BELL, ATTORNEY GENERAL, ET AL. v. WOLFISH ET AL.
No. 77-1829
Supreme Court of the United States
May 14, 1979
441 U.S. 520
Argued January 16, 1979
Deputy Solicitor General Frey argued the cause for petitioners. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, Kent L. Jones, and Sidney M. Glazer.
Phylis Skloot Bamberger argued the cause for respondents. With her on the brief were William E. Hellerstein, David J. Gottlieb, and Michael B. Mushlin.*
*Briefs of amici curiae urging affirmance were filed by Jack Greenberg, James M. Nabrit III, and Joel Berger for the NAACP Legal Defense and
MR. JUSTICE REHNQUIST 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 determination of their guilt or innocence, infra, at 533-535, and n. 15; see
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,
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 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
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 action on behalf of all persons confined at the MCC, pretrial detainees and sentenced prisoners alike.6 The petition served
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. After a 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 accommodations, the prohibition against inmates’ receipt of packages containing food and items of personal property, and the practice of requiring inmates to expose their body cavities for visual inspection following contact visits. The court also
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 Ac-
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 unincarcerated 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 subjected 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 necessity, ... administrative convenience, ... or by the cold comfort that conditions in other jails are worse.” 573 F. 2d, at 124. 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 administration,” and concluded that it would “not [be] wise for [it] 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 compelling-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. McGruder, 188 U. S. App. D. C. 258, 266, 580 F. 2d 521, 529 (1978); Detainees of Brooklyn House of Detention v. Malcolm, 520 F. 2d 392, 397 (CA2 1975); Rhem v. Malcolm, supra, at 336. 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 (CA3 1976). But the presumption of innocence provides no support 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 innocence solely on the evidence adduced at trial and not on the
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.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
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, supra, 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
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, 363 U. S. 603, 613-614 (1960); cf. De Veau 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 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 determine 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 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 613-617.19 Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether 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 governmental objective, it does not, without more, amount to “punishment.”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 constitutionally be inflicted upon detainees qua detainees. See ibid.21 Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather 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 U. S. 423, 435 (1973).
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
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, 428 F. Supp., at 336-337; and (2) its judg
“[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
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
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, 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
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.28 “[C]entral to all other corrections goals is the institutional
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 228-229.29 “Such
We further observe that, on occasion, prison administrators may be “experts” only by Act of Congress or of a state legislature. 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 correctional 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
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
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
We conclude that a prohibition against receipt of hardback books unless mailed directly from publishers, book clubs, or bookstores does not violate the
Our conclusion that this limited restriction on receipt of hardback books does not infringe 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.34
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
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.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 necessity.”37 The court stated that “[a]t least until or unless [petitioners] can show a pattern of violence or other disruptions 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. It also noted that in many instances inmates suspected guards of thievery. Id., at 148-149. The Court of Appeals agreed with the District Court. It saw “no reason whatsoever not to permit a detainee 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
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
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 smuggling of weapons, drugs, and other contraband into the institution. 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 outweighed by the government‘s security interest in maintaining a practice of so little actual utility.” 573 F. 2d, at 131.
Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some
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.
MR. JUSTICE POWELL, 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.
MR. JUSTICE MARSHALL, 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.1
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 analysis 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, 372 U. S. 144, 168-169 (1963), quoted ante, at 537-538 (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 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, 363 U. S. 603 (1960) (Social Security Act); De Veau v. Braisted, 363 U. S. 144 (1960) (New York Waterfront Commission Act). In discerning the intent behind a statutory enactment, courts engage in a familiar judicial function, usually with the benefit of a legislative history that preceded passage of the statute. The motivation for policies in detention facilities, however, will frequently not be a matter of pub-
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, 439 F. Supp. 114, 141 (SDNY 1977), and the litigation in this area corroborates that conclusion.3 A standard that focuses
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, 570 F. 2d 364, 380 (CA1 1977) (Coffin, C. J., dissenting). Yet this toothless standard applies irrespective of the excessiveness of the restraint or the nature of the rights infringed.4
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, 433 U. S. 119, 129 (1977). See Campbell v. McGruder, 188 U. S. App. D. C. 258, 264 n. 9, 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 judgments 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 an unquestionably judicial function.
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 served8 would be more consistent
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. Where the imposition is of particular gravity, that is, where it implicates interests of fundamental importance9 or inflicts significant harms, the Government should demonstrate that the restriction serves a compelling necessity of jail administration.10
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.
III
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.13 That
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, 428 F. Supp. 333, 341 (SDNY 1977); 573 F. 2d, at 130, require some consideration of less restrictive alternatives, see, e. g., Shelton v. Tucker, 364 U. S. 479, 488-490 (1960); 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 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 inmate 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, 401 F. Supp. 835, 885 (MD Fla. 1975), aff‘d, 563 F. 2d 741 (CA5 1977); Giampetruzzi v. Malcolm, 406 F. Supp. 836, 842 (SDNY 1975). Inmates in New York state institutions, 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 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, 517 F. 2d 1311, 1316-1317 (CA7 1975) (Stevens, J.); United States v. Lilly, 576 F. 2d 1240, 1244-1245 (CA5 1978). Detention officials must therefore 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 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.” 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. Id., at 36-37, 41.17 There was evidence, moreover, that these searches engendered among detainees fears of sexual assault, id., at 49, were the occasion for actual threats of physical abuse by guards, and caused some inmates to forgo personal visits. 439 F. Supp., at 147.
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, 342 U. S. 165, 172 (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. It 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.
I dissent.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN joins, dissenting.
This is not an equal protection case.1 An empirical judgment 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 Amendment, but that to subject them to any form of punishment at all is an unconstitutional deprivation of their liberty.
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., concurring). See Leis v. Flynt, 439 U. S. 438, 457 (STEVENS, J., dissenting).
In my opinion, this latter proposition is obvious and indisputable.5 Nonetheless, it is worthy of emphasis because the Court has now accepted it in principle. Ante, at 535. In recent years, the Court has mistakenly implied that the concept 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 right not to be punished from the Due Process Clause itself. It has accordingly abandoned its parsimonious definition of
I
Some of the individuals housed in the Metropolitan Correction 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 562, these people are not “prisoners“:9 they have not been convicted 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).
By contrast, pretrial detention is acceptable as a means of assuring the
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
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, 433 U. S. 119, 132.15
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.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 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.”17 While a
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, 372 U. S. 144. The Court‘s conclusion that the statute in question was punitive was expressly based on “the objective manifestations 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
“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 disabilit[ies]” and when they have “historically been regarded as a punishment,” Kennedy v. Mendoza-Martinez, 372 U. S., 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 significant and unnecessary disparity between the severity of the harm to the individual and the demonstrated importance of the regulatory objective, see ibid., 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 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, 334 U. S. 266, 285.21 I disagree. The withdrawal of rights is
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.26
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, 428 F. Supp. 333, 340 (SDNY 1977), and no support in the evidence for the petitioners’ “dire predictions” as to packages, 439 F. Supp., at 152. The simple
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.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 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 instruments, the items of greatest legitimate concern, may be
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
III
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 conditions at MCC, a remand for trial is required. Three basic facts dictate that result.
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 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 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
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.31
While I by no means suggest that any of these facts demonstrates that the detention conditions are punitive,32 taken
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.