They are not consigned by statute to the custody

of the Attorney General. Compare 18 U.S.C.

$§4001(b)(1) & 4042(1) & (2) (1976) with §4082(a).

They are there solely pursuant to the decisions of

federal judges regarding commitment and admission

to bail.

- 24 -

whether a federal court, confronted by

demands for fair treatment from “its own”

inmates, may not in such a case shoulder

greater responsibilities or, to put it less

demurely, exercise greater powers.

United States ex rel. Wolfish v. Levi, 439

F.Supp. 114, 121 (S.D.N.Y. 1977). It is respect-

fully submitted that the federal courts do possess

such inherent power to correct the conditions of

confinement for persons whom those very same

courts have detained. Such power extends beyond

solely enforcing constitutional minima, but rather

encompasses the power to correct unreasonable

federal detention practices.

From the time that a person charged with a

federal crime is first brought before a federal

judicial officer, he is subject to the jurisdic-

tion of the federal courts. See Miller v. United

States, 6 F.2d 463 (3d Cir. 1925). Control

over a defendant during the period between his

first appearance and trial has long been held to

be a concomitant of the court's power and author-

ity over the case. Thus, it has been said that

the power to admit to bail "is incident to the

power to hear and determine or to commit," Berko-

witz v. Umited States, 90 F.2d 881, 883 (8th Cir.

- 2§ «

1937), and “inherent at the common law." Ewing v.

United States, 240 F. 241, 248 (6th Cir. 1917)

and cases cited therein. See also, Barth v.

Clise, 79 U.S. (12 Wall.) 400, 402 (1871).

Although the power to admit to bail was first

conferred by the Judiciary Act of 1789, the courts

have relied upon this residuum of inherent power

in granting bail in cases falling in the inter-

stices of statutes and rules, see Berkowitz,

supra, and in cases where the statutes are wholly

silent. When the issue was first raised in this

Court seventy-five years ago with regard to the

power of federal courts to grant bail to persons

awaiting extradition, it stated:

We are unwilling to hold that the circuit

courts possess no power in respect of admit-

ting to bail other than as specifically

vested by statute....

Wright v. Henkel, 190 U.S. 40, 63 (1903). Later

cases have so held. See, e.g., In re Gannon, 27

F.2d 362 (E.D. Pa. 1928). Similarly, the general

weight of authority is that in habeas corpus

proceedings federal courts have inherent power to

grant bail. Johnston v. Marsh, 227 F.2d 528 (3rd

Cir. 1955); Principe v. Ault, 62 F.Supp. 279 (N.D.

Ohio 1945) (deportation) and cases cited therein.

But see Bongiovanni v. Ward, 50 F.Supp. 3 (D.

- 26 -

Mass. 1943)(deportation). In habeas too, the

court's power to admit to bail is based on

the fact that there is a prisoner before him

over whom he has jurisdiction and where his

power to act judicially is expressly con-

ferred by statute. That being so, he had the

authority which a court has with regard to

such a case.... In other words, a court has

very wide authority over persons and business

before it. [footnotes omitted].

Johnston, supra, 227 F.2d at 530 .2L/

1l/ This notion of inherent power is not in

conflict with the principle that the inferior

federal courts are courts of limited jurisdiction.

As noted by the court in Johnston:

The statement is often made that the

inferior courts of the United States are

courts of limited jurisdiction. This is

a truism in one sense. The courts are com-

petent to act in such cases, and only such

cases, as the Congress, pursuant to the

Constitution, assigns to them. And unless

constitutional provisions stand in the way,

the assignment may be varied at the will of

Congress. But within the area of activity

assigned to them, Federal courts are courts

of full stature, and we may right _y look

to common law concepts and precedents to see

the scope of the implied or “inherent”

authority which the judicial office carries

with it.

- 27 «

The inherent power of courts to act upon

persons brought within their jurisdiction has been

recognized in other contexts as well. The power

of a court to admit a person to bail is not spent

once a decision to admit or remand is made. The

courts are further empowered to affect and control

the behavior of the bailee, still within its

1l/ Cont'd.

Johnston v. Marsh, 227 F.2d 528, 530 (3rd Cir.

1955), citing In re Gannon, supra, 27 F.2d 362

(E.D. Pa. 1928). In Gannon, the court expressed

it thus:

The "judicial power" is conferred by the

Constitution upon the courts of the United

States. The framers of the Constitution were

familiar with common-law concepts and the

words and phrases employed by common-law

lawyers. The words chosed are "courts" and

"judicial power." Whatever else may be said

of the jurisdictional authority (in the power

sense) of the judiciary, the meaning of

the words and phrases used must be sought for

in the literature of what we call the common-

law. Courts cannot function without the use

of process....

Id. at 363.

Here, the district court was exercising only

Statutorily granted jurisdiction; it was sitting

to hear a petition for a writ of habeas corpus.

28 U.S.C. §2241 (1976).

- 28 -

jurisdiction, by placing conditions on his bail.

Today this is done pursuant to specific statutory

authority. 18 U.S.C. §3146(a) (1976). However, as

noted by one court of appeals in upholding the

constitutionality of §3146, there is little

doubt that

the course of the common law in England

and the development of the common law and

statutory law in the United States demon-

strate that the courts have the inherent

power to place restrictive conditions upon

the granting of bail.

United States v. Smith, 444 F.2d 61, 62 (8th Cir.

1971). And, by rule, this Court has recognized

the existence of the courts’ power over the

individual during the pre-trial period even while

detained. Fed. R.Crim.P. 46(g) provides that:

The court shall exercise supervision over the

detention of defendants and witnesses within

the district pending trial for the purpose

of eliminating unnecessary detention.

Thus, it is well established that the courts

have extensive authority, both statutory and

inherent, over persons within their jurisdiction

either awaiting trial or on writ of habeas corpus.

This power is best typified by the power to admit

to bail or to condition bail. But the power to

admit to bail, if not the stepchild of the power

- 29 -

to commit (see Berkowitz, supra), is no more than

the flip side of that power. Both the power to

commit and the power to grant bail proceed from

the authority of the court over the person within

its jurisdiction; both powers are exercised for

the same purpose:

[T]he court must enforce the attendance of the

prisoner in some way, and we see no dif-

ference (again in the power sense) between

one form of compulsion and another. The only

difference is, as we have said, that one

form acts upon his body; the other upon his

will. |

In re Gannon, supra, 27 F.2d at 363. Both powers

affect the defendant awaiting trial in the same

way. Conditions at a detention facility are to

the detainee what bail conditions are to those

at liberty pending trial; both affect liberty of

movement and quality of life. Thus, the power

to commit a defendant, and to place conditions

upon his confinement, must be equally broad and

similarly based.

In sum, the district courts, having jurisdic-

tion over the person of the accused, have the

power inherent in that authority to control his

disposition pending trial. They ma, admit him

to bail; they may allow bail on conditions. They

- 3% -

way bail him during the daytime, remanding

him into custody at night. See 18 U.S.C. §3146(a)

(5) (1976). They may remand him into custody

pending trial; they may commit him with conditions.

Given that, it is, at the very least, anamolous to

say that they cannot act to correct conditions of

confinement that are intolerable or unduly restric-

tive .22/

Put another way, pre-trial detainees are in

confinement pursuant to the process of the dis-

12/ Any other conclusion would lead to results

that could often be as undesirable as they are

anamolous. Since federal judges have unquestioned

power to dispose of defendants prior to trial

in the various ways just enumerated in the text, a

federal judge who found the conditions of pre-

trial detention in his district intolerable

could in effect regulate those conditions through

his power to bail or commit. He could condition

his commitment orders or, in the alternative,

grant lower bail.

Recognizing the inherent power of the dis-

trict courts to directly rule on the conditions of

pre-trial detention as in a case like this one has

the obvious advantages of manageability, uniformity

of result, and reviewability.

» 31 <« ¢

trict court, pursuant to its specific order of

commitment or its order of commitment if the

defendant fails to make bail or observe its

conditions. This Court has long recognized that

federal courts have inherent authority to police

those federal agents that act pursuant to its

process. Thus, in Rea v. United States, 350 U.S.

214 (1956), this Court held that when a federal

agent obtained a search warrant in violation

of the requirements of Fed.R.Crim.P. 41, the

district court had inherent authority to enjoin

the agent from testifying in state court about the

contraband he found pursuant to that warrant. The

Court held that the federal agent, having com-

mitted an “abuse of process issued by a United

States Commissioner ...," was subject to the

“supervisory powers over federal law enforcement

agencies." Id. at 216-217. Similarly, in Wise v.

Henkel, 220 U.S. 556 (1911), this Court relied on

a federal court's inherent authority to police the

execution of its processes. There, a district

attorney was ordered to return certain books and

papers to the owners. These items had been

seized in the course of an arrest made pursuant to

- 32 -

a federal warrant. The district attorney refused

and was jailed for contempt. His writ of habeas

corpus was discharged; he appealed to the Supreme

Court. This Court held that it had no jurisdic-

tion to hear the appeal because, under §5 of the

Judiciary Act of 1891, it only had jurisdiction to

hear the appeal if it concerned a question "in-

volving the construction or application of the

Constitution of the United States." Here, it

ruled, the district attorney's confinement was not

as a result of the district court's ruling on a

constitutional issue. Rather, the power of the

district court to order the return of the items

seized was

wholly irrespective of whether there was a

constitutional right to exact the return

of the books and papers. That is to say,

it was within the power of the court to

take jurisdiction of the subject of the

return, and pass upon it, as a result of its

inherent authority to consider and decide

questions arising before it concerning an

alleged unreasonable exertion of authority in

connection with the execution of the process

of the court.

Id. at 58 A3/

13/ As has been recently reemphasized, similar

power is legislatively conferred. In United

States v. New York Telephone Co., 434 U.S. 159

(1977), it was noted that:

- ee ee

- 33 <-

Here too, the power of the district court to

order the discontinuation of the intolerable

practices at issue in this case is "wholly

irrespective of whether there [is] a constitu-

tional right to exact" such changes. Here,

as in Wise, it was within the power of the dis-

trict court to take jurisdiction over the de-

tainees confined to the MCC pursuant to judicial

process and pass on the “unreasonable exertion of

authority" represented by the practices that it

found to induce "threat, nausea, and degradation

foul odors, social stigma, humiliation and

denials of minimal privacy....," 428 F.Supp. at

13/ Cont'd.

This Court has repeatedly recognized the

power of a federal court to issue such

commands under the All Writs Act as may be

necessary or appropriate to effectuate and

prevent the frustration of orders it has

previously issued in its exercise of jurisdic-

tion otherwise obtained.

Id. at 172. The Court futher noted that the Act

is a “legislatively approved source of procedural

instruments designed to achieve the ‘rational ends

of law....,'" and that the court may use such

writs in aid of its jurisdiction "when the use of

such historic aids is calculated in its sound

judgment to achieve the ends of justice entrusted

to it." Id. at 172-173. (citations omitted).

- %-

339 (double celling); to be “a vital source of

tension and hostility ...," "a blunt oppres-

sion...," and a violation of even "minimal dignity

.," 439 F.Supp. at 149 (searches performed

without the presence of the detainee); and to be

“unpleasant, embarrassing, and humiliating

plungl[ing] the reaction to a level of deep degrada-

tion and submission ...," as well as ineffective.

439 F.Supp. at 146-147 (body cavity searches).

More unreasonable exertions of authority by

federal law enforcement personnel -- pre-trial

detainees being in the immediate custody of the

Bureau of Prisons acting for the Attorney General,

18 U.S.C §§4001 & 4042 (1976) -=- in connection

with the execution of the process of the court

could hardly be imagined, nor the inherent author-

ity of the district court to act more plainly

put.

13/ Cont'd.

In New York Telephone, supra, the Court held

that federal courts can compel third parties to

aid in the implementation of the process previ-

ously issued by the court. Here, the question is

only one of the court's power to restrain federal

agents in the overzealous execution of the courts’

commitment orders.

- 35 -

In the instant case, the authority of the

court is more firmly based than in Wise. The

class of petitioners in the suit before the

district court are, for the most part, pre-trial

detainees still within the jurisdict on and power

of the United States District Court for the

Southern District of New York. Since this action

was commenced and maintained on a writ of habeas

corpus, Wolfish v. Levi, 573 F.2d 118, 122 (2d

Cir. 1978), the petitioners were also within the

jurisdiction of the district court sitting to

decide the petition. The authority this power

over the body of the petitioner comprehends,

includes more than just the power to release the

prisoner or remand him, or to admit him to bail

pending that decision. It also includes the

power

to dispose of the party "as law and justice

require." [28 U.S.C. §2243 (1976)]. The

Judge is not limited to a simple remand

or discharge of the prisoner, but he may

remand with directions that the prisoner's

retained civil rights be respected....

Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir.

1944). Thus, the district court sitting as a

habeas court could inquire into and redress claims

concerning conditions of confinement. Johnson v.

- 36 -

Avery, 393 U.S 483 (1969); Williams v. Richardson,

481 F.2d 358 (8th Cir. 1973); Mead v. Parker, 464

F.2d 1108 (9th Cir. 1972); Armstrong v. Cardwell,

457 F.2d 34 (6th Cir. 1972); Coffin, supra.t~/

And, it was not limited to dealing with only

14/ But see Perez, v. Turner, 462 F.2d 1056 (10th

,Cir.1972), cert. denied, 410 U.S. 944 (1973).

«presented a habeas challenge to the conditions

of his confinement. The court held that it could

not release a dangerous criminal because of the

conditions of his confinement. See generally,

Developments in the Law: Federal Habeas Corpus, 83

Harv. L. Rev. 1038 (1970).

Several state courts, following Coffin's

Perez

lead, have indicated that state habeas corpus

procedures are available to challenge conditions

of confinement. In re Riddle, 57 Cal.2d 848, 372

P.2d 316, 22 Cal.R. 472, cert. denied, 371 U.S.

914 (1962); Im re Jones, 57 Cal.2d 860, 372 P.2d

310, 22 Cal.R. 478 (1962); Mehafey v. State,

87 Idaho 228, 392 P.2d 279 (1964); Lavier v.

Kansas, 209 Kan. 442, 497 P.2d 265 (1972); Com.

ex rel. Bryant v. Hendricks, 144 Pa. 83, 280 A.2d

110 (1971); State ex rel. Cole v. Tahash, 269

Minn. 1, 129 N.W.2d 903 (1964); Rogers v. Warden,

Nevada State Prison, 84 Nev. 534, 445 P.2d 28

(1968); People ex rel. Brown v. Johnson, 9 N.Y.2d

482, 215 N.Y.S.2d 44, 174 N.E.2d 725 (1961);

Grinfell v. Gladden, 241 Ore. 190, 405 P.2d 532

(1965), cert. denied, 382 U.S. 988 (1966); Hughes

v. Turner, 14 U.2d 128, 378 P.2d 888 (1963); State

ex rel. Pingley v. Coiner, W. Va. , 186

S.E.2d 220 (1972). Contra, Saia v. Warden of

Conn. State Prison, 25 Conn.Sup. 549, 209 A.2d

320 (1964); State v. McCray,267 Md. 111, 297 A.2d

265 (1972).

=» 37 «

constitutional claims. Unlike a petition for a

writ of habeas corpus made by a state prisoner, a

petititon from a federal prisoner need not raise

federal constitutional or statutory issues.

Compare B U.S.C. §2254(a) with §2241 (c) (1) &

(2) (1976). Thus, upon habeas from federal

custody, the court may "dispose of the matter as

law and justice require." 28 U.S.C. §2243 (1976).

Here, then, the authority of a federal

criminal court, of a court acting upon a petition

for a writ of habeas corpus, and of a court to

police the execution of its processes forms a

unique coalescence. Thus, for all these reasons,

the inherent authority so clearly recognized by

this Court in Wise, is, in this case, even more

firmly based. As in Wise, “wholly irrespective"

of the constitutional issue, the rulings of the

courts below striking down “unreasonable exer-

tion[s] of authority" should be affirmed.

POINT III

THE PRACTICES OF THE MCC AT ISSUE IN THIS

CASE WERE PROPERLY ENJOINED SINCE THEY

VIOLATED THE DEFENDANTS’ STATUTORY DUTY TO

"PROVIDE SUITABLE QUARTERS" FOR PRE-TRIAL

DETAINEES

The Attorney General is charged with the

management and control of all Federal correc-

- 38 -

tional and penal institutions and has an affirma-

tive duty to “promulgate rules for the government

thereof." 18 U.S.C. $4001(b)(1) (1976). Under his

direction, the Bureau of Prisons is charged with

the direct management of such institutions and

with the duty to “provide suitable quarters

for ... all persons charged with or convicted of

offenses against the United States." 18 U.S.C.

§4042(1) & (2) (1976). These duties provide sound

statutory grounds for affirming the rulings below.

The findings made by the district court judge

amply support the conclusion that the conditions

at and the practices of the MCC do not comport

with the duty of the Bureau as the agent of the

Attorney General to provide suitable quarters

for pre-trial detainees.

Although all of the issues presented on this

appeal were decided on constitutional grounds, the

statutory issue was raised below. The district

court discussed both the statutory duties noted

above and the reviewability of the Bureau's deci-

sions and practices generally under the Adminis-

trative Procedure Act under the “arbitrary and

- 39 -

capricious” standard of 5 U.S.C. §706 (1976).

United States ex rel Wolfish v. Levi, 439 F.Supp.

114, 122-124 (S.D.N.¥. 1977). ‘The district court

further noted that: "What is ‘arbitrary’, 'caprici-

ous,’ ... may at once, and indistinguishably,

violate constitutional as well as statutory

rights." Id. at 124. Accordingly, it only ex-

plicitly relied on statutory grounds on a few

minor issues, not here on review, that the court

of appeals characterized as “administrative

matters ... committed to agency discretion."

Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.

1978). Thus, neither of the courts below dis-

cussed the possible statutory bases for the

rulings now before this Court.

The court of appeals did not decide the

question whether actions of the Bureau of Prisons

are reviewable under the Administrative Procedure

Act. Id. at 125 .23/ However, it is immaterial

whether the statutory issue be reached by way of

the APA; by way of implying a right from the

15/ Indeed, there is contradictory authority on

this issue. Compare Ramer v. Saxbe, 522 F.2d 695

(D.C. Cir. 1975), with Clardy v. Levi, 545

F.2d 1241 (9th Cir. 1976).

- 40 -

statutes themselves, as suggested by the district

court, 439 F.Supp. at 122 (citing J. I Case v.

Borak, 377 U.S. 426 (1964); or by way of the

court's responsibility, in ruling on the petition

for a writ of habeas corpus, to look to the

relevant statutory provision in order to "dispose

of the matter as law and justice require." 28

U.S.C. §2243 (1976). Under any theory, then, the

statutory issue must be reached, and it provides a

sound basis for the rulings below.

Even if it is assumed, arguendo, that the

determination of what are suitable quarters is

itself consigned to the discretion of the Attorney

General, Cf. Morgan v. Willingham, 424 F.2d 200,

) 18/ the

201 (10th Cir. 1970) (convicted prisoners

court's rulings would still be sustainable

on statutory grounds.

Under the direction of the Attorney General,

a Department of Justice Task Force has prepared a

set of Draft Federal Standards for Corrections.

These standards represent the result of a year

long process participated in by representatives

16/ But see discussion, supra, n.1lc.

- 4] -

of the Bureau, the LEAA, and other divisions of

the Justice Department. The preface to the

standards declares that they “provide guidelines

for the decent and humane operation of our

country's corrections and detention facilities..."

and that:

(I]t is the intention of the Department of

Justice to use these standards as a basis

for evaluating its own correctional programs

and policies ... [and] to ask the Director

of the Bureau of Prisons to submit a plan,

which delineates each standard that is

mot currently met, the resources and steps

which will be necessary to meet it, and a

reasonable timetable for its accomplishment.

Federal Standards for Corrections [Draft], U.S.

Department of Justice at 2. These standards

specifically prohibit the practices ‘at issue in

this case: double-celling, routine . body cavity

searches, the publisher only rule, and the ban on

17/

packages .—

17/ The relevant sections provide:

PHYSICAL PLANT

002 All cells and detention rooms rated

for single occupancy house only one

inmate. [emphasis added].

-

- 42 -

If these standards had been adopted, there

would be little doubt that the Attorney General

17/ Cont'd.

004

005

Single rooms or cells have at least

60 square feet of floor space.

Where inmates spend more than 10

hours per day in the room or cell,

there is at least 70 square feet of

floor space in detention facilities

[emphasis in original].

Multiple occupancy cells house no

more than 16 inmates, with a

minimum of 60 square feet of floor

space per inmate in the sleepin

area (excluding activity ny

[emphasis added].

SECURITY AND CONTROL

013

..-Whenever body searches are

required, staff personnel avoid

unnecessary force and strive to

preserve the dignity and integrity

of the inmate.

Discussion: The facility's search plans

and procedures should include:

Equally important, the search plan

should include:

should be bound by them. Cf. Accardi v. Shaugh-

nessy, 347 U.S. 260 (1954). Even when agency

17/ + Cont'd.

Use of nonintrusive sensors and

other techniques instead of

body searches whenever fea-

sible;

Manual or instrument inspec-

tion of body cavities only

where there is probable cause

and where authorized by the

chief executive officer, con-

ducted by a medically trained

person;

Visual inspection of body cavi-

ties, only where there is

real suspicion, conducted by

trained staff in an area within

the facility designed to assure

the greatest possible privacy to

the inmate. Real suspicion may

be created ... by the surround-

ing circumstances -- for

example, ... any re-entry into

general population in a secure

facility from a visiting room

where there is contact visiting

that is not constantly monitored

[emphasis added}

MAIL AND VISITING

002

There is no limit on the volume of

mail an inmate may send or receive,

or on the length, language, content

Or source of such mai: or publica-

@ 64 «

determinations are not yet made official

regulations but are intended to be binding on

subsidiary agencies they may be enforced by

the courts. See Thorpe v. Housing Authority of

17/ Cont'd.

tions, except where there is

clear and convincing evidence to

justify such limitations. [emphasis

added].

Discussion: Inmates may receive books

and other publications from sources

other than publishers. Such

correspondence, as well as other

packages, are subject to all

searches and inspection requirements.

[emphasis added].

Draft Standards at 10, 36-37, 63.

The double bunking of pre-trial detainees in

rooms of 75 square feet designed for one, ob-

viously violates the above quoted standards.

Similarly, the standards specifically reject the

publisher only rule and envision the receipt of

packages. The conduct of routine body cavity

searches after visits where "the inmates and their

visitors are in full view during the visits and

fully clad...," Umited States ex rel. Wolfish, v.

Levi, 439 F.Supp. 114, 147 (S.D.N.Y. 1977), would

also violate the above standards. It should be

noted that the court of appeals upheld the

MCC regulataon requiring inmates to wear govern-

- 65 -

Durham, 393 U.S. 268 (1969). Awaiting adop-

18/

tion,— these standards still express the

17/ “Cont'd.

ment issued jumpsuits. Wolfish v. Levi, 573

F.2d 118, 132-133 (2d Cir. 1978). In McGoff v.

Rapone, 78 F.R.D. & (E.D. Pa. 1978), the court,

based on expert testimony, found that the use of

jumpsuits “would reduce greatly the chance of

prisoners carrying weapons ... as well as facili-

tate the detection of contraband." Id. at 17.

There is test imoay in the record in this case that

the use of jumpsuits makes it difficult if not

impossible to secrete contraband in the anus.

(App. 45).

18/ In all candor, it should be noted that the

pendency of this appeal is probably related

to the delay in the adoption of these standards.

It has been reported that:

Justice Depatment official are being

curiously mute about the current status of

the correctional standards they proposed last

spring.

One complicating factor is that the

department is defending itself in a law

suit (Bell v. Wolfish) against the federal

Metropolitan Correctional Center in New

York City. In a writ for appeal of federal

Judge Marvin Frankel's decision in that case

the department seemed to argue against some

of the very requirements included in its

own draft standards.

- 66 -

considered opinion of the Attorney General and his

staff, after a year of study, on exactly what are

"suitable quarters” for convicted prisoners and

pre-trial detainees. Thus, even if the determina-

tion of what are suitable quarters were wholly

within the discretion of the Attorney General, he

has already expressed his expert determination.

No more extensive or considered procedure is in

the offing. In Gulf States Utilities v. Federal

Power Commission, 411 U.S. 747 (1973), the

Court remanded for reconsideration the Federal

Power Commission's decision to allow a public

utility to issue certain bonds. The Court held

that in exercising its expertise in ruling

that the bond issue was in "the public interest"

under §204 of the Federal Power Act, 16 U.S.C.

§824c (1976), the FPC was required to consider the

"fundamental national economic policy" expressed

in another statute, the antitrust laws. Id. at

759. Here, in considering the exercise of the

Attorney General's discretion and expertise

in determining what are “suitable quarters," the

Court need only look to the Attorney General's

own expressions and determinations.

18/ Cont'd.

Criminal Justice Newsletter, Vol. 9, No. 23, at 4

(Nov. 20, 1978).

CONCLUSION

For the foregoing reasons the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

JACK GREENBERG

JAMES M. NABRIT, LII

JOEL BERGER

BETH J. LIEF

STEVEN L. WINTER

Suite 2030

10 Columbus Circle

New York, New York 10019

Attorneys for Amicus Curiae