Lead Opinion
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.
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 practices at the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees. The 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
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 at trial. In addition to pretrial detainees, the MCC also houses some convicted inmates who are awaiting sentencing or transportation 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.
When the MCC opened in August 1975, the planned capacity was 449 inmates, an increase of 50% over the former West Street facility. Id., at 122. Despite some dormitory accommodations, 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, however, 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
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.
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
Applying these standards on cross-motions for partial summary 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.
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.”
II
As a first step in our decision, we shall address “double-bunking” as it is referred to by the parties, since it is a condition 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,
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. However, 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.”
The Court of Appeals also relied on what it termed the “indisputable rudiments of due process” in fashioning its compelling-necessity test. We do not doubt that the Due Process Clause protects a detainee from certain conditions and restrictions of pretrial detainment. See infra, at 535-540. Nonetheless, 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
B
In evaluating the constitutionality of conditions or restrictions 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.
Not every disability imposed during pretrial detention amounts to “punishment” in the constitutional sense, however. Once the Government has exercised its conceded authority 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 a 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; Flemming v. Nestor,
“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*538 of scienter, whether its operation will promote the traditional 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 considered punishment and the legislative history of the forfeiture provisions “conclusively” showed that the measure was intended 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 punishment 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.
One further point requires discussion. The petitioners assert, 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
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.
Each of the rooms at the MCC that house pretrial detainees has 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 into their rooms from 11 p.m. to 6:30 a.m. and for brief periods during the afternoon and evening head counts. During 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,
“ [W] e find the lack of privacy inherent in double-celling in rooms intended for one individual a far more compelling 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.
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. It stated that “once it has been determined that the mere fact of confinement of the detainee justifies the restrictions, the institution must be permitted to use reasonable means to insure that its legitimate interests in security are safeguarded.”
Our cases have established several general principles that inform our evaluation of the constitutionality of the restrictions 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,
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
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.
Finally, as the Court of Appeals correctly acknowledged, the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore 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. Jones v. North Carolina Prisoners’ Labor Union, supra, at 128; Procunier v. Martinez, supra, at 404-405; Cruz v. Beto, supra, at 321; see Meachum v. Fano, 427 U. S., at 228-229.
A
At the time of the lower courts’ decisions, the Bureau of Prisons’ “publisher-only” rule, which applies to all Bureau
The Court of Appeals rejected these security and administrative 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.
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 (1978) (to be codified in 28 CFR §540.71). In addition, petitioners have informed the Court that the Bureau proposes to amend the rule further to allow receipt of paperback books, magazines, and other soft-covered materials from any source. Brief for Petitioners 66 n. 49, 69, and n. 51. The Bureau regards hardback books as
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. It hardly
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. Id., at 828. And there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient. “[W]e regard the
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 clothing.” App. 80; see id., at 24, 84-85. As in the case of the “publisher-only” rule, the warden testified that if such packages 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 personal 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. Inmates are permitted, however, to purchase certain items of food and personal property from the MCC commissary.
The District Court dismissed these justifications as “dire predictions.” It 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.
Neither the District Court nor the Court of Appeals identified 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 545. But as we have stated, these due process rights of prisoners and pretrial detainees are not absolute; they are subject to reasonable limitation or retraction in light of the legitimate security concerns of the institution.
We think that the District Court and the Court of Appeals have trenched too cavalierly into areas that are properly the concern of MCC officials. It 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 decisions have time and again emphasized that this sort of unguided 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; Pell v. Procunier; Procunier v. Martinez. 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. It 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.
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 cleared of the residential units, and a team of guards searches each room. Prior to the District Court’s 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 distracting personnel and moving contraband from one room to another ahead of the search team.
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.
It 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, 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 conceivable 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, does not render the searches “unreasonable” within the meaning of the Fourth Amendment.
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.
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,
IV
Nor do we think that the four MCC security restrictions and practices described in Part III, supra, constitute “punish
V
There was a time not too long ago when the federal judiciary 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 Government is lodged the authority to initially devise the plan. This does not mean that constitutional rights are not to be scrupulously observed. It does mean, however, that the inquiry 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.
It is so ordered.
Notes
See, e. g., Hutto v. Finney,
See, e. g., Norris v. Frame, 585 F. 2d 1183 (CA3 1978); Campbell v. McGruder, 188 U. S. App. D. C. 258,
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,
Of the 389 residential rooms at the MCC, 121 had been “designated” for “double-bunking” at the time of the District Court’s order.
It appears that the named respondents may now have been transferred or released from the MCC. See United States ex rel. Wolfish v. Levi, supra, 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,
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—
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. Proe. 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 Middendorf v. Henry,
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 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 insufficient and inadequately trained staff.”573 F. 2d, at 123 n. 7.
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.
The District Court also enjoined confiscation of inmate property by prison officials without supplying a receipt and, except under specified circumstances, the reading and inspection of inmates’ outgoing and incoming mail.
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 typewriters; 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.”
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.”
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 discretionary 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.
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.” Id., 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.
The NAACP Legal Defense and Educational Fund, Inc., as amicus curiae, argues that federal courts have inherent authority to correct conditions 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
As authority for its compelling-necessity test, the court cited three of its prior decisions, Rhem v. Malcolm,
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,
The only justification for pretrial detention asserted by the Government 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.
The Court of Appeals properly relied on the Due Process Clause rather than the 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 Amendment. The Court recognized this distinction in Ingraham v. Wright,
“Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees 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.”
MR. Justice SteveNs in dissent claims that this holding constitutes a departure from our prior due process cases, specifically Leis v. Flynt,
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 contempt of court. See, e. g., United States v. Wilson,
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 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.”
As Mr. Justice Frankfurter stated in United States v. Lovett,
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 restriction 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,
“There is, of course, a de minimis level of imposition with which the Constitution is not concerned.” Ingraham v. Wright,
In fact, security measures may directly serve the Government’s interest in ensuring the detainee’s presence at trial. See Feeley v. Sampson,
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
The District Court found that there were no disputed issues of material fact with respect to respondents’ challenge to “double-bunking.”
Respondents seem to argue that “double-bunking” was unreasonable 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 by 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 petitioners’ 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 constitu
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 for Petitioners 6; Tr. of Oral Arg. 33-35, 56-57; see United States v. W. T. Grant Co.,
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
Respondents’ reliance on other lower court decisions concerning minimum 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. McGruder, 188 U. S. App. D. C. 258,
Neither the Court of Appeals nor the District Court distinguished between pretrial detainees and convicted inmates in reviewing the challenged 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,
Respondents argue that this Court’s cases holding that substantial deference should be accorded prison officials are not applicable to this 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,
What the Court said in Procunier v. Martinez 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 inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of 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, comprehensive 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.” Ibid.
Because of the changes in the “publisher-only” rule, some of which apparently occurred after we granted certiorari, respondents, citing Sanks v. Georgia,
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.”
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. in Nos. 77-2035, 77-2135 (CA2), pp. 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,
Inmates are permitted to spend a total of $15 per week or up to $50 per month at the commissary. Id., at 132.
With regard to pretrial detainees, we again note that this restriction affects them for generally a maximum of 60 days. See n. 3, supra.
One of the correctional experts testified as follows:
“[T]he 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*556 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.
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.
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 authorities 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, 433 U. S., at 128.
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.
The District Court indicated that in its view the use of metal detection equipment represented a less intrusive and equally effective alternative to cavity inspections. We noted in United States v. Martinez-Fuerte,
We note that several lower courts have upheld such visual body-cavity inspections against constitutional challenge. See, e. g., Daughtery v. Harris,
In determining whether the “publisher-only” rule constitutes punishment, we consider the rule in its present form and in light of the concessions made by petitioners. See supra, at 548-550.
The District Court noted that in their post-trial memorandum petitioners stated that “[w]ith respect to sentenced inmates, . . . the restrictions on the possession of personal property also serve the legitimate purpose of punishment.”
Dissenting Opinion
dissenting.
The Court holds that the Government may burden pretrial detainees with almost any restriction, provided detention officials do not proclaim a punitive intent or impose conditions that are “arbitrary or purposeless.” Ante, at 539. As if this standard were not sufficiently ineffectual, the Court dilutes it further by according virtually unlimited deference to detention officials’ justifications for particular impositions. Conspicuously lacking from this analysis is any meaningful consideration of the most relevant factor, the impact that restrictions may have on inmates. Such an approach is unsupportable, given that all of these detainees are presumptively innocent and many are confined solely because they cannot afford bail.
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 punishment, the Court invokes the factors enunciated in Kennedy v. Mendoza-Martinez,
“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 traditional 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.”
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 Mendoza-Martinez inquiry could be responsive to the impact of the
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 Immigration and Nationality Act of 1952); Flemming v. Nestor,
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,” United States ex rel. Wolfish v. Levi,
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 inquiry 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 539 n. 20, can be found to have some rational relation to institutional security, or more broadly, to “the effective management of the detention facility.” Ante, at 540. See Feeley v. Sampson,
Yet as the Court implicitly acknowledges, ante, at 545, 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 governance.” Jones v. North Carolina Prisoners’ Union,
II
Even had the Court properly applied the punishment test, I could not agree to its use in this context. It simply does
A test that balances the deprivations involved against the state interests assertedly served
When assessing the restrictions on detainees, we must consider the cumulative impact of restraints imposed during confinement. Incarceration of itself clearly represents a profound 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 supra, at 567. At a minimum, I would require a showing that a restriction is substantially necessary to jail administration. WThere the imposition is of particular gravity, that is, where it implicates interests of fundamental importance
In presenting its justifications, the Government could adduce evidence of the security and administrative needs of
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 increases, so must the significance of the countervailing governmental objectives.
Ill
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 fiscal and administrative considerations. Since it was readily ascertainable that the Government could not prevail under that test, detailed inquiry was unnecessary. Thus, the Dis
B
Although the constitutionality of the MCC’s rule limiting the sources of hardback books was also decided on summary judgment, I believe a remand is unnecessary.
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
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 deprecate. But our precedents, as the courts below apparently recognized, United States ex rel. Wolfish v. United States,
C
The District Court did conduct a trial on the constitutionality 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 appropriate to suggest the results that would obtain on this record under my standard.
Denial of the right to possess property is surely of heightened concern when viewed with the other indignities of detainment. See App. 73. As the District Court observed, it is a
The Government's justification for such a broad rule cannot meet this burden. The asserted interest in ameliorating sanitation and storage problems and avoiding thefts, gambling, and inmaté conflicts over personal property is belied, as the Court seems to recognize, ante, at 553, 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 institutions have adopted much less restrictive regulations than the MCC’s governing receipt of packages. See, e. g., Miller v. Carson,
To be sure, practices in other institutions do not necessarily demarcate the constitutional minimum. See ante, at 554. But such evidence does cast doubt upon the Government’s justifications based on institutional security and administrative convenience. The District Court held that the Government was obligated to dispel these doubts. The court thus
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 protections of the Fourth Amendment do not lapse at the jailhouse door, Bonner v. Coughlin,
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 substantiated these security concerns and that there were less intrusive means available to accomplish the institution’s objectives. 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
The District Court found that the stripping was “unpleasant, embarrassing, and humiliating.”
Not surprisingly, the Government asserts a security justification for such inspections. These searches are necessary, it argues, to prevent inmates from smuggling contraband into the facility. In crediting this justification despite the contrary 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. in Nos. 77-2035, 77-2135 (CA2),
Without question, these searches are an imposition of sufficient 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,
The Bail Reform Act, 18 U. S. C. § 3146, to which the Court adverts ante, at 524, 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., ABA Project on Standards for Criminal Justice, Pretrial Release 1-2 (1968); W. Thomas,
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 serve the legitimate purpose of punishment.” United States ex rel. Wolfish v. Levi,
Thus, for example, lower courts have held a variety of security restrictions unconstitutional. E. g., Collins v. Schoonfield,
The Court does concede that “loading a detainee -with chains and shackles and throwing him in a dungeon,” ante, at 539 n. 20, would create
Indeed, lest the point escape the reader, the majority reiterates it 12 times in the course of the opinion. Ante, at 531, 540-541, n. 23, 544, 546-548, and nn. 29 and 30,551, 554, 557 n. 38,562.
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,
If a particular imposition could be termed “punishment” under the Mendoza-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 question of characterization can only obscure what is in fact the appropriate inquiry, the actual nature of the impositions balanced against the Government’s justifications.
See New Motor Vehicle Board v. Orrin W. Fox Co.,
See, e. g., Brandenburg v. Ohio,
Blackstone observed over 200 years ago:
“Upon the whole, if the offence 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 *300.
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,,
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 suddenly 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.
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 supra, at 568-571. I would remand to the District Court
Nor can the Court’s attempt to denominate the publisher-only rule as a reasonable “time, place and manner regulatio[n],” ante, at 552, substitute 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. Grayned v. City of Rockford,
The MCC already uses such electronic equipment to search packages carried by visitors. See infra, at 578.
In addition, the Justice Department’s Draft Federal Standards for Corrections discourage limitations on the volume or content of inmate mail, including packages. Dept, of Justice, Federal Corrections Policy Task Force, Federal Standards for Corrections 63 (Draft, June 1978).
While the Government presented psychiatric testimony that the procedures 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.
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. App. 93; see Wolfish v. Levi,
Dissenting Opinion
This is not an equal protection case.
Nor is this an Eighth Amendment case.
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,
In my opinion, this latter proposition is obvious and indisputable.
I
Some of the individuals housed in the Metropolitan Correction Center (MCC) are convicted criminals.
The fact that an individual may be unable to pay for a bail bond, however, is an insufficient reason for subjecting him to indignities that would be appropriate punishment for convicted felons. Nor can he be subject on that basis to onerous restraints that might properly be considered regulatory 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
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 recognized the constitutional right to be free of punishment, the Court may not point to the difficulty of the task as a justification 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 538, and as long as their rules are not “arbitrary or purposeless,” ante, at 539, these rules are an acceptable form of regulation and not punishment. Lest that test be too exacting, the Court abjectly defers to the prison administrator unless his conclusions are “ 'conclusively shown to be wrong.’ ” Ante, at 555, quoting Jones v. North Carolina Prisoners’ Labor Union,
The requirement that restraints have a rational basis provides an individual with virtually no protection against punishment. Any restriction that may reduce the cost of the facility’s warehousing function could not be characterized as “arbitrary or purposeless” and could not be “conclusively shown” to have no reasonable relation to the Government’s mission.
Nor does the Court’s intent test ensure the individual the 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 “encourage hypocrisy and unconscious self-deception.”
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. Having 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.
The leading case is Kennedy v. Mendoza-Martinez,
“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 traditional 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 footnote, see ante, at 539 n. 20, it relies on one of those criteria in 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
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 disabilities]” and when they have “historically been regarded as a punishment,” Kennedy v. Mendoza-Martinez,
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 the basis for a total prohibition on the receipt of hard-cover books (except from publishers, book clubs, or bookstores) 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
The challenged practices concededly 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 fundamental rights. Ante, at 546, quoting Price v. Johnston,
This withdrawal of fundamental rights is not limited to those for whom punishment is proper, or to those detainees
It is possible, of course, that 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 restraints
That this is indeed the case here is confirmed by the excessive disparity between the harm to the individuals occasioned by these rules and the importance of their regulatory objective. 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.
In contrast to these severe harms to the individual, the interests served by these rules appear insubstantial. As 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 specifically 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.
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, United States ex rel. Wolfish v. United States,
The body-cavity search- — clearly the greatest personal indignity — 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.
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 unconstitutional. The four rules do indiscriminately inflict harm on all pretrial detainees in MCC. They are all either unnecessary 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 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
Ill
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.
First, as earlier emphasized, MCC houses convicted prisoners along with pretrial detainees. Both classes of inmates are subjected to the same conditions. It may be that the Government — despite representations to the contrary, see
Second, the Government acknowledges that MCC has been used to house twice as many inmates as it was designed to
Finally, MCC officials experienced little difficulty in complying 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 reasonableness. Ante, at 542-543, n. 25. But the fact that the Government’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.
While I by no means suggest that any of these facts demonstrates that the detention conditions are punitive,
It is admittedly easier to conclude that the Due Process Clause prohibits preconviction punishment than it is to articulate 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.
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14, § 1.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U. S. Const., Arndt. 8.
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 . . . .”
Because Mr. Justice Marshall does not accept this basis for analysis, see ante, at 568-569,1 have added this separate dissent even though I agree with much of his analysis and most of his criticism of the Court.
See Meachum v. Fano,
See Leis v. Flynt,
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.
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.
See Webster’s Third International Dictionary 1804 (1961) (As “often" used, a “prison” is “an institution for the imprisonment of persons convicted of major crimes or felonies: a penitentiary as distinguished from a reformatory, local jail, or detention home”).
Long-term incarceration and other postconviction sanctions have significant 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. Pincoffs, The Rationale of Legal Punishment 51-57 (1966). See also Gregg v. Georgia,
By contrast, pretrial detention is acceptable as a means of assuring the
The Court’s bill of attainder cases 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,
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,
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
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.” Packer, supra n. 10, at 216.
American jurisdictions have traditionally relied on a pretrial system of “bail or jail” to assure that arrestees appear at trial. Id., 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, 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 Excess Bail” Clause.
Indeed, this Court has recognized on previous occasions that individualization is sometimes necessary to prevent clearly punitive sanctions from being administered in a cruel and unusual manner. Woodson v. North Carolina,
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: “[I]f 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 constitution
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 540, and the restriction will be upheld,
“[The subjective approach] focuses on what an interested party intends rather than on what a detached observer thinks, thereby depriving the distinction [between punishment and other types of government activity] of any pretense to objectivity. If a prison warden thinks that his
“Other objections cannot be left 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.” Packer, supra n. 10, at 32-33.
Accord, United States v. Lovett,
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,
“[E] ven a clear legislative classification of a statute as ‘non-penal’ would not alter the fundamental nature of a plainly penal statute.” Trop v. Dulles,
Although the Court's discussion of this point is laced with citations of prison eases such as Price, ante, at 545-547, it fails to mention a single precedent dealing with pretrial detainees. Cf. Houchins v. KQED, Inc.,
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 traditionally applied to restrictions on economic activities such as selling hot dogs or eyeglasses. New Orleans v. Dukes,
The First Amendment is not the 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 protected 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 557, 558. 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 wake up one day to 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 observation. Cf. Katz v. United States,
The classic example of the coincidence of punishment and the total deprivation of rights is voting. Thus, in Richardson v. Ramirez,
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,
E. g., Wolff v. McDonnell, supra, at 555; Richardson v. Ramirez, supra, 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, in determining whether some government sanction is punitive. E. g., Cummings v. Missouri,
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, Mar. 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. Cf. United States ex rel. Miller v. Twomey,
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. United States ex rel. Wolfish v. Levi,
This affront may itself constitute punishment because of its retributive character. Mendoza-Martinez makes clear that a sanction is punitive if it "will promote [a] traditional ai[m] of punishment — retribution.”
Indeed, the District Court found the searches entirely ineffective in some of their most offensive manifestations (e. g., anal searches).
The District Court reserved decision on all 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.
I do not understand how the Court, having quite thoroughly demonstrated that the District Court applied an erroneous legal test, ante, at 530, 532-535, 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. Ante, at 541 n. 24.
“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 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.” United States ex rel. Wolfish v. United States,428 F. Supp. 333 , 336-337 (SDNY 1977) (footnote omitted; emphasis in original).
To these facts may be added some of the findings of the District Court: (1) Even at design capacity, “movement is more restricted at the MCC than in most other federal facilities,” including those that exclusively house convicts,
The ameliorative factors discussed by the Court, ante, at 542-543, might well convince the factfinder that the housing conditions are not punitive.
Concurrence Opinion
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.