Colligan v. Activities Club of New York Petition for a Writ of Certiorari to the US Court of Appeals for the Second Circuit

    I n  t h e

(Emirt nf %  Intfrd States
O c to ber  T e r m , 1978 

No. 77-1829

G r if f in  B .  B e l l , e t a l.,

- v s -

P etitioners,

L o u is  W o l f is h , e t a l.

ON W R IT  OF CERTIORARI TO T H E  U N ITED  STA TES 

COURT OF A PPEALS FO R T H E  SECOND CIRCU IT

BR IEF FOR THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

AS AMICUS CURIAE

J a ck  G r een ber g  
J a m es  M. N a b r it , I I I  
J o el  B er g er  
B e t h  J .  L ie f  
S t ev en  L .  W in t e r  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

A ttorneys fo r  Am icus Curiae



TABLE OF CONTENTS

PAGE

Interest of Amicus ...................   1

Summary of Argument ................... 3

Argument ............    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 
Security .................. ...... 4

II. The Federal Courts Have Inherent 
Power To Correct The Conditions 
Under Which Persons Awaiting 
Trial In The Federal Courts
Are Detained ..................... 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
Detainees ................... . 37

CONCLUSION ............................ 47

i -



TABLE OF AUTHORITIES

Cases

PAGE

Accardi v. Shaughnessy, 347 U.S 260
(1954) ........................... 41

Armstrong v. Cardwell, 457 F.2d 34
(6th Cir. 1972) .......... ....... 36

Barnes v. Government of the Virgin 
Islands, 415 F.Supp. 1218
(D. V.I. 1976) ..................  11

Barth v. Clise, 79 U.S (12 Wall.)
400 (1871) ......    25

Bay County Jail Inmates v. Bay
County Board of Commissioners,
Civil Action No. 74-10056
(N.D. Mich. Aug. 29, 1974) .....  9

Benjamin v. Malcolm, 75 Civ.
3073 (S.D.N.Y. Jan. 6, 1976) .... 20

Berkowitz v. United States, 90
F. 2d 881 (8th Cir. 1937) •.........  24,25,29

Bongiovanni v. Ward, 50 F.Supp.
3 (D. Mass. 1943) ...............  25

Brenneman v. Madigan, 343 F.Supp.
128 (N.D. Cal. 1972) . ........ 13

Bundy v. Katsaris, TCA 78-1913
(N.D. Fla. Nov. 1, 1978) ........  13

li



PAGE

Campbell v. McGruder, 416 F.Supp.
100 (D.D.C. 1975), aff'd 
and remanded, 580 F.2d 521
(D.C. Cir. 1978) ................  15

Clardy v. Levi, 545 F.2d 1241 (9th
Cir. 1976) ....................... 39

Coffin v. Reichard, 143 F .2d 433
(6th Cir. 1944) .................  35,26

Collins v. Schoonfield, 344 F.Supp.
257 (D. Md. 1972) .............  3,8,11,15,19

Comm, ex rel. Bryant v. Hendricks,
144 Pa. 83 ( 1971) ...............  36

Conklin v. Hancock, 334 F.Supp. 1119
(N.D.H. 1971) .................... 11

Duran v. Elrod, 542 F.2d 998 (7th
Cir. 1976) .....................  12

Ewing v. United States, 240 F.
241 (6th Cir. 1917) ..............  25

Feeley v. Sampson, 570 F.2d 364
' (1st Cir. 1978) .................  17

Funchess v. Beame, No. 73 C 572
(E.D.N.Y. July 12, 1974) ........  8,19

Goldsy v. Carnes, 429 F.Supp. 370
(W.D. Mo. 1977), prior opinion,
365 F.Supp. 395 (W.D. Mo.
1973) ............................ 12

Grinfell v. Gladden, 241 Ore. 190
(1965), cert, denied, 382 U.S.
988 (19661“ .................

- iii -

36



PAGE

Gulf States Utilities v. Federal
Power Commission, 411 U.S. 747 
(1973) ...........................

Hamilton v. Love, 328 F.Supp. 1182
(E.D. Ark. 1971) ................

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

Inmates of The Suffolk County Jail 
v. Eisenstadt, 360 F.Supp.
676 (D. Mass. 1973) ............ 3

Inmates of Milwaukee County Jail v. 
Peterson, 353 F.Supp. 1157 
(E.D. Wise. 1973) .............

In re Gannon, 27 F.2d 362 (E.D.
Pa. 1928) ............ ...........

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.
914 (1962) ...................

J.I. Case v. Borak, 377 U.S. 426
(1964) ........................

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

Johnston v. Marsh, 227 F.2d 528
(3rd Cir. 1955) ..... . ........

Jones v. North Carolina Prisoners'
Union, 433 U.S 119 (1977) ....

46

3

36

, 6 , 10 , 20,21

10,19

25,27,29

36

36

40

35,36

25,26,27

23

IV



PAGE

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) .................  2,13,16,20

Lavier v. Kansas, 209 Kan. 442
(1972) ........................... 36

Manicone v. Cleary, No. 74 C 575
(E.D. N.Y. June 30, 1975) .......  13,19

Manicone v. Corso, 365 F.Supp. 576
(E.D.N.Y. 1973) .................  7,8,11,13

Marion County Jail Inmates v.
Broderick, No. IP 72-C-424
(S.D. Ind. March 24, 1976) ......  11,13,19

McGoff v. Rapone, 78 F.R.D. 8
(E.D. Pa. 1978) .................  45

Mehafey v. State, 87 Idaho 228,
392 (1964) ................ -..... 36

Mead v. Parker, 464 F .2d 1108
(9th Cir. 1972) . ...........   36

Miller v. Carson, 401 F.Supp. 835 
(M.D. Fla. 1975), aff'd, 563 
F. 2d 741 (5th Cir. 1977) ........  13,14,19

Miller v. United States, 6 F.2d 463
(3rd Cir. 1925) .................  24

Morgan v. Willingham, 424 F .2d
200 (10th Cir. 1970) ............  40

v



PAGE

O'Bryan v. County of Saginaw, Mich.,
437 F.Supp. 582 (E.D. Mich.
1977) ............................  13,14,19

Owens-El v. Robinson, 442 F.Supp. 1368
(W.D. Pa. 1978) .................. 11,12,19

People ex rel. Brown v. Johnson, 9 
N.Y.2d 482, 215 N.Y.S.2d
44, 174 N.E. 2d 724 (1961) ....... 36

Perez v. Turner, 462 F.2d 1056 
(10th Cir. 1972), cert, denied, 401

U.S. 944 (1973) ...........   36

Powlowski v. Wullich, 81 Misc.2d 
895 (Sup. Ct. Monroe County 
1975) ............................. 13

Principe v. Ault, 62 F.Supp. 279
(N.D. Ohio 1945) ................  25

Procunier v. Martinez, 416 U.S.
396 (1974) .......................  21,23

Rainer v. Saxbe, 522 F.2d (D.C.
Cir. 1975) ....................... 39

Rea v. United States, 350 U.S.
214 (1956) ....................... 31

Rhem v. Malcolm, 507 F.2d 333
(2d Cir. 1974) ..................  6,20

Rogers v. Warden, Nevada State
Prison, 84 Nev. 534 (1968) ....... 36

Saia v. Warden of Conn. State 
Prison, 25 Conn. Sup. 549,
A.2d 520 (1964) .................  36

vx



PAGE

Spector Motor Co. v. McLaughlin,
323 U.S. 101 (1944) .............  22

State ex rel Cole v. Tahash, 269
Minn. (1964) ..................... 36

State ex rel Pringley v. Coiner,
W. Va. 186 S.E .2d

220 ( 1972) ............................ 36

State v. McCray, 267 Md. Ill
(1972) ................................ 36

Taylor v. Sterrett, 344 F.Supp.
411 (N.D. Tex. 1972); 
aff'd, 499 F .2d 367 (5th
Cir. 1974) ....................... 2,9

Thorpe v. Housing Authority of
Durham, 393 U.S 268 (1969) ......  44

United States v. Smith, 444 F.2d
61 (8th Cir. 1971) ..................  28

United States v. New York Telephone
Co. , 434 U.S 159 (1977) ............   32

United States ex rel. Wolfish v.
Levi, 439 F.Supp. 114 (S.D.
N.Y. 1977) ...................  18,24,34,39,40,

44

United States ex rel Wolfish v.
United States, 428 F.Supp. 333
(S.D.N.Y. 977) ..................  22,33,34

University of California Regents 
v . Bakke, U.S. ,
(1978) 57 L.Ed.2d 750,
98 S.Ct. ...................  22

- vii -



PAGE

Vest v. Lubbock County Comm'rs, 444
F.Supp. 824 (N.D. Tex. 1977) ....  10

Williams v. Richardson, 481 F.2d 358
(8th Cir. 1973) .................  36

Wilson v. Beame, 380 F.Supp. 1232
(E.D.N.Y. 1974) .................  14

Wise v. Henkel, 220 U.S. 556 (1911)... 31,32,33,35,
37

Wolfish v. Levi, 573 F.2d 118 (2d
Cir. 1978) ....................... 35,39,45

Wright v. Henkel, 190 U.S 40
(1903) .'..................    25

Constitution & Statutes

First Amendment ..........   15

Fourteenth Amendment ....     15

Administrative Procedure Act,
5 U.S.C. §706 (1976) ............  39

Bail Reform Act of 1966, 18 U.S.C.
§3146 (1976) .........  28,30

18 U.S.C. §4001 (1976) ...............  23,34,38

18 U.S.C. §4042 (1976) ............   23,34,38

18 U.S.C. §4082(a) (1976) ............  23

Federal Power Act, 16 U.S.C. §824c
(1976) ........................... 46

- viii -



PAGE

§5 of Judiciary Act of 1891 ...........  32

28 U.S.C. §2241 (1976) ...............  27,37

28 U.S.C. §2243 (1976) ............ . 20,35,37,40

28 U.S.C. §2254(a) (1976) ............  37

Miscellaneous:

W. Blackstone, Commentaries ........  16

Criminal Justice Newsletter,
Vol. 9, No. 23, at 4
(Nov. 20, 1978) .................  45,46

Developments in Law: Federal 
Habeas Corpus, 83 Harv.
L.Rev. 1038 (1970) ..............  36

Fed. R.Crim. P. 41 ...................  31

Fed. R.Crim, P. 46(g) ......... ....... 36

Federal Standards For Corrections
[Draft], U.S. Dept, of Justice .. 20,21,40,45

The President's Commission on Law
Enforcement and the Administra­
tion of Justice, Task Force 
Report: Corrections 24
(1976) ..........................  5,6

ix



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1978 

No. 77-1829

GRIFFIN B. BELL, et al.,

Petitioners,

- vs -

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 (5th Cir. 1974); Jones v. Wittenberg,



3

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. M d . 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



- 4 -

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



5

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.



-  6 -

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 "[ajcute 
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
T2d Clr7 1974).



7

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. Cor so, 365 
F.Supp. 576 (E.D.N.Y. 1973), the sheriff had



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.

Id. ■

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 administration 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



9

skin paper, carbon paper, tranila 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 (5th 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" of the 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,



11

and could refuse to mail or deliver any letter 
containing language they deemed "abusive." Id. at 
828-29

Restrictive practices also have been revealed 
in cases dealing with visiting. In Manicone v. 
Cleary, No. 74 C 575 (E.D.N.Y. June 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.I. 1976) (limits on 
number and length of letters); Collins v. Schoon- 
f ield, 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." 

3/Slip. op. at 29.—
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); Goldsby v. Carnes, 
429 F.Supp. 370, 378 (W.D. Mo. 1977), prior 
opinion, 365 F.Supp. 395, 415 (W.D. Mo. 1973)(con-



13

The district court required the warden to provide 
a clean change of linen weekly. Order of Jan. 4, 
1967, 17.

In Bundy v. Kat saris, TCA 78-09 13 (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/ Cont1d .

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), aff1d, 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 to 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., Manicone 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. Ld. at 12.

In 0'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 (5th 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.

C.
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 
such as are absolutely requisite for the 
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 must 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



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 

4/results.—
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 (1st 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.



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." Id.— ^

In fact, the practices enjoined in this case 
are no more necessary to security than those found 
to be unreasonable 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

. . 6/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 Coll ins v. Schoon- 
f ield, 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); Ben j amin 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



21

respondents' position on nearly every issue,—  are 
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,

g J
non-constitutional grounds.— 7 As 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. ____, 57 L.Ed.2d 750, 847, 98
S. Ct. 2733, (1978) (Opinion of Stevens,
J.).



- 23 -

Correctional Center ("MCC") puts this case in a 
different posture than the many cases dealing with 
similar practices in state pre-trial detention 
facilitiesInmates at the MCC, which is actually 
connected to the courthouse, are, for the most 
part, confined there by order of federal district 
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 distinguishes 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. 
S§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. L e v i , 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. United States, 90 F .2d 881, 883 (8th Cir.



25

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. 1 9 4 3 )(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.

11/ 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 bcates 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 rightly 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

llj 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 may admit him 
to bail; they may allow bail on conditions. They



30

may 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-
„ • 12/tive.—

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.Grim.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." Ld. 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 558.— ^

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:



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).



34 -

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 ... 
plung[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/ Gont'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 jurisdiction 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,

14/457 F. 2d 34 (6th Cir. 1972); Coffin, supra.—  
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). Perez 
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 Coffin1s 
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); In 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); Comm. 
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);
Grinfel 1 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
520 (1964); State v. McCray,267 Md. Ill, 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 25 U.S.C. §2 254(a) with §2241 (C) (1) 4 
(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
tions] 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 
t and control of all Federal correc-managemen



- 38 -

tional and penal institutions and has an affirma­
tive duty to "promulgate rules for the government 
thereof." 18 U.S.C. §4-001(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.Y. 1977). The district court 
further noted that: "What is 'arbitrary1, '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 Gir.
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 .— ^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 Rainer 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, 
201 (10th Cir. 1970) (convicted prisoners),— ^the 
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.10.



- 41

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 
not 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 
p a c k a g e s ^

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 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].

005 Multiple occupancy cells house no 
more than 16 inmates, with a 
minimum of 60 square feet of floor 
space per inmate in the sleeping 
area (excluding activity spaces), 
[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:



- 43

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 mail or publica-



- 44 -

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...," United 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 regulation requiring inmates to wear govern-



- 45

Durham, 393 U.S. 268 (1969). Awaiting adop­
tion these standards still express the

17/ Cont’d .

ment issued jumpsuits. Wolfish v. Lev i, 573 
F.2d 118, 132-133 (2d Cir. 1978). In Me Goff v. 
Rapone, 78 F.R.D. 8 (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 testimony 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.



- 46 -

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. Td. 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, III 
JOEL BERGER 
BETH J. LIEF 
STEVEN L. WINTER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



MEREN PRESS INC. —  N. Y. C.