Amicus Brief — Bell v. Wolfish
Supreme Court brief1979
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Supreme Court of the United
OCTOBER TERM, 1978
No. 77-1829
GRIFFIN B. BELL, ef al.
Petitioners,
LOUIS WOLFISH, ef ai.,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF OF THE NATIONAL PRISON PROJECT
OF THE AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, AS AMICUS CURIAE
EDWARD I. KOREN
RALPH I. KNOWLES, JR.
MATTHEW L. MYERS
ALVIN J. BRONSTEIN
National Prison Project
American Civil Liberties Union
Foundation
’ 1346 Connecticut Avenue, N.W.
Suite 1031
— Washington, D.C. 20036
~ ewe I. (202) 331-0500
Attorneys for Amicus Curiae
(i)
TABLE OF CONTENTS
STATEMENT OF INTEREST
SUMMARY OF ARGUMENT
ARGUMENT .
THE UNITED STATES’ POSITION IN THIS
CASE IGNORES THE HISTORICAL AND
LEGAL DEVELOPMENTS WITH RESPECT
TO THE STANDARD OF REVIEW OF THE
CONDITIONS OF CONFINEMENT OF PRE-
TRIAL DETAINEES OVER THE LAST
DECADE
A. The Background to Litigation Involving the
Conditions of Confinement of Pre-Trial
Detention .
B. From Legal Developments During the Last
Decade Has Emerged the Recognition of a
Standard to Determine the Constitutional
Adequacy of Conditions of Confinement
for Pre-Trial Detainees .
C. The Results of these Legal Developments
Have Been Encouraging and this Court
Should Not Impede Those Efforts Pre-
maturely ; non 48
THE OPINION AND JUDGMENT OF THE
SECOND CIRCUIT COURT OF APPEALS
PROVIDE NO SPECIAL AND IMPORTANT
REASONS FOR REVIEW BY THIS COURT
AS REQUIRED BY RULE 19 AND THE WRIT
OF CERTIORARI SHOULD THEREFORE BE
DISMISSED AS IMPROVIDENTLY GRANTED
~vs-
10
16
22
ian chattel a
(ii)
A. The Standard of Review Recognized by the
Court of Appeals Is Deeply Rooted in Amer-
ican Jurisprudence And Is Recognized By
Other Courts . Dem ae < 22
B. The Specific Holdings of the Court Below
Challenged by the Government Are Consis-
tent With All Recognized Professional Stan-
dards And This Is Not An Appropriate Case
In Which To Challenge The Constitutional
Standard To Be Applied to Conditions of
Confinement for Pre-Trial Detainees . . . . - - 2
CONCLUSION ... 2.252622 ee ee ees BB
CITATIONS
Cases:
Ahrens v. Thomas,
434 F Supp. 873 (W.D. Mo. 1977),
aff'd, 570 F.2d 286 (8th Cir. ee ee 13
Anderson v. Nosser,
438 F.2d 183(SthCir.1971) . . - - - ee © we BS
Battle v. Anderson,
376 F.Supp. 402 (E.D.Okla. 1974),
aff'd, 564 F.2d 388 (10th Cir.1977) . . . . .2, 3, 26, 33, 34
Bono v. Saxbe,
450 F.Supp. 934(E.D1. 1978). . . . . . «ss 2
Bounds v. Smith,
490US.817(1977) . . . . 2 2 © © © © © © 12,21
Brenneman v. Madigan,
343 F.Supp. 128(N.D.Cal.1972) . . . . . . +. ++ 14
(iii)
Campbell v. McGruder,
416 F. Supp. 100(D.D.C. 1975),
aff'd, 580 F.2d 521(D.C.Cir.1978) . . . ... 14, 24, 25
Clonce v. Richardson,
379 F Supp. 338 (W.D.Mo. 1974) . . . . . 2. «ss 2
Coffin v. United States,
iE »« ¢ « «© # 6's s © 6% 6% 12
Collins v. Schoonfield,
344 F Supp. 257(D.Md.1972) . . . . . . swe 18
Conklin v. Hancock,
334 F.Supp. 1119(D.N.H.1971) . 2. . . «ww 27
Cooper v. Pate,
re 3 «iy sp ws @ oe a 84
Costello v. Wainright,
397 F. Supp. 20 (M.D. Fla. 1975),
rev'd on other grounds, 539 F.2d 547
(Sth Cir. 1976), rev'd, 430 US. 325
iy i ea a ee ae a
DiMarzo v. Cahill,
575 F.2d 15 (1st Cir. 1978), cert.
den. sub nom., Hall vy. DiMarzo, ___
US. _,47 US.L.W.3295(1978) . . .. . . 2,26,27
Duran v. Elrod,
$42 F.2d998(7thCir.1976) ...... +--+ B
Estelle v. Williams,
Q2GUS.SUOCIOMM .. 2 - we eee ew pees 12
Feeley v. Sampson,
570 F.2d 364(ist Cir.1978). . . . . - - + + + 26,27
(iv)
Finney v. Arkansas Board of Corrections,
$05 F.2d 194 (8th Cir. 1974)
French v. Owens,
CA #75-677-C (S.D.Ind. Sept. 11, 1978) .
Gates v. Collier,
390 F.Supp. 482 (N.D.Miss. 1975) .
Goldberg v. Kelly,
397 US. 254 (1969)
Griffin v. Illinois,
351 U.S. 12 (1956) .
Guajardo v. Estelle,
432 F.Supp. 1373 (S.D.Tex. 1977),
rev'd in part, 580 F.2d 748 (Sth Cir. 1978) .
Hamilton v. Love,
328 F.Supp. 1182 (E.D. Ark. 1977)
Hamilton v. Schiro,
338 F.Supp. 1016(E.D.La. 1970) .
Holland v. Donelson,
Civ. Action #71-1442-8C (E.D.La. 1973) .
Houchins v. KQED, Inc.,
__ US. ___, 98 S.Ct. 2588 (1978)
Ingraham v. Wright,
430 U.S. 651 (1977)
Inmates o D.C. Jail v. Jackson,
416 F.Supp. 119 (D.D.C. 1976), aff'd
in substance, No. 75-1668 (D.C.Cir.
June 5, 1978) . —_
Inmates of San Diego County Jail v. Duffy,
528 F.2d 954 (9th Cir. 1975)
26
34
26
26
13, 23
18
18
12
12
14, 26
(v)
Inmates of Suffolk County Jail v. Eisenstadt,
360 F. Supp. 676 (D.Mass. 1973), aff'd,
494 F.2d 1196 (ist Cir. 1974)
In Re Winship,
397 U.S. 358 (1970)
Jones v. Wittenberg,
323 F.Supp. 93 (N.D.Ohio 1971),
aff'd sub nom., Jones v. Metzger,
456 F.2d 854 (6th Cir. 1972)
McGinnis v. Royster,
410 US. 263 (1973)
Meachum v. Fano,
427 US. 215 (1976)
Miller v. Carson,
401 F.Supp. 835 (M.D. Fla. 1975),
aff'd 563 F.2d 741 (Sth Cir. 1977) .
Monroe v. Pape,
363 US. 167 (1961)
Montanye v. Haymes,
427 US. 236 (1976)
Morrissey v. Brewer,
408 U.S. 471 (1972)
Palmigiano v. Garrahy,
443 F.Supp. 956(D.R.1. 1977) .
Patterson v. Morrisette,
564 F.2d 1109 (4th Cir. 1977)
Pell v. Procunier,
417 US. 817 (1974)
13
12
, ae
12
12
13, 24, 26
2,19, 20
13, 26
(vi)
Procunier v. Martinez,
416 US. 396 (1974)
Procunier v. Navarette,
___ US. __, 98 S.Ct. 855 (1977)
Pugh v. Locke,
406 F.Supp. 318 (M.D.Ala. 1976),
aff'd in substance, sub nom., New-
man v. Alabama, 559 F.2d 283 (Sth
Cir. 1977), cert. denied in relevant
part, sub nom., Alabama v. Pugh,
___ US. __, 98 S.Ct. 3057 (1978)
Pugh v. Rainwater,
§57 F.2d 1189 (Sth Cir. 1977)
Rhem v. Malcolm,
371 F.Supp. 594 (S.D.N Y. 1974),
aff'd, 507 F.2d 333 (2nd Cir. 1974)
Smith v. Sampson,
349 F.Supp. 268 (D.N.H. 1972) .
Smith v. Shimp,
§62 F.2d 423 (7th Cir. 1977)
Stack v. Boyle,
342 US. 1 (1951)
Taylor v. Perini,
413 F.Supp. 189 (N.D.Ohio 1976);
421 F.Supp. 740 (N.D.Ohio 1976);
431 F.Supp. 566 (N.D.Ohio 1977);
F.Supp. 1184 (N.D.Ohio 1977);
upp. 1241 (N.D.Ohio 1978)
45
Taylor v. Sterrett,
§32 F.2d 462 (Sth Cir.
_ ara
- 7,13, 24
4, 7, 12, 13, 23,
24, 26, 27
27
26
12
20, 21
24
(vii)
Trigg v. Blanton,
No. A-6047, Memorandum Opinion
(Chancery Court, Davidson County,
Tennessee, August 23, 1978) .
United States ex rel Tyrrell v. Speaker,
535 F.2d 823 (3rd Cir. 1976)
Vest v. Lubbock County Commissioners
Court, 444 F.Supp. 824 (N.D.Tex. 1977) .
Watson v. City of Memphis,
373 US. 526 (1963)
Wolff v. McDonnell,
418 US. 539 (1974)
Wolfish v. Levi,
428 F.Supp. 333 (S.D.N.Y. 1977), 439
F Supp. 114 (S.D.N.Y. 1977), aff'd in
part and remanded in part, 573 F.2d i118
(2nd Cir. 1978), cert. granted sub nom.
Bellv. Wolfish, US. ,99S.Ct.
76(1978) . oa
Standards:
American Bar Association,
Tentative Draft of Standards Relating to
the Legal Status of Prisoners, 14 Amer.
Crim. L. Rev. 1 (1977) .
American Correctional Association,
Manual of Correctional Standards (1966) .
American Correctional Association,
Manual of Standards for Adult Local
Detention Facilities (1977)
. 13, 26
16
26
23, 24
15, 32
14
. 9, 14, 22, 31
(viii) , (x)
' ’
American Public Health Association, Burger, Warren E., Address of the Chief Justice,
Standards for Health Services in Correc- Proceedings of the National Conference on
tional Institutions(1976) . . . . . . . - se ss 382 Corrections, Williamsburg, Virginia,
PEECTnE -2-% «6 © 6 © ¢ 6 &@ s eee F
National Advisory Commission on Criminal
Justice Standards and Goals, Corrections Carlson, N., The Law and Corrections,
ek tte ae ke eee 6 U. San Fran. L. Rev. 77(1971) . . . ......7
National Sheriffs’ Association, Handbooks on Carlson, N., Corrections in the United States
Inmate Rights; Jail Architecture; Jail Security, Today, 13 Amer. Crim. L. Rev. 635(1976) . . . . . 17
ificati iscipli ik ea +e ee
Classification and Discipline (1974) Comment, /ncarcerating the Innocent,
New York City Board of Correction, Minimum 21 Buff. L. Rev. 891(1972) . . ........ #7
Standards for New York City Correctional
a ne ee ke Davis v. Montgomery County Jail, Civ. No. 76-205-N,
(Trial Memorandum, November 16,1977) . . . 15, 16,33
New York State Division of Criminal Justice
Services Correction Standards andGoals(1977) . . . 32,33 DeBeaumont, G., and DeTocqueville, A., On the Peni-
tentiary System in the United States and Its Appli-
United States Department of Justice, cation in France, (Carey, Lea & Blanchard, Phila-
Draft Federal Standards for Correctio delphia, 1833), Reprinted by A. Kelley (New York
(June 1978) 2... ee ee ee ee + 22,29, 30 _.. See a ae oe ee ee ee 11
Freed and Wald, Bail in the United States: A Report to
Other Authorities: the National Conference on Bail and Criminal Jus-
aa 64 ke ee ee eke et ee eae YG
Adams v. Mathis,
No. CA-74-70-S (Trial Memorandum, Goldfarb, R., Jails, (Anchor Press, 1976). . . . . . - 9
M.D.Ala. February 14,1977). . . . - - - + + + 16,33
Harris and Spiller, After Decision: Implementation
Alexander, M., Jail Administration, of Judicial Decrees in Correctional Settings,
(Charles Thomas, Springfield, Illinois, 1957). - -'. . 7 (United States Government Printing Office,
te. & ¢ vie ¢ 2% * 6 8, a. oe ES
American Law Institute,
Model Penal Law,(1962) . - . - - © © «© + © + IS Letter of Minnesota Corrections Commissioner
Kenneth Schoen, Civil Liberties Review,
Blackstone, Book IV, 337(1765) . ...... +... 10 (January-Febraury 1978) . . . . ...... 17
Breed, A., First Annual Report of Court McGee, R., Our Sick Jails, 35 Fed. Prob. 3
Appointed Special Master in Palmigiano : PC. . 6+ es 6s 6 * « @- # eo ee J
a ne
> @&
Mattick, H., “The Contemporary Jails in the United
States,” Handbook on Criminology, ed. Glaser
(Rand McNally: Chicago 1974) .
Menninger, Our Dreadful Jails, 6 San Fran. L. Rev. |
(1971) , ak oe wee
President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report:
Corrections, (1967) .
President’s Commission on Law Enforcement and
Administration of Justice, The Challenge of
Crime in a Free Society, (1967) .
Rothman, Of Prisons, Asylums and Other Decaying
Institutions, 26 Public Interest 1 (1972) .
Rothman, D., The Discovery of the Asylum,
(Little, Brown & Co., 1971) .
Ruiz and United States v. Estelle,
No. 72-H-1393 (5.D.Tex.) .
Tyler v. Percich, No. 74-40 C(2), (E.D.Mo.
Oct. 2, 1974), aff'd per curiam, 74-1835
(8thCir.1974) ........
United States v. Elrod,
No. 76-C-4768 (N.D.Ill. 1976)
United Nations, Minimum Rules for the Treatment
of Prisoners and Related Recommendations,
(U.N. Department of Economic and Social
Affairs, 1958) . bt este’
United States Bureau of Prisons, Department of
Justice, New Rules for Jails: Guidelines for
Planning, edited by Richmond and Aderhold
(June 1969) ws
, ’
34
16
16
15
15
(xi)
United States Department of Justice, Law Enforce-
ment Assistance Administration, Guidelines for
Planning of Regional and Community Corrections
eo ee
United States Department of Justice, Law Enforce-
ment Assistance Administration, [he Nations’
Pn &¢ +. + kk ee eS ee Bee ee 6
IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
No. 77-1829
GRIFFIN B. BELL, ef ai,
Petitioners,
LOUIS WOLFISH, ef ai.,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF OF THE NATIONAL PRISON PROJECT
OF THE AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, AS AMICUS CURIAE
a
INTEREST OF AMICUS CURIAE
The National Prison Project of the American Civil Liber-
ties Union Foundation, Inc. is a non-profit, tax exempt cor-
poration engaged in efforts through litigation, legislation and
education to improve conditions of confinement in prisons,
jails and juvenile institutions throughout the country and to
develop and support rational, less costly, humane and effec-
2
tive alternatives to traditional incarceration. The Project has
historically focused primarily upon litigation through its own
staff counsel and support staff as wei as volunteer cooperat-
ing attorneys and lay personnel throughout the various states.
It also functions as a resource center for lawyers, legislators,
corrections officials and courts.
Included in the broad range of litigation in which the Pro-
ject has participated directly or as amicus curiae are the fol-
lowing cases: DiMarzo y. Cahill, 575 F.2d 15 (ist Cir. 1978),
cert. den. sub. nom., Hall v. DiMarzo, __U.S. __, 47 US.
L.W. 3295 (1978) (jail conditions declared unconstitutional);
Inmates of D.C. Jail v. Jackson, 416 F.Supp. 119 (D.D.C.
1976), aff'd in substance, No. 75-1668, (D.C. Cir. June 5,
1978) (jail conditions declared unconstitutional); Pugh v.
Locke, 406 F.Supp. 318 (M.D.Ala. 1976), aff'd in sub-
stance, sub, nom. Newman vy, Alabama, 559 F.2d 283 (Sth
Cir. 1977), cert. den. in relevant part, sub. nom, Alabama
v. Pugh, __ U.S. ___, 98 S.Ct. 3057 (1978) (prison sys-
tem conditions declared unconstitutional); Battle v. Ander-
son, 376 F.Supp. 402 (E.D.Okla. 1974), aff'd 564 F.2d
388 (10th Cir. 1977) (prison conditions declared unconsti-
tutional); Trigg v. Blanton, No. A-6047, Memorandum Opin-
ion (Chancery Court, Davidson County, Tennessee, August
23, 1978) (prison system conditions declared unconstitu-
tional); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.1.
1977) (prison system conditions declared unconstitutional);
Bono vy. Saxbe, 450 F.Supp. 934 (E.D. Ill. 1978) (certain
conditions of confinement at federal prison declared uncon-
stitutional); Clonce v. Richardson, 379 F.Supp. 338 (W.D.
Mo. 1974) (involuntary transfer of federal prisoners into
behavior modification program declared unconstitutional);
Procunier v. Navarette, ___U.S.__, 98 S.Ct. 855 (1977);
Montanye v. Haymes, 427 U.S. 236 (1976); Wolff v. McDon-
nell, 418 U.S. 539 (1974); Procunier v. Martinez, 416 U.S.
3
396 (1974); Pell v. Procunier, 417 U.S. 817 (1974); Mor-
rissey v. Brewer, 408 U.S. 471 (1972).!
Amicus Curiae believes that if the Court were to adopt
the position of the United States in this case it would seri-
ously jeopardize the rights of prisoners confined in city and
county jails as well as the ability of the amicus to protect
those rights.
Consents to the filing of this brief have been given by
all parties and have been heretofore filed with the Court.
SUMMARY OF ARGUMENT
It has long been established that basic principles of fun-
damental fairness and the Constitution presume a person
innocent until proven guilty and that pre-trial detainees
may not be punished in any way or be subjected to any
unnecessary deprivations which are unrelated to insuring
their appearance at trial. Thus, any standards by which
deprivations are measured for convicted offenders are not
applicable to this case.
In spite of its protestations to the contrary, the United
States is proposing a radical departure from established
legal principles that have been applied for the last decade
by various courts which have addressed these issues. The
government argues that only deprivations which exceed
the minimum threshold of the Eighth Amendment should
l it is of ironic significance that in Battle, supra and Newman,
supra, the United States joined the National Prison Project in urging
that the Constitution required the states of Oklahoma and Alabama
to provide more living space for its prisoners than was provided by
the Bureau of Prisons for federal prisoners prior to the order of the
district court in the case at bar.
be prohibited in this case. The government is contending
therefore that pre-trial detainees may be punished, as long
as the punishment is not cruel and unusual.
The government’s position has been firmly rejected by
the various Courts of Appeals, and rightly so, given the his-
tory of abuse and atrocity in our nation’s jails. Appropri-
ate intervention by the courts, when other governmental
officials have neglected their responsibility, has been re-
sponsible for significant reform. Although the Department
of Justice, in litigating against state and local jails, has ar-
gued for it, they now, with respect to the own federal
jail, attempt to reject “. . . the following p.opositions as
‘now firmly embedded in the law.’ The demands of equal
protection of the laws and of due process prohibit depriving
pre-trial detainees of the rights of other citizens to a greater
extent that necessary to assure appearance at trial and secu-
rity of the jail.” Rhem v. Malcolm, 507 F.2d 333, 336
(2nd Cir. 1976).
The positions argued by the United States on each
specific issue in this case are contrary to every set of
professionally recognized standards, including the tenta-
tive standards promulgated by the Department of Justice.
It is irrational, and highly inappropriate, for the United
States to argue one set of legal principles and for the ap-
plication of minimum professional standards to state facili-
ties, but to ask this Court to permit a different set of prin-
ciples and standards for its own facilities. This is not feder-
alism but despotism.
Because the decision of the Court of Appeals is a very
narrow one, dealing with only a few specific issues, and is
consistent with the decisions of the other courts of appeals,
as well as all recognized professional standards, there are
no special and important reasons for review by this Court.
5
The decision of the Court of Appeals should be affirmed,
or the writ of certiorari should be dismissed as having been
improvidently granted.
ARGUMENT
I. |THE UNITED STATES’ POSITION IN THIS CASE IG-
NORES THE HISTORICAL AND LEGAL DEVELOP-
MENTS WITH RESPECT TO THE STANDARD OF RE-
VIEW OF THE CONDITIONS OF CONFINEMENT OF
PRE-TRIAL DETAINEES OVER THE LAST DECADE.
In spite of its protestations to the contrary and its con-
voluted “three-tier” approach to the question of the appro-
priate standard in pre-trial detention case, the United States
in its brief proposes a radical departure from well-established
legal principles that have been applied virtually without ex-
ception over the last decade.2 Courts have long held that
basic principles of fundamental fairness and the Constitution
presume a person innocent until proven guilty and that pre-
2 The government's “three-tier” approach is apparently as follows:
1) fundamental rights which require a compelling necessity test; 2)
rights deeply rooted in the nation’s history and traditions which re-
quire a closer, but not strict, scrutiny to determine whether there
is a reasonable relationship to any governmental interest including
jail order, security, fiscal economy and administrative feasibility; 3)
non-fundamental rights which do not fall within the first two tiers,
and which require only a reasonable relationship to any governmental
interest, including those listed in the second tier above.
As we point out in the text of our brief, the government’s convo-
luted approach is a radical departure from the case law developed
over the past decade; ignores the fact that pre-trial detainees, although
presumed innocent, have lost their most fundamental right of freedom;
and would create an irrational measuring of interests which would
dictate how “closely” the courts should look at particular situations.
6
trial detainees may not be punished in any way or be sub-
jected to any unnecessary deprivation which is not related
to insuring his or her appearance at trial.
The government’s position in this case is clearly at b
with these well established principles. Although it argo<
at one point that “due process requires that punishment
not be inflicted or correction undertaken prior to adjudica-
tion of guilt” (Pet. Brief at 23), it later adopts the posi-
tion that pre-trial detainees may be subjected to severe and
substantial deprivations as long as they do not fall below
“a minimum threshold of decency and humane treatment
and [are] reasonable in light of the government's substan-
tial administrative and fiscal concerns” (Pet. Brief at 49).
The government goes on to argue that the “minimum
threshold” is the Eighth Amendment level of cruel and un-
usual punishment which applies to convicted offenders (Pet.
Brief at 24 and 54 n.42). Thus the government is con-
tending that detainees may be “punished” as long as the
punishment is not “cruel or unusual.”
A. The Background To Litigation Involving the
Conditions Of Confinement Of Pre-Trial
Detention.
Conditions in American jails and the treatment afforded
to those confined in them — both pre-trial and convicted
persons? — js and has been a national disgrace. Professional
3 Over 150,000 persons are confined in our jails. Approximately
50,000 of these are awaiting trial. United States Department of Jus-
tice, Law Enforcement Assistance Administration, The Nations’ Jails
(1975). It is further estimated that between 1.5 million and 5 mil-
lion persons per year pass through or jails. National Advisory Com-
estimated that between 1.5 million and 5 million persons per year
7
mentators,* national commissions,» former® and present’
rs of the Federal Bureau of Prisons, and judges® are
pus in their outrage and condemnation.? A preemi-
stpsychiatrist with nationally recognized expertise has
stated:
Some people — and I am proud to be numbered
among them — are so deeply and continuously dis-
turbed by the knowledge of the great American
mission on Criminal Justice Standards and Goals, Corrections, (1973)
at 275 (hereafter NAC Standards).
4 Hans E. Mattick, “The Contemporary Jails in the United States,”
Handbook on Criminology, ed. Glaser (Rand McNally: Chicago 1974);
Ronald Goldfarb, Jails, (Anchor Press, 1976); Richard McGee, Our
Sick Jails, 35 Fed. Prob. 3 (March 1971); Comment, /ncarcerating the
Innocent, 21 Buff. L.R. 891 (1972).
5 President’s Commission on Law Enforcement and Administra-
tion of Justice, Task Force: Corrections, 24 (1967); The Challenge
of Crime in a Free Society, A Report of the President’s Commission
on Law Enforcement and Administration of Justice 1978 (1967).
6 Myrl E. Alexander, Jail Administration (Charles Thomas, Spring-
field, I., 1957) at 310.
7 Norman Carlson, The Law and Corrections, 6 U. San Fran. LR.
77, 83 (1971).
8 For example, “Address of Chief Justice Warren E. Burger,”
Proceedings of the National Conference on Corrections, Williams-
burg, Va., December 5-8, 1971, 10, 12; Rhem v. Malcolm, 371 F.
Supp. 594, 636-7 (Lasker, J., S.D.N.Y. 1974) and Pugh v. Rain-
water, 557 F.2d 1189, 1191-2 (Sth Cir. 1977).
9 Also see, Freed and Wald, Bail in the United States: A Report
to the National Conference on Bail and Criminal Justice, 43-5, 1964.
jail atrocities that we cannot keep still about it.
We write letters, we make speeches, we harangue
our friends...
This great horrible cruelty is being practiced in
semi-secret in over 4,000 places! One-hundred and
fifty thousand human beings, mostly young ones,
are locked up in cages and dungeons in the name
of ‘justice’ and mercy by agents of the very people
who are being wronged. This expensive, futile,
absurd, cruel business does not rehabilitate any-
one; it does not reform anyone; it does not change
anyone for the better. It only enrages and stupe-
fies and crushes already unstable, misdirected and
confused people .. .
Unless we stop it, the shame of our jail system
will hang about our necks like an albatross along
with the shame of our slaughter of the American
Indians and our unspeakable century of slave traf-
fic.
Karl Menninger, Our Dreadful Jails,
6 San Francisco, L.R. 1, 6 (1971).
One court after another, in jurisdictions all over the coun-
try, have found similar conditions:
... confinement in cramped and overcrowded quar-
ters, lightless, airless, damp and filthy with leaking
water and human wastes, slow starvation, depriva-
tion of most human contacts, except with others
in the same sub-human state, no exercise or recre-
ation, little if any medical attention, and for those
who in despair or frustration lash out at their sur-
roundings, confinement, stripped of clothing and
every last vestige of humanity, in a sort of ou-
bliette ...
9
The cruelty is a refined sort, much more com-
parable to the Chinese water torture than to such
crudities as breaking on the wheel. The expert
testimony, uncontradicted and not successfully
challenges, supplies this evidence. Most jails are
bad, but this one is unusually bad.
Jones v. Wittenberg, 323 F.Supp. 93, 99
(N.D.Ohio 1971)
These conditions have been with us for centuries, remaining
unknown to the general public and impervious to several
waves of non-judicial reform efforts both private and gov-
ernmental. !®
It was not until the last decade that judicial intervention
occurred. Spurred on by this Court’s resuscitation of the
Civil Rights Act of 1871 in Monroe v. Pape, 363 U.S. 167
(1961), it’s extension to prisoners in Cooper v. Pate, 378
U.S. 546 (1964), and the added impetus of governmental
reports and professional recommendations, judges began look-
ing into jail conditions. Many lawsuits were filed and the
reported cases on the subject are now legion.!! The United
States Department of Justice over the past decade has been
an important participant in this process. Through the Law
Enforcement Assistance Administration, it has funded re-
search, reports and standards projects!? across the country.
10 In general, see Goldfarb, Jails, supra at 9-13; Rothman, The
Discovery of the Asylum (Little Brown & Co., 1971); and Rothman,
Of Prisons, Asylums and Other Decaying Institutions, 26 Public Inter-
est (1972) at 1-17.
Il See cases cited infra at pp. 13, 14 and 22-27.
12 For example, LEAA has supported NAC corrections standards,
the American Correctional Association Manual of Standards for Adult
Local Detention Facilities (hereafter ACA Standards), and the National
Sheriffs Association standards.
. 10
Through the Department’s Civil Rights Division and local
United States Attorneys’ offices, they have filed lawsuits
intervened in ongoing cases and participated as amicus curiae
in jail and prison litigation.
B. From Legal Developments During The Last De-
cade Has Emerged The Recognition Of A Stan-
dard To Determine The Constitutional Adequacy
Of Conditions Of Confinement For Pre-Trial De-
tainees.
The standard utilized by the courts below in this case as
well as in other pre-trial condition cases is over two centu-
ries old and as such is deeply rooted in Anglo-American
jurisprudence.
Upon the whole, if the offense be not bailable,
or the party cannot find bail, he is to be commit-
ted to the courty jail by the mittimus of the jus-
tice, or warrant under his hand and seal, contain-
ing the cause of his commitment; there to abide
till delivered by due course of law. But this im-
prisonment, as has been said, is only for safe cus-
tody, and not for punishment; therefore, in this
dubious interval between the commitment and
trial, a prisoner ought to be used with the ut-
most humanity, and neither be loaded with need-
less fetters nor subjected to other hardships than
such as are absolutely requisite for the purposes
of confinement only.
Book IV Blackstone 8337, p. 2523 (1765).
This fundamental notion of fairness and the logic that pre-
trial prisoners must be afforded better treatment than those
we
1]
convicted of crimes was raised by foreign observers of the
American scene in the 1830’s:
These arrested persons are precisely those for
whom well regulated prisons ought to have been
built. It is easy in fact to conceive, that he who
has not yet been pronounced guilty, and he who
has committed but a crime or misdemeanor com-
paratively slight, ought to be surrounded by much
greater protection than such as are more advanced
in crime, and whose guilt has been acknowledged.
Arrested persons are sometimes innocent and al-
ways supposed to be so. How is it that we should
suffer them to find in the prison a corruption which
they did not bring with them?
If they are guilty, why place them first in a
house of arrest, fitted to corrupt them still more,
except to reform them afterwards in a peniten-
tiary, to which they will be sent after their con-
viction?
G. DeBeaumont and A. DeTocqueville, On
The Penitentiary System in the United
States and Its Application in France, (Phi-
ladelphia: Carey, Lea & Blanchard, 1833)
(trans. by Francis Leiber) Reprinted 1970
by Augustus M. Kelley, New York, p. 14.
This Court, as long ago as 1885, recognized the funda-
mental nature of the presumption of innocence in our cri-
minal justice system:
The principle that there is a presumption of in-
nocence in favor of the accused is the undisputed
law, axiomatic and elementary, and its enforcement
12
lies at tie foundation of the administration of our
criminal law.
Coffin v, United States, 156 U.S. 432, 453
(1895)
This principle has been repeatedly reaffirmed by the Court
over the years. See for example, Stack v. Boyle, 342 USS.
1, 4 (1951); In re Winship, 397 U.S. 358, 364 (1970); and
Estelle v. Williams, 425 U.S. 501, 504 (1976).
Moreover, this Court has repeatedly recognized the pecu-
liar legal status of pre-trial detainees vis-a-vis those found
guilty of crimes. In McGinnis v. Royster, 410 U.S. 263
(1973), the Court, in affirming the denial of good time
credits for “‘jail time” stated:
_. . Further, it would hardly be appropriate for
the State to undertake in the pre-trial detention
period programs to rehabilitate a man still clothed
with the presumption of innocence.
410 U.S. at 273 (emphasis added)
See also, Meachum v. Fano, 427 U.S. 215, 225 (1976); In-
graham v. Wright, 430 U.S. 651, 669 (1977); Bounds v. Smith,
430 U.S. 817, 840 (1977) (Rehnquist, J. dissenting); and
Houchins v, KOED, Inc., __ U.S. ____ 98 _ S.Ct. 2588,
2608-9 and n.34 (1978) (Stevens, J. dissenting).
In the last decade, the Courts of Appeals as well as a
host of district courts virtually without exception have ac-
cepted the viability of the principle of the presumption of
innocence and have applied this principle to cover the con-
ditions of pre-trial custody. [Illustrative of these holdings
is the Second Circuit decision in Rhem vy. Malcolm, 507
F.2d 333, 336 (1976):
13
As (the district judge) viewed it, the core of
plaintiffs’ constitutional arguments is that they
are not convicted felons but are pre-trial detainees,
presumed innocent of the charges against them
but imprisoned only for failure to make bail.
The judge accepted the following propositions
as ‘now firmly embedded in the law.’ The de-
mands of equal protection of the laws and of due
process prohibit depriving pre-trial detainees of the
rights of other citizens to a greater extent than
necessary to assure appearance at trial and secu-
rity of the jail; and the same constitutional pro-
visions prevent unjustifiable confinement of de-
tainees under worse conditions than convicted pri-
soners. 371 F.Supp. at 623. We agree with these
propositions and rely, as did the district judge,
upon the considerable number of recent decisions
applying them.
In accord, First Circuit: Jnmates of Suffolk Co. Jail v. Ei-
senstadt, 360 F.Supp. 676, 685-8 (D.Mass. 1973), aff'd,
494 F.2d 1196 (Ist Cir. 1974); Second Circuit: Rhem y.
Malcolm, supra at 622-4 (S.D.N.Y. 1974), aff'd, supra at
336-8 (2nd Cir. 1974); Third Circuit: United States ex rel
Tyrrell v. Speaker, 535 F.2d 823, 827 (3rd Cir. 1976);
Fourth Circuit: Patterson v. Morrisette, 564 F.2d 1109,
1110 (4th Cir. 1977); Fifth Circuit: Pugh v, Rainwater, su-
pra at 1191-2 (Sth Cir. 1977) (dicta); Miller v. Carson, 401
F.Supp. 835, 865-7 (M.D.Fla. 1975), aff'd, 563 F.2d 741,
746-50 (5th Cir. 1977); Sixth Circuit: Jones v. Wittenberg,
323 F.Supp. 93, 99-100 (N.D.Ohio 1970), aff'd sub nom
Jones v, Metzger, 456 F.2d 854 (6th Cir. 1972); Seventh
Circuit: Duran v. Elrod, 542 F.2d 998, 999-100 (7th Cir.
1976); Eighth Circuit: Hamilton v. Love, 328 F.Supp. 1182,
1191-2 (E.D.Ark. 1977); Ahrens v. Thomas, 434 F.Supp.
14
873, 897-8 (W.D.Mo. 1977), aff'd, 570 F.2d 286 (8th Cir. 1978);
Ninth Circuit: Brenneman v, Madigan, 434 F.Supp. 128, 135-
7, 142 (N.D.Cal. 1972); Inmates of San Diego County Jail
v, Duffy, 528 F.2d 954, 956 (9th Cir. 1975); District of
Columbia Circuit: Campbell v. McGruder, 416 F.Supp. 100,
104-5 (D.D.C. 1975), aff'd 580 F.2d 521, 527-33 (D.C.Cir.
1978).
Further support for this principle and its application to
the conditions of pre-trial confinement comes from profes-
sionally recognized standards. The ACA Standards in its “Dis-
cussion” of Standard 5252, states, “Persons awaiting trial
are not in the same class as those serving sentences. Because
they are presumed innocent, only the least restrictive means
necessary should be used to maintain them in custody.” (p.
54)!3 The American Correctional Association, Manual of
Correctional Standards (1966) Declaration of Principles, Prin-
ciple V, recognizes that:
Until the guilt of the suspected offender has
been established in the course of due process of
law, he should be considered innocent and his rights
as a free citizen should be respected, except for
such restraints as are indispensable to insure the
proper investigation and trial.
at p. Xx
In accord: National Advisory Commission on Criminal Jus-
tice Standards and Goals, Corrections (1973) (hereafter NAC
Standards) Standard 4.8 and Commentary at 133-4; Na-
13 The ACA Standards indicate that Norman Carlson, one of the peti-
tioners herein was President-elect of the ACA (p. xvi) and that he was
a member of the Commission on Standards and Accreditation, which
approved and administers the Standards (p. xvi-xvii).
15
tional Sheriffs’ Association, Inmate Rights (1974) at 19;
The American Bar Association, Tentative Draft of Stan-
dards Relating to the Legal Statuts of Prisoners, 14 American
Crim. L. R. 1 (1977) (hereafter ABA Tent. Standards), Stan-
dard 7.1 and Commentary at 565-9; United Nations Minimum
Rules for the Treatment of Prisoners and Related Recommen-
dations (U.N. Department of Economic and Social Affairs,
1958) Rule 84 at 7; American Law Institute, Model Penal
Law (1962) at § 303.1; and Law Enforcement Assistance Ad-
ministration, Department of Justice, Guidelines for Planning
and Design of Regional and Community Corrections Centers
for Adults (1971) (hereafter LEAA Standards) at E.4.1. The
Federal Bureau of Prisons itself accepts this elementary prin-
ciple in materials it provides to assist local pre-trial facilities:
“Every accused person, rich or poor, is presumed to be in-
nocent until proven guilty. Legally, the only assurance that
properly can be demanded of an accused person is that he
will be present for trial.”
For many years, the Department of Justice has strongly
supported this view when dealing with state and local insti-
tutions. The Department has an extensive docket of cases
which challenge the conditions and treatment of pre-trial
detainees across the nation. Illustrative of the Department’s
position is the following from its trial memorandum dated
November 16, 1977, in the case entitled Davis v. Montgo-
mery County Jail (Civ. #76-205-N) and filed in the United
States District Court for the Middle District of Alabama:
In gauging the (Fourteenth) Amendment’s applica-
bility it is first necessary to note the age-old right
to freedom before conviction; the presumption of
innocence is fundamental in society .. . (p. 7)
14 US. Bureau of Prisons, Department of Justice, New Roles for
Jails: Guidelines for Planning, ed. Richmond and Aderhold (June 1969).
16
With respect to persons awaiting trial this principle
(the presumption of innocence) means that any
burden on them may be no more restrictive than
necessary to assume their appearance at trial. The
method chosen must be the least restrictive of all
alternatives. (p. 8).
See also, Adams v. Mathis, No. CA 74-70-S (M.D.Ala.) (In
this case against the Houston County, Alabama, Jail the
United States Attorney appeared as amicus curiae and the
Civil Rights Division for the United States as plaintiff-inter-
venor); Tyler v. Percich, No. 74-40 C(2) (E.D.Mo.) (In this
St. Louis, Mo. jail case, United States first appeared as liti-
gating amicus curiae and later as plaintiff-intervenor); United
States v. Elrod, No. 76-C 4768 (N.D.IIl.) (In this Cook Coun-
ty Jail case the United States filed the lawsuit); and Vest vy.
Lubbock County, No. 5-76-53 (N.D.Tex) (In this Lubbock
County, Texas Jail case, the United States appeared as plain-
tiff-intervenor). In each of these cases, the United States
argued for the position quoted from Davis v. Montgomery
County Jail, supra with réspect to the treatment of pre-trial
detainees in state detention facilities.
C. The Results Of These Legal Developments Have
Been Encouraging And This Court Should Not
Impede Those Efforts Prematurely.
The Department’s position would inevitably, if adopted
by this Court, turn back the clock on all of the efforts,
including those of the Department of Justice itself, made
in the last decade to improve the conditions for pre-trial
detainees in our jails. It is clear that appropriate judicial
intervention has been a major catalyst for improving the
conditions of confinement for many pre-trial detainees.
To adopt the position argued by the United States in this
17
case would undermine this important progress. It is instruc-
tive, therefore, to look at what has been accomplished and
what remains to be done. As Petitioner Norman Carlson,
Director of the Federal Bureau of Prisons, said recently:
The judiciary has compelled penal administrators,
executive officials, and legislators at all levels of
our society to face squarely the problems associ-
ated with treatment of offenders and has spurred
constructive action to resolve these problems. As
we move into the third century of the nation’s
history it is virtually certain that the courts will
take further steps to awaken all Americans to the
need for less crowded, more humane penal insti-
tutions, which are secure enough to protect so-
ciety without creating conditions that threaten the
basic rights of inmates and which permit both in-
mates and prison staff to work and live with a
larger degree of safety and dignity.§
An overall assessment of the impact of judicial interven-
tion is yet to be made. Nevertheless, we do have the re-
sults of several independent evaluations and other indica-
tors that illustrate that while there is a long way to go,
significant improvements have been made.
In one widely known study commissioned by the Law
Enforcement Assistance Administration of the Department
of Justice, the researchers looked at the impact of federal
15 Norman Carlson, Corrections in the United States Today, 13
Am. Cr. L.R. 635 (1976). Also see, testimony of former New York
City Commissioner of Correction McGrath in Rhem v. Malcolm, 371 »
F.Supp. at 636 and Minnesota Corrections Commissioner Kenneth
Schoen letter in The Civil Liberties Review (Jan.Feb. 1978) at 6 and
80.
18
court decrees in three separate jail cases.© Those decrees
were all based upon judicial findings of unconstitutional
conditions and treatment of prisoners.’7 As a direct result
of the court’s orders, the following occurred:
(1) Holland v. Donelson — overcrowding was controlled;
“all prisoners received beds; tension decreased, safety was
enhanced and maintenance (of physical facilities) improved.”
The population limits resulted in the implementation of pro-
grams which reduced “the number and length of detentions.”
The delivery of medical services was improved.'®
(2) Collins v. Schoonfield — ended long and arbitrary
punishment under “harsh conditions;” communication with
the free world, food, medical care, and standards of punish-
ment” were improved; the general level of sanitation was
also improved.!9
(3) Hamilton v. Schiro — the decision contributed to a
“reduction in the number of incidents of violence, [m] edical
services were improved under a contract with a public hos-
pital and improvements and renovation of the physical struc-
ture was commended.””?
16 Harris and Spiller, After Decision: Implementation of Judicial
Decrees in Correctional Settings, (United States Government Printing
Office, October 1977).
17 Hamilton v. Schiro, 338 F Supp. 1016, 1017 (E.D. La. 1970);
Holland v. Donelson (unreported decision) Civil Action #71-1442 8C
(E.D.La. 1973) Sl.Op. 6; and Collins v. Schoonfield, supra at 258.
18 See n.16 at 22.
19 See n.16 at 23.
20 See n.16 at 23.
19
Although the study found that “life in the facilities was
. Still dismal” and “seriously overcrowded,” judicial inter-
vention had the salutory effects of “creating pressure for
management reforms,” including increased funding, changes
in personnel policies, additional personnel and new facili-
ties.”2! Most importantly, judicial intervention was per-
ceived as focusing public attention on jail and prison con-
ditions and as “rais[ing] correctional policy issues to the
level of public concern.”?? As a result of this increased
public education, “[]]egislative, regulatory and supervisory
bodies adopted rules, provided funds, and took other ac-
tions that facilitated correctional improvements.”™ Admin-
istrators learned:
that the substantive changes required were desir-
able and necessary. Once administrators dis-
covered that the operational changes required by
court decree were sound and feasible, there was
a movement toward an anticipatory stance. Cor-
rectional administrators resolved to keep abreast
of the thinking of courts and standard-setting bo-
dies and to make appropriate changes without be-
ing ordered to make them.”
In Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I. 1977),
the Court found that both pre-trial detainees and convicted
offenders were being subjected to numerous conditions of
confinement which fell below constitutional minima. Pre-
trial detainees in Palmigiano were subjected to the same
21 See n.16 at 24.
22 See n.16 at 26.
23 See n.16 at 26.
24 See n.16 at 27.
20
deplorable physical conditions and rampant violence as were
convicted offenders. As a result of the court’s order, the
pre-trial detainees in Rhode Island are now being housed
separate from other offenders and are no longer subjected
to the threat of violence which existed in 1977.7 Simi-
larly, at the time of the court order pre-trial detainees in
Rhode Island were being subjected to medical care so de-
ficient that the court Jabeled it “life threatening.” Again,
as the result of the court order, there have been “remark-
able improvements” in the delivery of medical care for all
prisoners in Rhode Island in ‘the last year and the life threat-
ening situation no longer exists.”
Taylor v. Perini, a case filed in 1969 in the United States
District Court for the Northern District of Ohio, presents
another example of the importance of judicial intervention.
As a result of the proceedings in this case involving a chal-
lenge to the conditions of confinement of Ohio prisoners
at that state’s Marion Correctional Institution, a detailed
consent order was entered. This order, required, among
other things, changes in correspondence and publication
policies (including termination of a publishers-only rule),
disciplinary policies, a limitation on the length of discipli-
nary segregation, housing and work assignment policies in
order to halt racial discrimination, and the creation of an
effective inmate grievance procedure. 413 F.Supp. 189, 194-
7 (N.D.Ohio 1976) (Order entered in 1972). A special mas-
ter was appointed to investigate and report to the court on
25 443 F.Supp. at 973.
26 See the first annual report of the court appointed special mas-
ter, Allen Breed, now Executive Director of the National Institute of
Corrections, United States Department of Justice.
21
the state of compliance with its order. Thereafter the mas-
ter issued a series of reports, all of which were confirmed
by the court. 413 F.Supp. 189, 198 (First Report); 421
F.Supp. 740, 742 (N.D.Oh. 1976) (Second Report); 431
F.Supp. 566, 570 (N.D.Oh. 1977) (Third Report); and 446
F.Supp. 1184, 1186 (N.D.Oh. 1977) (Fourth Report). This
report was also confirmed by the district court. Recently,
the master filed his Fifth Report in which he stated that
the prison authorities had “achieved substantial compliance”2’
with the 1972 order and as a result of this accomplishment
“the time had arrived for the Court to terminate ongoing
supervision of the defendants’ activities.” 455 F.Supp. 1241,
1255 (N.D.Oh. 1978). The district court confirmed this
recommendation as well. The teaching of these cases over-
whelmingly demonstrates not only the necessity and feasibi-
lity of this approach to prison and jail cases but the impact
of cooperative efforts to bring about necessary change.
In conclusion, the government has failed to give any ade-
quate reason io depart from the deeply rooted legal princi-
ple of the presumption of innocence and its application to
the conditions of pre-trial detention. Moreover, and most
importantly, the government has utterly failed to give any
adequate reason to ignore the results and experience of the
last decade of judicial scrutiny which has heiped to encou-
rage progress in bringing the nation’s jails up to minimum
constitutional standards.”8
27 With respect to the implementation of a grievance procedure,
the Ohio Department of Rehabilitation and Correction issued admin-
istrative regulations on December 26, 1976, requiring that all of
Ohio’s correctional facilities establish grievance procedures on the
Marion model. 431 F.Supp. at 571.
28 For a similar analysis by Marshall, J. in the context of law
libraries for prisoners, see Bounds v. Smith, 430 U.S. 817, __,
97 S.Ct. 1491, 1499 (1977).
22
Ii. THE OPINION AND JUDGMENT OF THE SECOND
CIRCUIT COURT OF APPEALS PROVIDE NO SPE-
CIAL AND IMPORTANT REASONS FOR REVIEW
BY THIS COURT AS REQUIRED BY RULE 19 AND
THE WRIT OF CERTIORARI SHOULD THEREFORE
BE DISMISSED AS IMPROVIDENTLY GRANTED
As has been shown above, the opinion and judgment of
the court below as to the appropriate constitutional stan-
dard to be applied to conditions of pre-trial detainees only
reflects basic assumptions of Anglo-American jurisprudence
which have been historically recognized by the courts of
this country. Further, as will be shown below, the speci-
fic re ired by the action of the courts below are
every set of recognized professional
d correctional stadards in existence — including the Draft
Standards of the Petitioners and the standards adopted by
the American Corregtional Association. Moreover, the
United States has/for years, in litigation concerning state
and county jails and prisons, urged successfully to courts
throughout this country that deprivations such as those -n-
joined in this case violate the basic constitutional rigiits of
detainees and prisoners. Thus, neither the standard utilized
in the Second Circuit Court of Appeals nor the specific
remedies sustained and challenged in the Petition establish
“special and important reasons” for review by this Court.
A. The Standard Of Review Recognized By The Court
Of Appeals Is Deeply Rooted In American Juris-
prudence And Is Recognized By Other Courts
The opinion of the court of appeals does not raise any
unique or unresolved constitutional question. Everyone,
including the government, at least rhetorically, recognizes that:
(1) Pre-trial detainees are presumed to be innocent (Pet.
23
Brief 37, 38); (2) The only objective of pre-trial confine-
ment is to insure the detainee’s presence at trial (Pet. Brief
43); and (3) Pre-trial detainees cannot be “punished” at
all (Pet. Brief 39, 40).
The case only takes on any particular significance as a
result of the novel, radical and regressive theory posited by
the United States that this Court should, in order to reverse
the remedies ordered below, ignore the fundamental premise
that pre-trial detainees are presumed to be innocent and
adopt their new “three-tier” standard. As has been stated
above, this standard, for all practical purposes, limits depri-
vations only when they rise to the level of cruel and unusual
punishment under the Eighth Amendment.
There is presently no substantial dispute among the appel-
late courts as to the applicable constitutional standard to
be applied in pre-trial detainee cases and certainly none of
them have ever adopted the present position of the govern-
ment in this case.
The preeminent case on this issue is, in fact, Rhem y,
Malcolm, supra, the precursor in the Second Circuit to Wol-
fish. The court therein enunciated the long-standing doc-
trine that pre-trial detainees cannot be deprived of the rights
of other citizens to a greater extent than is necessary to as-
sure appearance at tria! and security of the jail, or, in other
words:
the conditions of incarceration for detainees must
cumulatively add up to the least restrictive means
of achieving the purpose requiring and justifying
the deprivation of liberty.
Citing Hamilton v. Love, 328 F.Supp. 1182,
1192 (E.D.Ark. 1971). Rhem, supra
at 351.
24
Obviously, as was specifically stated by the court of ap-
peals, not a// deprivations rise to the level of constitutional
significance. Further, deprivations which are related to the
purpose of confinement and are “compelled by administra-
tive necessity” are allowed. Wolfish, supra at 120.
The totally inaccurate representation by the government
that the standard adopted by the court of appeals requires
a compelling necessity for “every” deprivation and is “un-
limited”’ in application is simply a misreading of the clear
language of the decision. In fact, various “deprivations”
were allowed to remain intact by the lower court. The
removal of these deprivations would have clearly made life
more comfortable and consonant with free-world living.
Rhem yv. Malcolm has been generally cited and adopted
by other courts of appeal as representing the appropriate
standard to be used.
In Taylor v. Sterrett, 532 F.2d 462, 470, 472 (Sth Cir.
1976), the Fifth Circuit Court of Appeals, citing Rhem,
stated that pre-trial detainees must be held under the least
restrictive means necessary to assure their presence at trial
and that if a practice or procedure was justified by jail se-
curity then there had to be a showing that there was no
reasonable alternative means available to meet the security
need. See also, Pugh v. Rainwater, 557 F.2d 1189, 1191-2
(Sth Cir. 1977). In a later case, the same court stated,
“Pre-trial detainees are not to be subjected to any hardships
except those absolutely requisite for the purpose of confine-
ment only.” Miller v. Carson, 563 F.2d 741, 747 (Sth Cir.
1977).
In Campbell v. McGruder, 580 F.2d 521 (D.C. Cir. 1978),
the court discredited the government’s derogation of the pre-
25
sumption of innocence to an evidentiary rule (Pet. Brief 37,
38) by stating that to construe the presumption of inno-
cence as “largely irrelevant” to the condition of pre-trial
confinement is “‘to profoundly misconstrue it.” The court
then cited Rhem for the proposition that if deprivations
are basec upon reasons unrelated to confinement alone, then
those deprivations are to be justified by a compelling neces-
sity. /d at 529, 531. The United States cites Campbell to
support its rather extraordinary position that unless “‘funda-
mental interests” under their three-tier formula are effected,
due process is satisfied if the conditions or practices are
“reasonable in light of the valid government objectives in
maintaining jail order and security and of substantial con-
siderations of fiscal economy or administrative feasibility”
(Pet. Brief 45). To the extent that the Campbell court al-
lowed reliance on costs at all, it limited that factor to “sub-
stantial necessities of jail administration” and “feasible costs”
after a careful examination of “each” restriction of the “‘jail
regime” Jd at 531. Further, the court explicitly stated
that even if “feasible costs’ were relevant, that factor could
not be “determinative” of constitutional rights. /d. at 540.
It is difficult to conceive of how a judge could rationally
utilize the government’s standard of “fiscal economy” when,
as in this case, the Petitioner presumably could have access
to billions of dollars in the treasury. More importantly, the
government’s position lends itself to allowing irresponsible
officials to totally stifle courts by simply lowering budgets
for jails or prisons.
On the other hand, the Campbell language concerns “‘feas-
ible costs.”’ If the cost is “not feasible” then the act required
can’t be done at all and presumably the jailer could justify
the action or lack thereof under the traditional “‘compelling
interest” standard. See Campbell, supra at 538.
26
Moreover, the attempted “fiscal economy” justification for
constitutional deprivations has been universally rejected. See,
e.g., DiMarzo v, Cahill, supra; Rhem v. Malcolm, supra, Miller
v, Carson, supra; Finney v. Arkansas Board of Corrections,
505 F.2d 194 (8th Cir. 1974); Battle v. Anderson, 564 F.2d
388 (10th Cir. 1977); Watson v. City of Memphis, 373 U.S.
526 (1963); Goldberg v. Kelly, 397 U.S. 254 (1969); and
Griffin v. Illinois, 351 U.S. 12 (1956). See also, Battle y.
Anderson, supra, Brief for Plaintiff-Intervenor United States
(August 15, 1977) (“Constitutional requirements may not
be limited by monetary considerations”). This case also does
not present a real issue of whether or not fiscal matters
can be considered in the fashioning of the remedy that will
cure the constitutional deprivations found.
In Inmates of San Diego County Jail v. Duffy, 528 F.2d
954, 956 (9th Cir. 1975), the court reversed a district court
decision which had not utilized the enhanced standard to
be applied in the case of pre-trial detainees and ordered
that court to reconsider its decision “in light of the ra-
tionale of . . . Rhem v. Malcolm.” Similarly, in Patterson
v, Morrisette, 564 F.2d 1109, 1110 (4th Cir. 1977), the
court noted that the standard it applied to pre-trial de-
tainees was in accord with Rhem, as did the Third Circuit
Court of Appeals in United States ex rel Tyrrell v. Speaker,
535 F.2d 823, 827 (3rd Cir. 1976). See also, Smith y.
Shimp, 562 F.2d 423 (7th Cir. 1977).
Indeed, the only court of appeals case which has ad-
dressed the issue directly and which substantially deviated
from the Rhem standard is Feeley v. Sampson, 570 F.2d
364 (ist Cir. 1978). Feeley, which the government must
rely upon to support its position, is an historical accident
and does not at this time represent the views of the First
Circuit. The majority in Feeley only included one active
27
sitting judge from the First Circuit, Judge Campbell. The
other judge in the majority was sitting by designation from
the United States Court of Customs and Patent Appeals.
Cheif Judge Coffin, dissenting in Feeley, cited to Rhem
and other similar cases to indicate that “. . . the almost
universal state of authority is in stark disagreement with
the court’s [majority’s] analysis.” 570 F.2d at 377, 379.
Judge Bownes, who as the district court judge in Feeley
had utilized the Rhem standard, now sits with Judges Cof-
fin = Campbell as the three active judges of the First Cir-
cuit.
After being elevated to the court of appeals, J udge Bownes,
writing for the entire court in DiMarzo v. Cahill, supra,
at 20, noted that ‘many courts have held that pre-trial de-
tainees are to be confined only to the degree necessary to
guarantee their presence at trial,” citing Rhem and other
similar cases. Although the First Circuit did not feel it
necessary to expressly disapprove of the Feeley standard
in DiMarzo, it clearly no longer has vitality for a majority
of that court.
Consequently, there is no disagreement among the Circuit
Courts of Appeals that should prompt this Court to seri-
ously consider reversing the historically and generally ac-
cepted standard for pre-trial detainees.
29 For consistent pre-Rhem decisions on jails by Judge Bownes,
see Smith v. Sampson, 349 F. Supp. 268 (D.N.H. 1972) and Conk-
lin v. Hancock, 334 F. Supp. 1119 (D.N.H. 1971).
28
B. The Specific Holdings Of The Court Below Chal-
lenged By The Government Are Consistent With
All Recognized Professional Standards And This
Is Not An Appropriate Case In Which To Chal-
lenge The Constitutional Standard To Be Applied
To Conditions Of Confinement For Pre-Trial De-
tainees.
This case in no way presents a challenge to the structure
of the Metropolitan Correctional Center. The only issue be-
fore the Court relating to structural deficiencies was created
by the Bureau of Prisons double-celling two people in a 75
sq. ft. space designed and suited to house only one person.
The other four specific practices which were enjoined and
are presented to this Court are: the prohibition on the
receipt by detainees of books, magazines and other written
material from any source other than the publisher or book-
clubs — the “publishers only” rule; the prohibition of the
receipt of any and all packages by inmates (except for one
food package at Christmas); the practice of conducting a
strip search of detainees after every contact visit which re-
quired that the detainee remove all of his/her clothing, dis-
play his/her hands and armpits, open his/her mouth, lift his
genitals, display the soles of his/her feet, bend over and
spread his/her buttocks for a visual anal inspection, and, for
30 The collateral and serious deprivations to prisoners which were
caused by this action and which were ruled upon by the trial court
in finding that the double-celling in this case was unconstitutional
are amply provided in the Respondents’ Statement of the Facts.
Contrary to the suggestions in the government's brief (e.g. at p. 54),
no party is arguing that this Court should go beyond the facts in
this case and hold that double-celling under any and all conditions
is unconstitutional.
29
female inmates, a visual vaginal inspection;?! and, the ran-
dom searches of cells without the presence of the detainee.*”
By enjoining all five practices, the trial court required no
more than any current set of recognized minimum standards
which address those issues does.
Of particular note in this regard are the Draft Federal
Standards for Corrections published in June of this year
by the United States Department of Justice after being
drafted by the Bureau of Prisons and other Justice Depart-
ment personnel, including Petitioner Carlson. In his intro-
duction to the Draft Standards Petitioner Attorney General
Bell, identified the goals of the standards to be: (1) to be
responsive to constitutional issues; (2) to promote practices
that are humane and responsive to the constitutional rights
of the individual; and (3) to promote practices which will
ensure that correctional facilities are safe, secure and man-
ageable (at p. 1).°3 Petitioner Bell further stated “that the
standards might be looked to in fashioning a remedy when a
court independently finds constitutional or legal violations
have occurred.” and that
31 The trial judge found this process to be “unpleasant, embar-
rassing and humiliating” as well as not rationally related to security
interests at the M.C.C.
32 The trial judge found that this practice raised tension and
hostilities and that destruction of detainee property could be reduced
by allowing the detainee to remain a reasonable distance away. The
court of appeals added there was no reason to deprive the detainee
of this privilege.
33 Obviously, the drafters and Petitioners Bell and Carlson deter-
mined that the standards as drafted would not compromise security
interests of jailers or be unmanageable. Further, it appears that the
drafters were attempting to set a basic level of conditions which must
be maintained to be “humane.” The government in its brief at p.
24 concedes that detainess must be afforded “humane”’ living con-
ditions.
30
the Department of Justice must . . . be willing
to embrace the goals and objectives set forth
in the standards and apply those standards to
its own correctional program (at 2 and 3).
The Draft Standards, which apply to jails, speak to four
of the five specific issues before the Court and, after taking
security needs into account, are inconsistent with the gov-
ernment’s position on each of the four. The standards re-
quire: (1) all cells designed for single occupancy house
only one person and that there is at least 60 sq. ft. per
prisoner of living space (excluding activity space) as op-
posed to the 37% sq. ft. provided by the double-celling at
the Metropolitan Correctional Center (Physical Plant 002,
004-006); (2) prisoners and detainees can receive books
and other publications from sources other than the pub-
lisher (Mail and Visiting 002); (3) no limit on receipt of
mail or other publications, including packages, except where
there is clear and convincing evidence to justify the limita-
tion (Mail and Visiting 002); and (4) the use of nonintru-
sive sensors and other techniques instead of body searches
whenever feasible; and prohibition of visual inspection of
body cavities except where there is a “real suspicion” and,
when conducted, a requirement that they be conducted in
a manner whereby the “dignity and integrity” of the indi-
visual will be preserved (Security and Control 013). It is
certainly anomalous that the same government which has
determined that the above standards would support consti-
tutional, humane and secure institutions would rely upon
fiscal feasibility and a rational relation test to defend in-
consistent practices in one of their own jails.
Other more established professional standards dictate the
same conclusions. The American Correctional Association
has existed since 1870 as the professional organization for
31
correction personnel. In December of 1977, that associa-
tion produced its Manual of Standards for Adult Local De-
tention Facilities. The primary goals were to assure: 1)
security; (2) humane and efficient management of inmates;
and 3) provision of services necessary to maintain the phy-
sical, social and emotional health of inmates (p. xix). More-
over, the standards were successfully field-tested in jails in
Illinois, California and Maryland. Those standards require
that: (1) cells designed for single-occupancy house only
one person and that cells have at least 60 sq. ft., except
that the minimum increases to 80 sq. ft. if the person is
held in the cell for more than 10 hours a day (5102, 5103,
p. 21); (2) there is no limitation on the volume of mail
an inmate may send or receive, unless there is clear and
convincing evidence to justify such limitation (5307, p. 64);
(3) searches shou!i be conducted no more frequently than
necessary and in a manner so as to avoid embarrassment or
indignity to the inmate. Nonintrusive sensors and other
techniques instead of body searches should be used when-
ever feasible and the presence of health care personnel is
requiged at the time of body searches (5246, 5270, pp. 50,
56); and (4) Inmates should be in the vicinity of their cells
when any search of said cells are being conducted (5213,
p. 44).
The National Sheriff's Association in 1974 published a
set of standards for the jails for which they are responsible.
Those standards provide for: (1) single occupancy cells
with 70 to 80 sq. ft. of living space within the cell (Jail
Architecture, pp. 62, 63); (2) inmates having access to a
wider range of reading material (Jnmate Legal Rights, p. 44);
and (3) inmates’ presence during any search of his/her cell
(Jail Security, Classification and Discipline, p. 45).
32
Other special purpose professional groups have addressed
the particular issues raised in this case which are within their
area of expertise. For example, the ABA Tent. Standards
provide for the receipt of packages subject to them being
opened and searched, 86.1(d), and the presence of the pri-
soner at his or her cell when a search is being conducted,
except in an emergency, 86.6(d). The American Public
Health Association’s Standards for Health Services in Cor-
rectional Institutions (1976) for public health reasons re-
quire a minimum of 60 sq. ft. of living space in single-
occupancy cells and 75 sq. ft. in multiple-occupancy living
areas with at least half that amount of space additionally
provided for activity area (pp. 62, 63).
Suffice it to say that although all standards developed by
reputable professional organizations contain some standards
in support of the remedies objected to by the government,
amicus curiae has been unable to find any standards which
support the government’s positions.
Moreover, local and state authorities have adopted standards
for facilities which recognize that the specific remedies re-
quired by the lower court in Wolfish are not only needed
but workable. Of particular note are the New York City
Board of Correction Minimum Standards for New York
City Correctional Facilities which, of course, are to be ap-
plied to jails in the very geographical location as the Metro-
politan Correctional Center. Those standards provide: (1)
a cell or room designed for single occupancy shall house
only one prisoner, and multiple-occupancy areas shall pro-
vide a minimum of 75 sq. ft. per person in the sleeping area
(85.2, p. 5); (2) publications can be received from any
source ($14.1, p. 2); and (3) prisoners are allowed to re-
ceive packages from any person (813.1, p. 14). Similarly,
the Corrections Standards and Geals produced by the New
33
York State Division of Criminal Justice Services provide for:
(1) no double-celling in single-occupancy cells (85.1(c), p.
17); (2) prisoners are allowed to receive publications from
any source (85.11, p. 31); (3) packages can be received by
prisoners subject to search (85.11, p. 13); (4) inspection
of anal or vaginal cavities can be done only with probable
cause (85.14, p. 35); and (5) prisoners are to be present
to observe searches of cells when they are made (85.14(e),
p. 34).
In light of the above, the government’s argument that
the remedies in issue are required by fiscal or security
needs seem hollow. Moreover, in its own actions in cases
where it is not defending Federal Bureau of Prisons’ prac-
tices but litigating over state and local facility practices and
conditions, the United States has never taken any position
consistent with those taken in Wolfish, but has rather always
taken positions consistent with those of the lower courts
when the issues have been raised.
For example, in the Final Memorandum of the United
States of November 16, 1977 in the case of Davis v. Mont-
gomery County Jail, (M.D.Ala.) C.A. #76-205-N, the gov-
ernment maintained as an amicus curiae that only one per-
son could be housed in a single-occupancy cell and that each
cell had to contain at least 60 sq. ft. of living space (p. 11).
A similar position was taken as Plaintiff-Intervenor in both
their Trial Memorandum and Brief in the Fifth Circuit Court
of Appeals in Adams vy. Mathis, (M.D.Ala.) C.A. #74-70.S,
supra, In Battle v. Anderson, supra, as Plaintiff-Intervenor,
the United States in its Brief to the Tenth Circuit Court
of Appeals (No. 77-1554) specifically urged that 39 sq. ft.
per prisoner (1% sq. ft. more than allowed at the Metropolitan
Correctional Center) was unconstitutional and that the ap-
propriate constitutional standard would be a minimum of
34
60 sq. ft. in single cells and 75 sq. ft. in multiple-occupancy
room s(pp. 12, 16). The same position was taken as amicus
curiae in the case of French v. Owens, (S.D.Ind.) C.A. #75-
677-C, in the United States’ Proposed Findings of Fact, Con-
clusions of Law and Order signed on September 11, 1978.
See also, Pugh v. Locke, supra; Costello v. Wainwright, 397
F.Supp. 20 (M.D.Fla. 1975), rev'd on other grounds, 539
F.2d 547 (Sth Cir. 1976), rev'd, 430 U.S. 325 (1977) and
Ruiz and United States v. Estelle, No. 72-H-1393 (S.D.Tex).
In spite of the “security” interest asserted in Wolfish con-
cerning the “publishers only” rule and the ban on the re-
ceipt of packages, the United States’ Comment on the Pro-
posed Compromise and Dismissal filed in the district court
in Guajardo v, Estelle, 432 F.Supp. 1373 (S.D.Tex. 1977),
rev'd in part, 580 F.2d 748 (Sth Cir. 1978) stated, “It is
difficult to perceive how the ‘publishers only rule’ is neces-
sary or essential to any legitimate penal interest” (p. 8) and
that “the exclusion of all packages is unduly restrictive. . .
If the goal is the exclusion of contraband, there are less re-
strictive means of achieving this end” (p. 4). See also, Bat-
tle v, Anderson, supra and Gates and United States v. Collier,
390 F.Supp. 482, 494 (N.D. Miss. 1975).
One cannot assume that the United States for years, and
up until the recent date, has been forcing state and local gov-
ernments through constitutional litigation to adopt practices
that are fiscally or administratively not feasible, or are a
threat to the serious security interests of the jailor or are
not required, in the government’s mind, by the Constitu-
tion. That this same government is now reaching for new
and regressive positions to defend practices at its own jail
seems clear.
As then Judge, now Petitioner Attorney General Bell, has
stated:
35
I concur specially to indicate my agreement with
the result reached by the majority, and also to
record my continuing belief that all police and
ancillary personnel in this nation, whether state
or federal, should be subject to the same accoun-
tability under law for their conduct .. . It is re-
grettable that we have one law for Athens and
another for Rome.
Anderson vy, Nosser, 438 F.2d 183,
190 (Sth Cir.1971)
In sum, it is clear from concepts deeply rooted in our his-
tory, from the present state of the law, from the various
sets of professional minimum standards and from the past a
and present positions taken by the United States concern-
ing state and local prisons and jails that the decision of
the court below was correct and that the facts and issues
raised in this case do not provide special and important
reasons for review by this Court as is required by Rule 19,
Supreme Court Rules.
36
CONCLUSION
The writ of certiorari in this case should be dismissed as
improvidently granted or, in the alternative, the judgement
of the court of appeals should be affirmed.
Respectfully submitted,
EDWARD I. KOREN
RALPH I. KNOWLES, JR.
MATTHEW L. MYERS
ALVIN J. BRONSTEIN
The National Prison Project of the
American Civil Liberties Union
Foundation
1346 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 331-0500
Attorneys for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.