Bell v. Wolfish Reply Brief for the Petitioners

    No. 77-1829

in %  Js’itprmi* (Unurt of ilip HHniteb BtaUo
October Term , 1978

Gr iff in  B . B ell , et al ., petitioners

v.

Louis W o lfish , et a l .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

Wade H. McCree, Jr. 
Solicitor General

; . , , Department of Justice
Washington, D.C. 20530



I N D E X

CITATIONS
Cases: Page

Adams v. United States ex vel. McCann,
317 U.S. 269 ..........................................  12

Cort v. Ash, 422 U.S. 66 .......... -..............  14
Davis v. United States, 417 U.S. 333.....  13
Newman v. Alabama, 559 F.2d 283 .........  5
Sanks v. Georgia, 401 U.S. 144 ................ 9
Sidlivan v. United States, 348 U.S. 170.— 14
United States v. Lockyer, 448 F.2d 417— 14
United States v. Mayy, 561 F.2d 685....  14
United States v. New York Teleyhone

Co., 434 U.S. 159 ...............:..................  12

Constitution and Statutes:
United States Constitution, Article III.....  11
Bail Reform Act of 1966, 18 U.S.C. 3041

et seq..........................................................  H> l 2
18 U.S.C. 3146 ....................................  12
18 U.S.C. 3148 ....................................  12

18 U.S.C. 4042(2) ......................................  10,14
28 U.S.C. 2241(c) (3) ................................  13
28 U.S.C. 2243 ............................................  11



/

I
j

In tlu> Supmm' Court of %  Unite!) States
October Term, 1978

No. 77-1829
Griffin B. Bell, et al., petitioners

v.
Louis Wolfish, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

I.

Respondents essentially adopt the reasoning of the 
court of appeals, arguing that because pretrial de­
tainees retain a presumption of innocence and may 
not be subjected to punishment before being convicted, 
due process requires the government to justify re­
strictions placed on them—such as double-celling in 
rooms originally designed to house one person—by a 
“compelling necessity.” They contend that adminis­
trative and fiscal requirements may thus not be con­
sidered in evaluating the constitutionality of condi-

( 1 )



2

tions of pretrial confinement. Further, while recog­
nizing that the needs of institutional security may 
justify restrictive practices, respondents maintain 
that the court of appeals was correct in holding that 
the several challenged practices at the Metropolitan 
Correctional Center (MCC) are not justified by legiti­
mate security considerations and thus constitute un­
reasonable restrictions on both convicted inmates and 
pretrial detainees. For reasons set forth in our 
opening brief, we believe those arguments to be 
incorrect. Several matters in respondents’ brief, how­
ever, warrant additional comment.

1. Respondents claim (Resp. Br. 37, 38-39) that 
the due process standard employed by the court of ap­
peals is not a broad test requiring the government to 
show a compelling necessity for every restriction im­
posed on pretrial detainees, but is instead a very selec­
tive standard that applies only when a “substantial” 
right is being infringed. In illustration of the claimed 
limited applicability of the court’s compelling neces­
sity standard, respondents note that the court of 
appeals reversed the district court’s action with re­
gard to several “insubstantial” deprivations, such as 
the ban on personal typewriters, the required wear­
ing of uniforms, and the restricted access to visiting 
room bathrooms (Id. at 39).

Respondents’ characterization of the decision below 
finds no support in the court’s articulation of its due 
process standard, nor in its explanation of specific 
applications of the standard. The court was em­
phatic in its statement of the breadth of its constitu­
tional holding (Pet. App. lla-12a; citations om itted):



3

Time and again, we have stated without equivo­
cation the indisputable rudiments of due pro­
cess: pretrial detainees may be subjected to only 
those “restrictions and privations” which “in­
here in their confinement itself or which are 
justified by compelling necessities of jail admin­
istration.

The court did not suggest that its due process 
standard applies only to rights deemed “substantial;” 
to the contrary, the court indicated without qualifi­
cation that the standard is designed to protect for 
pretrial detainees “the rights afforded unincarcerated 
individuals” (Pet. App. 11a).

To be sure, as we noted in our brief (Br. 40 n.32), 
the court of appeals seemingly did not consistently 
apply its due process reasoning in review of various 
challenged practices. In those instances where the 
compelling necessity standard was clearly applied, 
however, the court failed first to determine the na­
ture of the constitutional interest affected by the 
governmental restriction before determining the ap­
propriate standard of governmental justifications. 
Thus, for example, while the court banned double- 
celling because it said the government had failed to 
show a compelling necessity for “the substantial abro­
gation of personal privacy,” it never discussed the 
nature of the “right to privacy” here involved or 
made any specific finding that the right was suffi­
ciently “substantial” to be deserving of the special 
protection afforded by the “compelling necessity” 
standard (Pet. App. 17a-19a; see Br. 46-47). Nor 
did the court ever attempt to formulate any guide-



4

lines for identifying those rights that should be con­
sidered “substantial.”

There is thus no basis for respondents’ claim that 
the standard employed by the court in this case is 
one of very limited and selective application, reserved 
for only a certain undefined category of “substan­
tial” rights.

Moreover, as is discussed in detail in our brief 
(Br. 28-35) there is no basis in the decisions of this 
Court for any conclusion that the government must 
show a “compelling necessity” to infringe “substan­
tial,” but not fundamental, personal liberties. The 
decision of the court of appeals is not made defensi­
ble merely by asserting that substantial or important 
personal interests are affected by the challenged gov­
ernment action. See id  at 28-32.

2. In support of the district court’s conclusion, on 
a motion for summary judgment, that double-celling 
in the residential rooms at the MCC was unconstitu­
tional, respondents refer to the “uncontradicted” 
statement of the MCC architect that the rooms were 
specifically planned and designed to house one person 
and that double-celling would be a “ ‘clear and appar­
ent violation of capacity * * *’ ” (Resp. Br. 11, 40).

Initially, it should be made clear that this “uncon­
tradicted sworn statement” was not part of the trial 
testimony in this case. Instead, it was an excerpt 
from testimony given in a different proceeding not 
involving these parties. It was submitted in this case 
as part of respondents’ affidavit in support of their 
motion for summary judgment (A. 9). Quite apart



5
from the question whether this unexamined testimony 
may be relied on by the district court in disposing 
of a motion for summary judgment (see Pet. App. 
205a-206a n.5), it remains our position that the issue 
of double-bunking was not a proper subject for sum­
mary judgment in this case (Br. 49-54) and that 
the architect’s opinion does not constitute an ade­
quate basis for finding a due process violation. Insti­
tutional design is only one factor to be considered in 
determining whether a constitutional violation has 
occurred, since “ [t]hose who design prisons are not 
vested with either the duty or the power to prescribe 
constitutional standards as to prison space.” New­
man v. Alabama, 559 F.2d 283, 288 (5th Cir. 
1977). As is discussed in detail in our brief (Br. 
44-46, 49), several other factors relating to the 
reasonableness and constitutionality of double-celling 
in the particular context of the MCC remained un­
examined by the courts below.1

Respondents contend (Resp. Br. 48-50), however, 
that the government cannot argue that considerations 
of cost and administrative inconvenience justify 
double-celling at the MCC because, since the date of 
the district court’s order, the administrators have 
been able to comply with a single-cell requirement.

1 Respondents also seek to rely on other cases involving mini­
mum space requirements for different institutions (Resp. Br. 
41 n.40). As we have noted, however, this ignores the fact 
that conditions at the MCC, with its modular unit design, 
differ markedly from those in other institutions (Br. 52-53). 
The error of the district court was precisely that of relying 
on evidence concerning these different factual situations and 
failing to conduct a particularized inquiry at the MCC.



6

This argument is wholly insubstantial for several 
reasons. First, it has, in large part, been possible to 
eliminate double-celling at the MCC because the num­
ber of persons committed to the Bureau’s custody for 
housing at that facility has significantly diminished. 
The planned capacity of the MCC at the time it 
opened was 449 inmates (Pet. App. 6a). At the time 
of the district court’s ruling enjoining double-celling 
at the MCC, on January 19, 1977 (A. 3), there were, 
according to the records of the Bureau of Prisons, 
535 inmates at the MCC, including 298 pretrial de­
tainees. On January 5, 1979, by contrast, there were 
only 417 inmates, of which only 163 were pretrial 
detainees. This substantial reduction in the number 
of pretrial detainees committed to the Bureau’s cus­
tody in the New York Metropolitan area has made it 
feasible at present to forego double-celling. But this 
says nothing about the feasibility of eliminating 
double-celling if, as is entirely possible, the number 
of detainees were again to increase to higher levels.

The second flaw in respondents’ argument is ap­
parent from its face. The argument is based on the 
unrealistic assumption^ that since it is possible to 
comply with a single-celling order, no administrative 
difficulties or additional expenses are encountered in 
doing so. Moreover, respondents overlook the fact 
that the government was precluded from offering 
evidence of administrative and fiscal requirements 
by the district court s award of summary judgment 
and the court of appeals’ express refusal to consider



7

these governmental interests in its constitutional 
analysis (Pet. App. 12a). In our brief (Br. 49-50), 
we have pointed to some of the factual elements of 
administrative necessity and fiscal concern that should 
properly be considered in determining the constitu­
tionality of double-celling at the MCC. These issues 
should properly be explored on remand, rather than in 
this Court, since the rulings below have forestalled 
their development in this record.

3. Respondents also assert (Resp. Br. 59 & n. 
60) that the government failed to offer any evidence 
to show that visual body cavity inspections following 
contact visits are of any actual utility in preventing 
or discovering the smuggling of contraband into the 
facility. Respondents note that expert testimony 
quoted in our brief (Br. 72 n.54) states that se­
cretion of contraband in the rectum is not only 
feasible but has been known to occur. They claim, 
however, that this testimony, “when read in full, does 
not support the government’s position” (Resp. Br. 
59 n.60).

When the testimony in question is read in its con­
text, it is apparent that it establishes the institu­
tional need for this search procedure. In the course 
of discussing the procedure employed for visual in­
spection of body cavities, the witness was asked by 
the district court whether “a fully-dressed inmate in 
a visiting room could feasibly or with any frequency 
secrete contraband in the rec[t]um ” (A. 71). He 
responded: “Absolutely. I know of cases where it



8

has happened” (ibid.).- He then went on to say: “It 
does not stop, your Honor, and would not stop some­
body swallowing something, whether it passed in a 
balloon and swallowed something in a balloon and 
then passing it later, when they get back in the unit” 
(ibid.). In so stating, the witness was not contradict­
ing what he had just said—that the government’s 
concern about the possibility of contraband being 
secreted in body cavities was not imagined but was 
based on past experience. Instead, he was referring 
to his ongoing testimony concerning the body cavity 
inspection procedure and explaining that there are 
ways of circumventing even this relatively thorough 
form of inspection. As the witness later stated ex­
pressly (A. 72), the contraband problem is serious 
enough that even the most drastic preventive meas­
ures are not always completely effective. F ar from 
suggesting that such search procedures are useless, 
the witness described additional measures that could 
be employed to help stem the problem of smuggled 
contraband, including restrictions on visiting for per­
sons found to have smuggled contraband into a fa­
cility with the help of a visitor (A. 71-72). Viewing 
this testimony in its proper context, it is apparent 
that the witness was expressing the reality of the

2 This testimony also demonstrates that, contrary to re­
spondents’ assertion (Resp. Br. 58), the record does not con­
tain “uncontradicted expert testimony” that the one-piece 
uniforms worn by 1VICC inmates make it impossible for them 
to conceal contraband in the vaginal or anal cavity. Indeed, 
the district court agreed that, though difficult, this method of 
concealment was possible (Br. 72 n.54).



9

government’s security concern and the need for pre­
ventive measures, including the visual body cavity 
inspection. Additional substantial evidence demon­
strating the need for this inspection procedure is dis­
cussed in our opening brief (Br. 70-73).

4. Respondents argue (Resp. Br. 67-68) that, in 
light of recent and proposed changes in the “pub­
lisher only” rule by the Bureau of Prisons (see 
Br. 66 n.49), this Court should dismiss the writ of 
certiorari as improvidently granted to the extent that 
it seeks review of the order enjoining further applica­
tion of the “publisher only” rule at the MCC. This 
argument, however, is not substantial. Unlike the 
situation in Sanks v. Georgia, 401 U.S. 144 (1971), 
on which respondents rely (Resp. Br. 68), the Bureau 
of Prisons has not substituted an entirely different 
regulatory scheme and wholly abandoned the require- 
ments that were invalidated below. The fact that the 
government no longer challenges the order of the 
district court as applied to soft-covered  ̂materials 
(Resp. Br. 68) does not detract from the significance 
of the institutional security interest in limiting entry 
of hard-covered materials from private sources^ (Br. 
66, 68-69 & n.51). The government has simply 
chosen to limit its disagreement to that aspect of 
the district court’s order that occasions greatest con- 
cern_ a n  option that would be available e\en if the 
agency did not propose voluntarily to modify its
rule.3

* We noted in our brief that the “publisher only” rule has 
been amended to allow receipt of materials transmitted to the



10

II.

In a brief filed by the NAACP Legal Defense and 
Educational Fund, Inc. (the “Fund” ), as amicus 
curiae, two additional arguments in support of the 
court of appeals decision have been advanced. They 
contend (1) that federal courts have inherent au­
thority to correct the conditions of pretrial detention 
because persons awaiting trial remain within the 
courts’ continuing jurisdiction and (2) that to the 
extent the practices at issue in this case are incon­
sistent with the Draft Federal Standards for Cor­
rections, they violate the Attorney General’s deter­
mination of the “suitable quarters” to be afforded 
inmates under 18 U.S.C. 4042(2). These claims have 
not been raised in the courts below in this case nor, 
so far as we are aware, in any other case. Nor have 
they been raised or briefed by either party in this 
Court. They therefore need not be considered by 
this Court. In any event, the arguments lack merit.

MCC from bookstores as well as from publishers (Br. 66 
n.49). Respondents’ claim (Resp. Br. 69) that the change 
demonstrates that “even as to hard-cover books, the security 
risk is not compelling.” While there may be some increase 
in the risk of contraband being introduced whenever addi­
tional sources are allowed, this modification in the security 
practice merely reflects the judgment of the Bureau that, as 
in the case of books mailed directly from publishers, books 
mailed from bookstores are far less likely to contain contra­
band then books mailed from private sources. This limited ex­
tension of permitted sources does not negate the government’s 
basic concern that hard-cover books are particularly service­
able for the concealment of contraband and extremely difficult 
to search effectively.



11

1. The Fund maintains that the federal courts 
have inherent power to correct conditions of con­
finement for detainees because those charged with 
crime remain within the jurisdiction of the court 
(Am. Br. 22-37). I t claims that since federal courts 
have the power to admit an accused to bail and to set 
conditions on the granting of bail, courts necessarily 
have the power to specify appropriate conditions of 
confinement for persons who are not released on bail. 
The Fund argues that this power may be exercised 
in a habeas corptis proceeding pursuant to the court’s 
authority to “dispose of the matter as law and jus­
tice requires” (id. at 37, quoting 28 U.S.C. 2243).

The argument advanced by the Fund has substan­
tial flaws:

(a) Nowhere does the brief identify the source 
of the courts’ inherent authority to determine suit­
able conditions of confinement for persons not re­
leased on bail. It may, at the least, be doubted 
whether an administrative authority over pretrial 
commitment could properly be delegated to or as­
sumed by the Judicial Branch consistent with Article 
III of the Constitution. The Fund suggests, how­
ever, that the courts’ “inherent authority” over con­
finement conditions emanates from its power to grant 
bail and “from the authority of the court over the 
person within its jurisdiction” (Br. 29). The au­
thority to which the Fund refers—the power to grant 
bail—has been comprehensively organized by Con­
gress in the Bail Reform Act of 1966, 18 U.S.C. 3041 
et seq. There is nothing in that Act establishing any



12

judicial authority over confinement conditions. In­
stead, the Act directs the court, in situations where 
release is not granted under conditions specified by 
the Act (e.g., 18 U.S.C. 3146, 3148), to imprison the 
defendant for trial (18 U.S.C. 3041). Where im­
prisonment for trial is ordered, 18 U.S.C. 4042 speci­
fies that “ [t]he Bureau of Prisons, under the direc­
tion of the Attorney General, shall * * * (2) pro­
vide suitable quarters and provide for the safekeep­
ing, care, and subsistence of all persons charged with 
* * * offenses against the United States * * *.” Thus, 
even if some “inherent authority” to administer jails 
imaginably once existed, it has been displaced by a 
congressional delegation of this very power to an 
executive agency. Cf. United States v. New York 
Telephone Co., 434 U.S. 159, 172-173 (1977) ; Adams 
v. United States ex rel. McCann, 317 U.S. 269, 273 
(1942).

(b) The claimed inherent judicial authority to 
mandate suitable conditions of pretrial confinement 
would lead to absurd results. Since it is basic to the 
Fund’s contention that this inherent authority is not 
dependent on a finding that conditions of pretrial 
confinement are unconstitutional (Am. Br. 24), each 
individual committing judge or magistrate could re­
quire in each individual case those conditions of con­
finement that he or she regards as suitable. Not only 
could each judge or magistrate differ as to what 
constitutes appropriate conditions, but each judge or 
magistrate could impose different confinement condi­
tions for different detainees. The complete absence



13

of any uniform standards under such a regime would, 
as a practical matter, make institutional confinement 
impossible. The assertion of inherent power by each 
committing judge or magistrate would produce a 
chaos of varying requirements that would make uni­
form administration infeasible.4

c. Even if the claimed inherent judicial authority 
to specify conditions of confinement were thought to 
exist, it could not be exercised in a class action habeas 
corpus proceeding such as this case. When conditions 
of confinement are challenged by means of a petition 
for a writ of habeas corpus, as in the present case, 
the court has power to grant relief only if it can be 
shown that a person “is in custody in violation of the 
Constitution or laws or treaties of the United States.” 
28 U.S.C. 2241(c)(3). See Davis v. United States, 
417 U.S. 333, 344 (1974). I t would not suffice for a 
court to find that some condition of confinement 
seemed unreasonable or unwise, absent some violation 
of a statutory or constitutional right.

If the authority could be exercised at all, it would, 
by the Fund’s own hypothesis, have to be pursuant 
to a motion directed to the committing judge or 
magistrate to grant or alter bail or release condi­
tions. Such a motion is plainly not amenable to class 
action treatment of the type involved in this case, 
since not every inmate at a pretrial facility will have

4 For example, some committing judges could insist that 
detainees be housed one to a cell, while others could require 
that detainees be housed at the MCC rather than at other, 
more distant facilities. Compliance with both requirements 
might prove impossible.



14

been ordered to custody by the same judge (or, in 
the case of the MCC, not even by judges within the 
same district court or even within any single federal 
circuit).

In short, this argument is devoid of any practical 
or logical merit.

2. The Fund claims that, by issuing the Draft 
Federal Corrections Standards for comment (see 
Br. 54 n.43), the Attorney General “has already ex­
pressed his expert determination” under 18 U.S.C. 
4042(2) as to the “suitable quarters” that must be 
afforded to pretrial detainees (Am. Br. 46). It argues 
that these “standards specifically prohibit the prac­
tices at issue in this case” {id. at 41).

The Fund is in error as to each of its contentions. 
By issuing the D raft Standards for public comment, 
the Attorney General has not promulgated them as 
regulations with the force of law and is not bound by 
them. Sullivan v. United States, 348 U.S. 170, 173 
(1954). Moreover, even if the D raft Standards were 
hereafter to be formally adopted by the Attorney 
General, they expressly state that they embody liberal 
administrative goals only and do not intend to confer 
any rights or legal cause of action on any individuals 
(Br. 54-55 n.43). They thus provide no basis for 
judicial enforcement of private claims. See Cort v. 
Ash, 422 U.S. 66, 78 (1975); United States v. 
Mapp, 561 F.2d 685, 690 (7th Cir. 1977); United 
States v. Lockyer, 448 F.2d 417, 421 (10th .Cir. 
1971). Finally, the institutional practices for which 
review is sought in this case are either consistent



15

with the proposed administrative goals set forth in 
the D raft Standards (Br. 54-55 n.43, 76 n.58), 
are not discussed under the Draft Standards (i.e., 
room search procedures), or remain under study by 
the Bureau and the Attorney General.

CONCLUSION

For the foregoing reasons, and the reasons stated 
in our opening brief, the judgment of the court of 
appeals should be reversed.

Respectfully submitted.

Wade H. McCree, Jr. 
Solicitor General

January 1979

☆  U . 3 .  GOVERNMENT PRINTING  O P PIC E; 1 9 7 9 2 8 4 5 3 3  271