Bell v. Wolfish Slip Opinion and Syllabus

    (Slip Opinion)

NOTE: Where it  is feasible, a  syllabus (headnote) will be re­
leased, as is being done in connection w ith th is case, a t  the  time 
the opinion is issued. The syllabus constitutes no p a rt of the opinion 
of the Court but has been prepared by the Reporter of Decisions for 
the convenience of the reader. See United S ta tes  v. D etroit Lumber 
Go., 200 U.S. 321, 337.SUPREME COURT OF THE UNITED STATES

Syllabus

BELL, ATTORNEY GENERAL, e t  a l . v . WOLFISH e t  a l .

CERTIORARI TO TH E UNITED STATES COURT OF APPEALS FOR T H E  
SECOND CIRCUIT

No. 77-1829. Argued January 16, 1979—Decided May 14, 1979

Respondent inmates brought this class action in Federal District Court 
challenging the constitutionality of numerous conditions of confinement 
and. practices in the Metropolitan Correctional Center (MCC), a fed­
erally operated short-term custodial facility in New York City designed 
primarily to house pretrial detainees. The District Court, on various 
constitutional grounds, enjoined, inter alia, the practice of housing, 
primarily for sleeping purposes, two inmates in individual rooms orig­
inally intended for single occupancy (“double-bunking”) ; enforcement 
of the so-called “publisher-only” rule prohibiting inmates from receiving 
hardcover books that are not mailed directly from publishers, book 
clubs, or bookstores; the prohibition against inmates’ receipt of packages 
of food and personal items from outside the institution; the practice of 
body-cavity searches of inmates following contact visits; and the require­
ment that pretrial detainees remain outside their rooms during routine 
inspections by MCC officials. The Court of Appeals affirmed these 
rulings, holding with respect to the “double-bunking” practice that the 
MCC had failed to make a showing of “compelling necessity” sufficient 
to justify such practice.

Held:
1. The “double-bunking” practice does not deprive pretrial detainees of 

their liberty without due process of law in contravention of the Fifth 
Amendment. Pp. 8-22.

(a) There is no source in the Constitution for the Court of Appeals’ 
compelling-necessity standard. Neither the presumption of innocence, 
the Due Process Clause of the Fifth Amendment, nor a pretrial de­
tainee’s right to be free from punishment provides any basis for such 
standard. Pp. 9-13.

(b) In evaluating the constitutionality of conditions or restrictions 
of pretrial detention that implicates only the protection against depriva-

i



II BELL v. WOLFISH

Syllabus

tion of liberty without due process of law, the proper inquiry is whether 
those conditions or restrictions amount to punishment of the detainee. 
Absent a showing of an expressed intent to punish, if a particular con­
dition or restriction is reasonably related to a legitimate nonpunitive 
governmental objective, it does not, without more, amount to “punish­
ment,” but, conversely, if a condition or restriction is arbitrary or pur­
poseless, a court may permissibly infer that the purpose of the govern­
mental action is punishment that may not constitutionally be inflicted 
upon detainees qua detainees. In addition to ensuring the detainees’ 
presence at trial, the effective management of the detention facility once 
the individual is confined is a valid objective that may justify imposi­
tion of conditions and restrictions of pretrial detention and dispel any 
inference that such conditions and restrictions are intended as punish­
ment. Pp. 13-19.

(c) Judged by the above analysis and on the record, “double- 
bunking” as practiced at the MCC did not, as a matter of law, 
amount to punishment and henoe did not violate respondents’ rights 
under the Process Clause of the Fifth Amendment. While “double- 
bunking” may have taxed some of the equipment or particular facilities 
in certain of the common areas in the MCC, this does not mean that 
the conditions at the MCC failed to meet the standards required by 
the Constitution, particularly where it appears that nearly all pretrial 
detainees are released within 60 days. Pp. 19-22.

2. Nor do the “publisher-only” rule, body-cavity searches, the pro­
hibition against the receipt of packages, or the room-search rule violate 
any constitutional guarantees. Pp. 22-40.

(a) Simply because prison inmates retain certain constitutional 
rights does not mean that these rights are not subject to restrictions 
and limitations. There must be a “mutual accommodation between 
institutional needs and objectives and the provisions of the Constitution 
that are of general application,” Wolff v. McDonnell, 418 U. S. 539, 556, 
and this principle applies equally to pretrial detainees and convicted 
prisoners. Maintaining institutional security and preserving internal 
order and discipline are essential goals that may require limitation or 
retraction of the retained constitutional rights of both convicted pris­
oners and pretrial detainees. Since problems that arise in the day-to- 
day operation of a corrections facility are not susceptible of easy solu­
tions, prison administrators should be accorded wide-ranging deference 
in the adoption and execution of policies and practices that in their 
judgment are needed to preserve internal order and discipline and to 
maintain institutional security. Pp. 22-27.



BELL v. WOLFISH hi

Syllabus

(b) The “publisher-only” rule does not violate the First Amendment 
rights of MCC inmates but is a rational response by prison officials to 
the obvious security problem of preventing the smuggling of contraband 
in books sent from outside. Moreover, such rule operates in a neutral 
fashion, without regard to the content of the expression, there are 
alternative means of obtaining reading material, and the rule’s impact 
on pretrial detainees is limited to a maximum period of approximately 
60 days. Pp. 27-31.

(c) The restriction against the receipt of packages from outside the 
facility does not deprive pretrial detainees of their property without 
due process of law in contravention of the Fifth Amendment, especially 
in view of the obvious fact that such packages are handy devices for 
the smuggling of contraband. Pp. 31-33.

(d) Assuming that- a pretrial detainee retains a diminished expec­
tation of privacy after commitment to a custodial facility, the room- 
search rule does not violate the Fourth Amendment but simply facili­
tates the safe and effective performance of the searches and thus does 
not render the searches “unreasonable” within the meaning of that 
Amendment. Pp. 33-36.

(e) Similarly, assuming that pretrial detainees retain some Fourth 
Amendment rights upon commitment to a corrections facility, the body- 
cavity searches do not violate that Amendment. Balancing the sig­
nificant and legitimate security interests of the institution against the 
inmates’ privacy interests, such searches can be conducted on less than 
probable cause and are not unreasonable. Pp. 36-39.

(f) None of the security restrictions and practices described above 
constitute “punishment” in violation of the rights of pretrial detainees 
under the Due Process Clause of the Fifth Amendment. These restric­
tions and practices were reasonable responses by MCC officials to legiti­
mate security concerns, and, in any event, were of only limited duration 
so far as the pretrial detainees were concerned. Pp. 39-40.

573 F. 2d 118, reversed and remanded.

R ehnquist, J., delivered the opinion of the Court, in which Burger, 
C. J., and Stewart, White , and Blackmun, J.J., joined. P owell, J., 
filed an opinion concurring in part and dissenting in part. M arshall, J., 
filed a dissenting opinion. Stevens, J., filed a dissenting opinion, in which 
Brennan, J., joined.



NOTICE : This opinion is subject to  form al revision before publication 
in the prelim inary p rin t of the  United S tates Reports. Readers are re­
quested to notify the  Reporter of Decisions, Supreme Court of the 
United S tates, W ashington, D.C. 20543, of any typographical or other 
form al errors, in order th a t  corrections may be made before the  pre­
lim inary p rin t goes to press.SUPKEME COUET OF THE UNITED STATES

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.

[May 14, 1979]

Mr. J u s t ic e  R e h n q u i s t  delivered the opinion of the Court.
Over the past five Terms, this Court- has in several decisions 

considered constitutional challenges to prison conditions or 
practices by convicted prisoners.1 This case requires us to 
examine the constitutional rights of pretrial detainees—those 
persons who have been charged with a crime but who have 
not yet been tried on the charge. The parties concede that 
to ensure their presence at trial, these persons legitimately 
may be incarcerated by the Government prior to a deter­
mination of their guilt or innocence, infra, at 12-13 and n. 15; 
see 18 U. S. C. §§ 3146, 3148, and it is the scope of their rights 
during this period of confinement prior to trial that is the 
primary focus of this case.

This lawsuit was brought as a class action in the United 
States District Court for the Southern District of New York 
to challenge numerous conditions of confinement and prac­
tices at the Metropolitan Correctional Center (MCC), a fed­
erally operated short term custodial facility in New York 
City designed primarily to house pretrial detainees. The

1 See, e. g., Hutto v. Finney, 437 U. S. 678 (1978); Jones v. North Caro­
lina Prisoners’ Labor Union, 433 U. S. 119 (1977); Bounds v. Smith, 430 
II. S. 817 (1977); Meachum v. Fano, 427 U. S. 215 (1976); Wolff v. 
McDonnell, 418 U. S. 539 (1974); Pell v. Procunier, 417 U. S. 817 (1974); 
Procunier v. Martinez, 416 U. S. 396 (1974).



2 BELL v. WOLFISH

District Court, in the words of the Court of Appeals for the 
Second Circuit, “intervened broadly into almost every facet 
of the institution” and enjoined no fewer than 20 MCC 
practices on constitutional and statutory grounds. The Court 
of Appeals largely affirmed the District Court’s constitutional 
rulings and in the process held that under the Due Process 
Clause of the Fifth Amendment, pretrial detainees may “be 
subjected to only those ‘restrictions and privations’ which 
‘inhere in their confinement itself or which are justified by 
compelling necessities of jail administration.’ ” Wolfish v. 
Levi, 573 F 2d 118, 124 (1978), quoting Rhem v. Malcolm, 
507 F. 2d 333, 336 (CA2 1974). We granted certiorari to 
consider the important constitutional questions raised by these 
decisions and to resolve an apparent conflict among the 
circuits.2 ----U. S .-----(1978). We now reverse.

I
The MCC was constructed in 1975 to replace the converted 

waterfront garage on West Street that had served as New 
York City’s federal jail since 1928. It is located adjacent to 
the Foley Square federal courthouse and has as its primary 
objective the housing of persons who are being detained in 
custody prior to trial for federal criminal offenses in the 
United States District Courts for the Southern and Eastern 
Districts of New York and for the District of New Jersey. 
Under the Bail Reform Act, 18 U. S. C. § 3146, a person in the 
federal system is committed to a detention facility only because 
no other less drastic means can reasonably ensure his presence

2 See, e. g., Norris v. Frame, ---F. 2 d -----  (CAS, filed Oct. 31, 197S)
(No. 78-1090); Campbell v. Magruder,----U. S. App. D. C. ■— , 5S0 F.
2d 521 (1978); Wolfish v. Levi, 573 F. 2d 118 (CA2 1978): Feeley v. 
Sampson, 570 F. 2d 364 (CA1 1978); Main Road v. Aytch, 565 F. 2d 54 
(CA3 1977); Patterson v. Morrisette, 564 F. 2d 1109 (CA4 1977); Miller 
v. Carson, 563 F. 2d 741 (CA5 1977); Duran v. Elrod, 542 F. 2d 998 (CA7 
1976).



BELL v. WOLFISH 3

at trial. In addition to pretrial detainees, the MCC also houses 
some convicted inmates who are awaiting sentencing or trans­
portation to federal prison or who are serving generally 
relatively short sentences in a service capacity at the MCC, 
convicted prisoners who have been lodged at the facility under 
writs of habeas corpus ad prosequendum or ad testificandum 
issued to ensure their presence at upcoming trials, witnesses in 
protective custody and persons incarcerated for contempt.3

The MCC differs markedly from the familiar image of a 
jail; there are no barred cells, dank, colorless corridors, or 
clanging steel gates. It was intended to include the most 
advanced and innovative features of modern design of detention 
facilities. As the Court of Appeals stated: “ [I]t represented 
the architectural embodiment of the best and most progressive 
penological planning.” 573 F. 2d, at 121. The key design 
element of the 12-story structure is the “modular” or “unit” 
concept, whereby each floor designed to house inmates has one 
or two largely self-contained residential units that replace the 
traditional cellblock jail construction. Each unit in turn has 
several clusters or corridors of private rooms or dormitories 
radiating from a central 2-story “multipurpose” or common 
room, to which each inmate has free access approximately 16 
hours a day. Because our analysis does not turn on the 
particulars of the MCC concept or design, we need not discuss 
them further.

When the MCC opened in August 1975, the planned capac­
ity was 449 inmates, an increase of 50% over the former West

3 This group of nondetainees may comprise, on a daily basis, between 40 
and 60% of the MCC population. United States ex rel. Wolfish v. United 
States, 428 F. Supp. 333, 335 (SDNY 1977). Prior to the District 
Court’s order, 50% of all MCC inmates spent less than 30 days at the 
facility and 73% less than 60 days. United States ex rel. Wolfish v. Levi, 
439 F. Supp. 114, 127 (SDNY 1977). However, of the unsentenced 
detainees, over half spent less than 10 days at the MCC, three-quarters 
were released within a month and more than 85% were released within 60 
days. Wolfish v. Levi, supra, at 129 n. 25.



4 BELL v. WOLFISH

Street facility. Id., at 122. Despite some dormitory accom­
modations, the MCC was designed primarily to house these 
inmates in 389 rooms, which originally were intended for single 
occupancy. While the MCC was under construction, how­
ever, the number of persons committed to pretrial detention 
began to rise at an “unprecedented rate.” Ibid. The Bureau 
of Prisons took several steps to accommodate this unexpected 
flow of persons assigned to the facility, but despite these 
efforts, the inmate population at the MCC rose above its 
planned capacity within a short time after its opening. To 
provide sleeping space for this increased population, the MCC 
replaced the single bunks in many of the individual rooms 
and dormitories with double bunks.4 Also, each week some 
newly arrived inmates had to sleep on cots in the common 
areas until they could be transferred to residential rooms as 
space became available. See 573 F. 2d, at 127-128.

On November 28, 1975, less than four months after the 
MCC had opened, the named respondents initiated this action 
by filing in the District Court a petition for a writ of habeas 
corpus.5 The District Court certified the case as a class

4 Of the 389 residential rooms at the MCC, 121 had been “designated” 
for double-bunking at the time of the District Court’s order. 428 F. 
Supp., at 336. The number of rooms actually housing two inmates, how­
ever, never exceeded 73 and, of these, only 35 were rooms in units that 
housed pretrial detainees. Brief for Petitioners 7 n. 6, Brief for Respond­
ents 11-12; App. 33-35 (Affidavit of Larry Taylor, MCC Warden, dated 
Dec. 29, 1976).

5 It appears that the named respondents may now have been trans­
ferred or released from the MCC. See United States ex rel. Wolfish v. 
Levi, 439 F. Supp., at 119. “This case belongs, however, to that narrow 
class of cases in which the termination of a class representative’s claim does 
not moot the claims of the unnamed members of the class.” Gerstein v. 
Pugh, 420 U. S. 103, 110 n. 11 (19/5); see Sosna v. Iowa, 419 U. S. 393 
(1975). The named respondents had a case or controversy at the time the 
complaint was filed and at the time the class action was certified by the 
District Court pursuant to Fed. Rule Civ. Proc. 23, and there remains a 
live controversy between petitioners and the members of the class repre­
sented by the named respondents. See Sosna v. Iowa, 419 U. S., at 402.



BELL v. WOLFISH 5

action on behalf of all persons confined at the MCC, pretrial 
detainees and sentenced prisoners alike.6 The petition served 
up a veritable potpourri of complaints that implicated vir­
tually every facet of the institution’s conditions and practices. 
Respondents charged, inter alia, that they had been deprived 
of their statutory and constitutional rights because of over­
crowded conditions, undue length of confinement, improper 
searches, inadequate recreational, educational and employ­
ment opportunities, insufficient staff and objectionable re­
strictions on the purchase and receipt of personal items and 
books.7

Finally, because of the temporary nature of confinement at the MCC, the 
issues presented are, as in Sosna and Gerstein, “capable of repetition, yet 
evading review.” 420 U. S., at 110 n. 11; 419 U. S., at 400-401; see 
Kremens v. Bartley, 431 U. S. 119, 133 (1977). Accordingly, the require­
ments of Art. I l l  are met and the case is not moot.

6 Petitioners apparently never contested the propriety of respondents’ use
of a writ of habeas corpus to challenge the conditions of their confinement 
and petitioners do not raise that question in this Court. However, 
respondents did plead an alternative basis for jurisdiction in their 
“Amended Petition” in the District Court—namely, 28 U. S. C. § 1361— 
that arguably provides jurisdiction. And, at the time of the relevant- 
orders of the District Court in this case, jurisdiction would have been 
provided by 28 U. S. C. § 1331 (a), as amended, 90 Stat. 2721. Thus, 
we leave to another day the question of the propriety of using a 
writ of habeas corpus to obtain review of the conditions of confinement, 
as distinct from the fact or length of the confinement itself. See Preiser v. 
Rodriguez, 411 U. S. 475, 499-500 (1973). See generally Lake Country 
Estates, Inc. v. Tahoe Regional Planning Agency, ----  U. S. ----  (1979).

Similarly, petitioners do not contest the District Court’s certification of 
this case as a class action. For much the same reasons as identified above, 
there is no need in this case to reach the question whether Fed. Rule Civ. 
Proc. 23, providing for class actions, is applicable to petitions for habeas 
corpus relief. Accordingly, we express no opinion as to the correctness of 
the District Court’s action in this regard. See Middendorj v. Henry, 425 
U. S. 25, 30 (1976).

7 The Court of Appeals described the breadth of this action as follows: 
“As an indication of the scope of this action, the amended petition also 
decried the inadequate phone service; ‘strip’ searches; room searches outside



6 BELL v. WOLFISH

In two opinions and a series of orders, the District Court 
enjoined numerous MCC practices and conditions. With 
respect to pretrial detainees, the court held that because they 
are “presumed to be innocent and held only to ensure their 
presence at trial, ‘any deprivation or restriction of ... . rights 
beyond those which are necessary for confinement alone, must 
be justified by a compelling necessity.’ ” 439 F. Supp., at 124, 
quoting Detainees of Brooklyn House of Detention v. Mal­
colm, 520 F. 2d 392, 397 (CA2 1975). And while acknowl­
edging that the rights of sentenced inmates are to be measured 
by the different standard of the Eighth Amendment, the court 
declared that to house “an inferior minority of persons . . . 
in ways found unconstitutional for the rest” would amount 
to cruel and unusual punishment. 428 F. Supp., at 339.8

Applying these standards on cross-motions for partial sum­
mary judgment, the District Court enjoined the practice of 
housing two inmates in the individual rooms and prohibited 
enforcement of the so-called “publisher-only” rule, which at 
the time of the court’s ruling prohibited the receipt of all 
books and magazines mailed from outside the MCC except 
those sent directly from a publisher or a book club.9 After a

the inmate’s presence; a prohibition against the receipt of packages or the 
use of personal typewriters; interference with, and monitoring of, personal 
mail; inadequate and arbitrary disciplinary and grievance procedures; 
inadequate classification of prisoners; improper treatment of non-English 
speaking inmates; unsanitary conditions; poor ventilation; inadequate and 
unsanitary food; the denial of furloughs, unannounced transfers; improper 
restrictions on religious freedom; and an insufficiently trained staff.” 573 
F. 2d, at 123 n. 7.

8 While most of the District Court’s rulings were based on constitutional 
grounds, the court also held that some of the actions of the Bureau of 
Prisons were subject to review under the Administrative Procedure Act 
(APA) and were “arbitrary and capricious” within the meaning of the 
APA. 439 F. 2d, at 122-123, 141; see n. 11, infra.

9 The District Court also enjoined confiscation of inmate property by 
prison officials without supplying a receipt and, except under specified cir­
cumstances, the reading and inspection of inmates’ outgoing and incoming 
mail. 428 F. Supp., at 341-344. Petitioners do not challenge these rulings.



BELL v. WOLFISH 7

trial on the remaining issues, the District Court enjoined, inter 
alia, the doubling of capacity in the dormitory areas, the use 
of the common rooms to provide temporary sleeping accom­
modations, the prohibition against inmates’ receipt of packages 
containing food and items of personal property, and the prac­
tice of requiring inmates to expose their body cavities for 
visual inspection following contact visits. The Court also 
granted relief in favor of pretrial detainees, but not convicted 
inmates, with respect to the requirement that detainees remain 
outside their rooms during routine inspections by MCC 
officials.10

The Court of Appeals largely affirmed the District Court’s 
rulings, although it rejected that court’s Eighth Amendment 
analysis of conditions of confinement for convicted prisoners 
because the “parameters of judicial intervention into . . . 
conditions . . .  for sentenced prisoners are more restrictive than 
in the case of pretrial detainees.” 573 F. 2d, at 125.11 Ae-

10 The District Court also granted respondents relief on the following 
issues: classification of inmates and movement between units; length of 
confinement; law library facilities; the commissary; use of personal type­
writers; social and attorney visits; telephone service; inspection of 
inmates’ mail; inmate uniforms; availability of exercise for inmates in 
administrative detention; food service; access to the bathroom in the 
visiting area; special diets for Muslim inmates; and women’s “lock-in.” 
439 F. Supp., at 125-165. None of these rulings are before this Court.

11 The Court of Appeals held that “ [a]n institution’s obligation under 
the eighth amendment is at an end if it furnishes sentenced prisoners with 
adequate food, clothing, shelter, sanitation, medical care, and personal 
safety.” 573 F. 2d, at 125.

The Court of Appeals also held that the District Court’s reliance on the 
APA was erroneous. See n. 8, supra. The Court of Appeals concluded 
that because the Bureau of Prisons’ enabling legislation vests broad dis­
cretionary powers in the Attorney General, the administration of federal 
prisons constitutes “ ‘agency action . . . committed to agency discretion by 
law’ ” that is exempt from judicial review under the APA, at least in the 
absence of a breach of a specific statutory mandate. 573 F. 2d, at 125; 
see 5 U. S. C. §701 (a)(2). Because of its holding that the APA was 
inapplicable to this case, the Court of Appeals reversed the District 
Court’s rulings that the bathroom in the visiting area must be kept un-



8 BELL v. WOLFISH

cordingly, the court remanded the matter to the District 
Court for it to determine whether the housing for sentenced 
inmates at the MCC was constitutionally “adequate.” But 
the Court of Appeals approved the due process standard em­
ployed by the District Court in enjoining the conditions of 
pretrial confinement. I t therefore held that the MCC had 
failed to make a showing of “compelling necessity” sufficient 
to justify housing two pretrial detainees in the individual 
rooms. 573 F. 2d, at 126-127. And for purposes of our review 
(since petitioners challenge only some of the Court of Appeals’ 
rulings), the court affirmed the District Court’s granting of 
relief against the “publisher-only” rule, the practice of conduct­
ing body cavity searches after contact visits, the prohibition 
against receipt of packages of food and personal items from 
outside the institution, and the requirement that detainees 
remain outside their rooms during routine searches of the 
rooms by MCC officials. Id., at 129-132.12

II
As a first step in our decision, we shall address “double-

locked, that prison officials must make a certain level of local and long­
distance telephone service available to MCC inmates, that the MCC must 
maintain unchanged its present schedule for social visits, and that the 
MCC must take commissary requests every other day. 573 F. 2d, at 
125-126, and n. 16. Respondents have not cross-petitioned from the 
Court of Appeals’ disposition of the District Court’s Eighth Amendment 
and APA rulings.

12 Although the Court of Appeals held that doubling the capacity of the 
dormitories was unlawful, it remanded for the District Court to determine 
“whether any number of inmates in excess of rated capacity could be 
suitably quartered within the dormitories.” 573 F. 2d, at 128. In view 
of the changed conditions resulting from this litigation, the court, also 
remanded to the District Court for reconsideration of its order limiting 
incarceration of detainees at the MCC to a period less than 60 days. Id., 
at 129. The court reversed the District Court’s rulings that inmates be 
permitted to possess typewriters for their personal use in their rooms and 
that inmates not be required to wear uniforms. Id., at 132-133. None of 
these rulings are before the Court.



BELL v. WOLFISH 9

bunking” as it is referred to by the parties, since it is a con­
dition of confinement that is alleged only to deprive pretrial 
detainees of their liberty without due process of law in 
contravention of the Fifth Amendment. We will treat in 
order the Court of Appeals’ standard of review, the analysis 
which we believe the Court of Appeals should have employed, 
and the conclusions to which our analysis leads us in the case 
of double-bunking.

A
The Court of Appeals did not dispute that the Government 

may permissibly incarcerate a person charged with a crime 
but not yet convicted to ensure his presence at trial. How­
ever, reasoning from the “premise that an individual is to be 
treated as innocent until proven guilty,” the court concluded 
that pretrial detainees retain the “rights afforded unincar­
cerated individuals,” and that therefore it is not sufficient that 
the conditions of confinement for pretrial detainees “merely 
comport with contemporary standards of decency prescribed 
by the cruel and unusual punishment clause of the eighth 
amendment.” 573 F. 2d, at 124. Rather, the court held, the 
Due Process Clause requires that pretrial detainees “be sub­
jected to only those ‘restrictions and privations’ which ‘inhere 
in their confinement itself or which are justified by compelling 
necessities of jail administration.’ ” Ibid., quoting Rhem v. 
Malcolm, 507 F. 2d, at 336. Under the Court of Appeals’ 
“compelling necessity” standard, “deprivation of the rights 
of detainees cannot be justified by the cries of fiscal neces­
sity, . . . administrative convenience, ..  . or by the cold comfort 
that conditions in other jails are worse.” 573 F. 2d, at 124 
(citations omitted). The court acknowledged, however, that 
it could not “ignore” our admonition in Procunier v. Martinez, 
416 U. S. 396, 405 (1974), that “courts are ill-equipped to 
deal with the increasingly urgent problems of prison adminis­
tration,” and concluded that it would “not [be] wise for [it]



10 BELL v. WOLFISH

to second-guess the expert administrators on matters on which 
they are better informed.” 573 F. 2d, at 124.13

Our fundamental disagreement with the Court of Appeals is 
that we fail to find a source in the Constitution for its com­
pelling necessity standard.14 Both the Court of Appeals and 
the District Court seem to have relied on the “presumption of 
innocence” as the source of the detainee’s substantive right to 
be free from conditions of confinement that are not justified 
by compelling necessity. 573 F. 2d, at 124; 439 F. Supp., at 
124; accord, Campbell v. Magruder, —-  U. S. App. D. C. — -,

13 The NAACP Legal Defense and Educational Fund, Inc., as amicus 
curiae, argues that federal courts have inherent authority to correct condi­
tions of pretrial confinement and that the practices at issue in this case 
violate the Attorney General’s alleged duty to provide inmates with 
“suitable quarters” under 18 U. S. C. §4042 (2). Brief for the NAACP 
Legal Defense and Educational Fund, Inc., at Amicus Curiae 22-46. 
Neither argument was presented to or passed on by the lower courts; nor 
have they been urged by either party in this Court. Accordingly, we have 
no occasion to reach them in this case. Knetsch v. United States, 364 
U. S. 361, 370 (1960).

14 As authority for its compelling necessity test, the court cited three of 
its prior decisions, Rhem v. Malcolm, 507 F. 2d 333 (CA2 1974) (Rhem I ) ; 
Detainees of Brooklyn House of Detention v. Malcolm, 520 F. 2d 392 
(CA2 1975), and Rhem v. Malcolm, 527 F. 2d 1041 (CA2 1975) {RhemII) .  
Rhem I ’s support for the compelling necessity test came from Brenneman 
v. Madigan, 343 F. Supp. 128, 142 (ND Cal. 1972), which in turn cited 
no cases in support of its statement of the relevant test. Detainees found 
support for the compelling necessity standard in Shapiro v. Thompson, 
394 U. S. 618 (1969), Tate v. Short, 401 U. S. 395 (1971), Williams v. 
Illinois, 399 U. S. 235 (1970), and Shelton v. Tucker, 364 U. S. 479 
(1960). But Tate and Williams dealt with equal protection challenges to 
imprisonment based on inability to pay fines or costs. Similarly, Shapiro 
concerned equal protection challenges to state welfare eligibility require­
ments found to violate the constitutional right to travel. In Shelton, the 
Court held that a school board policy requiring disclosure of personal asso­
ciations violated the First and Fourteenth Amendment rights of a teacher. 
None of these cases support the court’s compelling necessity test. Finally, 
Rhem II  merely relied on Rhem I  and Detainees.



BELL v. WOLFISH 11

580 F. 2d 521, 529 (1978); Detainees of Brooklyn House of 
Detention v. Malcolm, 520 F. 2d 392, 397 (CA2 1975); Rhem  
v. Malcolm, 507 F. 2d 333, 336 (CA2 1974). But see Feeley v. 
Sampson, 570 F. 2d 364, 369 n. 4 (CA1 1978); Hampton v. 
Holmesburg Prison Officials, 546 F. 2d 1077, 1080 n. 1 (CAS 
1976). But the presumption of innocence provides no sup­
port for such a rule.

The presumption of innocence is a doctrine that allocates 
the burden of proof in criminal trials; it also may serve as an 
admonishment to the jury to judge an accused’s guilt or inno­
cence solely on the evidence adduced at trial and not on the 
basis of suspicions that may arise from the fact of his arrest, 
indictment or custody or from other matters not introduced 
as proof at trial. Taylor v. Kentucky, 436 U. S. 478, 485 
(1978); see Estelle v. Williams, 425 U. S. 501 (1976); In re 
Winship, 397 U. S. 358 (1970); 9 J. Wigmore, Evidence § 2511 
(3d ed. 1940). It is “an inaccurate, shorthand description 
of the right of the accused to ‘remain inactive and secure, 
until the prosecution has taken up its burden and produced 
evidence and effected persuasion . . . ’ [; an] ‘assumption’ that 
is indulged in the absence of contrary evidence.” Taylor v. 
Kentucky, supra, at 483-484, n. 12. Without question, the 
presumption of innocence plays an important role in our 
criminal justice system. “The principle that there is a pre­
sumption of innocence in favor of the accused is the undoubted 
law, axiomatic and elementary, and its enforcement lies at 
the foundation of the administration of our criminal law.” 
Coffin V. United States, 156 U. S. 432, 453 (1895). But it has 
no application to a determination of the rights of a pretrial 
detainee during confinement before his trial has even begun.

The Court of Appeals also relied on what it termed the 
“indisputable rudiments of due process” in fashioning its com­
pelling necessity test. We do not doubt that the Due Process 
Clause protects a detainee from certain conditions and restric­
tions of pretrial detainment. See infra, at 13-19. Nonetheless,



12 BELL v. WOLFISH

that clause provides no basis for application of a compelling 
necessity standard to conditions of pretrial confinement that 
are not alleged to infringe any other, more specific guarantee 
of the Constitution.

It is important to focus on what is at issue here. We are 
not concerned with the initial decision to detain an accused 
and the curtailment of liberty that such a decision necessarily 
entails. See Gerstein v. Pugh, 420 U. S. 103, 114 (1975); 
United States v. Marion, 404 U. S. 307, 320 (1971). Neither 
respondents nor the courts below question that the Govern­
ment may permissibly detain a person suspected of commit­
ting a crime prior to a formal adjudication of guilt. See 
Gerstein v. Pugh, supra, at 111-114. Nor do they doubt that 
the Government has a substantial interest in ensuring that 
persons accused of crimes are available for trials and, ulti­
mately, for service of their sentences, or that confinement of 
such persons pending trial is a legitimate means of furthering 
that interest. Tr. of Oral Arg. 27; see Stack v. Boyle, 342 
IT. S. 1, 4 (1951).15 Instead, what is at issue when an aspect 
of pretrial detention that is not alleged to violate any express 
guarantee of the Constitution is challenged, is the detainee’s 
right to be free from punishment, see infra, at 13-14, and his 
understandable desire to be as comfortable as possible during 
his confinement, both of which may conceivably coalesce at

16 In order to imprison a person prior to trial, the Government must 
comply with constitutional requirements, Gerstein v. Pugh, 420 U. S., at 
114; Stack v. Boyle, 342 U. S. 1, 5 (1951), and any applicable statutory 
provisions, e. g., 18 U. S. C. §§ 3146, 3148. Respondents do not allege 
that the Government failed to comply with the constitutional or statutory 
requisites to pretrial detention.

The only justification for pretrial detention asserted by the Govern­
ment is to ensure the detainees’ presence at trial. Brief for Petitioners 43. 
Respondents do not question the legitimacy of this goal. Brief for 
Respondents 33; Tr. of Oral Arg. 27. We, therefore, have no occasion to 
consider whether any other governmental objectives may constitutionally 
justify pretrial detention.



BELL v. WOLFISH 13

some point. I t seems clear that the Court of Appeals did not 
rely on the detainee’s right to be free from punishment, but 
even if it had that right does not warrant adoption of that 
court’s compelling necessity test. See infra, at 13-19. And 
to the extent the court relied on the detainee’s desire to be free 
from discomfort, it suffices to say that this desire simply does 
not rise to the level of those fundamental liberty interests 
delineated in cases such as Roe v. Wade, 410 IT. S. 113 (1973); 
Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Illinois, 
405 U. S. 645 (1972); Griswold v. Connecticut, 381 U. S. 479 
( 1965) ; Meyer v. Nebraska, 262 U. S, 390 (1923).

B
In evaluating the constitutionality of conditions or restric­

tions of pretrial detention that implicate only the protection 
against deprivation of liberty without due process of law, 
we think that the proper inquiry is whether those conditions 
amount to punishment of the detainee.16 For under the Due 
Process Clause, a detainee may not be punished prior to an 
adjudication of guilt in accordance with due process of law.17

16 The Court of Appeals properly relied on the Due Process Clause 
rather than Eighth Amendment in considering the claims of pretrial 
detainees. Due process requires that a pretrial detainee not be punished. 
A sentenced inmate, on the other hand, may be punished, although that 
punishment may not be “cruel and unusual” under the Eighth Amend­
ment. The Court recognized this distinction in Ingraham v. Wright, 430 
U. S. 651, 671-672, n. 40 (1977):
“Eighth Amendment scrutiny is appropriate only after the State has 
complied with the constitutional guaranties traditionally associated with 
criminal prosecutions. See United States v. Lovett, 328 U. S. 303, 317- 
318 (1946) . . . .  [T]he State does not acquire the power to punish with
which the Eighth Amendment is concerned until after it has secured a 
formal adjudication of guilt in accordance with due process of law. 
Where the State seeks to impose punishment without such an. adjudication, 
the pertinent constitutional guarantee is the Due Process Clause of the 
Fourteenth Amendment.”

17 M r . J ustice Stevens in dissent claims tha t this holding constitutes



14 BELL v. WOLFISH

See Ingraham v. Wright, 430 U. S. 651, 671-672 n. 40, 674 
(1977); Kennedy v. Mendoza-Martinez, 372 U. S. 144,165-167, 
186 (1963); Wong Wing v. United States, 163 U. S. 228, 237 
(1896). A person lawfully committed to pretrial detention 
has not been adjudged guilty of any crime. He has had only 
a “judicial determination of probable cause as a prerequisite 
to [the] extended restraint of [his] liberty following arrest.” 
Gerstein v. Pugh, 420 U. S., at 114; see Virginia v, Paul, 148 
U. S. 107, 119 (1893). And, if he is detained for a suspected 
violation of a federal law, he also has had a bail hearing. See 
18 U. S. C. §§ 3146, 3148.18 Under such circumstances, the

a departure from our prior due process oases, specifically Leis v. Flynt, 
— - U. S. — • (1978), and PauL v. Davis, 424 U. S. 693 (1976). Post, a.t 
at 2-3, and n. 6. But as the citations following this textual statement 
indicate, we leave prior decisional law as we find it and simply apply 
it to the case at bar. For example, in Wong Wing v. United States, 163 
U. S. 228, 237 (1896), the Court held that the subjection of persons to 
punishment at hard labor must be preceded by a judicial trial to establish 
guilt. And in Ingraham v. Wright, 430 U. S. 651, 674 (1977), we stated 
that “at least where school authorities, acting under color of state law, 
deliberately decided to punish a child for misconduct by restraining the 
child and inflicting appreciable physical pain, we hold that Fourteenth 
Amendment liberty interests are implicated.” (Emphasis supplied.) 
Thus, there is neither novelty nor inconsistency in our holding that the 
Fifth Amendment includes freedom from punishment within the liberty of 
which no person may be deprived without due process of law.

We, of course, do not mean by the textual discussion of the rights of 
pretrial detainees to cast doubt on any historical exceptions to the general 
principle that punishment can only follow a determination of guilt after 
trial or plea—exceptions such as the power summarily to punish for con­
tempt of court. See, e. g., United States v. Wilson, 421 U. S. 309 (1975); 
Bloom v. Illinois, 391 U. S. 194 (1968); United States v. Barnett, 376 U. S. 
681 (1964); Cooke v. United States, 267 U. S. 517 (1925); Ex parte Terry, 
128 U. S. 289 (1888); Fed. Rule Crim. Proc. 42.

18 The Bail Reform Act of 1966 establishes a liberal policy in favor of 
pretrial release. 18 U. S. C. §§ 3146, 3148. Section 3146 provides in 
pertinent part:
“Any person charged with an offense, other than an offense punishable 
by death, shall, at his appearance before a judicial officer, be ordered



BELL v. WOLFISH 15

Government concededly may detain him to ensure his presence 
at trial and may subject him to the restrictions and conditions 
of the detention facility so long as those conditions and restric­
tions do not amount to punishment, or otherwise violate the 
Constitution.

Not every disability imposed during pretrial detention 
amounts to “punishment” in the constitutional sense, how­
ever. Once the Government has exercised its conceded au­
thority to detain a person pending trial, it obviously is 
entitled to employ devices that are calculated to effectuate 
this detention. Traditionally, this has meant confinement in 
a facility which, no matter how modern or how antiquated, 
results in restricting the movement of a detainee in a manner 
in which he would not be restricted if he simply were free 
to walk the streets pending trial. Whether it be called a jail, 
a prison, or custodial center, the purpose of the facility is to 
detain. Loss of freedom of choice and privacy are inherent 
incidents of confinement in such a facility. And the fact that 
such detention interferes with the detainee’s understandable 
desire to live as comfortably as possible and with as little 
restraint as possible during confinement does not convert the 
conditions or restrictions of detention into “punishment.”

This Court has recognized a distinction between punitive 
measures that may not constitutionally be imposed prior to a 
determination of guilt and regulatory restraints that may. 
See, e. g., Kennedy v. Mendoza-Martinez, supra, at 168; 
Fleming v. Nestor, 363 U. S. 603, 613-614 (1960); cf. DeVeau 
v. Braisted, 363 U. S. 144, 160 (1960). In Kennedy v. 
Mendoza-Martinez, supra, the Court examined the automatic 
forfeiture of citizenship provisions of the immigration laws 
to determine whether that sanction amounted to punishment

released pending trial on his personal recognizance or upon the execution 
of an unsecured appearance bond in an amount specified by the judicial 
officer, unless the officer determines, in the exercise of his discretion, that 
such a release will not reasonably assure the appearance of the person as 
required,”



16 BELL v. WOLFISH

or a mere regulatory restraint. While it is all but impossible 
to compress the distinction into a sentence or a paragraph, the 
Court there described the tests traditionally applied to deter­
mine whether a governmental act is punitive in nature:

“Whether the sanction involves an affirmative disability 
or restraint, whether it has historically been regarded as a 
punishment, whether it comes into play only on a finding 
of scienter, whether its operation will promote the tradi­
tional aims of punishment—retribution and deterrence, 
whether the behavior to which it applies is already a 
crime, whether an alternative purpose to which it may 
rationally be connected is assignable for it, and whether 
it appears excessive in relation to the alternative purpose 
assigned are all relevant to the inquiry, and may often 
point in differing directions.” 372 U. S., at 168-169 
(footnotes omitted).

Because forfeiture of citizenship traditionally had been con­
sidered punishment and the legislative history of the forfeiture 
provisions “conclusively” showed that the measure was in­
tended to be punitive, the Court held that forfeiture of 
citizenship in such circumstances constituted punishment that 
could not constitutionally be imposed without due process of 
law. Id., at 167-170, 186.

The factors identified in Mendoza-Martinez provide useful 
guideposts in determining whether particular restrictions and 
conditions accompanying pretrial detention amount to punish­
ment in the constitutional sense of that word. A court must 
decide whether the disability is imposed for the purpose of 
punishment or whether it is but an incident of some other 
legitimate governmental purpose. See Flemming v. Nestor, 
supra, at 613-617.19 Absent a showing of an expressed intent

19 As Mr. Justice Frankfurter stated in United States v. Lovett, 328 
U. S. 303, 324 (1946) (concurring opinion): ‘’The fact that harm is 
inflicted by governmental authority does not make it punishment. Figura-



BELL v. WOLFISH 17

to punish on the part of detention facility officials, that 
determination generally will turn on “ [w]hether an alternative 
purpose to which {the restriction] may rationally be connected 
is assignable for it, and whether it appears excessive in relation 
to the alternative purpose assigned [to it].” Kennedy v. 
Mendoza-Martinez, supra, at 168-169; see Flemming v. Nestor, 
supra, at 617. Thus, if a particular condition or restriction of 
pretrial detention is reasonably related to a legitimate govern­
mental objective, it does not, without more, amount to “pun­
ishment.” 20 Conversely, if a restriction or condition is not 
reasonably related to a legitimate goal—if it is arbitrary or 
purposeless—a court permissibly may infer that the purpose 
of the governmental action is punishment that may not con­
stitutionally be inflicted upon detainees qua detainees. See 
Flemming v. Nestor, supra, at 617.21 Courts must be mindful 
that these inquiries spring from constitutional requirements 
and that judicial answers to them must reflect that fact rather

tively speaking all discomforting action may be deemed punishment because 
it deprives of what otherwise would be enjoyed. But there may be reasons 
other than punitive for such deprivation.”

20 This is not to say that the officials of a detention facility can justify 
punishment. They cannot. It is simply to say that in the absence of a 
showing of intent to punish, a court must look to see if a particular restric­
tion or condition, which may on its face appear to be punishment, is 
instead but an incident of a legitimate nonpunitive governmental objective. 
See Kennedy v. Mendoza-Martinez, supra, at 168; Flemming v. Nestor, 
supra, at 617. Retribution and deterrence are not legitimate nonpunitive 
governmental objectives. Kennedy v. Mendoza-Martinez, supra, at 168. 
Conversely, loading a detainee with chains and shackles and throwing 
him in a dungeon may ensure his presence at trial and preserve the 
security of the institution. But it would be difficult to conceive of a 
situation where conditions so harsh, employed to achieve objectives that 
could be accomplished in so many alternative and less harsh methods, 
would not support a conclusion that the purpose for which they were 
imposed was to punish.

21 “There is, of course, a de minimis level of imposition with which the 
Constitution is not concerned.” Ingraham v. Wright, supra, at 674.



18 BELL v. WOLFISH

than a court’s idea of how best to operate a detention facility. 
Cf. United States v. Lovasco, 431 U. S. 783, 790 (1977); 
United States v. Russell, 411 IT. S. 423, 435 (1973).

One further point requires discussion. The Government 
asserts, and respondents concede, that the “essential objective 
of pretrial confinement is to insure the detainees’ presence at 
trial.” Brief for Petitioners 43; see Brief for Respondents 33. 
While this interest undoubtedly justifies the original decision 
to confine an individual in some manner, we do not accept 
respondent’s argument that the Government’s interest in 
ensuring a detainee’s presence at trial is the only objective 
that may justify restraints and conditions once the decision is 
lawfully made to confine a person. “If the government could 
confine or otherwise infringe the liberty of detainees only to 
the extent necessary to ensure their presence at trial, house 
arrest would in the end be the only constitutionally justified 
form of detention.” Campbell v. Magruder, supra, at 529. 
The Government also has legitimate interests that stem from 
its need to manage the facility in which the individual is 
detained. These legitimate operational concerns may require 
administrative measures that go beyond those that are, strictly 
speaking, necessary to ensure that the detainee shows up at 
trial. For example, the Government must be able to take 
steps to maintain security and order at the institution and 
make certain no weapons or illicit drugs reach detainees.22 
Restraints that are reasonably related to the institution’s 
interest in maintaining jail security do not, without more, con­
stitute unconstitutional punishment, even if they are discom­
forting and are restrictions that the detainee would not have 
experienced had he been released while awaiting trial. We 
need not here attempt to detail the precise extent of the legit­
imate governmental interests that may justify conditions or

22 In fact, security measures may directly serve the Government’s inter­
est in ensuring the detainee’s presence at trial. See Feeley v. Sampson, 
570 F, 2d, at 369.



BELL v. WOLFISH 19

restrictions of pretrial detention. I t is enough simply to 
recognize that in addition to ensuring the detainees’ presence at 
trial, the effective management of the detention facility once 
the individual is confined is a valid objective that may justify 
imposition of conditions and restrictions of pretrial detention 
and dispel any inference that such restrictions are intended as 
punishment.23

C
Judged by this analysis, respondents’ claim that double- 

bunking violated their due process rights fails. Neither the 
District Court nor the Court of Appeals intimated that it 
considered double-bunking to constitute punishment; instead, 
they found that it contravened the compelling necessity test, 
which today we reject. On this record, we are convinced as a 
matter of law that double-bunking as practiced at the MCC 
did not amount to punishment and did not, therefore, violate 
respondents’ rights under the Due Process Clause of the Fifth 
Amendment.24

The rooms at the MCC that house pretrial detainees have 
a total floor space of approximately 75 square feet. Each of 
them designated for double-bunking, see n. 4, supra, contains 
a double bunkbed, certain other items of furniture, a wash 
basin and an uncovered toilet. Inmates generally are locked

23 In determining whether restrictions or conditions are reasonably 
related to the government’s interest in maintaining security and order 
and operating the institution in a manageable fashion, courts must heed 
our warning that “[s]uch considerations are peculiarly within the province 
■and professional expertise of corrections officials, and, in the absence of 
substantial evidence in the record to indicate that the officials have exag­
gerated their response to those considerations, courts should ordinarily 
defer to their expert judgment in such matters.” Pell v. Procurder, 417 
U. S., at 827; see Jones v. North Carolina Prisoners’ Labor Union, supra; 
Meachum v. Fano, supra; Procunier v. Martinez, supra.

24 The District Court found that there were no disputed issues of mate­
rial fact with respect to respondents’ challenge to double-bunking. 428 F. 
Supp., at 335. We agree with the District Court in this determination.



20 BELL v. WOLFISH

into their rooms from 11 p. m. to 6:30 a, m. and for brief 
periods during the afternoon and evening head counts. Dur­
ing the rest of the day, they may move about freely between 
their rooms and the common areas.

Based on affidavits and a personal visit to the facility, the 
District Court concluded that the practice of double-bunking 
was unconstitutional. The court relied on two factors for its 
conclusion: (1) the fact that the rooms were designed to house 
only one inmate, 428 F. Supp., at 336-337; and (2) its judg­
ment that confining two persons in one room or cell of this 
size constituted a “fundamental denial [J of decency, privacy, 
personal security, and, simply, civilized humanity. . . .” Id., 
at 339. The Court of Appeals agreed with the District Court. 
In response to petitioners’ arguments that the rooms at the 
MCC were larger and more pleasant than the cells involved in 
the cases relied on by the District Court, the Court of Appeals 
stated:

“ [W]e find the lack of privacy inherent in double-celling 
in rooms intended for one individual a far more com­
pelling consideration than a comparison of square footage 
or the substitution of doors for bars, carpet for concrete, 
or windows for walls. The Government has simply failed 
to show any substantial justification for double-celling.” 
573 F. 2d, at 127.

We disagree with both the District Court and the Court 
of Appeals that there is some sort of “one man, one cell” 
principle lurking in the Due Process Clause of the Fifth 
Amendment. While confining a given number of people in a 
given amount of space in such a manner as to cause them to 
endure genuine privations and hardship over an extended 
period of time might raise serious questions under the Due 
Process Clause as to whether those conditions amounted to 
punishment, nothing even approaching such hardship is shown 
by this record.25

26 Respondents seem to argue that double-bunking was unreasonable



BELL v. WOLFISH 21

Detainees are required to spend only seven or eight hours 
each day in their rooms, during most or all of which they 
presumably are sleeping, The rooms provide more than ade­
quate space for sleeping.26 During the remainder of the time, 
the detainees are free to move between their rooms and the 
common area. While double-bunking may have taxed some 
of the equipment or particular facilities in certain of the com­
mon areas, United States ex rel. Wolfish v. United States, 428 
F. Supp., at 337, this does not mean that the conditions at 
the MCC failed to meet the standards required by the Con­
stitution. Our conclusion in this regard is further buttressed 
by the detainees’ length of stay at the MCC. See Hutto v. 
Finney, 437 U. S. 678, 686-687 (1978). Nearly all of the 
detainees are released within 60 days. See n. 3, supra. We 
simply do not believe that requiring a detainee to share toilet 
facilities and this admittedly rather small sleeping place with

because petitioners were able to comply with the District Court’s order 
forbidding double-bunking and still accommodate the increased numbers 
of detainees simply by transferring all but a handful of sentenced inmates 
who had been assigned to the MCC for the purpose of performing certain 
services and committing those tasks to detainees. Brief for Respondents 
50. That petitioners were able to comply with the District Court’s order 
in this fashion does not mean that petitioner’s chosen method of coping 
with the increased inmate population—double-bunking—was unreasonable. 
Governmental action does not have to be the only alternative or even the 
best alternative for it to be reasonable, to say nothing of constitutional. 
See Vance v. Bradley, —  U. S. —  (1979); Dandridge v. Williams, 397 
U. S. 471, 485 (1970).

That petitioners were able to comply with the District Court order also 
does not make this case moot, because petitioners still dispute the legality 
of the court’s order and they have informed the Court that there is a 
reasonable expectation that they may be required to double-bunk again. 
Reply Brief of Petitioners 6; Tr. of Oral Arg. 33-35, 56—57; see United 
States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953).

26 We thus fail to understand the emphasis of the Court of Appeals 
and the District Court on the amount of walking space in the double- 
bunked rooms. See 573 F. 2d, at 127; 428 F. Supp,, at 337.



22 BELL v, WOLFISH

another person for generally a maximum period of 60 days 
violates the Constitution.27

I l l
Respondents also challenged certain MCC restrictions and 

practices that were designed to promote security and order 
at the facility on the ground that these restrictions violated 
the Due Process Clause of the Fifth Amendment, and certain 
other constitutional guarantees, such as the First and Fourth 
Amendments. The Court of Appeals seemed to approach the 
challenges to security restrictions in a fashion different from 
the other contested conditions and restrictions. I t stated that 
“once it has been determined that the mere fact of confine­
ment of the detainee justifies the restrictions, the institution 
must be permitted to use reasonable means to insure that its

27 Respondents’ reliance on other lower court decisions concerning mini­
mum space requirements for different institutions and on correctional 
standards issued by various groups is misplaced. Brief for Respondents 
41, and nn. 40 and 41; see, e. g., Campbell v. Magruder, supra; Battle v. 
Anderson, 564 F. 2d 388 (CA10 1977); Chapman v. Rhodes, 434 F. Supp. 
1007 (SD Ohio 1977); Inmates of Suffolk County Jail v. Eisenstadt, 360 
F. Supp. 676 (Mass. 1973); American Public Health Association, Stand­
ards for Health Services in Correctional Institutions 62 (1976); American 
Correctional Association, Manual of Standards for Adult Correctional In­
stitutions 4142 (1977); National Sheriff’s Association, A Handbook on Jail 
Architecture 63 (1975). The cases cited by respondents concerned facili­
ties markedly different from the MCC. They involved traditional jails 
and cells in which inmates were locked during most of the day. Given 
this factual disparity, they have little or no application to the case at 
hand. Thus, we need not and do not decide whether we agree with the 
reasoning and conclusions of these cases. And while the recommendations 
of these various groups may be instructive in certain cases, they simply 
do not establish the constitutional minima; rather, they establish goals 
recommended by the organization in question. For this same reason, the 
draft recommendations of the Federal Corrections Policy Task Force of 
the Department of Justice regarding conditions of confinement for pre­
trial detainees are not determinative of the requirements of the Consti­
tution. See Dept, of Justice, Federal Corrections Policy Task Force, Draft 
Federal Standards for Corrections (June 1978).



BELL v. WOLFISH 23

legitimate interests in security are safeguarded.” 573 F. 2d, 
at 124. The court might disagree with the choice of means 
to effectuate those interests, but it should not “second-guess 
the expert administrators on matters on which they are better 
informed . . . .  Concern with minutiae of prison adminis­
tration can only distract the court from detached consideration 
of the one overriding question presented to i t : does the prac­
tice or condition violate the Constitution?” Id., at 124-125. 
Nonetheless, the court affirmed the District Court’s injunction 
against several security restrictions. The Court rejected the 
arguments of petitioners that these practices served the MCC’s 
interest in security and order and held that the practices were 
unjustified interferences with the retained constitutional rights 
of both detainees and convicted inmates. Id., at 129-132. In 
our view, the Court of Appeals failed to heed its owm admoni­
tion not to “second-guess” prison administrators.

Our cases have established several general principles that 
inform our evaluation of the constitutionality of the restric­
tions at issue. First, we have held that convicted prisoners do 
not forfeit all constitutional protections by reason of their 
conviction and confinement in prison. See Jones v. North 
Carolina Prisoners’ Labor Union, 433 U. S. 119, 129 (1977); 
Meachum v. Fano, 427 U. S. 215, 225 (1976); Wolff v. 
McDonnell, 418 U. S. 539, 555-556 (1974); Pell v. Procunier, 
417 U. S. 817, 822 (1974). “There is no iron curtain drawn 
between the Constitution and the prisons of this country.” 
Wolff v. McDonnell, supra, at 555-556. So, for example, our 
cases have held that sentenced prisoners enjoy freedom of 
speech and religion under the First and Fourteenth Amend­
ments, see Pell v. Procunier, supra; Cruz v. Beto, 405 U. S. 
319 (1972); Cooper v. Pate, 378 U. S. 546 (1964), that they 
are protected against invidious discrimination on the basis of 
race under the Equal Protection Clause of the Fourteenth 
Amendment, see Lee v. Washington, 390 U. S. 333 (1968), 
and that they may claim the protection of the Due Process 
Clause to prevent additional deprivation of life, liberty or



24 BELL v. WOLFISH

property without due process of law, see Meachum v, Fano, 
supra; Wolff v. McDonnell, supra. A fortiori, pretrial de­
tainees, who have not been convicted of any crimes, retain at 
least those constitutional rights that we have held are enjoyed 
by convicted prisoners.

But our cases also have insisted on a second proposition: 
simply because prison inmates retain certain constitutional 
rights does not mean that these rights are not subject to 
restrictions and limitations. “Lawful incarceration brings 
about the necessary withdrawal or limitation of many privi­
leges and rights, a retraction justified by the considerations 
underlying our penal system.” Price v. Johnston, 334 U. S. 
266, 285 (1948); see Jones v. North Carolina Prisoners’ Labor 
Union, supra, at 125; Wolff v. McDonnell, supra, at 555 ; Pell 
v. Procunier, supra, at 822. The fact of confinement as well 
as the legitimate goals and policies of the penal institution 
limit these retained constitutional rights. Jones v. North 
Carolina Prisoners’ Labor Union, supra, at 125; Pell v. 
Procunier, supra, at 822. There must be a “mutual accom­
modation between institutional needs and objectives and the 
provisions of the Constitution that are of general application.” 
Wolff v. McDonnell, supra, at 556. This principle applies 
equally to pretrial detainees and convicted prisoners. A de­
tainee simply does not possess the full range of freedoms of 
an unincarcerated individual.

Third, maintaining institutional security and preserving 
internal order and discipline are essential goals that may 
require limitation or retraction of the retained constitutional 
rights of both convicted prisoners and pretrial detainees.28

28 Neither the Court of Appeals nor the District Court distinguished 
between pretrial detainees and convicted inmates in reviewing the chal­
lenged security practices, and we see no reason to do so. There is no 
basis for concluding that pretrial detainees pose any lesser security risk 
than convicted inmates. Indeed, it may be that in certain circumstances 
they present a greater risk to jail security and order. See, e. g., Main 
Road v. Aytch, 565 F. 2d 54, 57 (CA3 1977). In the federal system, a



BELL v. WOLFISH 25

“Central to all other corrections goals is the institutional con­
sideration of internal security within the corrections facilities 
themselves.” Pell v. Procunier, supra, at 823; see Jones v. 
North Carolina Prisoners’ Labor Union, supra, at 129; 
Procunier v. Martinez, 416 U. S. 396, 412 (1974). Prison 
officials must be free to take appropriate action to ensure the 
safety of inmates and corrections personnel and to prevent 
escape or unauthorized entry. Accordingly, we have held that 
even when an institutional restriction infringes a specific 
constitutional guarantee, such as the First Amendment, the 
practice must be evaluated in the light of the central objective 
of prison administration, safeguarding institutional security. 
Jones v. North Carolina Prisoners’ Labor Union, supra, at 129; 
Pell v. Procunier, supra, at 822, 826; Procunier v. Martinez, 
supra, at 412-414.

Finally, as the Court of Appeals correctly acknowledged, 
the problems that arise in the day-to-day operation of a cor­
rections facility are not susceptible of easy solutions. Prison 
administrators therefore should be accorded wide-ranging 
deference in the adoption and execution of policies and prac­
tices that in their judgment are needed to preserve internal 
order and discipline and to maintain institutional security. 
Jones v. North Carolina Prisoners’ Labor Union, supra, at 128 ; 
Procunier v. Martinez, supra, at 404-405; Cruz v. Beto, 405 
U. S., at 321; see Meachum v. Fano, 427 U. S., at 228-229.29

detainee is committed to the detention facility only because no other less 
drastic means can reasonably assure his presence at trial. See 18 U. S. C. 
§ 3146. As a result, those who are detained prior to trial may in many 
cases be individuals who are charged with serious crimes or who have 
prior records. They also may pose a greater risk of escape than con­
victed inmates. See Joint App. (No. 77—2035, CA2) 1393—1398, 1531—1532. 
This may be particularly true at facilities like the MCC, where the resident 
convicted inmates have been sentenced to only short terms of incarceration 
and many of the detainees face the possibility of lengthy imprisonment if 
convicted.

29 Respondents argue that this Court’s cases holding that substantial 
deference should be accorded prison officials are not applicable to this



26 BELL v. WOLFISH

“Such considerations are peculiarly within the province and 
professional expertise of corrections officials, and, in the 
absence of substantial evidence in the record to indicate that 
the officials have exaggerated their response to these consid­
erations, courts should ordinarily defer to their expert judg­
ment in such matters.” Pell v. Procunier, supra, at 827.30 
We further observe that on occasion, prison administrators 
may be “experts” only by Act of Congress or of a state legisla­
ture. But judicial deference is accorded not merely because 
the administrator ordinarily will, as a matter of fact in a 
particular case, have a better grasp of his domain than the 
reviewing judge, but also because the operation of our correc-

case because those decisions concerned convicted inmates, not pretrial 
detainees. Brief for Respondents 52. We disagree. Those decisions held 
that courts should defer to the informed discretion of prison administrators 
because the realities of running a corrections institution are complex and 
difficult, courts are ill-equipped to deal with these problems and the 
management of these facilities is confided to the Executive and Legislative 
Branches, not to the Judicial Branch. See Jones v. North Carolina 
Prisoners’ Labor Union, 433 U. S., at 126; Pell v. Procunier, 417 U. S., at 
827; Procunier v. Martinez, 416 U. S., at 404-405. While those cases each 
concerned restrictions governing convicted inmates, the principle of 
deference enunciated in them is not dependent on that happenstance.

80 What the Court said in Procunier v. Martinez, supra, bears repeating 
here:
“Prison administrators are responsible for maintaining internal order and 
discipline, for securing their institutions against unauthorized access or 
escape, and for rehabilitating, to the extent that human nature and in­
adequate resources allow, the inmates placed in their custody. The Her­
culean obstacles to effective discharge to these duties are too apparent to 
warrant explication. Suffice it to say that the problems of prisons in 
America are complex and intractable, and, more to the point, they are not 
readily susceptible of resolution by decree. Most require expertise, com­
prehensive planning and the commitment of resources, all of which are 
peculiarly within the province of the legislative and executive branches 
of government. For all of those reasons, courts are ill equipped to deal 
with the increasingly urgent problems of prison administration and reform. 
Judicial recognition of that fact reflects no more than a healthy sense of 
realism.” 416 U. S., at 404-405,



BELL v. WOLFISH 27

tional facilities is peculiarly the province of the Legislative and 
Executive Branches of our Government, not the Judicial. 
Procunier v. Martinez, supra, at 405; cf. Meachum v, Fano, 
sUpra,, at 229. With these teachings of our cases in mind, we 
turn to an examination of the MCC security practices that are 
alleged to violate the Constitution.

A
At the time of the lower courts’ decisions, the Bureau of 

Prisons’ “publisher-only” rule, which applies to all Bureau 
facilities, permitted inmates to receive books and magazines 
from outside the institution only if the materials were mailed 
directly from the publisher or a book club. 573 F. 2d, at 
129-130. The warden of the MCC stated in an affidavit that 
“serious” security and administrative problems were caused 
when bound items were received by inmates from unidentified 
sources outside the facility. App. 24. He noted that in order 
to make a “proper and thorough” inspection of such items, 
prison officials would have to remove the covers of hardback 
books and to leaf through every page of all books and maga­
zines to ensure that drugs, money, weapons or other contra­
band were not secreted in the material. “This search process 
would take a substantial and inordinate amount of available 
staff time.” Ibid. However, “there is relatively little risk 
that material received directly from the publisher or book 
club would contain contraband, and therefore, the security 
problems are significantly reduced without a drastic drain on 
staff resources.” Ibid.

The Court of Appeals rejected these security and adminis­
trative justifications and affirmed the District Court’s order 
enjoining enforcement of the “publisher-only” rule at the 
MCC. The Court of Appeals held that the rule “severely 
and impermissibly restricts the reading material available to 
inmates” and therefore violates their First Amendment and 
due process rights. 573 F. 2d, at 130.



28 BELL v. WOLFISH

It is desirable at this point to place in focus the precise 
question that now is before this Court. Subsequent to the 
decision of the Court of Appeals, the Bureau of Prisons 
amended its “publisher-only” rule to permit the receipt of 
books and magazines from bookstores as well as publishers 
and book clubs. 43 Fed. Reg. 30576 (July 17, 1978). In 
addition, petitioners have informed the Court that the Bureau 
proposes to amend the rule further to allow receipt of paper­
back books, magazines and other soft-covered materials from 
any source. Brief for Petitioners 86 n. 49, 69, and n. 51. The 
Bureau regards hardback books as the “more dangerous source 
of risk to institutional security,” however, and intends to 
retain the prohibition against receipt of hardback books unless 
they are mailed directly from publishers, book clubs or book­
stores, Id., at 69 n. 51. Accordingly, petitioners request this 
Court to review the District Court’s injunction only to the 
extent it enjoins petitioners from prohibiting receipt of hard­
cover books that are not mailed directly from publishers, book 
clubs or bookstores. Id., at 69; Tr. of Oral Arg. 59-60.31

31 Because of the changes in the “publisher-only” rule, some of which 
apparently occurred after we granted certiorari, respondents, citing Sanks 
v. Georgia, 401 U. S. 144 (1971), urge the Court to dismiss the writ of 
certiorari as improvidently granted with respect to the validity of the rule, 
as modified. Brief for Respondents 68. Sanks, however, is quite different 
from the instant case. In Sanks the events that transpired after probable 
jurisdiction was noted “had so drastically undermined the premises on 
which we originally set [the] case for plenary consideration as to lead us to 
conclude that, with due regard for the proper functioning of this Court, 
we should not . . . adjudicate it.” Id., at 145. The focus of that case 
had been “completely blurred, if not altogether obliterated,” and a judg­
ment on the issues involved had become “potentially immaterial.” Id., at 
152. This is not true here. Unlike the situation in Sanks, the Govern­
ment has not substituted an entirely different regulatory scheme and 
wholly abandoned the restrictions that were invalidated below. There is 
still a dispute, which is not “blurred” or “obliterated,” on which a judg­
ment- will not be “immaterial.” Petitioners merely have chosen to limit 
their disagreement with the lower courts’ rulings. Also, the question that is



BELL v. WOLFISH 29

We conclude that a prohibition against receipt of hardback 
books unless mailed directly from publishers, book clubs or 
bookstores does not violate the First Amendment rights of 
MCC inmates, That limited restriction is a rational response 
by prison officials to an obvious security problem. I t  hardly 
needs to be emphasized that hardback books are especially 
serviceable for smuggling contraband into an institution ; 
money, drugs and weapons easily may be secreted in the 
bindings. E. g., Woods v. Daggett, 541 F. 2d 237 (CA10 
1976).32 They also are difficult to search effectively. There 
is simply no evidence in the record to indicate that MCC 
officials have exaggerated their response to this security prob­
lem and to the administrative difficulties posed by the necessity 
of carefully inspecting each book mailed from unidentified 
sources. Therefore, the considered judgment of these experts 
must control in the absence of prohibitions far more sweeping

now posed is fairly comprised within the questions presented in the Peti­
tion for Certiorari. See Pet. for Cert. 2 (“Whether the governmental 
interest in maintaining jail security and order justifies rules that . . . 
(b) prohibit receipt at the jail of books and magazines that are not mailed 
directly from publishers”)- See this Court’s Rule 23.1 (c). We, of 
course, express no view as to the validity of those portions of the lower 
courts’ rulings that concern magazines or soft-cover books.

32 The District Court stated, “With no record of untoward experience 
at places like the MCC, and with no history of resort to less restrictive 
measures, [petitioners’] invocation of security cannot avail with respect to 
the high constitutional interests here at stake.” 428 F. Supp., a t 340. We 
rejected this line of reasoning in Jones v. Novth Carolina Prisoners Labor 
Union, supra, at 132-133, where we stated, “Responsible prison officials must 
be permitted to take reasonable steps to forestall . . . threat[s to security], 
and they must be permitted to act before the time when they can compile 
a dossier on the eve of a riot.” We reject it again, now. In Jones, we 
also emphasized that the “informed discretion of prison officials that there 
is potential danger may be sufficient for limiting rights even though this 
showing might be ‘unimpressive if . . . submitted as justification for gov­
ernmental restriction of personal communication among members of the 
general public.’ ” (Emphasis added.) Id., at 133 n. 9, quoting PeU v. 
Procunier, supra, at 825, see Procunier v. Martinez, 416 U, S., at 414.



30 BELL v. WOLFISH

than those involved here. See Jones v. North Carolina Pris­
oners’ Labor Union, supra, at 128; Pell v. Procunier, supra, 
at 827.

Our conclusion that this limited restriction on receipt of 
hardback books does not infringe the First Amendment rights 
of MCC inmates is influenced by several other factors. The 
rule operates in a neutral fashion, without regard to the 
content of the expression. Pell v. Procunier, supra, at 828. 
And there are alternative means of obtaining reading material 
that have not been shown to be burdensome or insufficient. 
‘‘We regard the available ‘alternative means of [communica­
tion as] a relevant factor’ in a case such as this where ‘we 
[are] called upon to balance First Amendment rights against 
[legitimate] governmental . . . interests.’ ” Id., at 824, quot­
ing Kliendienst v. Mandel, 408 U. S. 753, 765 (1972); see 
Cruz v. Beta, 405 U. S., at 321, 322 n. 2. The restriction, as 
it is now before us, allows soft bound books and magazines to 
be received from any source and hardback books to be received 
from publishers, bookstores and book clubs. In addition, the 
MCC has a “relatively large” library for use by inmates. 
United States ex rel. Wolfish v. United States, 428 F. Supp., 
at 340.33 To the limited extent the rule might possibly in­
crease the cost of obtaining published materials, this Court 
has held that where “other avenues” remain available for the 
receipt of materials by inmates, the loss of “cost advantages 
does not fundamentally implicate free speech values.” See 
Jones v. North Carolina Prisoners’ Labor Union, supra, at

33 The general library consists of more than 3,000 hardback books, 
which include general reference texts and fiction and nonfiction works, 
and more than 5,000 assorted paperbacks, including fiction and nonfiction. 
The MCC offers for sale to inmates four daily newspapers and certain 
magazines. Joint App, (No. 77-2035, CA2) 102-103 (Affidavit of Robert 
Harris, MCC Education Specialist, dated Oct. 19, 1976). Other paperback 
books and magazines are donated periodically and distributed among the 
units for inmate use. United States ex rel. Wolfish v. Levi, 439 F. Supp., 
at 131.



BELL v. WOLFISH 31

130-131. We are also influenced in our decision by the fact that 
the rule’s impact on pretrial detainees is limited to a maxi­
mum period of approximately 60 days. See n. 3, supra. In 
sum, considering all the circumstances, we view the rule, as 
we now find it, to be a “reasonable ‘time, place and manner’ 
regulation [] . . . [that is] necessary to further significant 
governmental interests. . . .” Grayned v. City of Rockford, 
408 U. S. 104, 115 (1972); see Cox v. New Hampshire, 312 
U. S. 569, 575-576 (1941); Cox v. Louisiana, 379 U. S. 536, 
554-555 (1965); Adderley v. Florida, 385 U. S. 39, 46-48 
(1966).

B
Inmates at the MCC were not permitted to receive packages 

from outside the facility containing items of food or personal 
property, except for one package of food at Christmas. This 
rule was justified by MCC officials on three grounds. First, 
officials testified to “serious” security problems that arise from 
the introduction of such packages into the institution, the 
“traditional file in the cake kind of situation” as well as the 
concealment of drugs “in heels of shoes [and] seams of cloth­
ing.” App, 80; see id., at 24, 84-85. As in the case of the 
“publisher-only” rule, the warden testified that if such pack­
ages were allowed, the inspection process necessary to ensure 
the security of the institution would require a substantial 
and inordinate amount of available staff time.” Id., at 24. 
Second, officials were concerned that the introduction of per­
sonal property into the facility would increase the risk of 
thefts, gambling and inmate conflicts, the “age-old problem of 
you have it and I don’t.” Id., at 80; see id., at 85. Finally, 
they noted storage and sanitary problems that would result 
from inmates’ receipt of food packages. Id., at 67, 80. In­
mates are permitted, however, to purchase certain items of 
food and personal property from the MCC commissary.34

34 Inmates are permitted to spend a total of $15 per week or up to $50



32 BELL v. WOLFISH

The District Court dismissed these justifications as “dire 
predictions.” I t was unconvinced by the asserted security 
problems because other institutions allow greater ownership 
of personal property and receipt of packages than does the 
MCC. And because the MCC permitted inmates to purchase 
items in the commissary, the court could not accept official 
fears of increased theft, gambling or conflicts if packages were 
allowed. Finally, it believed that sanitation could be assured 
by proper housekeeping regulations. Accordingly, it ordered 
the MCC to promulgate regulations to permit receipt of at 
least items of the kind that are available in the commissary. 
439 F. Supp., at 152-153. The Court of Appeals accepted 
the District Court’s analysis and affirmed, although it noted 
that the MCC could place a ceiling on the permissible dollar 
value of goods received and restrict the number of packages. 
573 F. 2d, at 132.

Neither the District Court nor the Court of Appeals iden­
tified which provision of the Constitution was violated by this 
MCC restriction. We assume, for present purposes, that their 
decisions were based on the Due Process Clause of the Fifth 
Amendment, which provides protection for convicted prisoners 
and pretrial detainees alike against the deprivation of their 
property without due process of law. See supra, at 23, But 
as we have stated, these due process rights of prisoners and 
pretrial detainees are not absolute; they are subject to reason­
able limitation or retraction in light of the legitimate security 
concerns of the institution.

We think the District Court and the Court of Appeals have 
trenched too cavalierly into areas that are properly the con­
cern of MCC officials. I t is plain from their opinions, that 
the lower courts simply disagreed with the judgment of MCC 
officials about the extent of the security interests affected and 
the means required to further those interests. But our deei-

per month at the commissary. United States ex rel. Wolfish v. Levi, 439 
F. Supp., at 132.



BELL v. WOLFISH 33

sions have time and again emphasized that this sort of un­
guided substitution of judicial judgment for that of the expert 
prison administrators on matters such as this is inappropriate. 
See Jones v. North Carolina Prisoners’ Labor Union, supra; 
Pell v. Procunier, supra; Procunier v. Martinez, supra. We 
do not doubt that the rule devised by the District Court and 
modified by the Court of Appeals may be a reasonable way of 
coping with the problems of security, order and sanitation. 
I t simply is not, however, the only constitutionally permissible 
approach to these problems. Certainly, the Due Process 
Clause does not mandate a “lowest common denominator” 
security standard, whereby a practice permitted at one penal 
institution must be permitted at all institutions.

Corrections officials concluded that permitting the introduc­
tion of packages of personal property and food would increase 
the risks of gambling, theft and inmate fights over that which 
the institution already experienced by permitting certain items 
to be purchased from its commissary. “It is enough to say 
that they have not been conclusively shown to be wrong in 
this view.” Jones v. North Carolina Prisoners’ Labor Union, 
supra, at 132. I t  is also all too obvious that such packages 
are handy devices for the smuggling of contraband. There 
simply is no basis in this record for concluding that MCC 
officials have exaggerated their response to these serious prob­
lems or that this restriction is irrational. I t does not therefore 
deprive the convicted inmates or pretrial detainees35 of the 
MCC of their property without due process of law in contra­
vention of the Fifth Amendment.

C
The MCC staff conducts unannounced searches of inmate 

living areas at irregular intervals. These searches generally 
are formal unit “shakedowns” during which all inmates are

35 With regard to pretrial detainees, we again note that this restriction 
affects them for generally a maximum of 60 days. See n. 3, supra.



34 BELL v. WOLFISH

cleared of the residential units, and a team of guards searches 
each room. Prior to the District Courts’ order, inmates were 
not permitted to watch the searches. Officials testified that 
permitting inmates to observe room inspections would lead to 
friction between the inmates and security guards and would 
allow the inmates to attempt to frustrate the search by dis­
tracting personnel and moving contraband from one room to 
another ahead of the search team.36

The District Court held that this procedure could not stand 
as applied to pretrial detainees because MCC officials had not 
shown that the restriction was justified by “compelling neces­
sity.” 37 The court stated that “[a]t least until or unless 
[petitioners] can show a pattern of violence or other disrup­
tions taxing the powers of control—a kind of showing not 
remotely approached by the Warden’s expressions—the security 
argument for banishing inmates while their rooms are searched 
must be rejected.” 439 F. Supp., at 149. I t also noted that 
in many instances inmates suspected guards of thievery. Id., 
at 148-149. The Court of Appeals agreed with the District 
Court. I t saw “no reason whatsoever not to permit a de-

36 One of the correctional experts testified as follows:
" . . .  the requirement that prisoners not be in the immediate area obviously 
has its basis again in the requirements of security.

“It is quite obvious that if a group of officers start a searching process of 
a housing area at the MCC, if it be a corridor or an area of rooms or in a 
typical jail if it were a cell block, unless all prisoners are removed from 
that immediate area, there are a wide variety of opportunities for the 
confiscation of contraband by prisoners who may have such in their 
possession and cells.

“It can go down the toilet or out the window, swallowed, a wide variety 
of methods of confiscation of contraband.” App. 78.

37 The District Court did not extend its ruling to convicted inmates 
because, for them, “the asserted necessities need not be ‘compelling,’ ” and 
since the warden’s explanation of the problems posed was “certainly not 
weightless,” the practice passed the constitutional test for sentenced 
inmates. 439 F. Supp., at 150.



BELL v. WOLFISH 35

tainee to observe the search of his room and belongings from 
a reasonable distance,” although the court permitted the 
removal of any detainee who became “obstructive.” 573 F. 
2d, at 132.

The Court of Appeals did not identify the constitutional 
provision on which it relied in invalidating the room search 
rule. The District Court stated that the rule infringed the 
detainee’s interest in privacy and indicated that this interest 
in privacy was founded on the Fourth Amendment. 439 F. 
Supp., at 149-150. It may well be argued that a person con­
fined in a detention facility has no reasonable expectation 
of privacy with respect to his room or cell and that therefore 
the Fourth Amendment provides no protection for such a 
person. Cf. Lanza v. New York, 370 U. S. 139, 143-144 
(1962). In any case, given the realities of institutional con­
finement, any reasonable expectation of privacy that a detainee 
retained necessarily would be of a diminished scope. Id., at 
143. Assuming, arguendo, that a pretrial detainee retains such 
a diminished expectation of privacy after commitment to a 
custodial facility, we nonetheless find that the room search 
rule does not violate the Fourth Amendment.

I t is difficult to see how the detainee’s interest in privacy is 
infringed by the room search rule. No one can rationally 
doubt that room searches represent an appropriate security 
measure and neither the District Court nor the Court of 
Appeals prohibited such searches. And even the most zealous 
advocate of prisoners’ rights would not suggest that a warrant 
is required to conduct such a search. Detainees’ drawers and 
beds and personal items may be searched, even after the lower 
courts’ rulings. Permitting detainees to observe the searches 
does not lessen the invasion of their privacy; its only con­
ceivable beneficial effect would be to prevent theft or misuse 
by those conducting the search. The room search rule simply 
facilitates the safe and effective performance of the search 
which all concede may be conducted. The rule itself, then,



36 BELL v. WOLFISH

does not render the searches “unreasonable” within the mean­
ing of the Fourth Amendment.38

D
Inmates at all Bureau of Prisons facilities, including the 

MCC, are required to expose their body cavities for visual 
inspection as a part of a strip search conducted after every 
contact visit with a person from outside the institution.39 
Corrections officials testified that visual cavity searches were 
necessary not only to discover but also to deter the smug­
gling of weapons, drugs and other contraband into the insti­
tution. App. 70-72, 83-84. The District Court upheld the 
strip search procedure but prohibited the body cavity searches, 
absent probable cause to believe that the inmate is concealing 
contraband. 439 F. Supp., at 147-148. Because petitioners 
proved only one instance in the MCC’s short history where 
contraband was found during a body cavity search, the Court 
of Appeals affirmed. In its view, the “gross violation of 
personal privacy inherent in such a search cannot be out­
weighed by the government’s security interest in maintaining 
a practice of so little actual utility.” 573 F. 2d, at 131.

38 It may be that some guards have abused the trust reposed in them by 
failing to treat the personal possessions of inmates with appropriate 
respect. But, even assuming that in some instances these abuses of trust 
reached the level of constitutional violations, this is not an action to recover 
damages for damage to or destruction of particular items of property. 
This is a challenge to the room search rule in its entirety, and the lower 
courts have enjoined enforcement of the practice itself. When analyzed in 
this context, proper deference to the informed discretion of prison authori­
ties demands that they, and not the courts, make the difficult judgments 
which reconcile conflicting claims affecting the security of the institution, 
the welfare of the prison staff, and the property rights of the detainees. 
Jones v. North Carolina Prisoners’ Labor Union, supra, at 128.

39 If the inmate is a male, he must lift his genitals and bend over to 
spread his buttocks for visual inspection. The vaginal and anal cavities 
of female inmates also are visually inspected. The inmate is not touched 
by security personnel at any time during the visual search procedure. 
573 F. 2d, at 131; Brief of Petitioners 70, 74 n. 56.



BELL v. WOLFISH 37

Admittedly, this practice instinctively gives us the most 
pause. However, assuming for present purposes that inmates, 
both convicted prisoners and pretrial detainees, retain some 
Fourth Amendment rights upon commitment to a corrections 
facility, see Lanza v. New York, supra; Stroud v. United 
States, 251 U. S. 15, 21 (1919), we nonetheless conclude that 
these searches do not violate that Amendment. The Fourth 
Amendment prohibits only unreasonable searches, Carroll v. 
United States, 267 U. S. 132, 147 (1925), and under the 
circumstances, we do not believe that these searches are 
unreasonable.

The test of reasonableness under the Fourth Amendment is 
not capable of precise definition or mechanical application. 
In each case it requires a balancing of the need for the partic­
ular search against the invasion of personal rights that the 
search entails. Courts must consider the scope of the par­
ticular intrusion, the manner in which it is conducted, the 
justification for initiating it and the place in which it is 
conducted. E. g., United States v. Ramsey, 431 U. S. 606 
(1977); United States v. Martinez-Fuerte, 428 U. S. 543 
(1976); United States v. Brignoni-Ponce, 422 U. S. 873 (1975); 
Terry v. Ohio, 392 U. S. 1 (1968); Katz v. United States, 389 
U. S. 347 (1967); Schmerher v. California, 384 IT. S. 757 
(1966). A detention facility is a unique place fraught with 
serious security dangers. Smuggling of money, drugs, weap­
ons and other contraband is all too common an occurrence. 
And inmate attempts to secrete these items into the facility 
by concealing them in body cavities are documented in this 
record, App. 71-76, and in other cases. E. g., Ferraro v.
United States,----F. 2 d -----  (CA6, filed Dec. 15, 1978) (No.
78-5250); United States v. Park, 521 F. 2d 1381, 1382 (CA9 
1975). That there has been only one instance where an 
MCC inmate was discovered attempting to smuggle contra­
band into the institution on his person may be more a 
testament to the effectiveness of this search technique as a 
deterrent than to any lack of interest on the part of the in-



38 BELL v. WOLFISH

mates to secrete and import such items when the opportunity 
arises.40

We do not underestimate the degree to which these searches 
may invade the personal privacy of inmates. Nor do we 
doubt, as the District Court noted, that on occasion a security 
guard may conduct the search in an abusive fashion. 439 F. 
Supp., at 147. Such abuse cannot be condoned. The searches 
must be conducted in a reasonable manner. Schmerber v. 
California, supra, at 771-772. But we deal here with the 
question whether visual body cavity inspections as contem­
plated by the MCC rules can ever be conducted on less than 
probable cause. Balancing the significant and legitimate

40 The District Court indicated that in its view the use of metal detec­
tion equipment represented a less intrusive and equally effective alterna­
tive to cavity inspections. We noted in United States v. Martinez-Fuerte, 
428 U. S. 543, 556-557, n. 12 (1976), that “ [t]he logic of such elaborate 
less-restrictive-alternative arguments could raise insuperable barriers to the 
exercise of virtually all search-and-seizure powers.” However, assuming 
that the existence of less intrusive alternatives is relevant to the determi­
nation of the reasonableness of the particular search method at issue, the 
alternative suggested by the District Court simply would not be as effec­
tive as the visual inspection procedure. Money, drugs, and other non- 
metallic contraband still could easily be smuggled into the institution. An­
other possible alternative, not mentioned by the lower courts, would be to 
closely observe inmate visits. See Dept, of Justice, Federal Corrections 
Policy Task Force, Draft Federal Standards for Corrections (June 1978). 
But MCC officials have adopted the visual inspection procedure as an 
alternative to close and constant monitoring of contact visits to avoid 
the obvious disruption of the confidentiality and intimacy that these 
visits are intended to afford. That choice has not been shown to be 
irrational or unreasonable. Another alternative that might obviate the 
need for body cavity inspections would be to abolish contact visits alto­
gether. But the Court of Appeals, in a ruling that is not challenged in 
this Court and on which we, accordingly, express no opinion, held that 
pretrial detainees have a constitutional right to contact visits. 573 F. 2d, 
at 126 n. 16; see Marcera v. Chinlund, — ■ F. 2d —  (CA2, filed Febru­
ary 27, 1979) (No. 78-2081). See also Miller v. Carson, 563 F. 2d 741, 
748-749 (CAS 1977).



BELL v. WOLFISH 39

security interests of the institution against the privacy inter­
ests of the inmates, we conclude that they can.41

IV
Nor do we think that the four MCC security restrictions 

and practices described in Part, III, supra, constitute “punish­
ment” in violation of the rights of pretrial detainees under the 
Due Process Clause of the Fifth Amendment.42 Neither the 
District Court nor the Court of Appeals suggested that these 
restrictions and practices were employed by MCC officials 
with an intent to punish the pretrial detainees housed there.43 
Respondents do not even make such a suggestion; they simply 
argue that the restrictions were greater than necessary to 
satisfy petitioners’ legitimate interest in maintaining security. 
Brief for Respondents 51-53. Therefore, the determination 
whether these restrictions and practices constitute punish­
ment in the constitutional sense depends on whether they are 
rationally related to a legitimate nonpunitive governmental

41 We note that several lower courts have upheld such visual body 
cavity inspections against constitutional challenge. See, e. g., Daughtery 
v. Harris, 476 F. 2d 292 (CA10), cert, denied, 414 U. S. 872 (1973); 
Hodges v. Klein, 412 F. Supp. 896 (NJ 1976); Bijeol v. Benson, 404 F. 
Supp. 595 (SD Ind. 1975); Penn El v. Riddle, 399 F. Supp. 1059 (ED  
Va. 1975).

42 In determining whether the “publisher-only” rule constitutes punish­
ment, we consider the rule in its present form and in light of the 
concessions made by petitioners. See supra, at 27-28.

43 The District Court noted that in their post-trial memorandum peti­
tioners stated that “[w]ith respect to sentenced inmates, . . .  the restric­
tions on the possession of personal property also serve the legitimate 
purpose of punishment.” 439 F. Supp., at 153; see Post-trial Memo- 
random 212 n. **. However, below and in this Court petitioners have 
relied only on the three reasons discussed supra, at 30-31, to justify this 
restriction. In our view, this passing reference in a brief to sentenced in­
mates, which was not supported by citation to the record, hardly amounts 
to the “'substantial confession of error” with respect to pretrial detainees 
referred to by the District Court. 439 F. Supp., at 153.



40 BELL v. WOLFISH

purpose and whether they appear excessive in relation to that 
purpose. See supra, at 16-17. Ensuring security and order 
at the institution is a permissible nonpunitive objective, 
whether the facility houses pretrial detainees, convicted in­
mates, or both. Supra, at 18; see id., at 24-25, and n. 28. 
For the reasons set forth in Part III, supra, we think that 
these particular restrictions and practices were reasonable re­
sponses by MCC officials to legitimate security concerns. Re­
spondents simply have not met their heavy burden of show­
ing that these officials have exaggerated their response to the 
genuine security considerations that actuated these restric­
tions and practices. See n. 23, supra. And as might be 
expected of restrictions applicable to pretrial detainees, these 
restrictions were of only limited duration so far as the MCC 
pretrial detainees were concerned. See n. 3, supra.

Y
There was a time not too long ago when the federal judi­

ciary took a completely “hands-off” approach to the problem 
of prison administration. In recent years, however, these 
courts largely have discarded this “hands-off” attitude and 
have waded into this complex arena. The deplorable conditions 
and draconian restrictions of some of our Nation’s prisons are 
too well known to require recounting here, and the federal 
courts rightly have condemned these sordid aspects of our 
prison systems. But many of these same courts have, in the 
name of the Constitution, become increasingly enmeshed in 
the minutiae of prison operations. Judges, after all, are 
human. They, no less than others in our society, have a 
natural tendency to believe that their individual solutions to 
often intractable problems are better and more workable than 
those of the persons who are actually charged with and trained 
in the running of the particular institution under examination. 
But under the Constitution, the first question to be answered 
is not whose plan is best, but in what branch of the Govern-



BELL v. WOLFISH 41

ment is lodged the authority to initially devise the plan. 
This does not mean that constitutional rights are not to be 
scrupulously observed. I t does mean, however, that the in­
quiry of federal courts into prison management must be 
limited to the issue of whether a particular system violates 
any prohibition of the Constitution, or in the case of a federal 
prison, a statute. The wide range of “judgment calls” that 
meet constitutional and statutory requirements are confided 
to officials outside of the Judicial Branch of Government.

The judgment of the Court of Appeals is, accordingly, 
reversed and the case is remanded for proceedings consistent 
with this opinion.

I t is so ordered.



SUPREME COURT OF THE UNITED STATES

Mr. J ustice P owell, concurring in part and dissenting in 
part.

I join the opinion of the Court except the discussion and 
holding with respect to body cavity searches. In view of the 
serious intrusion on one’s privacy occasioned by such a search, 
I think at least some level of cause, such as a reasonable 
suspicion, should be required to justify the anal and genital 
searches described in this case. I therefore dissent on this 
issue.

No. 77-1829

Griffin B. Bell et ah, Petitioners,
v.

Louis Wolfish et al.

On Writ of Certiorari to the 
United States Court of 
Appeals for the Second 
Circuit.

[May 14, 1979]



SUPEEME COURT OF THE UNITED STATES
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.

[May 14, 1979]

M r. J ustice M arshall, dissenting.
The Court holds that the Government may burden pretrial 

detainees with almost any restriction, provided detention of­
ficials do not proclaim a punitive intent or impose conditions 
that are “arbitrary or purposeless.” Ante, at 7. As if this 
standard were not sufficiently ineffectual, the Court dilutes it 
further by according virtually unlimited deference to deten­
tion officials’ justifications for particular impositions. Con­
spicuously lacking from this analysis is any meaningful 
consideration of the most relevant factor, the impact that re­
strictions may have on inmates. Such an approach is unsup- 
portable given that all of these detainees are presumptively 
innocent and many are confined solely because they cannot 
afford bail.1

1The Bail Reform Act, 18 U. S. C. §3146, to which the Court adverts 
ante, at 2, provides that bail be set in an amount that will “reasonably 
assure” the defendant’s presence at trial. In fact, studies indicate that 
bail determinations frequently do not focus on the individual defendant 
but only on the nature of the crime charged and that, as administered, 
the system penalizes indigent defendants. See, e. g., American Bar 
Association Project on Minimum Standards for Criminal Justice, Standards 
Relating to Pretrial Release 1-2 (1968); W. Thomas, Bail Reform in 
America 11-19 (1976). See also National Advisory Commission on Crim­
inal Justice Standards and Goals, Corrections 102-103 (1973); National 
Association of Pretrial Service Agencies, Performance Standards and Goals 
for Pretrial Release and Diversion 1-3 (1978).



2 BELL v. WOLFISH

In my view, the Court's holding departs from the precedent 
it purports to follow and precludes effective judicial review of 
the conditions of pretrial confinement. More fundamentally,
I believe the proper inquiry in this context is not whether a 
particular restraint can be labeled “punishment.” Rather, as 
with other due process challenges, the inquiry should be 
whether the governmental interests served by any given 
restriction outweigh the individual deprivations suffered.

I
The premise of the Court’s anlaysis is that detainees, unlike 

prisoners, may not be “punished.” To determine when a 
particular disability imposed during pretrial detention is pun­
ishment, the Court invokes the factors enunciated in Kennedy 
v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), quoted 
ante, at 15-16 (footnotes omitted):

“Whether the sanction involves an affirmative disability 
or restraint, whether it has historically been regarded as 
a punishment, whether it comes into play only on a find­
ing of scienter, whether its operation will promote the 
traditional aims of punishment—retribution and deter­
rence, whether the behavior to which it applies is already 
a crime, whether an alternative purpose to which it may 
rationally be connected is assignable for it, and whether 
it appears excessive in relation to the alternative purpose 
assigned are all relevant to the inquiry, and may often 
point in differing directions.”

A number of the factors enunciated above focus on the 
nature and severity of the impositions at issue. Thus, if 
weight were given to all its elements, I believe the Mendozcn- 
Martinez inquiry could be responsive to the impact of the de­
privations imposed on detainees. However, within a few lines 
after quoting Mendoza-Martinez, the Court restates the 
standard as whether there is an expressed punitive intent on 
the part of detention officials, and if not, whether the restric-



BELL v. WOLFISH 3

tion is rationally related to some nonpunitive purpose or 
appears excessive in relation to that purpose. Ante, at 16, 
Absent from the reformulation is any appraisal of whether the 
sanction constitutes an affirmative disability or restraint and 
whether it has historically been regarded as punishment. 
Moreover, when the Court applies this standard, it loses inter­
est in the inquiry concerning excessiveness, and indeed, 
eschews consideration of less restrictive alternatives, practices 
in other detention facilities, and the recommendations of the 
Justice Department and professional organizations. See ante, 
at 20 n. 25, 21 n. 27, 32. By this process of elimination, the 
Court contracts a broad standard, sensitive to the deprivations 
imposed on detainees, into one that seeks merely to sanitize 
official motives and prohibit irrational behavior. As thus 
reformulated, the test lacks any real content,

A
To make detention officials’ intent the critical factor in 

assessing the constitutionality of impositions on detainees is 
unrealistic in the extreme. The cases on which the Court 
relies to justify this narrow focus all involve legislative acts, 
not day-to-day administrative decisions. See Kennedy V. 
Mendoza-Martinez, supra ( Nationality Act of 1940 and Immi­
gration and Nationality Act of 1952); Flemming v. Nestor, 
363 U. S. 603 (I960) (Social Security Act); De Veau v. 
Braisted, 363 U. S. 144 (1960) (New York Waterfront Com­
mission Act). In discerning the intent behind a statutory 
enactment, courts engage in a familiar judicial function, usu­
ally with the benefit of a legislative history that preceded 
passage of the statute. The motivation for policies in deten­
tion facilities, however, will frequently not be a matter of pub­
lic record. Detainees challenging these policies will therefore 
bear the substantial burden of establishing punitive intent on 
the basis of circumstantial evidence or retrospective explana­
tions by detention officials, which frequently may be self-



4 BELL v. WOLFISH

serving. Particularly since the Court seems unwilling to look 
behind any justification based on security,2 that burden will 
usually prove insurmountable.

In any event, it will often be the case that officials believe, 
erroneously but in good faith, that a specific restriction is 
necessary for institutional security. As the District Court 
noted, “zeal for security is among the most common varieties 
of official excess,” 439 F. Supp., at 141, and the litigation in 
this area corroborates that conclusion.3 A standard that 
focuses on punitive intent cannot effectively eliminate this 
excess. Indeed, the Court does not even attempt to “detail 
the precise extent of the legitimate governmental interests

2 Indeed, the Court glosses over the Government’s statement in its post­
trial memorandum that for inmates serving sentences, “the restrictions on 
the possession of personal property also served the legitimate purpose of 
punishment.” 439 F, Supp., at 153; Post-trial Memorandum 212 n. **, 
quoted ante, at 38 n. 43. This statement provides at least some indication 
that a similar motive may underlie application of the same rules to 
detainees. The Court’s treatment of this point illustrates the indifference 
with which it pursues the intent inquiry.

3 Thus, for example, lower courts have held a variety of security 
restrictions unconstitutional. E. g., Collins v. Schoonfield, 344 F. Supp. 
257, 283 (Md. 1972) (warden censored newspaper articles critical of his 
administration of jail); id., at 278 (mentally disturbed detainees shackled 
in jail infirmary); Inmates of Milwaukee County Jail v. Petersen, 353 F. 
Supp. 1157, 1164 (ED Wis. 1973) (detainees limited to two pages per 
letter; notice to relatives and friends of the time and place of detainee’s 
next court appearance deleted on security grounds); Mancione v. Corso, 
365 F. Supp. 576 (EDNY 1973) (newspapers banned because they might 
disrupt prisoners and create a fire hazard); Miller v. Carson, 401 F. Supp. 
835, 878 (MD Fla, 1975), aff’d, 563 F. 2d 741 (CA5 1977) (detainees 
in hospital kept continuously chained to bed); O’Bryan v. County of 
Saginaw, 437 F. Supp. 582 (ED Mich. 1977) (detainees with bail of more 
than $500 prevented from attending religious services); Vest v. Lubbock 
County Commissioner, 444 F. Supp. 824 (ND Tex. 1977) (detainees 
limited to three pages per letter and six incoming and outgoing letters per 
week to facilitate censorship; guards authorized to refuse to mail or deliver 
letters containing “abusive” language).



BELL v. WOLFISH 5

that may justify conditions or restrictions of pretrial deten­
tion.” Ante, at 18. Rather, it is content merely to recognize 
that “the effective management of the detention facility . . . 
is a valid objective that may justify imposition of conditions 
and restrictions of pretrial detention and dispel any inference 
that such restrictions are intended as punishment.” Ibid.

Moreover, even if the inquiry the Court pursues were more 
productive, it simply is not the one the Constitution mandates 
here. By its terms, the Due Process Clause focuses on the 
nature of deprivations, not on the persons inflicting them. 
If this concern is to be vindicated, it is the effect of conditions 
of confinement, not the intent behind them, that must be the 
focal point of constitutional analysis.

B
Although the Court professes to go beyond the direct in­

quiry regarding intent and to determine whether a particular 
imposition is rationally related to a nonpunitive purpose, this 
exercise is at best a formality. Almost any restriction on 
detainees, including, as the Court concedes, chains and 
shackles, ante, at 17 n. 20, can be found to have some rational 
relation to institutional security, or more broadly, to “the 
effective management of the detention facility.” Id., at 18. 
See Feeley v. Sampson, 570 F. 2d 364, 380 (CA1 1977) (Coffin,
C. J., dissenting). Yet this toothless standard applies irre­
spective of the excessiveness of the restraint or the nature of 
the rights infringed.4

Moreover, the Court has not in fact reviewed the rationality 
of detention officials’ decisions, as Mendoza-Martinez requires. 
Instead, the majority affords “wide-ranging” deference to

4 The Court does concede that “loading a detainee with chains and 
shackles and throwing him in a dungeon,” ante, at 17 n. 20, would create 
an inference of punitive intent and hence would be impermissible. I am 
indeed heartened by this concession, but I do not think it sufficient to give 
force to the Court’s standard.



6 BELL v. WOLFISH

those officials “in the adoption of practices that in their judg­
ment are needed to preserve internal order and discipline and 
to maintain institutional security.” Ante, at 25.5 Reasoning 
that security considerations in jails are little different than 
in prisons, the Court concludes that cases requiring substantial 
deference to prison administrators’ determinations on security- 
related issues are equally applicable in the present context. 
Ante, at 24-25, nn. 28, 29.

Yet as the Court implicitly acknowledges, ante, at 23, the 
rights of detainees, who have not been adjudicated guilty of a 
crime, are necessarily more extensive than those of prisoners 
“who have been found to have violated one or more of the 
criminal laws established by society for its orderly govern­
ance.” Jones v. North Carolina Prisoners’ Union, 433 U. S.
119, 129 (1977). See Campbell v. McGruder,----U. S. App.
D. C .--- , 580 F. 2d 521, 527 n. 9 (1978). Judicial tolerance
of substantial impositions on detainees must be concomitantly 
less. However, by blindly deferring to administrative judg­
ments on the rational basis for particular restrictions, the 
Court effectively delegates to detention officials the decision 
whether pretrial detainees have been punished. This, in 
my view, is an abdication of a unquestionably judicial 
function.

II
Even had the Court properly applied the punishment test, 

I could not agree to its use in this context. I t simply does 
not advance analysis to determine whether a given depriva­
tion imposed on detainees constitutes “punishment.” For in 
terms of the nature of the imposition and the impact on de­
tainees, pretrial incarceration, although necessary to secure

5 Indeed, lest the point escape the reader, the majority reiterates it 12 
times in the course of the opinion. Ante, at 9, 18 n. 23, 22, 23, 25, and n. 
29, 26, and n. 30, 29, 32, 35 n. 38, 40.



BELL v. WOLFISH 7

defendants’ presence at trial, is essentially indistinguishable 
from punishment.6 The detainee is involuntarily confined 
and deprived of the freedom “to be with his family and friends 
and to form the other enduring attachments of normal life,” 
Morrissey v. Brewer, 408 U. S. 471, 482 (1972). Indeed, this 
Court has previously recognized that incarceration is an 
“infamous punishment.” Flemming v. Nestor, 363 U. S. 603, 
617 (1960); see also Wong Wing v. United, States, 163 U. S. 
228, 233-234 (1896); Ingraham v. Wright, 430 IT. S. 651, 669 
(1977). And if the effect of incarceration itself is inevitably 
punitive, so too must be the cumulative impact of those re­
straints incident to that restraint.7

A test that balances the deprivations involved against the 
state interests assertedly served,8 would be more consistent 
with the import of the Due Process Clause. Such an approach 
would be sensitive to the tangible physical and psychological

6 As Chief Judge Coffin has stated, [i] t would be impossible, without
playing fast and loose with the English language, for a court to examine 
the conditions of confinement under which detainees are incarcerated . . . 
and conclude that their custody was not punitive in effect if not in intent.” 
Feeley v. Sampson, 570 F. 2d 364, 380 (CA1 1977) (Coffin, C. J., dissent­
ing). Accord, Campbell v. McGruder, — - U. S. App. D. C .---- , 580 F.
2d 521, 530 (1978).

7 If a particular imposition could be termed “punishment” under the 
Mencloza-Martinez criteria, I would of course agree that it violates the 
Due Process Clause. My criticism is that, in this context, determining 
whether a given restraint constitutes punishment is an empty semantic 
exercise. For pretrial incarceration is in many respects no different from 
the sanctions society imposes on convicted criminals. To argue over a ques­
tion of characterization can only obscure what is in fact the appropriate 
inquiry, the actual nature of the impositions balanced against the Govern­
ment’s justifications.

8 See New Motor Vehicle Board v. Orrin W. Fox Co.,---- U. S. ——, ------
(1978) (Marshall, J., concurring); Poe v. Ullman, 367 U. S. 497, 542 
(1961) (Harlan, J., dissenting); Moore v. City of East Cleveland, 431 
U. S. 494, 499 (1977); Roe v. Wade, 410 U. S. 113, 115 (1973).



BELL v. WOLFISH

harm that a particular disability inflicts on detainees and to 
the nature of the less tangible, but significant individual in­
terests at stake. The greater the imposition on detainees, the 
heavier the burden of justification the Government would 
bear. See Bates v. City of Little Rock, 361 U. S. 516, 524 
(1960); Shapiro v. Thompson, 394 U. S. 618, 634 (1969); 
Kusper v. Pontikes, 414 U. S. 51, 58-59 (1973).

When assessing the restrictions on detainees, we must con­
sider the cumulative impact of restraints imposed during con­
finement. Incarceration of itself clearly represents a pro­
found infringement of liberty, and each additional imposition 
increases the severity of that initial deprivation. Since any 
restraint thus has a serious effect on detainees, I believe the 
Government must bear a more rigorous burden of justification
than the rational basis standard mandates. See p . ---- , supra.
At a minimum, I would require a showing that a restriction is 
substantially necessary to jail administration. Where the 
imposition is of particular gravity, that is, where it implicates 
interests of fundamental importance0 or inflicts significant 
harms, the Government should demonstrate that the restric­
tion serves a compelling necessity of jail administration.10

In presenting its justifications, the Government could 
adduce evidence of the security and administrative needs of 
the institution as well as the fiscal constraints under which it

9 See, e. g., Brandenburg v. Ohio, 395 U. S. 444, 448 (1969) (free 
speech); Bounds v. Smith, 430 U. S. 817 (1977) (access to the courts).

10 Blackstone observed over 200 years ago:
“Upon the whole, if the offense be not bailable, or the party cannot find 
bail, be is to be committed to the county gaol by the mittimus of the 
justice. . . : there to abide till delivered by due course of law. . . . But 
this imprisonment, as has been said, is only for safe custody, and not for 
punishment: therefore, in his dubious interval between the commitment 
and trial, 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 299 (15th ed. 1809).



BELL v. WOLFISH 9

operates. And, of course, considerations of competence and 
comity require some measure of deference to the judgments of 
detention officials. Their estimation of institutional needs 
and the administrative consequences of particular acts is en­
titled to weight. But as the Court has repeatedly held in the 
prison context, judicial restraint “cannot encompass any fail­
ure to take cognizance of valid constitutional claims.” Pro- 
cunier v. Martinez, 416 U. S. 397, 405 (1974); Bounds v. 
Smith, 430 U. S. 817, 832 (1977). Even more so here, with 
the rights of presumptively innocent individuals at stake, we 
cannot abdicate our judicial responsibility to evaluate inde­
pendently the Government’s asserted justifications for particu­
lar deprivations. In undertaking this evaluation, courts 
should thus examine evidence of practices in other detention 
and penal facilities. To be sure, conditions of detention 
should not survive constitutional challenge merely because 
they are no worse than circumstances in prisons. But this 
evidence can assist courts in evaluating justifications based on 
security, administrative convenience, and fiscal constraints.

Simply stated, the approach I advocate here weighs the 
detainees’ interests implicated by a particular restriction 
against the governmental interests the restriction serves. As 
the substantiality of the intrusion on detainees’ rights in­
creases, so must the significance of the countervailing govern­
mental objectives.

I l l
A

Applying this standard to the facts of this case, I believe 
a remand is necessary on the issue of double-bunking at the 
MCC. The courts below determined only whether double- 
bunking was justified by a compelling necessity, excluding fis­
cal and administrative considerations. Since it was readily 
ascertainable that the Government could not prevail under 
that test, detailed inquiry was unnecessary. Thus, the Dis­
trict Court granted summary judgment, without a full record



10 BELL v. WOLFISH

on the psychological and physical harms caused by overcrowd­
ing.11 To conclude, as the court does here, that double-bunk­
ing has not inflicted “genuine hardships and privation over an 
extended period of time,” ante, at 20, is inappropriate where 
respondents have not had an adequate opportunity to produce 
evidence suggesting otherwise. Moreover, that the District 
Court discerned no disputed issues of material fact, see id., 
at 19 n. 24, is no justification for avoiding a remand, since 
what is material necessarily varies with the standard applied. 
Rather than pronouncing overbroad aphorisms about the 
principles “lurking in the Due Process Clause,” id., at 20, I 
would leave to the District Court in the first instance the sen­
sitive balancing inquiry that the Due Process Clause dictates.12

B
Although the constitutionality of the MCC’s rule limiting 

the sources of hardback books was also decided on sum­
mary judgment, I believe a remand is unnecessary.13 That

11 Other courts have found that in the circumstances before them 
overcrowding inflicted mental and physical damage on inmates. See, 
e. g., Detainees of Brooklyn House of Detention v. Malcolm, 520 F. 2d 
392, 396, and n. 4 (CA2 1975) (testimony of correctional experts that 
double-bunking is ‘‘psychologically destructive and increases homosexual 
impulses, tensions and aggressive tendencies”) ; Battle v. Anderson, 564
F. 2d 388, 39S (CA10 1977); Campbell v. McGruder, ----  U. S. App.
D. C. ---- , 580 F. 2d 521, 536 (1978) (overcrowding likely “to impair
the mental and physical health” of detainees); Chapman v. Rhodes, 434 
F. Supp. 1007, 1020 (SD Ohio 1977).

12 The MCC has a single-bed capacity of 449 inmates. Under the 
Court’s analysis, what is to be done if the inmate population grows sucl- 
dently to 600, or 900? The Court simply ignores the rated capacity of 
the institution. Yet this figure is surely relevant in assessing whether 
overcrowding inflicts harms of constitutional magnitude.

13 The Court of Appeals’ rulings on what this Court broadly designates 
“security restrictions” applied both to detainees and convicted prisoners. 
I believe impositions on these groups must be measured under different
standards. See p p .------------ , supra. But since prisoners are but a small
portion of the facility’s population, I would remand to the District Court



BELL v. WOLFISH 11

individuals have a fundamental First Amendment right to 
receive information and ideas is beyond dispute. See Martin 
v. Struthers, 319 IT. S. 141, 143 (1943); Stanley v. Georgia,
394 IT. S. 557, 565 (1969); Red Lion Broadcasting Co. v. FCC,
395 U. S. 367, 390 (1969); see also Brandenburg v. Ohio, 395 
U. S. 444, 448 (1969). Under the balancing test elaborated 
above, the Government must therefore demonstrate that its 
rule infringing on that interest serves a compelling necessity. 
As the courts below found, the Government failed to make 
such a showing.14

In support of its restriction, the Government presented the 
affidavit of the MCC warden, who averred without elaboration 
that a proper and thorough search of incoming hardback books 
might require removal of the covers. Further, the warden 
asserted, “in the case of all books and magazines,” it would

for determination whether there is a continuing controversy with respect 
to convicted inmates. If the issues were contested, the body-cavity
searches, at the least, would presumably be invalid. Cf. p p . ------------ ,
infra, and United States v. Lilly, 576 F. 2d 1240 (CAS 1978).

14 Nor can the Court’s attempt to denominate the publisher-only rule 
as a reasonable “time, place and manner regulation!],” ante, at 30, sub­
stitute for such a showing. In each of the cases cited by the Court for 
this proposition, the private individuals had the ability to alter the time, 
place or manner of 'exercising their First Amendment rights. Groyned v. 
City of Rockford, 408 IT. S. 104 (1972) (ordinance prohibiting demon­
stration within 150 feet of a school at certain times of the day); Cox v. 
New Hampshire, 312 U. S. 569 (1941) (permissible to require license for 
parade); Cox v. Louisiana, 379 U. S. 536, 554—555 (1965) (city could 
prohibit parades during rush hour); Adderley v. Florida, 385 U. B. 39 
(1966) (public demonstration on premises of county jail). It is not 
clear that the detainees here possess the same freedom to alter the time, 
place or manner of exercising their First Amendment rights. Indeed, as 
the Government acknowledges, Tr. of Oral Arg. IS, an unspecified number 
of detainees at, the MCC are incarcerated because they cannot afford bail. 
For these persons, the option of purchasing hardback books from 
publishers or bookstores will frequently be unavailable. And it is hardly 
consistent with established First Amendment precepts to restrict inmates 
to library selections made by detention officials.



12 BELL v. WOLFISH

be necessary to leaf through every page to ascertain that there 
was no contraband.” App. 24. The warden offered no rea­
sons why the institution could not place reasonable limitations 
on the number of books inmates could receive or use electronic 
devices and fluoroscopes to detect contraband rather than re­
quiring inmates to purchase hardback books directly from 
publishers or stores.15 As the Court of Appeals noted, “other 
institutions have not recorded untoward experiences with far 
less restrictive rules.” 573 F. 2d, at 130.

The limitation on receipt of hardback books may well be 
one rational response to the legitimate security concerns of 
the institution, concerns which I in no way intend to depre­
cate. But our precedents, as the courts below apparently rec­
ognized, 428 F. Supp., at 341; 573 F. 2d, at 130, require some 
consideration of less restrictive alternatives, see, e. g., Shelton 
v. Tucker, 364 II. S. 479, 488-490 (1970); Keyishian v. Board 
of Regents, 385 U. S. 589, 602-604 (1967). There is no basis 
for relaxing this requirement when the rights of presumptively 
innocent detainees are implicated.

C
The District Court did conduct a trial on the constitution­

ality of the MCC-package rule and room-search practices. 
Although the courts below applied a different standard, the 
record is sufficient to permit resolution of these issues here. 
And since this Court decides the questions, I think it appro­
priate to suggest the results that would obtain on this record 
under my standard.

Denial of the right to possess property is surely of height­
ened concern when viewed with the other indignities of detain­
ment. See App. 73. As the District Court observed, it is a 
severe discomfort to do without personal items such as a watch 
or cosmetics, and things to eat, smoke, or chew. Indeed, the

15 The MCC already uses such electronic equipment to search packages 
carried by visitors. See p . ---- , infra.



BELL v. WOLFISH 13

court noted. “ [t]he strong dependence upon material 
things . . . gives rise to one of the deepest miseries of incarcera­
tion—the deprivation of familiar possessions.” 439 F. Supp., 
at 150. Given this impact on detainees, the appropriate in­
quiry is whether the package restriction is substantially neces­
sary to prison administration.

The Government’s justification for such a broad rule can­
not meet this burden. The asserted interest in ameliorating 
sanitation and storage problems and avoiding thefts, gam­
bling, and inmate conflicts over personal property is belied, 
as the Court seems to recognize, ante, at 31 by the policy 
of permitting inmate purchases of up to $15 a week from 
the prison commissary. Detention officials doubtless have 
a legitimate interest in preventing introduction of drugs or 
weapons into the facility. But as both the District Court 
and the Court of Appeals observed, other detention institu­
tions have adopted much less restrictive regulations than the 
MCC’s governing receipt of packages. See, e. g., Miller v. 
Carson, 401 F. Supp. 835, 885 (MD Fla. 1975), aff’d, 563 F. 
2d 741 (CAS 1977); Giampetruzzi v. Malcolm, 406 F. Supp. 
836, 842 (SDNY 1975). Inmates in New York state institu­
tions, for example, may receive a 35-pound package each 
month, as well as clothing and magazines. See 439 F. 
Supp., at 152.16

To be sure, practices in other institutions do not necessarily 
demarcate the constitutional minimum. See ante, at 32. 
But such evidence does cast doubt upon the Government’s 
justifications based on institutional security and administra­
tive convenience. The District Court held that the Govern­
ment was obligated to dispel these doubts. The court thus 
required a reasoned showing why -'‘there must be deprivations

16 In addition, the Justice Department’s Draft Federal Standards for 
Corrections discourage limitations on the volume or content of inmate mail, 
including packages. Department of Justice, Task Force on Federal 
Corrections Standards, Draft Federal Standards for Correction 63 (1978).



14 BELL v. WOLFISH

at the MCC so much harsher than deemed necessary in other 
institutions.” 439 F. Supp., at 152. Absent such a showing, 
the court concluded that the MCC’s rule swept too broadly 
arid ordered detention officials to formulate a suitable alterna­
tive at least with respect to items available from the commis­
sary. Id., at 153. This holding seems an appropriate 
accommodation of the competing interests and a minimal 
intrusion on administrative prerogatives.

I would also affirm the ruling of the courts below that 
inmates must be permitted to observe searches of their cells. 
Routine searches such as those at issue here may be an 
unavoidable incident of incarceration. Nonetheless, the pro­
tections of the Fourth Amendment do not lapse at the jail- 
house door, Bonner v. Coughlin, 517 F. 2d 1311, 1316-1317 
(CA7 1975) (S t e v e n s , J . ) ; United States v. Lilly, 576 F. 2d 
1240, 1244-1245 (CA5 1978). Detention officials must there­
fore conduct such searches in a reasonable manner, avoiding 
needless intrusions on inmates’ privacy. Because unobserved 
searches may invite official disrespect for detainees’ few 
possessions and generate fears that guards will steal personal 
property or plant contraband, see 439 F. Supp., at 148-149, 
the inmates’ interests are significant.

The Government argues that allowing detainees to observe 
official searches would lead to violent confrontations and 
enable inmates to remove or conceal contraband. However, 
the District Court found that the Government had not sub­
stantiated these security concerns and that there were less 
intrusive means available to accomplish the institution’s ob­
jectives. Ibid. Thus, this record does not establish that 
unobserved searches are substantially necessary to jail 
administration.

D
In my view, the body cavity searches of MCC inmates 

represent one of the most grievous offenses against personal 
dignity and common decency. After every contact visit with



BELL v. WOLFISH 15

someone from outside the facility, including defense attorneys, 
an inmate must remove all of his or her clothing, bend over, 
spread the buttocks, and display the anal cavity for inspection 
by a correctional officer. Women inmates must assume a 
suitable posture for vaginal inspection, while men must raise 
their genitals. And, as the Court neglects to note, because 
of time pressures, this humiliating spectacle is frequently con­
ducted in the presence of other inmates. App. 77.

The District Court found that the stripping was “unpleas­
ant, embarrassing, and humiliating.” 439 F. Supp., at 146. 
A psychiatrist testified that the practice placed inmates in the 
most degrading position possible, App. 48, a conclusion amply 
corroborated by the testimony of the inmates themselves. 
App. 36-37, 41.17 There was evidence, moreover, that these 
searches engendered among detainees fears of sexual assault, 
App. 49, were the occasion for actual threats of physical abuse 
by guards, and caused some inmates to forego personal visits. 
439 F. Supp., at 147.

Not surprisingly, the Government asserts a security justifi­
cation for such inspections. These searches are necessary, it 
argues, to prevent inmates from smuggling contraband into 
the facility. In crediting this justification despite the con­
trary findings of the two courts below, the Court overlooks the 
critical facts. As respondents point out, inmates are required 
to wear one-piece jumpsuits with zippers in the front. To 
insert an object into the vaginal or anal cavity, an inmate 
would have to remove the jumpsuit, at least from the upper 
torso. App. 45; Joint App. 925. Since contact visits occur 
in a glass enclosed room and are continously monitored by cor-

17 While the Government presented psychiatric testimony that the pro­
cedures were not likely to create lasting emotional trauma, the District 
Court intimated some doubt as to the credibility of this testimony, and 
found that the injury was of constitutional dimension even if it did 
not require psychiatric treatment or leave permanent psychological scars. 
439 F. Supp., at 150.



16 BELL v. WOLFISH

rections officers, see 439 F. Supp., at 140, 147; Joint App. 144, 
1208-1209,18 such a feat would seem extraordinarily difficult. 
There was medical testimony, moreover, that inserting an 
object into the rectum is painful and “would require time and 
opportunity which is not available in the visiting areas,” App. 
49-50, and that visual inspection would probably not detect 
an object once inserted. Id., at 50. Additionally, before 
entering the visiting room, visitors and their packages are 
searched thoroughly by a metal detector, fluoroscope, and by 
hand. App. 93, Joint App. 601, 1077. Correction officers may 
require that visitors leave packages or handbags with guards 
until the visit is over. Joint App. 1077-1078. Only by blind­
ing itself to the facts presented on this record can the Court 
accept the Government’s security rationale.

Without question, these searches are an imposition of suffi­
cient gravity to invoke the compelling necessity standard. It 
is equally indisputable that they cannot meet that- standard. 
Indeed, the procedure is so unnecessarily degrading that it 
“shocks the conscience.” Rochin v. California, 342 IT. S. 165 
(1952). Even in Rochin, the police had reason to believe 
that the petitioner had swallowed contraband. Here, the 
searches are employed absent any suspicion of wrongdoing. 
I t was this aspect of the MCC practice that the Court of 
Appeals redressed, requiring that searches be conducted only 
when there is probable cause to believe that the inmate is 
concealing contraband. The Due Process Clause, on any 
principled reading, dictates no less.

That the Court can uphold these indiscriminate searches 
highlights the bankruptcy of its basic analysis. Under the

18 To facilitate this monitoring, MCC officials limited to 25 the number 
of people in the visiting room at one time. Joint App. 1208. Inmates 
were forbidden to use the locked lavatories, and visitors could use them 
only by requesting a key from a correctional officer. A. 93; see 573 F. 
2d, at 125. The lavatories, as well, contain a built-in window for 
observation. Brief for Respondents 57.



BELL v. WOLFISH 17

test adopted today, the rights of detainees apparently extend 
only so far as detention officials decide tha t cost and security 
will permit. Such unthinking deference to administrative 
convenience cannot be justified where the interests a t stake 
are those of presumptively innocent individuals, many of 
whose only proven offense is the inability to afford bail. 
I dissent.



SUPBEME COUBT OF THE UNITED STATES
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.

[May 14, 1979]

M r . J ustice Stevens, with whom M r . J ustice Brennan 
joins, dissenting.

This is not an equal protection case.1 An empirical judg­
ment that most persons formally accused of criminal conduct 
are probably guilty would provide a rational basis for a set of 
rules that treat them like convicts until they establish their 
innocence. No matter how rational such an approach might 
be—no matter how acceptable in a community where equality 
of status is the dominant goal—it is obnoxious to the concept 
of individual freedom protected by the Due Process Clause. 
If ever accepted in this country, it would work a fundamental 
change in the character of our free society.

Nor is this an Eighth Amendment case.2 That provision of 
the Constitution protects individuals convicted of crimes.from 
punishment that is cruel and unusual. The pretrial detainees 
whose rights are at stake in this case, however, are innocent 
men and women who have been convicted of no crimes. 
Their claim is not that they have been subjected to cruel 
and unusual punishment in violation of the Eighth Amend­
ment, but that to subject them to any form of punishment 
at all is an unconstitutional deprivation of their liberty.

1 “No State shall . . . deny to any person within its jurisdiction the 
equal protection of the laws.” U. S. Const., Amend. XIV.

2 “Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishment inflicted.” U. S. Const., Arndt. VIII.



2 BELL v. WOLFISH

This is a due process case.3 The most significant—and I 
venture to suggest the most enduring—part of the Court’s 
opinion today is its recognition of this initial constitutional 
premise. The Court squarely holds that “under the Due 
Process Clause, a detainee may not be punished prior to an 
adjudication of guilt in accordance with due process of law.” 4 
Ante, at 13.

This right to be free of punishment is not expressly 
embodied in any provision in the Bill of Rights. Nor is 
the source of this right found in any statute. The source 
of this fundamental freedom is the word “liberty” itself as 
used in the Due Process Clause, and as informed by “history, 
reason, the past course of decisions,” and the judgment and 
experience of “those whom the Constitution entrusted” with 
interpreting that word. Anti-Fascist Committee v. McGrath, 
341 U . S. 123, 162-163 (Frankfurter, J., dissenting). See 
Leis v. F lyn t,----U . S . ------  (S t e v e n s , J., dissenting).

In my opinion, this latter proposition is obvious and indis­
putable.5 Nonetheless, it is worthy of emphasis because the 
Court has now accepted it in principle. Ante, at 13. In 
recent years, the Court has mistakenly implied that the con­
cept of liberty encompasses only those rights that are either 
created by statute or regulation or are protected by an express 
provision of the Bill of Rights.6 Today, however, without the 
help of any statute, regulation, or express provision of the 
Constitution, the Court has derived the innocent person’s

3 Because this is a federal facility, it is, of course, the Fifth Amendment 
that applies. It provides, in relevant part: “No person shall be , . 
deprived of life, liberty, or property, without due process of law . . .

4 Because Mr. J ustice Marshall does not accept this basis for anal­
ysis, see ante, at 6-7, I have added this separate dissent even though I 
agree with much of his analysis and most of his criticism of the Court,

5 See Meachum v. Fano, 427 U. S. 215, 230 (Stevens, J., dissenting).
6 See Leis v. Flynt,   U. S. -— ,  ; Paul v. Davis, 424 U. S. 693.



BELL v. WOLFISH 3

right not to be punished from the Due Process Clause itself. 
I t has accordingly abandoned its parsimonious definition of 
the “liberty” protected by the majestic words of the Clause. 
I concur in that abandonment. It is with regard to the scope 
of this fundamental right that we part company.

I
Some of the individuals housed in the Metropolitan Correc­

tion Center (MCC) are convicted criminals.7 As to them, 
detention may legitimately serve a punitive goal, and there 
is strong reason, even apart from the rules challenged here, 
to suggest that it does.8 But the same is not true of the 
detainees who are also housed there and whose rights we are 
called upon to address. Notwithstanding the impression 
created by the Court’s opinion, see, e. g., ante, at 38-39, 
these people are not “prisoners” : 9 they have not been con­
victed of any crimes, and their detention may serve only 
a more limited, regulatory purpose.10 See Houchins v. KQED, 
Inc., 438 U. S. 1, 37-38 (Stevens, J., dissenting).

7 The facility is used to house convicted persons who are temporarily 
in New York for court appearances and the like, as well as some who are 
confined there for the duration of short sentences.

8 There is neither time, staff, nor opportunity to offer convicted inmates 
at MCC the kind of training or treatment that is sometimes available in 
a prison environment.

9 See Webster’s Third International Dictionary, at 804 (As “often” 
used, a “prison” is “an institution for the imprisonment of persons con­
victed of major crimes or felonies: a penitentiary as distinguished from a 
reformatory, local jail, or detention home.”).

10 Long term incarceration and other post-conviction sanctions have sig­
nificant backward-looking, personal, and normative components. Because 
they are primarily designed to inflict pain or to “correct” the individual 
because of some past misdeed, the sanctions are considered punitive. See
E. Pincoff, The Rationale of Punishment 50-57 (1966). See also Gregg v. 
Georgia, 428 U. S. 153, 184, and n. 30 (opinion of Stewart, P owell, and 
Stevens, JJ .); H. L. A. Hart, Prolegomenon to the Principles of Punish-



4 BELL v. WOLFISH

Prior to conviction every individual is entitled to the benefit 
of a presumption both that he is innocent of prior criminal 
conduct and that he has no present intention to commit any 
offense in the immediate future.11 That presumption does

ment, in Punishment and Responsibility 4-5 (1968); H. L. A. Hart, 
Punishment and the Elimination of Responsibility, in id., at 158-173; 
Dostoevsky, Crime and Punishment; Kant, Rechtslehre 195-198 (E. Hastie 
transl. 1887).

By contrast, pretrial detention is acceptable as a means of assuring the 
detainee’s presence at trial and of maintaining his and his fellows’ safety 
in the meantime. Its focus is therefore essentially forward-looking, gen­
eral, and non-nonnative. Because this type of government sanction is 
primarily designed for the future benefit of the public at large and implies 
no moral judgment about the person affected it is properly classified as 
regulatory. See H. Packer, supra, at 5.

The Court’s bill of attainder eases have recognized the distinction 
between regulation and punishment in analyzing the concept of “legislative 
punishment.” Thus, on the one hand, post bellum statutes excluding 
persons who had been sympathetic to the Confederacy from certain 
professions were found unconstitutional because of the backward-looking 
focus on the acts of specific individuals. Ex parte Garland, 71 U. S. 333; 
Cummins v. Missouri, 71 U. S. 277. However, later statutes requiring 
persons to take loyalty oaths before getting the benefits of certain labor 
legislation and before being employed in a public job were found constitu­
tional because of their future orientation and more general purpose, 
American Communications Assn. v. Douds, 339 U. S. 382, 413-415; 
Garner v. Board of Public Works, 341 U. S. 716, 722-725.

11 On at least two occasions, this Court has relied upon this presumption 
as a justification for shielding a person awaiting trial from potentially 
oppressive governmental actions. McGinnis v. Royster, 410 U. S. 263, 
273 (“It would hardly be appropriate for the State to undertake in the 
pretrial period programs to rehabilitate a man still clothed with the 
presumption of innocence.”) ; Stack v. Boyle, 342 U. S. 1, 4 (“Unless the 
right to bail before trial is preserved, the presumption of innocence, 
secured only after centuries of struggle, would lose its meaning.”). These 
cases demonstrate that the presumption—or, as it was called last Term, 
the “assumption”—of innocence that is indulged until evidence has con­
vinced a jury to the contrary beyond a reasonable doubt, see Taylor v. 
Kentucky, 436 U. S. 478, 484 n. 12, colors all of the Government’s actions



BELL v. WOLFISH 5

not imply that he may not be detained or otherwise subjected 
to restraints on the basis of an individual showing of prob­
able cause that he poses relevant risks to the community. 
For our system of justice has always and quite properly 
functioned on the assumption that probable cause to believe 
(1) that a person has committed a crime, and (2) that absent 
the posting of bail he poses at least some risk of flight,12 
justifies pretrial detention to ensure his presence at trial.13

The fact that an individual may be unable to pay a bail 
bond, however, is an insufficient reason for subjecting him to

toward persons not yet convicted. In sum, although there may be some 
question as to what it means to treat a person as if he were guilty, there 
can be no dispute that the government may never do so at any point in 
advance of conviction.

Relying on nothing more than the force of assertion, and without even 
mentioning McGinnis and Stack, the Court states that the presumption of 
innocence “has no application to a determination of the rights of a pretrial 
detainee during confinement before his trial has ever begun.” Ante, at 11. 
But having so recently reiterated that the presumption is “fundamental,” 
see Taylor v. Kentucky, supra, at 483, I cannot believe the Court means 
what it seems to be saying.

12 In many instances, detention will occur although the risk of flight is 
exceedingly low. This is because there is “a large class of persons for 
whom any bail at all is 'excessive bail.’ They are the people loosely 
referred to as ‘indigents.’ Studies of the operation of the bail system have 
demonstrated that even at the very lowest levels of bail—say $500, where 
the bail bond premium may be only $25 or $50—there is a very substantial 
percentage of persons who do not succeed in making bail and are therefore 
held in custody pending trial.” H. Packer, The Limits of the Criminal 
Sanction 216 (1968).

13 American jurisdictions have traditionally relied on a pretrial system 
of “bail or jail” to assure that arrestees appear at trial. H. Packer, supra, 
at 211. As to the bail aspect of the system, the Eighth Amendment is 
explicit that whatever steps the Government takes must not be excessive 
in relation to that purpose. Stack v. Boyle, supra, 342 U. S., at 5. See 
18 U. S. C. § 3146 (a). Although not expressed in the Constitution, a like 
restraint on the other half of the pretrial system is a logical corollary to 
the “no excessive bail” clause.



6 BELL v. WOLFISH

indignities that would be appropriate punishment for con­
victed felons. Nor can he be subject on that basis to 
onerous restraints that might properly be considered reg­
ulatory with respect to particularly obstreperous or dangerous 
arrestees. An innocent man who has no propensity toward 
immediate violence, escape or subversion may not be dumped 
into a pool of second-class citizens and subjected to restraints 
designed to regulate others who have. For him, such treatment 
amounts to punishment. And because the due process guar­
antee is individual and personal, it mandates that an inno­
cent person be treated as an individual human being and be 
free of treatment which, as to him, is punishment.14

It is not always easy to determine whether a particular 
restraint serves the legitimate, regulatory goal of ensuring 
a detainee’s presence at trial and his safety and security in 
the meantime, or the unlawful end of punishment. But 
the courts have performed that task in the past, and can 
and should continue to perform it in the future. Having recog­
nized the constitutional right to be free of punishment the 
Court may not point to the difficulty of the task as a jus­
tification for confining the scope of the punishment concept 
so narrowly that it effectively abdicates to correction officials 
the judicial responsibility to enforce the guarantees of due 
process.

In addressing the constitutionality of the rules at issue in 
this case, the Court seems to say that as long as the correction 
officers are not motivated by “an expressed intent to punish” 
their wards, ante, at 16, and as long as their rules are not 
“arbitrary or purposeless,” id., at 17, these rules are an accept­
able form of regulation and not punishment. Lest that 
test be too exacting, the Court abjectly defers to the prison

14 Indeed, this Court has recognized on previous occasions that indi­
vidualization is sometimes necessary to prevent clearly punitive sanctions 
from being administered in a cruel and unusual manner. Woodson v. 
North Carolina, 428 U. S. 280, 304; Trap v. Dulles, 356 U. S. 86, 100.



BELL v. WOLFISH 7

administrator unless his conclusions are “conclusively shown 
to he wrong.” Ante, at 33, quoting Jones v. North Carolina 
Prisoners Labor Union, 433 U. S. 119, 132.15

Applying this test, the Court concludes that enforcement 
of the challenged restrictions does not constitute punishment 
because there is no showing of a subjective intent to punish 
and there is a rational basis for each of the challenged rules. 
In my view, the Court has reached an untenable conclusion 
because its test for punishment is unduly permissive.

The requirement that restraints have a rational basis pro­
vides an individual with virtually no protection against pun­
ishment. Any restriction that may reduce the cost of the 
facility’s warehousing function could not be characterized as 
“purposeless or arbitrary” and could not be “conclusively 
shown” to have no reasonable relation to the Government’s 
mission.16 This is true even of a restraint so severe that it 
might be cruel and unusual.

Nor does the Court’s intent test ensure the individual the

15 Even if the Court were to apply this aspect of its test in a meaningful
way, it would add little to the concept of punishment that is impermissible 
under the Due Process Clause. The Court states this test as follows: “If 
a restriction or condition is not reasonably related to a legitimate goal—if 
it is arbitrary or purposeless—a court may infer that the purpose of the 
governmental action is punishment that may not constitutionally be 
inflicted on detainees qua detainees.” Ante, at 17. It is readily apparent 
that this standard is nothing more than the “rational basis” requirement 
that even presumptively valid economic and social regulations must satisfy 
to pass muster under the Due Process Clause. Accordingly, if a court, 
followed the path proposed in the quotation above, it would take unneces­
sary steps. For governmental activity that affects even minor interests 
and is “arbitrary or purposeless” is unconstitutional whether or not it is 
punishment. See, e. g., Rinaldi v. Yeager, 384 II. S. 30o; Illinois State 
Board of Elections v. Socialist Worker’s Party, —  U. S .---- .

16 Beyond excluding expressly intended punishment, the Court puts no, 
restrictions on the goals that it recognizes as legitimate; under its test the 
Government need only show some rational nexus to security, order, or the 
apparently open-ended class of “operational concerns” facing the jail 
administrator, ante, at, 18, and the restriction will be upheld.



s BELL v. WOLFISH

protection that the Constitution guarantees. For the Court 
seems to use the term intent to mean the subjective intent of 
the jail administrator. This emphasis can only “encour­
age hypocrisy and unconscious self-deception.” 17 While a 
subjective intent may provide a sufficient reason for finding 
that punishment has been inflicted, such an intent is clearly 
not a necessary nor even the most common element of a 
punitive sanction.

In short, a careful reading of the Court’s opinion reveals 
that it has attenuated the detainee’s constitutional protection 
against punishment into nothing more than a prohibition 
against irrational classifications or barbaric treatment. Hav­
ing recognized in theory that the source of that protection 
is the Due Process Clause, the Court has in practice defined 
its scope in the far more permissive terms of equal protection 
and Eighth Amendment analysis.

Prior to today, our cases have unequivocally adopted a less 
obeisant and more objective approach to punishment than 
the one the Court applies here. In my judgment, those 
decisions provide the framework for the correct analysis of 
the punishment issue in this case.

17 “[The subjective approach] focuses on what on interested party 
intends rather than on what a detached observer thinks, thereby depriving 
the distinction [between punishment and other types of government ac­
tivity] of any pretense to objectivity. If a prison warden thinks that his 
inmates are better off in his custody than they would be in the world 
outside, then by [the subjective] definition what he is administering is 
Treatment rather than Punishment. If the legislature that passes a 
compulsory commitment statute for narcotics addicts is motivated by 
hostility toward addicts, commitment is Punishment; if it is motivated by 
compassion, commitment is Treatment. And if it is motivated by both 
hostility and compassion? Other objections aside, what use can possibly 
be made of such a definition?

“Other objections cannot be put aside because they demonstrate that 
[the subjective] definition not only is unintelligible but leads to quite 
dangerous consequences. . . . [For] [t]o allow the characterization to 
turn on the intention of the administrator is to encourage hypocrisy and 
unconscious self-deception.” H. Packer, supra, at 32-33.



BELL v. WOLFISH 9

The leading ease is Kennedy v. Mendoza-Martinez, 372 
U. S. 144. The Court’s conclusion that the statute in ques­
tion was punitive was expressly based on “the objective mani­
festations of congressional purpose.” Id., at 169.18 The 
Court also recognized that in many cases such manifestations 
as it relied upon—the wording and construction of predecessor 
provisions as well as the congressional reports on the provision 
itself, id., at 169-184—would be unavailable 19 or untrust­
worthy.20 In such cases, which surely include those in which 
the actions of an administrator rather than an Act of Con­
gress are at issue, the Court stated that certain other “criteria” 
must be applied “to the face” of the official action to determine 
if it is punitive. Ibid. Illustrative of these objective 
“criteria” were several listed by the Court:

“Whether the sanction involves an affirmative disability 
or restraint, whether it has historically been regarded as 
a punishment, whether it comes into play only on finding 
of scienter, whether its operation will promote the tradi­
tional aims of punishment—retribution and deterrence, 
whether the behavior to which it applies is already a 
crime, whether an alternative purpose to which it may 
rationally be connected is assignable for it, and whether 
it appears excessive in relation to the alternative purpose 
assigned . . . .” Id., at 168-169.

Today the Court does not expressly disavow the objective 
criteria identified in Mendoza-Martinez. In fact, in a foot­
note, see ante, at 17 n. 20, it relies on one of those criteria in

18 Accord, United States v. Lovette, supra, 328 U. S., at 311.
19 Some state courts have had to resort to such criteria even when 

analyzing the punitive content of legislation because many state assemblies 
publish no record of their deliberations. E. g., Starkweather v. Blair, 245 
Minn. 371, 71 N. W. 2d 869.

20“ [E ]ven  a 0iear legislative classification of a statute as ‘non-penal’ 
would not alter the fundamental nature of a plainly penal statute.” Trop 
v. Dulles, supra, 356 U. S., at 95 (plurality opinion).



10 BELL v. WOLFISH

order to answer an otherwise obvious criticism of the test the 
Court actually applies in this case. Under the test as the 
Court explains it today, prison guards could make regular use 
of dungeons, chains, and shackles, since such practices would 
make it possible to maintain security with a smaller number 
of guards. Commendably, however, the Court expressly 
rejects this application of its test by stating that the avail­
ability of less harsh alternatives would give rise to an inference 
that the practice was motivated by an intent to punish.

Although it is not easy to reconcile the footnote rejection 
of chains and shackles with the rest of the Court’s analysis, 
this footnote confirms my view that a workable standard must 
allow a court to infer that punishment has been inflicted by 
evaluating objective criteria such as those delineated in 
Mendoza,-Martinez. When sanctions involve “affirmative 
disabilit [ies] ” and when they have “historically been regarded 
as punishment,” Kennedy v. Mendoza-Martinez, supra, at 
168-169, courts must be sensitive to the possibility that those 
sanctions are punitive. So too, when the rules governing 
detention fail to draw any distinction among those who are 
detained—suggesting that all may be subject to rules designed 
for the most dangerous few—careful scrutiny must be applied. 
Finally, and perhaps most important, when there is a sig­
nificant and unnecessary disparity between the severity of the 
harm to the individual and the demonstrated importance of 
the regulatory objective, see id., courts must be justified in 
drawing an inference of punishment.

II
When measured against an objective standard, it is clear 

that the four rules discussed in Part III  of the Court’s opinion 
are punitive in character. All of these rules were designed to 
forestall the potential harm that might result from smuggling 
money, drugs, or weapons into the institution. Such items, 
it is feared, might be secreted in hard cover books, packages 
of food or clothing, or body cavities. That fear provides



BELL v. WOLFISH 11

the basis for a total prohibition on the receipt of hard cover 
books (except from publishers or book clubs) or packages of 
food, for a visual search of body cavities after every visit, and 
for excluding the detainee from his cell while his personal 
belongings are searched by a guard.

There is no question that jail administrators have a 
legitimate interest in preventing smuggling. But it is equally 
clear that that interest is being served here in a way that 
punishes many if not all of the detainees.

The challenged practices eoncededly deprive detainees of 
fundamental rights and privileges of citizenship beyond 
simply the right to leave. The Court recognizes this premise, 
but it dismisses its significance by asserting that detainees 
may be subjected to the “withdrawal or limitation” of funda­
mental rights. Ante, at 23, quoting Price v. Johnston, 334 
U. S. 266, 285F1 I disagree. The withdrawal of rights is

21 Although the Court’s discussion of this point is laced with citations of 
prison cases such as Price, ante, at 23-24, it fails to mention a single 
precedent dealing with pretrial detainess. Cf. Houehim v. KQED, Inc., 
supra, 438 U. S., at 37-38 (Stevens, J„ dissenting); O’Brien v. Skinner, 
414 U. S. 524; Goosley v. Osser, 409 U. S. 512.

Having concluded that detainees’ rights are “limited,” the Court is 
reduced, for example, to analyzing restrictions on First Amendment rights 
in the deferential language of “minimum rationality”—language tradi­
tionally applied to restrictions on economic activities such as selling hot 
dogs or eyeglasses. City of New Orleans v. Dukes. 427 II. S. 29/; 
Williamson v. Lee Optical Co., 348 U. S. 483.

The First Amendment is not only victim of the Court’s analysis. It 
also devalues the Fourth Amendment as it applies to pretrial detainees. 
This is particularly evident with respect to the Court’s discussion of body 
cavity searches. Although it recognizes the detainee’s constitutionally pro­
tected interest in privacy, the Court immediately demeans that interest 
by affording it “diminished scope.” The reason for the diminution is the 
detainee’s limited expectation of privacy. Ante, at 34, 36. At first blush, 
the Court’s rationale appears to be that once the detainee is told that he 
will not be permitted to carry on any of his activities in private, he cannot 
“reasonably” expect otherwise. But “reasonable expectations of privacy” 
cannot have this purely subjective connotation lest we wrake up one day to



12 BELL v. WOLFISH

itself among the most basic punishments that society can 
exact, for such a withdrawal qualifies the subject’s citizenship 
and violates his dignity.22 Without question that kind of 
harm is an “affirmative disability” that “has traditionally 
been regarded as punishment.” 23

headlines announcing that henceforth the Government will not recognize 
the sanctity of the home but will instead enter residences at will. The 
reasonableness of the expectation must include an objective component 
that refers to those aspects of human activity that the “reasonable person” 
typically expects will be protected from unchecked Government observa­
tion. Cf. K atz  v. United States, 389 U. S. 347, 361 (Harlan, J., concur­
ring). Hence, the question must be whether the Government may, 
without violating the Fourth Amendment, tell the detainee by words or by 
action that he has no or virtually no right to privacy. In my view the 
answer to this question must be negative: despite the fact of his confine­
ment and the impossibility of retreat to the privacy of his home, the 
detainee must have the right to privacy that we all retain when we venture 
out into public places. And surely the scope of that privacy is not so 
diminished that it does not include an expectation that body cavities will 
not be exposed to view. Absent probable cause, therefore, I would hold 
that such searches of pretrial detainees may not occur.

22 The classic example of the coincidence of punishment and the total 
deprivation of rights is voting. Thus, in Richardson v. Ramirez, 418 
U. S. 24, the Court, although recognizing the importance of the right to 
vote, id., at 54, see Reynolds v. Sims, 378 IT. S. 533, 561, found sup­
port in § 2 of the Fourteenth Amendment for denying convicted felons 
the right to vote. Cf. O’Brien v. Skinner, 414 U. S. 524 (finding certain 
restrictions on absentee voting by pretrial detainees unconstitutional under 
the Equal Protection Clause). See also Goosley v. Osser, 409 U. S. 512.

This is certainly not to say that the fact of conviction justifies the total 
deprivation of all constitutionally protected rights. Having abandoned 
the concept of the prisoner as a slave of the State, e. g., Morrissey v. 
Brewer, 408 U. S. 471, the Court has also rejected any ironclad exclusion 
of such persons from the protection of the Constitution. E. g., Wolff v. 
McDonnell, 418 IT. S. 539, 555—556; Pell v. Procunier, 417 IT. S. 817, 822; 
Cruz v. Beto, 405 U. S. 319; Lee v. Washington, 390 U. S. 333. Nonethe­
less, it also recognizes “that a prison inmate retains [only those] rights 
that are not inconsistent . . . with legitimate penological objectives of 
the corrections system.” Pell v. Procunier, supra, at 822. Cf. Lanza v. 
New York, 370 IT. S. 139.

23 E. g., Wolff v. McDonnell, supra, 418 U. S., at 555; Richardson v.



BELL v. WOLFISH 13

This withdrawal of fundamental rights is not limited to 
those for whom punishment is proper, or to those detainees 
posing special security risks. The MCC houses convicted 
persons along with pretrial detainees. The former may 
constitutionally be punished, so long as that punishment 
is not cruel and unusual. And the fact of their long term 
confinement may provide greater justification for concerns 
with on-going smuggling operations, violence, or escaped4 
Moreover, there may certainly be among the pretrial detainees, 
who cannot be punished, some whose background or history 
suggests a special danger that they will attempt to smuggle 
contraband into the jail. The rules at issue here, however, 
are not limited to those who may be constitutionally punished, 
or to those particularly dangerous detainees for whom onerous

Ramirez, supra, 418 U. S., at 43-53. The Court has probably relied upon 
historical analysis more often than on any of the other objective factors 
discussed in Kennedy v. Mendoza-Martinez, supra, in determining whether 
some government sanction is punitive. E, g., Cummings v. Missouri, 
supra; Ex paste Wilson, 114 tl. S. 417, 426—429; Mackvn v. United States, 
117 IT. S. 34S, 350-352. Wing Wong v. United States, 163 U. S. 228, 
237-238.

24 The prospect of long term incarceration facing an inmate increases his 
incentive to use illicit means to obtain luxuries that his imprisonment 
would otherwise deny him. Moreover, the fact of long term incarceration 
of a large number of persons is conducive to the development of an 
institutional subeconomy and even subgovemment that often thrives on 
contraband and is inconsistent with the orderly operation of the facility. 
See, e. g., H. Mattick, The Prosaic Sources of Prison Violence, Occasional 
Papers of the University of Chicago Law School, No. 3, March 15, 1972.

As the foregoing indicates, I believe the analysis of the four rules as 
applied to convicted prisoners is different from that as applied to pretrial 
detainees. Not only do the due process and other rights of the two have 
different scope, but the Government’s security interests also, differ. In 
my view, the courts below, in erroneously applying the same standards to 
both sets of inmates and in focusing on detainees, did not adequately 
develop the record with respect to convicts. Accordingly, I would remand 
the question of the validity of the four rules in the context of convicted 
prisoners for further proceedings. Of. Miller v. Twomey. 479 F. 2d 701, 
719 (CA7 1973).



14 BELL v. WOLFISH

restraint is an appropriate regulation. Rather, the rules apply 
indiscriminately to all.

It is possible, of course, the MCC officials have determined 
not to punish the convicted criminals who are confined there, 
but merely to regulate or detain them. It is possible, too, 
that as to the detainees, the rules that have been adopted 
and that are at issue here serve to impose only those restraint 
needed to regulate the least dangerous of the group. But the 
Government does not even suggest that the convicted crimi­
nals are not being punished during the confinement at MCC.25 
And common sense suggests that if one set of rules is applied 
indiscriminately to detainees, those rules will serve to regulate 
the most dangerous—not the least—of the group. Indeed, 
prison security might well be in jeopardy were it otherwise. 
If that is true, and if the restraints are as substantial and fun­
damental as those here, then, the conclusion that at least some, 
if not all, of the detainees are being punished is virtually 
inescapable.

That this is indeed the case here is confirmed by the exces­
sive disparity between the harm to the individuals occasioned 
by these rules and the importance of their regulatory objec­
tive. The substantiality of the harm to the detainees cannot 
be doubted. The rights involved are among those that 
are specifically protected by the Constitution. That fact 
alone underscores our societal evaluation of their importance. 
The enforcement of these rules in the MCC, moreover, is a 
clear affront to the dignity of the detainee as a human being.26

25 In fact, the Government admitted below that the “restrictions on the 
possession of personal property” at MCC “serve the legitimate purpose of 
punishment” with respect to convicted inmates as well as the security 
purposes relied on in the present context of pretrial detainees. 439 F. 
Supp., at 153.

20 This affront may itself constitute punishment because of its retributive 
character. Mendoza-Mcirtinez makes clear that a sanction is punitive if it 
“will promote [a] traditional aim of punishment—retribution.” Kennedy 
v. Mendoza-Martinez, supra, at 168-169. In its retributive aspect, “pun-



BELL v. WOLFISH 15

To prohibit detainees from receiving books or packages com­
municates to the detainee that he, his friends, and his family 
cannot be trusted. And in the process, it eliminates one of 
his few remaining contacts with the outside world. The 
practice of searching the detainee’s private possessions in his 
absence, frequently without care, 439 F. Supp., at 149, offends 
not only his privacy interest, but also his interest in “minimal 
dignity,” ibid. Finally, the search of private body cavities 
has been found to engender “deep degradation” and “terror” 
in the inmates, id., at 147: the price of such searches is so 
high as to lead detainees to forego visits with friends and 
family altogether. Id., at 148.

In contrast to these severe harms to the individual, the 
interests served by these rules appear insubstantial. x4s to 
the room searches, nothing more than the convenience of the 
corrections staff supports the refusal to allow' detainees to 
observe at . a reasonable distance. While petitioners have 
raised the fear that inmates may become violent during such 
searches and may distract the guards, the district court spe­
cifically found that they had made no showing of any pattern 
of violence or disruption to support these purported fears. 
Id., at 149. And absent such a showing, there is no more 
reason to ban all detainees from observing the searches of 
their rooms than there would be to ban them from every area 
in the MCC where guards or other inmates are present.

ishment is the way in which society expresses its denunciation for wrong­
doing.” Gregg v. Georgia, 428 U. S. 153, 184, and n. 30 (opinion of 
Stewart, P ow'ell, and Stevens, JJ.), quoting Lord Justice Denning’s 
testimony before the Royal Commission on Capital Punishment. See 
also Letter from Judge Learned Hand to the editors of the University of 
Chicago Law Review (undated), reprinted in 22 U. Chi. L. Rev. 319 
(1965); sources cited in the first paragraph of n. 9, supra. A focus of 
this “denunciatory” approach is the right of society, in significant respects, 
to deny the civic and human dignity of persons who have been convicted 
of doing wrong. Cf. Gregg v. Georgia, supra, at 173, 182 (fundamen­
tal violations of “human dignity” may constitute cruel and unusual 
punishment).



16 BELL v. WOLFISH

The prohibitions on receiving books and packages fare no 
better. The District Court found no record of “untoward 
experience” with respect to the book rule, 428 F. Supp., at 340, 
and no support in the evidence for the petitioners’ “dire 
predictions” as to packages, 439 F. Supp., at 152. The simple 
fact is, and the record and the case law make clear, that in 
many prisons housing criminals convicted of serious crimes— 
where the inmates as a class may well be more dangerous, 
where smuggling is likely to be a far more serious problem, 
and where punishment is appropriate—packages of various 
sorts are routinely admitted subject to inspection. Ibid. The 
administrators here have hardly established that the correc­
tions staff at MCC is incapable of performing similar inspec­
tions with respect to an inmate population which has a far 
greater entitlement to them. And the unsupported claim 
that food or goods may be used for barter or may introduce 
sanitation problems ignores not only the possibility of reason­
able regulation, but also the fact that similar goods are sold 
in the MCC commissary, id., at 152-153, and are no more 
immune from barter or spoilage.

The body cavity search—clearly the greatest personal in­
dignity—may be the least justifiable measure of all. After 
every contact visit a body cavity search is mandated by the 
rule. The District Court’s finding that these searches have 
failed in practice to produce any demonstrable improvement 
in security, id., at 147, is hardly surprising.27 Detainees and 
their visitors are in full view during all visits, and are fully 
clad. To insert contraband in one’s private body cavities 
during such a visit would indeed be “an imposing challenge 
to nerves and agility.” Ibid. There is no reason to expect, 
and the petitioners have established none, that many pretrial

27 Indeed, the District Court found the searches entirely ineffective in 
some of their most offensive manifestations (e. g., anal searches). 439 F. 
Supp., at 147.



BELL v. WOLFISH 17

detainees would attempt, let alone succeed, in surmounting 
this challenge absent the challenged rule. Moreover, as the 
District Court explicitly found, less severe alternatives are 
available to ensure that contraband is not transferred during 
visits. Id,., at 147-148. Weapons and other dangerous in­
struments, the items of greatest legitimate concern, may be 
discovered by the use of metal detecting devices or other 
equipment commonly used for airline security. In addition, 
inmates are required, even apart from the body cavity 
searches, to disrobe, to have their clothing inspected, and to 
present open hands and arms to reveal the absence of any 
concealed objects. These alternative procedures, the District 
Court found, “amply satisffy]” the demands of security. Id., 
at 148. In my judgment, there is no basis in this record to 
disagree.

It may well be, as the Court finds, that the rules at issue 
here were not adopted by administrators eager to punish those 
detained at MCC. The rules can all be explained as the 
easiest way for administrators to ensure security in the jail. 
But the easiest course for jail officials is not always one that 
our Constitution allows them to take. If fundamental rights 
are withdrawn and severe harms are indiscriminately inflicted 
on detainees merely to secure minimal savings in time and 
effort for administrators, the guarantee of due process is 
violated.

In my judgment, each of the rules at issue here is uncon­
stitutional. The four rules do indiscriminately inflict harm 
on all pretrial detainees in MCC. They are all either unnec­
essary or excessively harmful, particularly when judged 
against our historic respect for the dignity of the free citizen. 
I think it is unquestionably a form of punishment to deny 
an innocent person the right to read a book loaned to him 
by a friend or relative while he is temporarily confined, to 
deny him the right to receive gifts or packages, to search his 
private possessions out of his presence, or to compel him to



18 BELL v. WOLFISH

exhibit his private body cavities to the visual inspection of a 
guard. Absent probable cause to believe that a specific 
individual detainee poses a special security risk, none of these 
practices would be considered necessary, or even arguably 
reasonable, if the pretrial detainees were confined in a facility 
separate and apart from convicted prisoners. If reasons of 
convenience justify intermingling the two groups, it is not 
too much to require the facility’s administrator to accept the 
additional inspection burdens that would result from denying 
them the right to subject citizens to these humilitating indig­
nities. I would affirm the judgment of the Court of Appeals 
as to all four of these rules.28

IV
The so-called “double-bunking” issue was resolved by the 

District Court on cross-motions for summary judgment. The 
record was compiled and the issue decided on the basis of a 
legal test that all of us now agree was erroneous.29 If the 
record is incomplete, or if it discloses any material question 
of fact concerning the punitive character of the housing condi­
tions at MCC, a remand for trial is required. Three basic 
facts dictate that result.

First, as earlier emphasized, MCC houses convicted prison­
ers along with pretrial detainees. Both classes of inmates are 
subjected to the same conditions. I t may be that the Gov­
ernment—despite representations to the contrary, see 439 F. 
Supp., at 153 conceives of the confinement of convicts in the 
facility as a vacation for them from the punitive rigors of 
prison life. But the opposite conclusion—that the detainees

The District Court reserved decision on ail of these practices save the 
restriction on receipt of hardback books until a full trial on the merits, 
It is accordingly appropriate to resolve these issues now without a remand.

291 do not understand how the Court, having quite thoroughly demon­
strated that the District Court applied an erroneous legal test, ante, at 8, 
10-12, can nonetheless rely on that court’s conclusion that no disputed 
issues of material fact prevented it from applying its erroneous test to the 
housing issue. Id., at 19 n. 24.



BELL v. WOLFISH 19

are instead being subjected to some of those rigors—is at least 
an equally justifiable inference from the facts revealed by the 
record, particularly in view of the other rules applicable to 
both classes.

Second, the Government acknowledges that MCC has been 
used to house twice as many inmates as it was designed to 
accommodate.30 The design capacity of a building is one

30 “The decisive reality, however, not seriously open to debate, is that 
the rooms were designed and built to hold a single person, not more. The 
conclusion is compelled by an array of undisputed facts. To begin with, 
petitioners invoke the high authority of the architect who designed the 
MCC and who, in sworn testimony recorded in this court, has described a 
room like the ones he drew, housing one inmate, as a 'very basic planning 
principle.’ Contrasting dormitories with rooms, he went on to say:

“ ‘Dormitories are a much more flexible kind of a thing, you see. That 
is the only real area in that particular facility. One of the reasons why 
there’s been a tendency to go to single rooms is because it’s a very clear 
and apparent violation of capacity when you try to put two people in a 
room. You can’t put one and a third persons in a room. You can always 
up the population of a space, in which you put people in, and you can 
through more imaginative planning get better utilization of the space but 
there is an absoluteness of a room which is designed for one person, and to' 
try to convert it into a two-person room, it’s a clear violation of the 
capability of that space. There is no question there. There is more than 
enough, you know, objections to double-celling.’

“It is not necessary by any means to rely solely on what the architect 
said,' the plain visual evidence of what he did demonstrates that the rooms 
he designed were for one inmate, not two or more. There is no place for 
each of two people, assigned by others to this unwanted intimacy, to walk 
or eat or write a letter or be quiet or be outside another’s toilet. There is 
one shelf for toiletries and one for other things, neither adequate for two 
people. In the larger group of 100 double-celled rooms there is no place 
to hang a garment. The double-decker bunks by which these rooms have 
been changed from singles are so constructed that air from a vent, cold 
during our winter visit, blows out onto the upper bed a foot or so above 
body level. Many of the prisoners have blocked the vents to cope with 
this architecturally unintended unpleasantness. And, as a result the rooms 
are musty and unpleasant smelling. The single beds originally designed 
for these rooms each had two drawers built under them, mounted on 
casters for reasonably convenient use. In the reconstruction to house two



20 BELL v. WOLFISH

crucial indication of its purpose. So is the later abandonment 
of that design in favor of a substantially more crowded and 
oppressive one. Certainly, the inference that what the archi­
tect designed to detain, the jailer has used to punish, is 
permissible, even if it may not be compelled or even probable.

Finally, MCC officials experienced little difficult in comply­
ing with the preliminary order of the District Court to return 
the facility to its design capacity. The Court dismisses this 
fact as not conclusive on the question of purpose and reason­
ableness. Ante, at 20 n. 25. But the fact that the Govern­
ment’s lawful regulatory purpose could so easily be served by 
less severe conditions is certainly some evidence of a punitive 
purpose and of excessiveness. If the lawful purpose may be 
equally served by those new conditions at no greater cost, the 
record provides a basis for arguing that there is no legitimate 
reason for the extra degree of severity that has characterized 
the overcrowded conditions in the past.31

inmates, it was found necessary to dismantle these caster arrangements; 
now each “double” room has one of the old drawers lying loose under the 
lower bed or none at all for the two assigned occupants.” 428 F. Supp., 
at 336-337 (footnote omitted) (emphasis in original).

31 To these facts may be added some of the findings of the District 
Court: (1) Even at design capacity, “movement is more restricted at 
MCC than in most other federal facilities,” including those that exclusively 
house convicts, 439 F. Supp. 114, 125; (2) the doubling of the design 
capacity of individual cells leaves “no place for each of two people, 
assigned by others to this unwanted intimacy, to walk or eat or write a 
letter or be quiet or be outside another’s toilet,” places the person in the 
newly added upper bunk directly under the cold air vent, renders some of 
the furniture designed for the rooms unusable, and in general subjects the 
inmate to “foul odors, social stigma, humiliation, and denials of minimal 
privacy,” 428 F. Supp., at 337, 339; (3) overall, the “living conditions are 
grossly short of minimal decency, and [have] no semblance of justification 
except for the general defense that the facilities of the Bureau of Prisons 
are in toto  insufficient to house all the people consigned to them,” 439 F. 
Supp., at 135. Without so stating expressly, the Court has rejected these 
findings. Ante, at 20-21. Because that rejection is not permissible absent 
a determination of clear error, and because no such determination has been



BELL v. WOLFISH 21

While I by no means suggest that any of these facts demon­
strates that the detention conditions are punitive,32 taken 
together they raise an issue of fact that should not be resolved 
by this Court, or even by the District Court, on a motion for 
summary judgment.

It is admittedly easier to conclude that the Due Process 
Clause prohibits preconviction punishment than it is to artic­
ulate a standard for determining if such punishment has 
occurred. But if the standard is to afford any meaningful 
protection for the citizen’s liberty, it must require something 
more than either an explicit statement by the administrator 
that his rule is designed to inflict punishment, or a sanction 
that is so arbitrary that it would be invalid even if it were 
not punitive. However the test is phrased, it must at least 
be satisfied by an unexplained and significant disparity 
between the severity of the harm to the individual and the 
demonstrated importance of the nonpunitive objective served 
by it. I therefore respectfully dissent from the conclusion 
that the demeaning and unnecessary practices described in 
Part III  of the Court’s opinion do not constitute punishment, 
and also from the conclusion that the overcrowded housing 
conditions discussed in Part II do not even give rise to an 
inference that they have punitive qualities.

made, its treatment of the District Court’s findings is inexplicable. See 
Zenith Corp. v. Hazeltine, 395 U. S. KM), 123.

32 The ameliorative factors discussed by the Court, ante, at 20-21, might 
well convince the factfinder that the housing conditions are not punitive.