Leonard Campbell v. Anderson McGruder Superintendent, Detention Services, (Two Cases)

et al. v. Leonard CAMPBELL McGRUDER, Superintendent,

Anderson Services, al.,

Detention et cases).

Appellants (two

Nos. 75-1350 75-2273. Appeals,

United States Court

District of Columbia Circuit.

Argued May 1976.

Decided March

Oрinion by MACKINNON, filed Circuit concurring in Judge, dissenting part part.

BAZELON, Judge: Chief Plaintiffs, consisting a class incarcerated at the District of detainees Jail,1 brought this action in Columbia seeking injunctive declaratory and relief against allegedly unconstitutional condi trial, Following that facility. tions at District Court entered an interim order on 21, 1975, requiring the March defendant officials, alia, city housing inter to cease pretrial detainees in smaller any space than square per days. feet inmate within 15 5, 1975, On November District Court requirements issued an for setting order Jail’s seven additional facets of the administ A concerning second ration.2 order over crowding It May 1976.3 issued on of inmates on the total number sets limits estab that could be Jail and housed at the procedure reducing lished for inmate be exceeded. population should those limits appeal these The defendants from orders on variety grounds. I. COMITY AND ABSTENTION Sutton, Corp. David P. Asst. Counsel for Columbia, C., the District of D. Washington, outset, At appellants claim that “the Risher, Jr., with R. Corp. whom John Coun- comity doctrines of preclude and abstention sel, Robbins, Louis P. Principal Corp. Asst. the federal courts of the District of Colum- Barton, Counsel Richard W. Corp. Asst. bia from making rulings class-based con- Counsel, Washington, C.,D. on the rights cerned with the asserted Nedrich, brief for appellants. Thomas R. against the D.C. Jail whom Counsel, C., Asst. D. Corp. Washington, also prosecutions pending criminal in argued for appellants. Superior District of Columbia Court.” appellants Brief for at 1. More specifically, C., J. Hickey, Washington, Patrick D. for appellants argue appro- is that abstention appellees. priate (1) gener- here because courts federal ally using injunc- refrain their should BAZELON, Judge, Before Chief powers tive interfere with adminis- MACKINNON, LEVENTHAL and Circuit government, especially tration local Judges. prisons; (2) Superior local should Opinion for the Court given filed BAZEL- opportunity ap- initial to hear ON, claims; Judge. pellees’ Chief the District Court’s Although provide 1. F.Supp. (D.D.C.1975). D.C. statutes a number of See grounds committing pretrial detainees Jail, majority the D.C. the vast are committed (D.D.C.1976). 3. See 416 in lieu of bond. See note infra. For a comprehensive popula- breakdown of the Jail’s tion, see notes 34 and 48 infra. in particular of local perienced area to reduce requiring order defendants overcrowding Here, oc- courts have the local prison population regulation. when subsequent crimi- function might assigned special curs interfere with no review been Jail, proceedings Superior nal Court. of the D.C. nor over the administration widespread disruption of a unified before, may As we have stated “[i]t regulation threatened scheme local well be is root abstention doctrine jurisdiction. Al- the exercise of federal in all ed federalism interests which —with may recom- though prudence comity underpinnings, historic tension be judiciary the involvement the local mend powers sovereignty, tween federal state conditions at correcting in unconstitutional and the political concern local autono have been after claims plaintiffs’ the Jail my inappo the abstention doctrine —make adjudicated, basis—neither there unique site But even District.”4 presented legal the nature issues applies fully to assuming that this doctrine local courts here nor in expertise the federal courts’ relations with the D.C. insisting only local in local law —for Court, Superior case into present falls con- decide of federal questions courts none categories of the three traditional case. The stitutional in this law involved abstention. brought fact mere that a federal claim First, this is not a case “in which the have been might federal court instead might be moot federal constitutional issue brought justify ab- state court does not ‘presented posture’ by in a ed or different Redhail, 374, v. 434 U.S. stention. Zablocki pertinent of state state court determination 673, n.5, (1978); 54 L.Ed.2d 618 98 S.Ct. 677 Koota, 241, 256, v. law.” Zwickler 389 U.S. 462, 452, Thompson, v. 415 Steffel U.S. 94 391, 400, (1967) 88 S.Ct. 19 L.Ed.2d 444 1209, (1974); 39 505 S.Ct. L.Ed.2d Alabama Here, (Harlan, J., concurring). there is no Co., v. R. Pub. Serv. Comm’n Southern 341 law fur inadequately defined local whose 341, 762, 361, U.S. 71 S.Ct. 95 L.Ed. 1002 ther interpretation might obviate considera J., (Frankfurter, (1951) concurring). tion of federal constitutional issue.5 into Finally, does not fall Nor this a case this case is “where there have been abstention, category ap- third which “is presented of questions difficult of state law faith, bearing where, bad harass- policy problems propriate of absent substantial statute, public ment, import importance patently whose transcends or a invalid state has invoked for jurisdiction result in the ... at bar.” federal been case restraining Dist. state criminal purpose Colorado River Water Cons. v. United of States, 1236, Harris, 37, 401 proceedings, Younger 424 96 S.Ct. v. U.S. U.S. 1244, 746, (1976). prime (1971); Douglas 669 47 L.Ed.2d 483 91 27 L.Ed.2d S.Ct. 157, example Jeanette, of 63 category City of this abstention v. 319 S.Ct. U.S. Co., 315, 877, (1943), Burford v. 319 63 nuisance Sun Oil 87 L.Ed. 1324 state U.S. 1098, prose- (1943), L.Ed. proceedings S.Ct. 87 1424 where antecedent a criminal cution, jurisdiction obtaining of federal exercise threatened which are directed at films, systematic disruption complex poli- places exhibiting state closure obscene Ltd., 592, Pursue, cies via developed the review state Rail- Huffman v. 420 U.S. 95 1200, road by (1975); orders state courts ex- 43 482 or collec- Commission S.Ct. L.Ed.2d 28, Murphy, U.S.App.D.C. Supreme 4. Sullivan v. 156 52 “that 5. The has clear Court made n.35, 938, n.35, denied, opportunity 478 F.2d cert. 962 414 a constitution- to avoid decision of 880, 162, (1973). question justify U.S. 94 S.Ct. 38 L.Ed.2d 125 al does not alone abstention Superior Indeed, presence Cf. Palmore v. . Court Dist. Co a federal court. . lumbia, 323, U.S.App.D.C. may jurisdiction 169 515 1294 raise of a federal basis for (1975) , judgment justification needed for abstention.” vacated and remanded level of light further consideration in Pow Cons. Dist. United Stone v. Colorado River Water ell, 465, 3037, States, 800, n.21, 1236, 428 U.S. 96 49 1067 S.Ct. S.Ct. L.Ed.2d 424 U.S. , 305, 50 omitted). (1976) (citations U.S. 97 S.Ct. L.Ed.2d L.Ed.2d (1976). taxes, tion Lakes Dredge alleged of state Great & constitutional violations Huffman, Dock Co. v. entire, S.Ct. have actually clearly affected the (1943).” 87 L.Ed. Colorado River plaintiff defined class and to stemmed States, Water Dist. v. United Cons. U.S. continuing policies Department (footnotes omitted). 96 S.Ct. at 1246 Corrections, injunctive so that relief enjoined proceed effectively scope classwide can end the Court, Superior nor is there any wrongs.8 multiple continuing litigation pending appellees there in Although we do read not Rizzo as It is not enough could raise claims.6 abstention, arewe not insen requiring total remedy ordered federal more admonition general sitive to its might proceed court have some effect on against in local excessive intervention ings Superior Court.7 government. practice A must federal court Goode, Appellants rely heavily on Rizzo v. special of its in restraint the exercise U.S. L.Ed.2d 561 area, junctive powers presuming in this (1976), proposition federal comply that local officials will with the law issuing injunc courts should refrain from in good leaving faith and them as much charge “against tions those in of an execu room own possible devise their meth tive agency branch of state or local However, ods of compliance. federal governments . .” Id. at requirements court may not shave the teaching S. Ct. at 608. But the of Rizzo is the Constitution to fit the desires of local not so actually broad. That case holds that officials, should to accord nor it continue a federal court should refrain from assum special these defendants deference ing a comprehensive role supervisory via its presumption fashioning of relief when the injunctive powers over broad areas of local of good proved misplaced. faith has government for the purpose preventing short, we are bound although speculative probably only sporadic fu of the local respect prerogatives ture misconduct local officials toward an executive, government, judicial imprecise both victims, class of potential espe inappropriate in cially conclude abstention is when that part misconduct of a pattern persistent this Justice Powell stated Pro and deliberate case. As official 396, 405-06, policy. Martinez, The case at bar stands in cunier v. 416 94 clear U.S. 1807, (1974): contrast Here, 1800, situation in Rizzo. 40 L.Ed.2d 224 Contrary appellants’ assertions, plaintiffs 6. those who have been re- release of would could raise ability not as a pending defense to the criminal trial their leased but charges pending against Superior Moreover, them in note 12 make bail. See infra. unconstitutionality Court the of the conditions specified District manner of re- Court that the Pugh, their confinement. See Gerstein v. leasing overcrowding in the detainees event of 103, n.9, 854, 108 95 S.Ct. 43 L.Ed.2d may by judges Superior be revised (1975). 54 Court, allowing thus for minimization of dis- ruption proceedings. to their See note 43 infra. Only aspect 7. one of the District Court’s order conceivably could proceedings affect criminal Pugh, 8. Cf. v. Gerstein 420 95 S.Ct. U.S. against pending appellees Superior case, (1975). pretrial 43 L.Ed.2d 54 In that Having given protracted Court. attention to practice challenged detainees of de- Florida ways enlarging capacity the Jail’s and mov- noncapital taining suspects arrested for crimes ing facilities, convicted inmates to other solely on the basis of an information filed a District overcrowding Court directed prosecutor. Holding state persisted, the Fourth appellants nevertheless should required provide pretrial beginning Amendment the state a release detainees with those judicial probable cause before “held in determination of default the lowest amount of bail.” arrest, Supreme appellants seriously pur- See note 43 infra. If or after stated that Court specified by correctly sue the alternatives the “District Court held the re- Court, spondents’ there should be no need to resort not to this claim for relief was barred equitable course of action. But even if release of detain- restrictions on interven- federal necessary, prosecutions ees should become the risk of dis- tion in . . Id. at state . Superior ruption proceedings n.9, seems 108 95 S.Ct. at 860. slight. provides The District order Court’s sub nom. Hall v. Inmates deal with the equipped County are ill Suffolk [C]ourts urgent prison Jail, increasingly problems 95 S.Ct. L.Ed.2d U.S. rec- Judicial subsequent appeal, and reform. 518 F.2d (1974), administration on no more reflects ognition (1st 1975); Metzger, of that fact Jones v. Cir. healthy 1972); realism. More- Bishop, a sense of v. (6th than F.2d 854 Cir. Jackson over, are where institutions penal (8th state 404 F.2d Cir.

involved, a have further federal courts appropriate for deference to reason II. THE CONSTITUTIONAL authorities. prison STANDARD policy judicial But a restraint cannot begin premise inquiry Our must with cognizance encompass any to take failure Dis- that the detainees who fill the claims whether of valid constitutional inno- presumed trict of Jail Columbia in a arising federal or state institution. cent. crime. They are unconvicted prison practice or of regulation When Strictly therefore the District has speaking, guar constitutional fends fundamental all. authority “punish” them at Over antee, discharge federal will courts ago two Blackstone said of years hundred rights.9 protect duty constitutional this interval” between commit- “dubious violations, with constitutional Confronted ment and trial: injunc other circuits federal upheld whole, Upon the if the be offense tions aimed at and local correctional state bail, he bailable, find party cannot or systems, thereby expressly implicitly or goal by county is to be committed finding improper. abstention See Battle v. .; justice mittimus of Anderson, (10th 391-93 Cir. due course delivered there to abide till 1977); Edwards, Williams v. 547 F.2d imprison- . . of law . But (5th v. 1977); Cir. Costello Wain said, ment, safe only for as has been (5th 1976) (en 539 F.2d wright, Cir. punishment: there- and not for custody, banc) (upholding refusal to abstain but or fore, between in this dubious interval dering 3-judge court), reversed on other trial, prisoner commitment and grounds, U.S. 97 S.Ct. human- ought used with the utmost to be L.Ed.2d 372 (reversing remand needless ity, neither loaded court), 3-judge remand, on issue hardships fetters, subjected to other (5th 1977) (en banc) F.2d 506 (panel Cir. requisite for absolutely than such as opinion reinstated); otherwise McRedmond only . . . purpose of confinement Wilson, (2d 1976); F.2d 757 Cir. In mates of San Jail v. Diego County Duffy, * Blackstone, Commentaries 4 W. (9th 1975); 528 F.2d 954 Cir. Detainees of innocence, for Brooklyn House of Detention Men v. Despite presumption 1975); heritage Malcolm, (2d 520 F.2d 392 Rhem constitutional Cir. our law and common Malcolm, pre- (2d 1974), abjure v. 507 F.2d 333 Cir. on has the institution refused to (2d which by subsequent appeal, 527 F.2d 1041 trial The standards Cir. detention. pre- Sterrett, 1975); Taylor (5th constitutionality v. 499 F.2d of conditions 367 denied, 983, 1974), cert. 420 are to be measured Cir. U.S. 95 trial confinement simple or even (1975), No paradox. 43 665 on subse thus rooted in S.Ct. L.Ed.2d (5th 1976); grow 527 from such crevices quent appeal F.2d 856 Cir. clear tests can logic. v. The standards County Inmates of Jail Eisen Suffolk constitutional acknowledge stadt, Cir.), and account (1st 494 F.2d cert. denied evolve must generally rights Anderson v. than sentenced inmates. See 9. Pretrial detainees retain more with Nosser, (5th 1971), prisoners. pp.---of convicted See modi than 438 F.2d Cir. Cir), respects, (5th U.S.App.D.C., p. fied other F.2d 529 of 580 F.2d infra. Hence, Bradley, “duty protect federal cert. sub nom. Nosser v. courts’ con- denied may (1972). rights” conceivably justify stitutional U.S. 93 S.Ct. L.Ed.2d pretrial intrusive relief with detainees more competing conflicting numerous inter- than are reasonably necessary to ensure however, They guided, by ests. must be presence their at trial. While the deci- Blackstone, by pretrial end set out sions that interpreted the Cruel and detainee “be used with the utmost humani- may Unusual Punishment Clause be valu- ty.” able analogy defining that which may imposed inmate, never be on any Basic to our analysis is the inter whether prisoner pre-trial convicted or est government of the in “enforcing the law detainee, stringent a more standard con- in the community’s protection.” Brinegar trols the treatment pre- the state of States, v. United 160, 176, 338 U.S. 69 S.Ct. trial detainees. Since are convicted (1949). 93 L.Ed. 1879 State’s “[T]he of no crime for they may presently crime,” Gerstein v. Pugh, duty to control punished, be justify any the state must 103, 112, 854, 862, U.S. 95 S.Ct. solely conditions of their confinement (1975), justifies L.Ed.2d 54 in the first in presence basis ensuring stance the pretrial institution of detention. trial. Any or condition restriction imprison To person prior trial, a not reasonably related to this sole stated government must meet constitutional10 and purpose of deprive confinement would a statutory11 standards. The government’s detainee liberty property or without primary purpose is the confinement of the process, due in contravention of the Four- detainee presence to ensure his trial. teenth Indeed, Amendment. that, Circuit has held Seventh.

as a matter of due process, pre-trial Elrod, Duran de (7th 999-1000 may tainees suffer no more 1976).12 restrictions Cir. 10. The juror,” constitutional person standard that must endanger and if such is found to pretrial permitted satisfied before detention despite imposition others of conditions. 23 “probable is the same as that for to believe the 1322(a)(3). cause § D.C.Code arrest — suspect Fifth, has committed a crime.” person charged any a offense who Pugh, 103, 120, Gerstein v. 420 U.S. probation, parole, mandatory is on or release 854, 866, (1975). Also, course, 43 L.Ed.2d54 pending completion any jurisdic- sentence may detention not violate a detainee’s person “may pose tion if danger such flee or a “right Boyle, to bail.” Stack v. any person community other or the if re- (1951). 72 S.Ct. L.Ed. 1322(e). leased.” 23 § D.C.Code Sixth, person charged a with a crime of vio- law, categories

11. Under D.C. several of sus- suspected be, being, lence who is or found to pects may pending be detained court order an addict. 23 D.C.Code § 1323. trial: Seventh, person charged a capital with a First, person noncapital а accused of a of- likely offense who pose is found to flee or (a) fense who is unable to meet financial condi- danger despite imposition to others of con- imposed by judicial tions of release officer to ditions. 23 D.C.Code § 1325. appearance person “assure the of the as re- note, however, 12. We the District of quired” (b) is unable to meet nonfinancial government Columbia the inter has additional imposed safety conditions for “the other pretrial confinement, ensuring ests in such as person community.” or the 23 D.C.Code safety community integrity the the or the § judicial process. supra; See note 11 Cf. Second, person “danger- accused of certain States, (D.C.App. Blunt v. United 322 A.2d 579 ous crimes” if the Government certifies that no condition or combination of conditions could be imposed safety “reasonably imprisonment would purposes assure the Pretrial other community.” inability bail, however, 23 D.C.Code than ly to make is relative- 1322(a)(1). rare, § and, pointed as the Third Circuit Third, person charged out, only legitimate who is with certain “the state interest in the crimes history of violence and has a of such detention of an accused who cannot raise bail likely endanger crimes and is found guaranteeing presence others is in his at trial.” Unit- despite imposition of Tyrrell Speaker, conditions. 23 D.C. ed States ex rel. v. 535 F.2d 1322(a)(2). 823, Code (3d § 1976). 827 Cir. See 23 D.C.Code Fourth, ‍‌​​​‌‌‌‌‌​​‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌​‌​​‌​​​​​​​‌‍person charged any offense, 1321(a): with may § “No financial condition be im- person, purpose obstructing posed “if such for safety of any person to assure the of other attempting justice, threatens, or community.” to obstruct or the injures, intimidates, threaten, attempts case, or In the instant the District Court found injure, any prospective or intimidate spring 1976, witness or that for the of 90 to of those 95%

529 who has position prisoner or other of convicted government could confine If the only of detainees infringe liberty wise “constitutionally deprived been of his liber necessary pres their extent to ensure may to the extent that the confine ty State trial, end house would in the at arrest ence subject rules of its him and to him to the form constitutionally justified be the Fano, 427 prison system.” Meachum v. pre render of Since this would detention. 2538, 215, 224, 2532, 49 L.Ed.2d 96 U.S. S.Ct. impossibility trial detention a virtual Smith, 430 (1976). v. U.S. 451 See Bounds interest government’s frustrate the thus 1491, 817, 840, 72 L.Ed.2d 97 S.Ct. 52 we safety community, protecting the of the in J., liberty The dissenting). (Rehnquist, as of that in acknowledge aspect must rooted in pretrial of the terest detainee manage government’s ability to terest There is no of innocence. presumption in an pretrial the institution of detention do have pretrial doubt detainees The administratively feasible manner. McGin presumption. See protection of this of may jails places thus use as government 263, 273, 93 Royster, 410 S.Ct. nis v. U.S. may everyday confinement and make the (1973); Pugh 282 v. Rain 1055, L.Ed.2d 35 necessary to run administrative decisions 1189, 1191-92, water, (5th 557 F.2d 1197 justifications them. The for these decisions Cir.), rehearing grant for en banc petition single logically cannot be deduced from ed, (5th 1977); Detainees F.2d Cir. the se goal, such as need to maintain House of Brooklyn of Detention for Men jail, they ultimately of the de curity since necessity managing Malcolm, 1975). rive from the basic of (2d F.2d Cir. The de myriad prosaic itself.13 of “largely presumption To construe this tails involved in that choice enterprise confine pretrial irrelevant —the cells, menus, - assignment of of ment,” dissenting op. U.S. events— scheduling recreation and other F.2d, is, 568 of we be App.D.C., independent primary a life of the take on lieve, profoundly to it. The misconstrue justifications of the confinement. a shield that presumption of innocence is prior prevents punishment infliction of “the against government Standing these Boyle, 342 U.S. pre Stack v. liberty is the conviction.” interests interest 1, 3, (1951).14 in the is not trial detainee. detainee S.Ct. L.Ed. beyond necessary those which are for con- order of in lieu of detained сourt were held bond, mostly consisting alone, justified by the remainder must a com- those finement note sentenced to incarceration at the Jail. See necessity. pelling (And approximately these 22 infra. half of Malcolm, (2d Rhem v. See persons charged were with misde- 90-95% meanor offenses. Cir. infra.) See At note 34 important why pre- 14. There are reasons trial, time of the Jail 565 unsentenced held pro- sumption innocence should continue these, inmates. Of 83 were detained on , tect a defendant held detention. bond because had been convicted and presumption rests in instance on the the first awaiting sentencing; in de- were 3 were held possibility process inhering mistake $100,000 bond; 11 were held fault more prosecution. protect the commu- arrest and To $50,000 $99,000; on bond of were held crime, per- nity government may arrest a $5,000 $49,000; on bond and 288 showing probable $4,900 incar- cause and son on a held on bond of Trial Tr. 1070. or less. set cerate him until trial for various reasons Brooklyn Deten- 13. See Detainees of House of noted, Supreme But as the statute. (2d Malcolm, for Men v. tion 520 F.2d probable dealing ... cause “[i]n 1975): Cir. Brinegar probabilities.” v. United deal with Pretrial than defend- detainees are no more States, waiting trial, pre- for ants entitled to may (1949). be detained 93 L.Ed. 1879 Persons innocence, sumption speedy trial and all guilt necessary prove on evidence less than rights ordinary of bailees citi- and other many beyond “[bjecause a reasonable doubt except necessary zens those their to assure in the course situations confront officers pris- presence security at trial and the executing am- their or less are more duties detention, providing correc- on. biguous” for some “room allowed must be institutions than mere tional must be more part.” 69 S.Ct. at on their Id. at mistakes any dep- depositories baggage human judi- Despite oversight of a neutral rights rivation or restriction of the detainees’ 530 denied, cert. 1048, 757, pretrial detainee does not suffer the 97 429 S.Ct. 50 U.S. Davis, conviction,15 Durkin v.

stigma (1977); associated with but oth L.Ed.2d 763 538 Estelle, Parker v. 1976); distinguish pretrial (4th it F.2d 1037 erwise is difficult Cir. denied, cert. 1974), (5th 498 F.2d 625 Pugh See Cir. punishment. incarceration from 1951, 963, 421 44 L.Ed.2d 450 U.S. Rainwater, v. 1189, 1198 S.Ct. (5th Cir.), 557 F.2d (1975).16 petition rehearing granted, en banc 1977). (5th example, F.2d 362 For fed Cir. itself only Not detention indis pretrial requires Attorney eral General statute tinguishable punishment, each addi from give any person convicted “credit toward jail required by tional envi restriction any days spent service of his sentence for in severity ronment contributes to the of that with the custody connection offense or punishment. Nearly every stricture acts for which imposed.” sentence was 18 jail’s regimen prevent pretrial will de all U.S.C. Since convicted § tainee doing what he would be other in the District of are Columbia committed wise free to very do. The conditions of for the term imprisonment deprivations of their confinement are additional General, Cum custody Attorney liberty. They of the are punishment, 24 D.C. also mings Missouri, v. 277, 425, (4 Wall.) plaintiffs Code should U.S. § v. Wil 321-22, Brown (1867); sentenced, L.Ed. 356 this case be convicted and they emon, cert. (5th Cir.), F.2d will receive credit for their time in the D.C. Bowles, nom., denied v. sub Wilemon equivalence pre- Jail. The between (1944), L.Ed. 1579 U.S. 64 S.Ct. post-trial recog incarceration is further and, jail accumu as the restrictions of by nized requiring settled doctrine late, becomes punishment the detainees’s “time a spends defendant before more severe. sentence because he is unable to raise bond credited if he is later sentenced to a [to be] pre- To conclude the conditions Arizona, maximum term.” Hook v. imprisonment virtually trial indistin- (9th 1974). Corley See Cir. guishable punishment from those of Cardwell, v. (9th 1976), F.2d 349 paradox pretrial Cir. to restate the detention. officer, conviction, persists cial stigma the chance of error be- 15. Even without the how- ever, probable may cause the permanently determination of cause dam- neеd detention adversary proceeding age reputation. not be made in an the detainee’s safeguards appointed counsel and cross- examination of witnesses. See Gerstein v. Supreme 16. The rule rests on the Court’s hold- Pugh, 122-23, 420 U.S. Illinois, in Williams v. 90 S.Ct. (1975); 561(a)(1). (1970), L.Ed.2d 54 prisoner 23 D.C.Code § L.Ed.2d 586 that a Although argues may the dissent not be confined for more than the maxi- “[u]nder existing period imprisonment by provided Bail Reform mum Act of the District stat- of Co- (D.C.Code pay by 23-1324), persons lumbia ute because he fails to indigency. Although a fine reason of § accused jail pretrial Williams rested on an who should not be detained in rationale, - equal protection detained,” adopt first had dissenting op. of 188 premise imprisonment that default was in U.S.App.D.C., F.2d, we feel 568 of 580 part punishment” fact “a of the exacted point constrained to out that the record demon- 240, 243-44, statute. Id. at 90 S.Ct. 2018. The nearly pre- strates that all of the unconvicted pre- post-trial doctrine that imprisonment the total of plaintiffs trial detainees who constitute the statutory cannot exceed the this case are in for the reason that implicitly adopt maximum must the same supra. cannot afford bail. See note 12 premise. Finally, important it is to note that if the however, circuits, begun A number of presumption respected of innocence is to be expand doctrine, by crediting pre- some judge jury courtroom, it must be although period pre- trial detention the total society treated article of faith all of post-trial incarceration does not exceed the outside the courtroom as well. Without wide- sentence, possible Faye Gray, maximum see v. spread acceptance presumption of inno- (7th 1976); King Wyrick, 541 F.2d 665 Cir. cence, hope juries we have less will not (8th 1975), by crediting 516 F.2d 321 pretrial Cir. others proof guilt take indictments as sufficient for non-bailable offenses. .detention acquittals will wash the taint from the Haynes, (4th See Vickers v. 539 F.2d 1005 Cir. reputation mistakenly accused.

531 period necessities for the of their confine presumption The hard fact qualified by doctrine has absorbed innocence is in this context ment. Constitutional safety protect just need of the state to the common law view that is but ‘[i]t constitutionality of community. public required The to care be for the pretrial cannot, confinement can prisoner, the conditions who reason dep of the balancing against only by thus be measured liberty, rivation of his care for himself.’ liberty interests governmental Williamson, 487, this need 490, Spicer v. 191 N.C. 132 pretrial Although of the detainee. this 291, courts, (1926). 293 Federal though S.E. balancing process unfortunately, there can daily operation reluctant to intervene in the lines, bright impor- there are several be no institutions, penal required those inform our consid- guideposts tant that will food, provide adequate institutions to cloth eration. charges.” and shelter for their Bow Godwin, 44, ring (4th v. 551 F.2d 46—47 Cir. First, infringements on although Gamble, 97, 1977). 429 Estelle v. U.S. See might liberties not deemed fundamental 103-04, 285, (1976); L.Ed.2d 251 97 50 S.Ct. general strictest scruti subject be Correction, Finney v. Arkansas Bd. 238, Johnson, ny, Kelley see v. (8th presump Cir. (1976); S.Ct. 47 L.Ed.2d these care- requires tion of innocence East Hartford Educ. Ass’n v. Board of greater be even with taking responsibilities Hartford, Educ. of East 562 F.2d 838 at 861 Therefore, respect pretrial detainees. (2d 1977) (en banc), deprivation each Cir. likely conditions of confinement that jail pretrial environment renders deten physical mental or impair a detainee’s tion punishment more severe as and thus subjected health should be to the closest presumed further violates the innocence of scrutiny justified only by can be pretrial detainee. The presumption of compelling necessity. most rooted,” innocence “constitutionally Cool States, v. United U.S. S.Ct. Third, pretrial detention occurs (1972); 34 L.Ed.2d 335 it is “axiomatic important directly preceding interval and elementary, and enforcement its lies at pretrial trial. The conditions of confine the foundаtion of the administration of our negatively ment cannot to af permitted States, criminal law.” Coffin v. United process. fect the outcome of the criminal 432, 453,15 394, 403, 39 U.S. S.Ct. L.Ed. 481 evidence, however, There is disturbing (1895). We permit pre cannot this vital liberty pending “the defendant trial sumption away by to be eaten cumula being stands a better of not convict chance tive conditions pretrial detention. or, convicted, receiving prison ed of not Therefore each jail regi restriction of the Sturz, Ares, sentence.” & Rankin men carefully must be examined to deter Project: An Interim Manhattan Bail Re justified mine if it is by substantial necessi Parole, port on the of Pre-Trial Use ties of administration. To evaluate (1963). N.Y.U.L.Rev. See McGinnis these necessities we will look to the needs 263, 281-83, Royster, U.S. the state produce the detainee for J., (Douglas, L.Ed.2d 282 trial, security jail, to maintain the or Justice, dissenting); Yera Institute of Pro generally pre to sustain the institution of grams Criminal Justice Reform: Ten- trial detention at a feasible cost. 1961-1971, (1972). Report Year at 31 There

Second, presumption disparity of in is reason to believe that can that, requires great nocence as “pri- extent not be accounted for a defendant’s practically possible, record, amount, counsel, type detainee bail family integration employment leave no worse off than he entered it. stabili [or] prisoners, Rankin, Even respect ty,” to convicted of Pretrial Deten The Effect (1964), the state acquires responsibilities tion, nor 39 N.Y.U.L.Rev. prior crimi charge, caretaker upon incarceration. “the seriousness of the “[PJrisoners guaranteed of life’s basic evidence.” provision record, weight nal [or] Protection, Fourth, Equal Bail as a Denial of Money responsibilities of the Legal Memorandum submitted Aid jail period increase as the detainee’s Society City Bellamy of the New York in grows longer. incarceration Conditions Justices, 196, Judges v. 41 A.D.2d might days, might be tolerable for ten 137, aff’d, 886, 32 N.Y.2d 346 N.Y. N.Y.S.2d unacceptable imposed be if for a month or 812, (1973) S.2d N.E.2d 153 A. Gold- longer. Orland, stein and L. Criminal Procedure (1974).17 451—52 There are explana various Finally, engage we will not in bal tions disparity. offered for this For one ancing constitutionality to determine the thing, imposed by incar limitations “[t]he pretrial they conditions of confinement ceration of the hamper preparation defense are otherwise of the Constitution. violative . .” on Law President’s Commission For example, conditions of confinement Justice, Enforcement and Administration Eighth could breach the standards Report: (1967). Task Force The Courts 38 Although, strictly speaking, Amendment. another, pretrial plead guilty For detainees “Eighth scrutiny appropriate Amendment Note, more often than bailed defendants. A Study of the complied Administration of Bail in after the State 693, New City, York 106 U.Pa.L.Rev. guarantees constitutional traditionally asso (1958). suggested It has been this is ciated with prosecutions,” Ingra criminal “that, due to a knowledge defendant’s 651, 40, ham Wright, v. 430 U.S. 671 n. worst, guilty a plea will result in his trans (1977), S.Ct. 51 L.Ed.2d 711 fer prison, where general conditions are join the holding Second Circuit in that “a ly cramped less and uncomfortable than in detainee is protection entitled to from cruel jails.” Note, The Jailed Pro Se Defend punishment and unusual as a matter of due ant Defense, and the Right Prepare a process Malcolm, . .” Rhem v. 292, Yale (1976). L.J. 307 n. 66 Conditions 1974).19 (2d Cir. The condi of confinement impede a defendant’s tions of detainees in pretrial confinement of preparation (apart, course, of his defense Equal Protec could also violate the from the itself), fact of confinement or that tion Clause Amendment of the Fourteenth are so harsh or intolerable to induce him if, adequate justification, without to plead guilty, or that damage appear his more of con restrictive than conditions trial,18 ance or mental alertness at are con penit finеment of in a stitutionally suspect justified convicted and can be only by the compelling However, most necessity. differences in the entiary.20 upon condition, example The memorandum was based a statis- 18. For an of such a see study Pitchess, study tical of 857 defendants. Dillard v. (C.D.Cal.1975). found that: stay money Those who for lack of bail 19. This is in accordance with the directive of and, are much more often convicted when Supreme that, “Where the State convicted, go prison get more often and impose punishment seeks to without longer prison much sentences than those adjudication guilt], pertinent consti- [of however, significantly, who make bail. More guarantee tutional is the Due Process Clause specified even when factors which are Ingraham the Fourteenth Amendment.” v. Criminal Procedure Law as relevant to bail n.40, Wright, 97 S.Ct. might thought and which to affect the (1977). preserves 51 L.Ed.2d 711 It also outcome —such as the seriousness of the insight the essential incarceration charge, record, prior weight criminal virtually indistinguishable post-trial im- evidence, bail, community amount of ties and prisonment, 669-71, cf. id. at employment history constant, held —are therefore that the same constitutional stan- large disparity

there is still a in results be- apply dards should to both as a measurement tween the detained and the released. The punishment. of cruel and unusual study pre-trial shows that detention itself causes the detained to be more often convict- equal pro- 20. The Second Circuit has held that severely ed and to be sentenced more than “unjustifiable tection forbids confinement of the released. detainees under worse conditions than convict- prisoners” penal system. ed within the same (2) not, accept findings them. If these factual would of the two institutions conditions stand, predicate they provide face, to establish do be sufficient on their there has lower violation, such differ- court’s determination since constitutional rights? been a denial of constitutional to the distinct might be attributable ences grant- yes, If should the District Court two institu- and functions nature particular relief it did? ed the Royster, 410 U.S. McGinnis tions. See L.Ed.2d 282 270-73, 93 S.Ct. the consideration of As a framework (1973). descrip- to a we turn first questions, these Jail. tion of the District of Columbia standard, task our this variable Applying finding of the review the is to THE OF DIS- III. A DESCRIPTION conditions practices and that various Court JAIL TRICT OF COLUMBIA the constitutional Jail violated at the D.C. constitu rights pretrial detainees. Jail houses both The District of Columbia employed by the District prisoners. tional standard and convicted pretrial detainees however, litiga Court, ambiguo during was somewhat but population varies questions tion, three to the us.21 There are therefore well over 50% of those admitted status, half findings Are the factual have been in before us: Jail and offenses charged to conditions at the with misdemeanor the District Court as average 8 not, Detainees we must clearly Jail erroneous? If held lieu of bond.22 (Cont’d) Malcolm, (2d Admissions New 336 Cir. Rhem v. 507 F.2d Immigration and by 1974). Committed Service, by Naturalization U.S. habeas Marshal, or on writs of court stated: 21. The corpus Admissions)..........(344) measures the claims in this case This Court (20% of New by by the courts utilized the standards Recommits Malcolm, F.2d 333 v. 507 cases as Rhem such total).......................(1147) (40% of Madigan, 1974); (2nd Brenneman Cir. and held at sentenced the administrative All recommits the Jail (N.D.Cal.1972); F.Supp. v. Witten- Jones because of F.Supp. (D.C.) burg, F.Supp. and 330 and priorities decisions Department of Corrections. Love, 1971); (N.D.Ohio Hamilton v. approximate figures (E.D.Ark. are based on F.Supp. These The Court May given Rhem, succinctly precise percentages the District Court’s put supra, and in F.Supp. See 1976 memorandum. terms: equal protection of the 112-13. “The demands prohibit depriving process that at the time and of due found law The District Court following catego- rights trial, pre-trial of other citizens detainees of the defendants held necessary greater to assure extent than at the Jail: to a sentenced inmates ries of security jail; sentences; appearance serving a) at trial all misdemeanants pre- provisions and the same constitutional b) District Court inmates from sentenced unjustifiable of detainees designation vent confinement awaiting Bureau of of a Federal pris- sentence, than convicted worse conditions under for service of Prisons institution awaiting pro- a detainee is entitled oners ... transportation insti- to such Federal punishment from cruel and unusual tection designation; after tution and, process, rele- where a matter of due Superior c) inmates from sentenced vant, equal protection.” designation Bureau of to a Federal where F.Supp. 105. by has been recommended Prisons institution sentencing judge, pending action on that following found that The District Court 22. transportation to the recommendation institution; applied rough to the 2868 breakdown period during Jail the 10-week admitted to the pa- d) of their months within three inmates mid-January mid-April 1976: sentence; eligibility at time of date role New Admissions e) release six months of their inmates within total).......................(1720) (60% of sentence; at time of date courts by Committed charged f) vio- with on work release inmates --------(1376) Admissions) (80% of New conditions, pend- release lation of their work in lieu courts by Committed by (90-95% of those the Work Release Review review of bond committed courts)...........(1238-1307) Board; g) pursuant courts charged parole violations, Committed inmates incarceration to sentence pending preliminary parole revocation (5-10% those committed hearing; courts).....................(69-138) system, that because of this awaiting “many the Jail trial. unsen- to 12 weeks in require maxi- average Those who are convicted another tenced inmates who do not sentencing. security to 4 weeks between trial and mum are housed maximum Court found the Jail under the August security In the District areas of most Only inmates percent stringent living that 20 of the unsentenced conditions. a small (estimated by percentage had been there more than 4 months.23 of Jail residents Superintendent approxi- of the Jail as changed at the D.C. Jail have Conditions inmates) require mately 125 maximum se- 7-year the course of this considerably over curity housing.” at 103. Cell- litigation. At the time of trial in March assigned Cap- block 3 housed inmates plaintiffs’ members of class were Detail, performed many tain’s facility. housed at the old Jail The main culinary Jail’s maintenance chores. structure, including Cellblocks 1 juveniles elderly Cellbloek 4 housed built in 1872. Cellblocks as well as persons. building administrative were added in addition, open the old Jail has two Although clothing was and is issued to dormitories, hospital, library, arrivals, a 37-bed found laun- District Court laundry, Except “inadequate.” and a kitchen. dry services to be Detail in Captain’s for Cell- members of the Individual cells are approximately 6 feet 3, had to block at the time of trial inmates long by high, wide 8 feet 9 feet and at underclothing. Those with- wash their own the time of trial often housed two men. taking out while hot water often did this toilet, sink, They contain an a a uncovered Moreover, showers. detainees often were wall, small table and bench attached to the mattresses, given or steri- “old not cleaned single and a or bunk Only bed. cells lized and urine other ex- stained with Cellblocks 3 and 4 have windows or hot creta.” Id. at 104. large water. The dormitories are rooms feet, approximately housing 125 to There was evidence at trial that old 150 men at containing the time of trial and Jail was constantly noisy from the start of four rows dormitory day of beds. Each also has lights at 5:30 a. m. until out at facility a toilet walled off from the main p. 10:00 or 11:00 m. This noise came from partitions room but without between com- radios and televisions which the in- over modes. kept control, Personal effects are under the mates had no as well as from the beds. themselves. The hard concrete surfaces, arrangement steel and the trial, At the time of new arrivals were little to deaden high, cells stacked four did being classifications, given security de- the din. spite Departmental requiring Order each superintendent program to establish a for complained Plaintiffs also of the lack of 4090.1, doing adequate so. dated November Following D.O. medical attention. assigned requir were consent 1973. Most new arrivals to order on November prompt provide medi Cellblocks which were maximum the defendants to it,24 needing plain- The District found cal to all inmates security units. care h) 1) sentenced inmates for whom a court or- sentenced under the Youth Cor- inmates protection separation pursuant ders and/or from other rections Act to 18 evaluations inmates; 5010(e), completion after of the eval- U.S.C. § i) pending imposition Department uation and final of sen- sentenced inmates whom the segregate tence. wishes to from other residents F.Supp. reasons; Complex protective 102-03. the Lorton j) assigned “Cap- sentenced inmates crew) Jail; (work tain’s Detail” at the note 31 infra. 23. See k) brought pursuant the Jail inmates order, corpus prosequendum habeas ad or This which was amended on writs of 24. consent testificandum; January April 1972 and on also ad week, except hospital- who for those were to show a filed motions- periodically tiffs Detail, not be ized, should were why working defendants on the cause contempt failing comply security. held indoor in maximum Limited held supported motions were this order. These in- available to most recreation also prisoners alleg by dozens affidavits security Maximum inmates at mates. neglect their serious medical ing gross on “dead- old Jail were held in their cells also offered uncon problems.25 Plaintiffs and “tier recrea- except lock” for showers evidence of serious infestations tradicted walking on the (30 day tion” minutes rats, cockroaches, gen mice and as well as corridor). causing odors. eral uncleanliness obnoxious description fails The brief foregoing however, By November dis- degradation and convey the extent of large “vermin have to a Court found that the D.C. imposed upon residents of comfort exterminated, portions some degree been testimony of Jail, as revealed appar painted, and have been [of Jail] the old trial who visited many witnesses place be cleaning much has taken ently testimony ap- facility. The flavor of at the described cause the horrible stench Ardrey, a of Robert in the statement pears during an unan was not in evidence trial author, de- anthropologist and who noted year. August of this nounced visit in late tol- “beyond there as scribed conditions medical services delivery Also the level human erable existence” personnel additional improved because of pro- “something designed that has been realignment authority and a Dr. duce Trial Tr. monsters.” staff.” 416 at 104. medical Menninger “everything Karl stated trial, at the At the time of most inmates a man to a like the place done to committed vis- Jail were three half-hour social allowed appears be done make him D.C. Jail week, telephone per its conducted via Trial 249. Defendant Delbert suffer.” Tr. barriers, through plexiglass in addition Jackson, Department of the Director attor- with their unlimited contact visits Corrections, the “not Jail was admitted Captain’s Detail neys. Members of the really fit for habitation.” human visits, hour-long granted were three social embrace kiss their at which could and Physical improved some in- conditions for upon meeting. visitors The District Court Deten- opening mates with the New the inmates Captain’s found that the Detail April 1976. Each Facility (NDF) tion privileges and other were afforded these equipped with there 7-feet-by-10-feet cell and encourage apply “to inmates toilet, hot table, chair, and with bed, sink work on the Detail.” Id. at 103. plexiglаss win- water, well as and cold cellblock trial, by dow 24 inches 42 inches. Each grant- inmates At the time of were own days cells is and has its two hours of outdoor recreation six of 80 air conditioned ed provided (1) impede contempt consent defendants would not be held in for violation of the them; 27, 1972, plaintiffs’ April conferring from with on counsel order October against (2) not defendants would retaliate 1972. motion and on November The first (3) segre- plaintiffs; hearing, would use defendants not in a docket resulted which the gation emergency except January cells under conditions “Finding: notes: violations order of hearing and with an immediate notifica- after and defendants.” The second attorney; (4) the tion of inmate’s defendants District third motions were denied the provide and each in- would a bed mattress Court. mate; (5) provide on a defendants would food addition, transcript In the trial ex- contains except basis inmates for medical uniform to all testimony tensive about deficiencies reasons; (6) steps would defendants take services, including criticisms Jail’s medical temperature in various reduce extremes of Jail’s from the doctor and Chairman Jail; parts of the and would defendants Health Medical Prison of the D.C. Committee immediately relay requests see inmates’ 776-809, Society. Several Trial Tr. 908-17. attorneys. their these attributed deficiencies witnesses depart- of the medical administrative structure plaintiffs filed mo- The docket indicates that Trial ment. Tr. 939-60. why tions to show cause defendants should area, rooms, day recreation IV. indoor two and OVERCROWDING separate dining facility area. The entire Findings A. Court District has two indoor and a visit yards recreation “[b]y The District Court stated that telephones ing equipped room with and shocking en flagrant far the most and plexiglass barriers. The defendants have rights of croachment on the constitutional at the announced that all recreation new overcrowding plaintiff class is the facility indoors, that no will occur con . . .” 416 at 105. There except visits permitted tact will be with conclu findings implicit four the court’s attorneys. inmates at security Maximum sion. subject virtually Jail are the new First, found, the District on the Jail, regimen except as at the old same testimony, basis of uncontested over indoor place recreation takes a rec was mental crowding likely impair room reation rather than on the tier corri physical health of the detainees. its type system dor. Some of classification Order of March noted court also been instituted.26 rebut, attempt that “No was made to or NDF, with Department Even upon even cast doubt abun accuracy of Corrections has been continue forced to us- testimony dant from credible witnesses that ing parts of the old facility. In accordance the overcrowding at the in both results the Department’s plans, own Cell- physical psychological damage blocks and 2 were ordered closed (J.A. inmates . .” Appendix Joint 100-01). Court last summer of se- because never The defendants have deterioration, vere leaving challenged Cellblocks 3 and the substantive of this validity finding, and other two courts have reached dormitories to house overflow same conclusion.27 We see no reason to facility. is no There indica- disturb it. or policies tion in record that conditions at the old Jail will changed change Second, the District Court found that NDF, significantly opening with the harm would not be alleviated unless each although plans have been to renovate made pretrial detainee was accorded least 48 Cellblocks if funds can be square space.28 finding found. feet of This note double-celling prime 26. See 55 infra. are often causes tension, assaults, priva- of the sexual of denial See, g., Anderson, 27. e. Battle v. 564 F.2d 388 cy, inadequate care, supervision and medical (10th 1977) (ordering Cir. defendants reduce many indignities and other constitu- and overcrowding facilities); in correctional De many jails tional violations that characterize so Brooklyn of tainees House of Detention for prisons. and Malcolm, 392, (2d v.Men 520 F.2d 398-99 Cir. Paragraph 28. 3 of the order of District Court’s 1975) (ordering defendants to cease double-cell 21, 1975, provided days March that 15 “after detainees, ing necessary by releasing them); from the date of this order defendants shall Eisenstadt, County Inmates of Suffolk v. Jail housing any pre-trial refrain from of detainee (1st Cir.), F.2d 494 1196 cert. denied sub nom. any cell, plaintiffs’ dormitory class in room or Jail, County v. Hall 977, Inmates of Suffolk 419 U.S. average 239, where there is an than 48 (1974) (order of less 95 S.Ct. 42 L.Ed.2d 189 per square person.” feet ing On state J.A. at 101-02. Commissioner of Corrections trans stayed April paragraph county jail); 4 we District 3 of the fer detainees out of overcrowded purpose maintaining Wainwright, F.Supp. (M.D. Court’s order “for the v. Costello 397 20 quo 1975) (ordering prison the status while Fla. release of the matter is consid- convicted under bring prison system capac arguments . ers to state eration . Oral down to were held levels), aff'd, ity (5th Cir.), Appellants April alleged 525 F.2d 1239 re on 25. it was that court, 3-judge (5th “impossible for manded F.2d 547 539 abate the violation in the brief 1976) (en banc), period Opin- Cir. remanded reversed and on them.” accorded Memorandum court, 325, 3-judge 2, 1975, ion, 2, issue 97 May May at 2. contin- On 1191, remand, (1977), 51 L.Ed.2d 372 553 temporary stay April on ued in 4 effect (5th banc) 1977) (en (panel opin 506 F.2d Cir. (“modified appel- however to make clear that reinstated). ion otherwise obligated steps lants are to continue to take case, compliance Like the District Court in this these and toward with the substance recognized 21, order”), other courts have that overcrowd- March the rec- remanded 608, present its substantial, popu the Jail was and that test uncontradicted upon based defendants have never and the imony,29 The overflow was double- lation was 976. validity. We challenged its substantive Although on Tr. at 996-99. celled. Trial it. affirm therefore 1975, 16, of Columbia De May the District report with yardstick, partment of Corrections filed Third, square foot using the the District found that indicating the District that mem Court District Court On substantially overcrowded. Jail was in an plaintiff of the class was housed ber “that 1975, the court found March feet,30 August on square area less than Jail is overcrowded District of Columbia “approxi the District Court found beings are human com- point where two mately 175-200 unsentenced individuals accepted which fall short pacted areas measur being double-housed cells occupancy space requirements minimal eight ing approximately six feet.” At trial An- person.” one J.A. 100. F.Supp. at 107.31 McGruder, Superintendent Deten- derson Court was assured that de- District Department of for the Correc- tion Services tions, capacity compliance the rated would be in with fendants testified designed clarify Development proceedings ties the Federal Bureau ord “for further feasibility compli- question square the central feet of Prisons testified that without space (exclud- ance . Id for an inmate about in to move Opinion space occupied by furniture), dated November the cell In a Memorandum appellants’ ‍‌​​​‌‌‌‌‌​​‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌​‌​​‌​​​​​​​‌‍habitation, rejected safe, the District Court or cannot be fit for considered compliance objectives. was infeasible. 416 achieving penological defense that F.Supp. conducive 23, appellees On December 106. He testified more Id. at 879-82. also However, April stay. moved vacate the facility space in a detention would needed appellants arguments January on oral represented assuming spent prison, the detainees than in a pres- court the Jail was to this at 894. id. at in their cells. Id. See more time ently compliance with March 21 order. At Cellblocks 1 and cells were each 113-14. Opinion, at We Memorandum Feb. 2. square feet. See at 1229. See Williams id. stay (as to vacate our modi- therefore declined Edwards, (5th 1214-15 Cir. order). stated, however, by May our We fied that: recur, overcrowding If should notwith- April Department of On Corrections 30. standing repre- the District’s best efforts compliance represented to had this court court, may again plaintiffs sentations in this square requirement “im- with foot stay. seek parties At that time the vacation possible.” supra. See Delbert Jack- note 28 .Court, proceed first in District should son, Department, had testified Director address, the District and should Court April the District 1 that before specific findings record should make a on, Department had the ultimate” in its “reached following issues: comply the March 21 order. efforts to overcrowding, (2) the Dis- the extent at 107. attempt to avoid to alleviate the trict’s suggestions overcrowding, (3) for what fur- take, time, number” of ther ing should includ- same a “substantial actions At the facilities, seeking out of housed alternative the sentenced were either jail’s (4) specifically, 6-feet-by-8-feet whether offi- housed in a cell were alone accept dormitory not to cials should be ordered had at least in a where inmates. square F.Supp. de- 107. The feet each. proceeding The can then be returned to May report promised that all had fendants’ whether va- this court for consideration to given single- unsentenced detainees would stay. modify cate or the dormitory housing square or 48 feet of cell space ahead of sentenced inmates. The heard uncontradicted testi- 29. trial court mony Conway, Donald Director Re- from of 4, 1975, August population of the total On Architects, search at the American Institute of these, the tenced, 882. 584 were unsen- Jail was Of square requirement comparing with this feet sentenced, held 225 were and 43 were groups’ space requirements. various The corpus with on habeas or in connection writs of per single- square LEAA was 70 feet standard pending appeal. in- the 584 unsentenced Of inmate, Prisons celled the U. S. Bureau of allot- mates, study by the defendants revealed square feet, Army 80 to the ted and re- longer been held the Jail than had 63% quired square feet for indefinite confinement days more their and than had been held 20% up square or 55 days. feet for to 14 confinement longer F.Supp. at 107. four than months. of Trial Tr. at 287-88. The Chief Facili- 15,32 Block in most August cells in Cell the oldest and square requirement by foot F.Supp. part of the Jail.” dilapidated notice provide that defendants would and provide at 112.34 defendants failed to space requirement court the the should the overcrowding of this “prompt notice” again F.Supp. be violated. 416 108. On District Court. by the de October court was notified long fendants’ counsel that the Jail was no record, with this Faced substantial require in compliance space er with the difficulty affirming in the District have no ment, compliance and had been out of since finding Court’s the District of Colum- 16. September bia seriously Jail has been overcrowded. January advised appellants On the conclusion that the Finally, to sustain court that in com presently this overcrowding plaintiffs’ of the Jail violated space requirement.33 the pliance with if rights, we constitutional must determine However, 7, 1976, the April on by overcrowding justified this can be visit made an unannounced Court necessity. administrative On compelling Jail, hearings April and at 29-30 it appellants represented to us April period “[djuring found that most of compliance with the District Court’s mid-January mid-April, from more than space requirements “impossible.” We persons in at a time were held violation Dis- therefore remanded record to the order, of Court’s March 1975 most of “for de- proceedings trict Court further signed clarify 136 one-man question them double-housed central capaci- by Department The court Jail’s 32. was advised that the Corrections of admis- “(a) ty by during period had been increased two methods: sions this ten-week include capacity recomputed homicide, persons charged robbery, the lavatory had been to include bur- hallway space housing some felonies, glary other serious the number areas, although physical changes so that persons charges committed as a result of Jail, been made had Department to the structure relatively tamper- for such minor offenses as larger now felt that a number of auto, larceny, attempted petit with an space persons could be same housed in the as Indeed, property, destroying striking. etc. is violating right square without before during period studied, the ten-week indi- man; per (b) ‘emergency feet funds’ excess viduals were committed for traffic offenses. $10,000 had been made available persons awaiting For those held at the Jail Office, Mayor’s the Jail which would enable trials, Superior approximately twelve previously an area used for hous- convert ing arraignment weeks intervene between initial dormitory.” to a at 108. charge if If trial is a misdemeanor. charged felony, with a more the defendant supra. See 33. note 28 elapse weeks will than seven between arrest indictment, by eight ten followed following findings The court made the about conviction, acquittal population: weeks before missal, or dis- Jail’s sen- additional four weeks for During peri- ten-week aforementioned tencing for those who are convicted. od, Jail, ap- 2868 men were admitted to the category, proximately The “Recommit” the source categorized Depart- 60% approximately of the admissions to the ment of Corrections as “New Admissions” 40% Jail, all approximately are sentenced individuals who are “Recommits.” 40% exclusively majority (ap- Jail almost vast held at the because New Admissions proximately 80%), according priorities the administrative records of decisions and Department, persons Department (A committed to small Corrections. custody by courts, lieu specif- either in of bond number in this class is held because of awaiting pursuant order, while usually trial or to a sentence ic court founded on concern Approximately of incarceration. safety for the individual’s housed at 90-95% the New reasons, Admissions committed the courts Complex.) Lorton Correctional No committed lieu of bond. apart Department’s City’s and the Perhaps significant more is the fact that of funding priorities, justify require exist to those New Admissions who were received from the housing continued of most of these individu- courts, (as previ- of whom 90-95% Jail. als at the ously stated) status, ap- pre-trial were in a F.Supp. at 112-13. The court that found proximately persons charged half were with April as of there were 1243 males housed offenses, misdemeanor in lieu of confined the Jail. weekly prepared bail. While the summaries compliance . .”35 On feasibility F.Supp. at 109.36 24,1976, again May 5 and on the November repeatedly have argued The defendants compli overcrowding found not that policies District Court the result of persons judges, other than feasible, ance was but that themselves— pretrial Jail; who commit detainees to the to a space converting from other Apart Attorney, the U.S. who bears responsibility Jail, Depart- at the dormitory new the offenders; removing for some sentenced no substan- city the have made ment and Congress, appropriate and which must comply with the Order efforts to tial However, funds for construction. the March; its issuance this since found, Court history the Court and this contem- there is no evidence substantiates, and litigation clearly that the de popula- the plated to either reduce have not upon effort fendants drawn their sub powers provide Jail or additional stantial resources to tion at the influence added.) (Emphasis pretrial space. Jail,37 the flow detainees into the report the was the time intent at no such had pp.---of 35. See notes 28 & the Court. with U.S.App.D.C., pp. filed 536-537 of 580 F.2d su- compli- pra. suggested possible avenues of We system August had been estab- no ofAs ance: Department wheth- by to determine the lished contemplate Department [W]e complying with was the Jail er cooperation of the its counsel will seek the requirement; 48-square no consulta- feet Judges of the and the Chief District Court been undertaken to with the courts had tion Superior as well the United States Court as sentencing expedite attempt of con- Attorney Agency in an and the D.C. Bail being held Jail individuals victed explore ways or divert the effort to to stem and, although awaiting sentencing; this pretrial flow of new detainees into the applied only pre-conviction Court’s Order prison- the number and reduce of sentenced detainees, no made to identi- effort had been Furthermore, presume ers housed there. persons distinguished fy class as designees of the that consultations with the already awaiting sen- convicted but those tencing. General, Attorney g. expedite who can e. prisoners of Federal have been removal who hearing, August 7 During the course of sentenced, Office, Mayor’s with the and other Deputy suggestion Court’s of this at Clerk, agencies government of local and Federal identifying simple method permit avenues will consideration of other suggested to officials of problem, plaintiff alleviating temporary class this for provide “reform,” necessary Department. which in- type cooperation for This Superior change Court solution. minor a collective The dimensions volved may require problem of un- method of consideration offices’ District Court Clerks’ remedies, even, perhaps g., papers, modifica- usual e. processing was subse- commitment August installa- effect, tions of unused barracks at service quently put as of into plaintiff tions. identify the been able to Jail has class. following 36. The court cited the evidence made lower- efforts were While some defendants’ lack of effort: Department employees reduce the level Rodg- August hearing, At the M. Charles Jail, efforts did not population of the these ers, Operations Assistant Director of crowding impact on the a substantial Corrections, Department of and the man problem. specifically charged the Director with the F.Supp. at responsibility 107-08. compliance with this Court’s Order March admitted memorandum, In its November 5 the Dis- although he was familiar with that Order and trict previous cited the Court substantial success of two issued with the Order the United States pretrial efforts to obtain the release of Appeals May on he had Court of largely through filing detainees of bond made no consult with nevertheless efforts to motions, City but review failing then criticized the Judges of the Chief the two trial courts sporadic to maintain these efforts on a jurisdiction, this nor the District of Co- regular basis. The Court also noted Agency, contemplated by Bail lumbia City Agency had allowed the Bail to become Similarly, Appeals. of the Court of order although understaffed, thereby preventing it from moni- Department’s report filed with toring population detainee as re- May Depart- 16 stated that the quired by 1303(h)(6). 23 D.C.Code § space would convert recreation ment Rodgers at 109-10. housing, Mr. Jail to afford additional so, that he had intent to do admitted 540 this detailed we affirm of sentenced inmates out of On record movement Jail,38 that overcrowd- development and the of addition Court’s conclusion District justified by

al concluded in the District Jail housing court space.39 necessity. compelling to administrative take that “the have failed defendants approve holding the court’s We therefore steps alleviate reasonable and obvious overcrowding violated consti- F.Supp. at As for overcrowding.” 117. rights plaintiff of the class. tutional they by are bound defendants’ clаim constraints, join financial our sister Cir Question of B. The Mootness cuits in that while such considera holding relevant, tions can may be The present posture of the case means be determinative. Battle v. An requires See us to if events have determine derson, 388, 395-96, (10th justifications 564 F.2d Cir. for mooted 1977); course, Brooklyn is, Detainees of House De Court’s order. It clear that Malcolm, tention v. for Men 520 F.2d injunction “an action for an does not be Malcolm, (2d 1975); Rhem Cir. v. come moot merely because conduct (2d 1974); Finney F.2d 341-42 Cir. v. complained of . . . .” has terminated Correction, 802, 810, 505 F.2d Medrano, Arkansas Board Allee U.S. Collier, (8th 1974); (1974). Cir. Gates v. 40 L.Ed.2d 566 “A case (5th 1974); Cir. 1319-20 Rozecki might subsequent become moot events (1st v. Gaughan, 459 F.2d Cir. absolutely allegedly made it clear that According parties’ stipulation, (3) housing 38. “Del- sentenced misdemeanants at Jackson, Director, under-capacity bert Security Facility C. District of Columbia Minimum at Corrections, Department authority has the serving Lorton instead of at for of their the Jail to held within the cept will be determine where sentenced inmate sentences; (4) recommending that more misde- Corrections, Department ex- Depart- meanants serve their sentences specifically in cases a court orders where Community, per ment’s 24 Correctional Centers specific an inmate in a held institution.” 462; (5) following up § D.C.Code on re- memorandum, F.Supp. In its November 5 quests to the Parole Board and U.S. Marshal to examples at the court cited several parole Jail; (6) remove violators held at the expedite defendants’ failure to sentenced the transfer seeking the consent of misdemeanants to allow Jail, including (1) out of inmates their transfer from Security the Jail the Maximum system separating their lack of a for “unsen- Lorton; (7) or Central Facilities at “pretrial” tenced” into inmates and “convicted- continuing request judges permit “week- categories (“there but-unsentenced” pelling is no com- prisoners” halfway end houses; to serve time in their why reason convicted felons must re- (8) ceasing to hold sentenced Su- pending (2) sentence”); main at the Jail perior awaiting Court felons while at the Jail Attorney failure to ask the exercise General to response the Bureau mendation Prisons’ to a recom- authority his order committed to his under 24 425 “to D.C.Code § assignment. prison a federal any custody] prisoner the transfer [convicted institution one May its November 39. In 1975 and 1976memo- if, judgment, to relieve his another it shall randa, Department the court found had overcrowding or unhealthful conditions portable housing use failed to the prison units available to prisoner in the institution where such is con- City successfully by used other state fined”; (3) urge their failure the U.S. systems. The court also noted that “no prisoners designated Marshal to move institutions in less time than three or four for other efforts made substantial have been the De- partment housing to locate alternative facilities weeks. within the District of or at Columbia the Lorton Memorandum, May In its response Complex.” In the defendants’ con- 115-17, F.Supp. listed at the District Court security not be tention could assured at pursued additional alternatives not the de- facilities, such the Court recited that the former fendants, including (1) Judge requesting Gesell superintendent of the Jail had admitted that modify imposed population limits he very required Jail few inmates maximum secur- persons Lorton Youth who 1 and so that Centers ity. many notion sentenced “[T]he diagnostic are sent there under studies misdemeanants, presence whose adds substan- 5010(e) may kept § U.S.C. there after- Jail, tially overcrowding cannot Jail; being wards rather than returned to safely be held in less secure facilities has never persons requesting judges to authorize that satisfactorily explained by Depart- been 5010(e) whose studies § do not recommend ment.” Youth Act be held at Lorton sentences sentence; Facility imposition pending Adult

541 the in- heightened by еvents of the reasonably and could wrongful behavior pro- tervening year. Throughout these “a strin recur,” the test is but expected brought ceedings, pressure when was carry “heavy a gent one” defendants bear, possible impossible the become v. United persuasion.” of States burden obtained, at Inc., compliance has been Ass’n, Export Phosphate Concentrated missing, for a What has been 361, 364, least time. 199, 21 203, 89 393 S.Ct. U.S. long- a a commitment to unfortunately, is (1968). Rabinowitz L.Ed.2d 344 See to maximize the range, continuing effort 508, F.2d Dist. No. 507 College Board of Jr. De- presently resources available to the 1255, (7th 1974). The decision 1256 Cir. partment City, plans and to make and the illegal likely conduct is whether defendants’ the to meet to increase those resources of equitable lies in discretion to recur the need. “The deci the District Court. chancellor’s circumstances; his is based on sion all of history 416 Given the 114-15. strong broad and a necessarily resistance, discretion is inef grudging defendants’ reverse showing of must be made to abuse of efforts at com previous fectiveness their fides of are the bona shocking” it. To be considered pliance, “flagrant and the effec comply, the expressed violations, intent Dis past character of their and, in some concluding of the fully justified tiveness discontinuance trict Court cases, past violations.” of this case moot. character was not As Su Co., T. Grant 345 U.S. preme United States v. W. Court has stated: 633, 894, 898, 1303 629, 97 L.Ed. S.Ct. When defendants are shown to Gallagher, (1953). Carter v. See continuing practice settled into a . denied, (8th 1971), cert. Cir. will courts not assume that it has been 950, 92 S.Ct. L.Ed.2d U.S. clear Local proof. abandoned without (1972). International Brotherhood [of States, v. United Teamsters] case, judge In this of district is 396, 398, 804. It 54 S.Ct. 78 L.Ed. following fered the observations after five ef- duty courts to beware years litigation: protes- relief injunctive forts to defeat present Notwithstanding the crisis and reform, espe- repentance tations worsening appalling prospects timed cially when seems abandonment situation, planning has been there is suit, probability anticipate there dealing City problem with this v. United resumption. States Cf. United Rather, his- Department. the tedious 417, 445, 40 U.S. Corp., States Steel of this reflects occa- tory litigation L.Ed. 343. efforts, when sporadic usually sional and Medical Soci- Oregon State States v. United scheduled, proceeding a court has been 326, 333, 72 S.Ct. ety, 343 U.S. inactivity once followed almost total (1952). L.Ed. 978 longer the matter is no before the Court as a crisis situation. however, argued, [M]ore It is up excuses energy pointing fundamentally devoted has so opening of the NDF efforts to deal effective- than creative likeli the future altered the situation is here problem obviously with a ly conjectural “is overcrowding hood of of its accord— going away and is not own therefore relief equitable best” notwithstanding. new Jail appellants Brief for justified.” “hardly concerning Court considered at 23. skepticism This Court’s George hearings. impos- question April in its Department’s protestations Detention Serv Holland, urged Superintendent on this Court sibility compliance Corrections, tes almost from the Department ices for Appeals and the Court of possibility” “strong of March tified that there was' order original moment even af- continue would overcrowding confirmed entered, has been 1975 was supra. NDF, p. U.S.App.D.C., pp. see description 535-536 of 580 F.2d 40. For opening ter the of the New Detention Facil conditions. The court stated “[a]ll ity if “the rate of arrests and convictions' put efforts to induce the defendants Apr. continue.” Tr. 29 at 75-76. have been unavailing house order figures supplied by Based on the defendants now, up apparent and it is that no mean (1) the District Court found after that: ingful reasonably expected effort can be closed, Cellblocks 1 and 2 are the old Jail strong of the absent a order Court housing can continue in 376 inmates Cell- housing makes clear that inmates under 4, plus dormitory blocks 3 and 201 more in must cease.” unconstitutional conditions available;41 (2) areas if sufficient staff are F.Supp. thereupon at The court 117. the can NDF house 800 or 880 male in housing enjoined defendants after mates, depending upon whether one or two at 1, persons June the 1976 more than housing cellblocks devoted to women (215 in persons old Jail Cellblock 161 in from the overcrowded Women’s Detention Dormitory Cellblock 110 in and 91 in Facility; based on the underesti Further, Dormitory 2). since the defend mating previous projections, of far more stipulated ants had that the New Detention than projected the inmates for spring Facility “designed was to house a maximum 1977 would be held at the Jail that inmates,” of 960 J.A. at the court en time.42 The District Court was thus led to joined housing them from after June “the unmistakable conclusion persons than at more the NDF.43 notwithstanding that opening the of the NDF, the Jail facilities will continue to be There evidence in the is sufficient record overcrowded, plaintiffs will continue to injunction. this The dissent sim sustain be in housed violation of their constitutional of ply distorts the in the course its record rights and elemental standards human concerning of sup animadversions the lack F.Supp. decency.” at 114. port finding of the for the District Court’s hold, therefore,

We Jail and the District capacity there is the new suffi- testimony cient as evidence in the record to sustain the Court’s refusal to consider the opening capacity. reality District Court’s conclusion that the NDF’s ultimate of the NDF did not moot out case. new capacity of the Jail that the maximum stipulation defense was set at Question C. The Remedy testimony counsel of defendants’ witness,44 May 24, 1976, possibility own and the stretch On the District Court is- through sued capacity a second order to makeshift ar- alleviate overcrowd- May 24, memorandum, proviso Judges 41. In its court “if the Board of of the prospects Court, Superior Judge thereof, stated: “[T]he sufficient staff to or the Chief operate Dormitory good. selecting specify per- facilities are not a different method of unavailable, If released, sufficient staff is inmates will be sons to defendants shall be crowded into Cell Blocks 3 4.” governed accordingly.” at 117. F.Supp. at 114. Judge Superior Chief Greene of Court had proposed already special steps The defendants have also to reno- compli- taken to facilitate facility formerly vate the 36-cell for alco- used ance District Court’s March 1975 or- Occoquan, although holics that work Judge der. See Chief Greene’s Memorandum April still hearing. unscheduled Judges, as 25, 1975, ordering dated March expedited consideration bail review motions. Apr. 1976, Leroy 42. Tr. 30 at 263-64. Ander- son, Planning Chief Office of and Pro- Holland, gramming George Superintendent Analysis, 44. projec- of De- testified that these District, “consistently per tention Services for the tions were and defend- cent under ac- witness, tual.” Id. at ants’ own testified that 960 was the capacity facility: maximum provided overcrowding 43. The order also that if Now, you THE COURT: when run over recurred, defendants were to release “those capacity, you jail, can’t have them in the can pre-trial in detainees held default of the lowest you? jail. You them can’t have in the new bail, among amount of those detainees held it, gather you As I are situated so when same amount bail held those for the you get you have a full house. time, longest compliance May until with [the 24] Order obtained . .” Attached is case, protracted record in this how- from consideration was omitted rangements ever, that defendants’ demonstrates request amply District Court by the requirements compliance space with the defense counsel.45 has past order in the the District Court’s however, the most aware, areWe Although Jail’s been intermittent. received this issue was evidence on recent steadily populаtion grown —from completion the full April 1976 before of 1976—the spring to 1380 could District now NDF. The daily and fluctu- changes Jail’s population the harms whether readily determine The defendants widely by ates seasons. ago and a half year over a projected only sporadically compliance have achieved sensitive to We are also fact materialized. occasionally, “usually,” interests weighty governmental local stated, proceeding has Court “when a court that the “It is familiar doctrine involved. 1975, 7, for August been scheduled.” On may grant equity to court of extent which a example, the District defendants advised aid, and its the manner or withhold compliance by in they Court that would be remedies, its moulding may be affected 16, the District August 15, on yet October involved.” United public interest had defendants Court was that notified 183, 194, 59 v. 307 U.S. S.Ct. Morgan, September 16. States compliance been since out of 801, (1939). 795, Virgin represent- 83 L.Ed. See On January defendants presently in No. Railway System they v. Federation ed to were ian Co. this court that District 592, 552, compliance, on 29-30 40, 515, yet April L.Ed. 57 S.Ct. been seri- had that defendants Court found (1937). mid-January compliance from ously out of this to We therefore decline at time mid-April. Court. In affirm the order of Court Therefore, even the District if we the record to the District

stead remand that defend- remand should determine on anticipated if the over Court determine court compliance, the presently ants are in If the crowding in fact occurred. Dis the likelihood of apprise should also itself that the defendants are in trict Court finds the District infractions. If future despite the full violation the Constitution likelihood finds that there is a NDF, operation may of the it reissue its plaintiff class rights of the constitutional hand, On other should the court order. future, the court will in near be violated determine that the District Jail is not over of the case jurisdiction should retain there crowded and that is no likelihood of until it at the Jail the conditions monitor future, discretion, being in the near it determines, its overcrowded in its sound has ceased. relief. violations may decline to issue likelihood of future which, they city the maxi- THE WITNESS: We a full learn about have house. this get approximately figures And when I capacity or 500 and new the old mum with facility, push combined, very try in the old I have a full house. might well facilities question point At that what do— people,” “Some defense well.” over put ques- where them is an unanswered continued, people have “want more counsel tion. you, jail pretrial and what have committed to THE You entertain COURT: don’t no- ‘Well, say, just looking an excuse to and are for putting facility, in them that new do tion get they space Let’s them now. have you? ” 1976, Apr. Defense 95. Tr. 29 there.’ Putting THE WITNESS: what the new exchange cit- to the led counsel’s observations facility? ed the dissent: beyond Anybody THE COURT: don’t want to advertise THE COURT: You No, THE We don’t. WITNESS: sir. There top figure no matter what it is. space. be would Right. DEFENSE COUNSEL: Apr. Tr. 29 at 94. in adver- THE COURT: I am not interested out 45. Defense counsel’s restraint arose tising it either . that, although capacity of the concern NDF op. U.S.App.D.C., Dissenting at- substantially be could increased “[i]f 560 of 580 F.2d. wall,” pushed capacity if the maximum was announced “certain forces Bowles, changes Instead, See Hecht of clean Co. v. U.S. clothes and linen. 329-30, (1944); 88 L.Ed. 754 re- paragraph 2’s linen oppose defendants quirement Alabama, (5th ground Newman v. 559 F.2d on the 1977); EPA, Mining “generally policy providing Cir. adhered to a Reserve Co. basis,” (8th 1975); F.2d linen on weekly 536-38 Cir. Gates v. [bed towels] Collier, (5th 1321-22 and so “this aspect Cir. court’s order presents procedure plain- controversy affording Such a will relieve no case or predicate tiffs of the considerable burden and delay equitable relief.” Brief of initiating appellants However, proceedings. at 39. the trial court heard testimony that uncontested inmates prevent To any possible misunderstand- had not provided pillow been cases ing, any dispоsition we note just expert until plaintiffs’ before witnesses matter will appeal- District Court Jail; toured the linen then able on the basis record and findings laundering. collection for reissued after its below. Thus, Trial Tr. there is support 675-76. judge’s the record for trial determina- V. THE ORDER OF covering tion that order a court linen 5,1975 NOVEMBER necessary despite “general defendants’ On November the District Court policy.” concerning issued order seven aspects of As paragraph for the remainder of F.Supp. administration of Jail. 416 dispute defendants do not necessity at 105-06. The order was addressed to providing with a weekly change inmates policies Columbia Depart garments, oppose outer do but ment of applicable Corrections that are order pertains as it to underclothes inas- both old and jails. new There is thus no much as can launder inmates these small question of mootness.46 Defendants chal long items in As their cells. as inmates lenge paragraphs through 7 of that order detergent, water and we access to hot appeal.47 on see no violation in defend- constitutional will ants’ that the inmates contemplation A. Clean Clothing arrange cleaning of their own undercloth- Paragraph 2 requires defendants ing. “[pjrovide clean clothing (including under- wear) to all residents D.C. Jail and B. Recreation Outdoor clean bed linen and towels at least once a requires the defend Paragraph week.” ants to “[p]rovide at least one hour of out

Defendants not dispute pre daily do door for each recreation resident trial detainees regular are entitled to the Jail.”48 emphasize stayed February temporarily 46. We defendants in this On are, paragraph application pa- recognizes, lawsuit as the 3 in dissent those its to medical persons tients, crew, jail security “who work and maximum in- administer facilities that government Finding parties agreement provided mates. has for the District of - paragraph Dissenting Columbia not intended op. . .” was to cover first at categories, U.S.App.D.C., of 188 two we remanded the record at of 580 F.2d. The directed, feasibility suit was not as the further examination out- dissent seems imply, physical Jail, security door maximum at the recreation for stones of the old inmates. id. - April U.S.App.D.C., hearings at The District then held Court 554 of 580 F.2d, following policies through but at the after which issued the which these operated defendants conclusions: Jail facilities. 1) presented No was evidence to the Court paragraph required any dangers 47. The first provid- the order as to or risks involved in safety inspections security per various health and outside recreation to maximum D.C. provisions fact, regulations. part prisoners. Code and Jail This least two of defend- already agents of the order has been carried out and is ants’ that outside testified recreation challenged by security appeal. prisoners possi- not defendants on for maximum was ever, paragraph note, first, ought there was to have been ad although We before the District sufficient evidence quality dressed to the of recreation defend the conclusion Court to sustain available, ants required should be to make likely to recreation would be absence of than to its location. At the NDF, rather physical mental or health of the impair the example, indoor recreation facilities in see, g., Trial Tr. at e. detainees, mini-gymnasium clude a where inmates can Malcolm, 225; cf. Rhem Apr. play basketball and handball. Tr. remanded, affirmed and (S.D.N.Y.), hand, at 110. On the other the District 1974); (2d there was 507 F.2d 333 Cir. may salutary have had in mind the necessity for outdoor evidence about exposure effects of air and sun to fresh may have recreation. The District Court shine. Other courts seem to have come to facilities had in mind the absence indoor conclusion,49 this but there is insufficient physical exer vigorous at the old Jаil for case, how evidence on record to sustain it.50 On cise. J.A. at 297-302. In that Holland, George 7) security pris- At the old Jail maximum ble. administrator jail, receiving new testified that recreation for maxi- oners are not outdoor exercise. security prisoners security mum problem 8) Juveniles at the District of Columbia ap- developing but a matter of Jail now receive one hour of outdoor exercise propriate schedules. daily. practice This new will continue to be 2) Moreover there was no evidence policy in the future. presented which would indicate that defend- 9) jail in- facilities for both new personnel ants do not have the provide or facilities to prisoners. for all outdoor exercise door and prisoners outdoor exercise to held jail security prisoners at the Maximum security. maximum presently getting indoor one-half hour of 3) average theOn there are 136 daily. of the new The administrator exercise on deadlock at the Jail. District of Columbia plans presently developing recreation Department number Of that of Corrections give maximum and intends to for the new percent are officials estimate that 60 to 65 pre-trial prisoners, facility security prisoners ex- at that outdoor percent five to ten prisoners awaiting sentencing, and ercise. convicted percent prisoners. 35 are sentenced F.Supp. 25 to at 118. 416 Department officials also esti- of Corrections percent prisoners in mate that 20 of the held Carson, g., 49. See e. Miller v. 563 F.2d order, percent deadlock are there court 70 Malcolm, (5th 1977); Cir. Rhem v. 749-51 protection, per- are there for their own five (S.D.N.Y.), F.Supp. and re affirmed attorney’s prosecuting cent are there at the manded, 1974); (2d Alberti v. 507 F.2d 333 Cir. percent request, and one to ten are there as a County, F.Supp. Sheriff of Harris disciplinary procedures result of instituted Henderson, (S.D.Tex.1975); Sinclair v. officials. (E.D.La.1971); F.Supp. 1129-31 Jones v. 4) average, pre-trial maximum se- On (N.D.Ohio Wittenberg, curity prisoners charged who are with felo- 1971), Metzger, 456 aff'd sub nom. Jones v. Superior spend eight nies in Court to ten (6th Cir. trial, jail prior weeks in to their and an aver- age of four weeks between conviction and sentencing. charged rely- Prisoners with felonies may also have been 50. The District Court spend average and tried District Court an upon equal protection an rationale. Con- eight to ten weeks between conviction and provided outdoor inmates at Lorton are victed charged sentencing. Prisoners with misde- supra. See Whether this recreation. note Superior stay meanors and tried in Court equal pro- constitutes a violation of difference average prior an of twelve weeks to trial tection, however, depends upon a careful anal- and two weeks between conviction and sen- disparate purposes ysis functions and (These tencing. statistics are based on court Royster, institutions, two see McGinnis applicable prisoners.) and are to all records 263, 270-73, L.Ed.2d 93 S.Ct. Department is unable to The Corrections perform giv- (1973), analysis we cannot long prisoners determine how sentenced re- present state of the record. The en the security. main in maximum only found that: get 5) Lorton Prisoners in orientation at class quality of the enjoyed life for members day times a three outside recreation three days substantially to that inferior day days twice a two a week and prisoners at other facilities housed convicted week. Department of security 6) prisoners the District Columbia at Lorton Maximum The differences receive one hour of outdoor exercise five Corrections. days a week. sentenced between treatment remand, per the District Court should deter- indoor recreation day. Apr. Tr. at mine kind of quality recreational opportunities that must be afforded mem- Appellants also that the contend recrea- plaintiff protect bers of the class order to opportunities tional pretrial afforded de-

their mental will physical health. This security tainees held in maximum are mere- depend upon what other recreational oppor- ly process,” a matter of the “classification particular tunities are at a available facili- judicial and therefore immune from scruti- ty, may by temporal and it be affected ny. appellants reject Brief for at 37. We factors such as the duration of a detainee’s contention, emphasize pre- that a pretrial incarceration. presumed trial detainee is innocent even he is

Second, security detained under maximum we note that the record indicates conditions. The state cannot that, escape its with the exception of those inmates caretaking responsibilities by means of ad- hospitalized, who were working on the Detail, security ministrative classifications. Al- Captain’s being or were held in max- though may legitimately the state security, vary imum inmates of the old Jail re- conditions ceived two of confinement for maximum se- hours of outdoor recreation six inmates, curity days may security a week. use clas- J.A. at 296-303. As the parties pretrial sifications as a license to harm de- agree paragraph 3 should not tainees. cover the first categories, two the order is overbroad applied to the inmates of the We therefore approve finding Jail,

old since violations were found District Court opportunity with respect pretrial detainees held in some necessary form of recreation is maximum security. protect the physical mental and health of detainees, pretrial all and we remand the appellants now contend that since all record for a quality, determination security maximum inmates have duration and location of this recreation.51 NDF, been transferred to the paragraph 3 is moot. Supplemental ap- memorandum of C. A System Classification pellants, July 1976,at 7-9. appel- Unlike lants, however, we read the District Paragraph Court’s requires the defendants to apply order to to inmates of both the old “[ejstablish system a classification jails. and new Recreation at the NDF does possible a) will make it to determine which not comply with the standards of paragraph plaintiff require inmates of class maximum 3: Inmates at the NDF were confinement; to security b) scheduled and which mem receive one hour of indoor recreation per bers of enjoy class can contact visits [this] day, while security maximum inmates at without jeopardizing security of the the NDF were to receive one (a) half hour of Virtually part facility.” ignoring pre-trial Lorton and are would indicate not have the the Jail that defendants do detainees at personnel not security provide attributable to the needs of or facilities or outdoor exer- custody, part prisoners but are for the security.” most due cise to held in maximum overcrowding Depart- at the Jail supra. and the See note 48 The court made no find- ment’s however, decisions on ings, the allocation of re- about the administrative com- sources. plexities surrounding quality and duration inquire, at 104. The court did not possible opportunities, recreational nor example, for whether the difference was attrib- necessity prohib- about whether administrative utable to the rehabilitative functions of the provision ited the pris- of outdoor recreation to penitentiary at Lorton. security. oners not held in maximum On re- quality, clarify 51. The mand the court should duration and location these of recrea- issues. constitutionally required tion must of course be 52. After the District Court issued determined with its November reference to the administra- order, sought stay tive defendants necessities оf the Jail. The District ground provision plexiglass this court on the determined that of outdoor barri- recre- opportunities ational security ers were about visiting for to be installed in maximum prisoners security problem,” facility. February “was not a room of the On presented motion, “there was no evidence stating: which denied defendants’ persons Jail as to confined at argue to defendants paragraph,53 this without system visits contact may that a classification be accorded court this because the two, however, devised cannot be security. visits jeopardizing contact detainee’s of a nature “temporary light of this synonymous.”54 are not Jail, in contrast D.C. at the confinement evidence,55 hardly we can credit and other the commit nature of permanent the more sys that a classification defendants’ claims confinement, simply does not inmate’s ted visits cannot be devised. tem for contact classification of itself to the logically lend order as re Reading District Court’s visitors, takes on inmate and his both system but quiring only not a classification security considerations separate and distinct themselves, the defend visits also contact administrative greater accord sufficient visits are not argue ants further that such at 33. appellants Brief for leeway.” practical required that various by law and contra- However, position defendants’ compliance. As we prevent considerations statements. actions and dicted their own interpret we do previously, have noted issued defendants November On mandating con as the District order Court’s 4090.1, requiring each Departmental Order Moreover, we tact at time.56 visits this a classification superintendent to establish per order as District Court’s interpret security determining the level system for determining which mitting flexibility residents for unsentenced needed class can plaintiff members of subsequently in memorandum Jail. And security. jeopardizing visits without contact action, stated: defendants filed in this will conclude may It be that defendants system a classification presently “there is security (some) maximum (a) there are designated whereby persons certain visits with detainees who can have contact confinement for such security maximum (b) that there jeopardizing security; or others, out and a danger reasons as to self a substantial persons present who are made system whereby determinations U.S.App.D.C., pages---of page plexiglass the new Installation of F.2d, supra. 534 of 580 Should does not violate the order as written. require be extended to contact vis- the order jail, expenses visits here is some- 54. The reference to contact associated its at the new Arguably, ambiguous. what it refers dismantling plexiglass later with a Captain’s the classification of inmates for system previously there could not installed trial, Anderson, McGruder, Superin- Detail. At irreparable injury. rise to the level of Services, tendent of Detention testified early parties res- Both indicated interest Captain’s contact visits were allowed for Detail they join If in a of contact visits. olution inducement. He stated that willingness on the mer- to submit that issue inmates, willing staff was with these its, to sever that we will entertain a motion risk,” a “calculated but that he had made take and to handle from the rest of the case issue up attempt until then to determine whether expedited appeal after the on an basis justified risk. Trial Tr. inmates the same other point. filing supplemental briefs on that 1024-25(A). parties agreement among the was ever such No thereafter, Shortly Justice Chief reached. Burger stayed hearing, Department April 55. At pending paragraph final res- being prior transferred official testified Appeals. of this issue the Court olution already facility, been inmates had to the new given security plexi- proceeded Defendants then to install the old Jail. classifications at glass partitions at the new Jail. classifi- asked the basis for these Tr. 89. When Later, April hearing, at the an offi- to be the selection of inmates cations and Department cial of the testified that the rotun- first, replied: “We used the witness transferred dilapidated to be da at the old Jail was too computer printout looked at the offenses and repaired visiting and that the area of the old had, they and the time had to the man record section in Jail would be moved “into the thing we condition was another serve. Medical wing jail.” of the old Tr. 57. the administrative stability, and the at and the emotional looked general Department’s plans for at that time called knowledge the staff had of those prevent plexiglass barriers to installation of that existed in terms of men and conditions visiting. contact overcrowding.” Tr. 67. system for a classification 53. The need for explained supra. security designations note 52 56. See maximum 26-50, 514-21, 555, threat terms contact visits Trial Tr. even the foundation for though concerning per- are not classified as this order “maximum kitchen detainees; or sonnel is not clear us. security” both. classifi To establish a violation, system ultimately developed plaintiffs cation constitutional must will first in prove discretion, require volve the that defendants’ failure to exercise of defendants’ inspections injured monthly likely or is although this will be discretion immune to impair physical health of judicial mental scrutiny if constitutional pretrial The trial rights are detainees. record violated. Should classifica appear does not There is to show this. tion finally presented by scheme the de indication, however, some paragraph visits, preclude contact fendants all the Dis was not remedy intended a constitutional trict will if a have determine total violation, but in the November was included prohibition on be likely such visits will 5 order to force defendants to heed their impair physical or mental health of the 4740.1, own regulation, No. which re- D.O. detainees, periods especially for extended quires medical food examinations for han- pretrial If and when confinement.57 so, dlers twice month. If we believe the visits, District Court contact orders we will trial court should have articulated basis be particular able evaluate the strains jurisdiction for enforcing for the Dis- placed on the administration such an regulations against trict’s administrative it- light order in presumed innocence of Assuming self. the regulations detainees. law, pendent jurisdic- force Accordingly, we affirm paragraph tion provides order, a basis for an it would 4 insofar as it requires the defendants to necessary still seem show that there had devise a classification scheme for maximum been violations or threatened violations as a security assignments and contact visits. predicate for injunctive According- relief. Our affirmance permits the District Court ly, we remand the record clarification of proceed fashioning of an order the factual legal foundation subject visits, on the of contact it is so paragraph. advised; order, course, such an will be subject to appeal.58 later Mentally E. Transfer of 111Inmates requires Paragraph 6 the defend D. Inspections Health of Food Handlers following procedures ants to “[establish Paragraph requires the defendants to at the Jail: In the event an inmate at the “[p]rovide medical examinations all food Jail displays suggestive unusual behavior handlers, inmate employees, and civilian possible illness, mental such behavior shall the Jail a every thirty (30) least once days be immediately reported to the medical medically more often if required.” staff. The inmate aby psychi will seen Although the trial record clearly atrist within twenty-four hours. If the substantiates that facility the kitchen at the ill, inmate is found mentally to be he will be old Jail has many hygienic had problems, forty-eight transferred within (48) hours of ques 57. County Jail, Other courts that have considered the nom. Hall v. Inmates Suffolk right tion have found the elemental human 95 S.Ct. L.Ed.2d physical family contact with (1974); one’s F.Supp. 707, Wittenberg, Jones v. embracing one, friends —the of a (N.D.Ohio loved 1971), aff’d sub nom. Jones v. holding outweigh of a child —to Metzger, (6th 1972). unavoida 456 F.2d 854 Cir. But see See, security. ble threat g., institutional Feeley 76-1508, e. Sampson, No. Carson, (5th Miller v. 563 F.2d 748-49 Cir. (1st at 372-373 Cir. Malcolm, 1977); Rhem v. 507 F.2d 338-39 (2d 1974); (2d Cir. 527 F.2d Cir. aspect disposition Because of our of this ; 1975) Brooklyn Detainees of House Deten order, appellees deny the District Court’s Malcolm, (E.D.N.Y. tion v. appellants permission supplemental to file ; 1976) County Inmates of Suffolk Jail v. Eisen necessity question memoranda on of the the stadt, 676, F.Supp. (D.Mass.1973), 360 contact visits. aff’d, (1st Cir.), 494 F.2d 1196 cert. denied sub me no by rector and that we have facilities appropri having a finding hospital such to psychiatric patient to for a treatment kind care the care and ate facilities for Department within of Corrections.” order rested on This mentally ill.”59 agreed he Although Trial Tr. 1104. finding of fact: following be person problems should with mental display psy- jail Many at inmates Jail, stated that housed at the he D.C. these, desig- symptoms. chiatric Some persons such accept is forced to staff examinations, nated for mental court order by anyway. Some are there of Columbia to the District committed are Elizabeths. Others awaiting to St. transfer at Elizabeths bedspace St. Jail to await competent being found are held there after at- psychiatric require Hospital. Others insane) at Eliz- (though perhaps for trial St. returning Eliza- from St. tention after under no court abeths. Still others are completion of examinations. upon beths order, possibly are mental- but identified addition, some who are not In inmates are by inmates ly ill staff. These subject of mental examination orders treatment, but diagnosis and referred for From time psychiatric problems. become delays process long because this involves sixty seventy percent to time psychiatrist, severe and the Jail no staff hospital available at the Jail are beds problems arise. patients. The given psychiatric over “An in recognized, many As courts psy- not include a Jail medical staff does . . . dividual incarcerated becomes chiatrist, facility equipped and the is not dependent upon both vulnerable and house, psychiatric care for or treat basic provide simple state to certain leg Ordinary handcuffs patients. cir human needs. [W]here severely irons used to some shackle to indicate clearly cumstances are sufficient because inmates their beds disturbed injury for the need of medical attention devices are una- restraining appropriate illness, aid constitutes the denial of such re- was (One observed vailable. inmate deprivation process.” due constitutional commencing third consec- his ported (6th Shappell, Fitzke v. 468 F.2d restraint, under utive week such [foot- v. in Estelle 1972), approval Cir. cited with Court]) by note Gamble, n.11, F.Supp. at 104. (1976). v. See also Westlake 50 L.Ed.2d “mentally ill in Defendants concede that Lucas, 1976); (6th Cir. Runnels 537 F.2d 857 facility and not belong mates hospital ‍‌​​​‌‌‌‌‌​​‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌​‌​​‌​​​​​​​‌‍1974); Rosendale, (9th 499 F.2d 733 Cir. v. Brief at 42. jail.”60 appellants (C.D. Pitchess, F.Supp. Dillard v. Cal.1975); County The Health Coordinator for Jail Services Inmates Suffolk Eisenstadt, (D.Mass. trial: Department Corrections stated (1st Cir.), cert. 1973), aff’d, Depart- “It is felt 494 F.2d Director v. Inmates of Suffolk Corrections, the Assistant Di- ment of denied sub nom. Hall being violation and was traffic held at District Court 59. On December space custody was paragraph protective trans- the Jail in until modified 6 to make clear that hospital waiting three must After of sentenced St. Elizabeths. fer inmates available at transfer, hanged requirements days The oth- 24-302. himself. § meet D.C.Code he following The court added the notation: immediate transfer er was recommended for days he was still later St. Elizabeths. Seven comply require- shall with the Defendants hanged indicаted Jail Counsel himself. ments of 24 as modified § D.C.Code examples inmates two that these were Hardy, U.S.App.D.C. Matthews v. psychiatric had who known to have disorders involuntary effecting transfer Tr. 982-88. suicide. See Trial committed paragraph. prisoner of a sentenced under this addition, excerpts rec- medical from inmates’ stay Appeals After the refused seriously trial, indicating that were read at ords temporarily paragraph, Burger Chief Justice regularly at the held disturbed detainees appeal. stayed pending completion of this their exami- Jail for weeks before and/or after trial, plaintiffs’ At read from counsel 904-07, St. Trial Tr. nation at Elizabeths. who had com- medical records two inmates See 933-39. 1037—41. also Trial Tr. charged mitted suicide at the Jail. One Jail, ty to transfer inmates to County may 419 U.S. S.Ct. St. Elizabeths (1974). L.Ed.2d 189 outside hos ability provide bear on their to hours, it pital within 48 cannot excuse care challenging underly Without this obligations their to attend defendants from ing legal principle, initially defendants ar to promptly appropriately the medical gued requirement that the 48-hour is too pre needs of detainees whose incarceration compliance impossi inflexible and that is finding vents them from their own treat only They ble. contended that “the such ment. It is also conceivable isolated facility currently available is Elizabeths St. may situations arise where transfer within Hospital District officials can [to which] hours not feasible or where a detainee transfer no inmates . . . without the mentally may found be ill be in not advance authorization of the United of appellants hospital States.” Brief for at 42. immediate need treatment. Al More however, cases, recently, have lowing exceptional defendants in for such we modi formed us of the construction “on the fy defendants to paragraph require 6 to grounds of the District of Columbia General to the District report submit written psychiatric Hospital 30-bed facility special Court [of] whenever cause to * * * which, hoped, it is will ‘relieve as now deviate from written. that order awaiting backlog of those cases transfer report give Such the reasons for should ” Hospital.’ Supplemental to St. Elizabeths within which deviation and the exact time of appellants, July memorandum at achieved; a re compliance will be second point facility 3. If at some this should port should then be submitted when trans prove generally inadequate complying fer actually been effected.62 order, with the District Court’s the defend ants of should seek review that order in the F. Restraints event,

lower court time. In such we Paragraph requires defendants to expect would the District Court make procedures gov following “[establish specific findings addressed to the feasibility erning use of restraints: transferring mentally ill detainees to a) will be requiring inmates restraints government private hospitals, or pro or Hospi- housed on the floor Jail third viding suitable care at Jail devel tal, Hospital; or D.C. General opment unavailable, presently services as b) unpadded a predicate reaffirming leg or modifying its handcuffs irons general plan. transfer We that al shall not circumstanc- stress be used under though restraints, defendants’ asserted lack of authori- Medicallyappropriate pad- es. requirement holding oppose 61. do Defendants not cuit habeas lies when apparently patient ill seen places punitive seek transfer from of more hours; psychiatrist they object only within 24 (e. g., punitive less conditions of confinement requirement. 48-hour transfer solitary general from confinement incarcera- tion) goes very because this transfer “the argue 62. Defendants also transfer of a physical imprisonment.” fact or duration his prisoner place one from of detention to another see, g., Ricketts, (5th e. Krist v. 504 F.2d 887 falls “within the traditional core of habeas cor- type Cir. Whatever our views on the pus,” “any and therefore related relief must at Circuit, transfers addressed Fifth initially sought judicial least be on the local nonpunishment believe that transfers to a men- prerequisite level as an essential to the exercise system tal health unit of the correctional D.C. jurisdiction of federal . D.C. [under] involve “conditions of confinement” rather Code, ll-921(a)(3)(A)(iii), § § 16- very] than “[the fact or duration of appellants 1901.” Brief for at 24-25. Defend- physical imprisonment,” and thus do not come rely Rodriguez, ants on Preiser v. solely category corpus, within the of habeas (1973), 93 S.Ct. 36 L.Ed.2d 439 although may relief habeas alternative afford going holds that claims fact duration challenging for inmates condition imprisonment, opposed to the conditions confinement. See U.S. at imprisonment, have as their sole federal Accordingly, exhaustion remedies remedy corpus habeas with its attendant re- Superior required prerequisite as a quirement exhaustion state remedies. to federal relief. Defendants also cite Fifth cases Cir- ing appel- or injury arbitrary practices by to the abusive pliable prevent to ded or utilized; restraints, inmate, lants as to the use of it is may be sub- mitted that the court below has . c) imposed only on may restraints unwarrantedly ursurped prison the [sic] of a the written authorization specific ” management function. . . Brief for doctor; medical However, appellants at 46. as in noted required emergency in situa- d) if an section, preceding specifi- the District Court Jail, a not at the a tion when doctor is cally “[ordinary found that handcuffs and (MTA) or a Medical Technical Assistant leg severely to some irons used shackle tempo- Registered may order Nurse beds ap- disturbed inmates to their because restraints, subject to the re- rary use of propriate restraining devices are unavaila- otherwise, of ceipt, ap- by telephone or ble,” one personally observed inmate and proval from within two a medical doctor commencing third consecutive week un- his (2) imposition of of such re- hours Trial Tr. der also such restraint. See straints; trial, According testimony to restraints kept reflecting the use e) loga will be be used without a supposed are not to doc- restraints, stating of each such and n 1144-45, authorization, Tr. tor’s Trial but restrained, person use the name of the applies only inmates rule to restrained placed in date and time he was re- hospital. Jail No evidence was of- straints, approv- the name of the doctor indicating present pro- that fered restraint restraints, ing time the use of of log requirements cedures include or approval; such time restraints of the District Court’s order. f) authorizing orders a by doctor Hence, apart from defendants’ assertions on use of valid twenty- restraints are appeal, we have no basis to conclude that only, four hours no further findings clearly erro- lower court’s written order has been entered within superfluous. that neous or its order is period, the inmate shall be released restraints; however, from order note, as We do minor re- written is deficient in several g) no restrained inmate shall be housed Jail; First, spects. only to the old it refers a permit such manner as access to second, temporary it for the fails to allow inmates, by him with the non-restrained doctor, a inmate until MTA restraint exception approved inmates affirming can In nurse be summoned. employment in the hos- medical staff for paragraph we do not foreclose modifica- pital area.” by the District cover these tions (The at 416 appears order it omissions. wording does of the order as not reflect the it on appears the Docket Y. CONCLUSION Court.) Although paragraph 7 is not ex- pretrial The life of at the Dis- detainees plicit, apply only to the construe trict of Columbia Jail has been marked pretrial restraint of dеtainees display- those deprivation, neglect degradation. Con- possible suggestive unusual behavior trary of the dis- repeated assertions mental illness. sent, opening New Detention that such essentially Defendants concede case, for the Facility does not moot extraordinary liberty on the restraints to ex- continues danger of future violations require special and con- detainees ist, and, event, many plaintiffs’ nature, tinuing justification of a medical continu- arise claims defendants’ carefully supervised so must be ing policies. they unnecessary harm- become nor neither hardships Addressing egregious ful. the more position Defendants’ al- imposed plaintiffs, District Court’s ready in most re- procedures follow these nutshell, as affirmed as- argument findings various and orders spects. a minimum right sure each any proof that “in the establish- detainee absence own, space regular change his stone centuries ago linen observed that “what [is] recreation, daily clothing, outer ra- requisite must . often be left prevent tional security classification to ex- jailors.” Blackstone discretion possibly cessively harsh confinement and on, however, jailors complain went visits, prepare the way prompt for contact men, “are frequently a merciless race psychiatric care, regulated carefully and, being of mi conversant scenes provisions use of restraints. These so sery, against tender sensation.” steeled * essential decent custodial care and so Blackstone, 4 W. Commentaries We clearly justified by 6-year history the of this deeply hope intervening years the litigation that we cannot conceive how they comp the of disproved causes Blackstone’s could ever be considered unwarranted in- laint,63 ultimately only with the prerogatives trusions into the of local cooperation jail whole-hearted of adminis government those prerogatives —unless rights pre trators that the constitutional of translate into total immunity from federal protected. trial detainees can be That co judicial review. operation would most meaningfully ex pressed the The if defendants in case constitutional standard we have an- this promulgate today requires regulations nounced rules or incorpo District Court to evaluate requirements rating of admin- constitutional standards we have istration. We see no alternative creating regular procedures enunciated and rights of complain detainees are to be re- whereby pretrial can on detainees spected. Nevertheless, keenly of alleged infringements record their aware of the way wisdom Justice Powell’s In rights.64 constitutional the de advice that equipped “courts are ill to deal can in bring fendants the first instance urgent the increasingly problems of expertise own considerable to bear. prison administration Procuni- .” Not will in a procedures such obviate Martinez, 396, 405, er v. 94 great necessity number of instances the (1974). 40 L.Ed.2d 224 Black- judiciary,65 but involving federal if re- sadness, however, grievances.” 63. We must with some note dress of See 14 Am.Crim.L.Rev. which, the conclusion (1977). of a recent decision survey grievance after a 569-89 For surveying “legion” of recent cases con- procedures presently operation, Comp- in see pretrial detention, cerned with the conditions of States, troller of the United General Grievance observed that conditions were “barbaric”: in Mechanisms State Correctional Institutions escape cannot awareness that “[W]e conditions Large-City Jails, 17, (B-171019). June 1977 many pretrial in detention centers have study grievance proce- 65. A recent ward shocked the conscience of courts across the Authority dures California Youth found Pugh Rainwater, 1189, nation.” v. F.2d that, 1,496 grievances aof total of filed be- Cir.), (5th petition & 1191-93 n. 6 for reconsid- September April “only tween grievances, granted, (5th en eration banc 562 F.2d 362 Cir. percent total, 1977). needed out- produce side arbitration a settlement.” Na- Burger 64. As Chief Justice in has observed a tional Institute of and Crimi- Law Enforcement speech to the National Conference of Chris- Justice, nal Law Enforcement Ad- Assistance (Nov. 16, 1972): tians and Jews ministration, Controlled Confrontation: The This, essence, every penal in is what institu- Ward Grievance Procedure of the California having tion must have—the means of com- Authority 5, (1976). Keating, Youth See plaints decision-making reach sources Applied: Way The Justice Model A New through established channels so that the val- Complaints of Handle the California Youth Au- grievances spurious id can be remedied and Awards, thority Loy.L.A.L.Rev. grievances exposed. (1976): Jr., McArthur, quoted Keating, in J. V. M. Lew- early 1976, percentage As of cases is, Sebelius, Singer, K. and L. Grievance Mech- appealed to outside review had fallen to one (Law anisms in Correctional En- Institutions percent. type of issue submitted to arbi- forcement Assistance Administration widely, running tration varied from a The tentative draft ABA’s Criminal Jus- provided dispute over medical care to an in- Project Relating tice Section Standards grievant dividual to one claim of ward’s Legal unambigu- the ously Status of Prisoners states right display politically constitutional un- guaranteed that “Prisoners should be ef- popular paraphernalia right in his petition room. As of fective exercise of the for re- temporary stays of this court are the ad required court is sort to federal will “assist vacated. produced record ministrative litigation.” any resulting disposition ordered. So Cameron, U.S.App.D.C. v. Rouse (1966). n. 22

371 n. MacKINNON, Judge, dissenting Circuit Jacobs, U.S.App.D.C. See Dixon concurring part: part Furthermore, (1970). 427 F.2d responded to re Congress 1969 the will enable administra procedures such quests from the District of Columbia mistakes, thereby tors to “correct their own appropriation survey the first made they must number of times minimizing the step leading required which was the first court, do defend, really a decision improvement replacement Bazelon, Impact support.” building through facilities old D.C. Jail Administration, 52 Ind.L.J. Courts on Public housing of jail primarily for the 101, effect of (1976).66 The cumulative time thereafter pretrial detainees.1 Some Depart the to lead procedures such will be design of 1971, planning the and while and self-con carefully of ment Corrections housing jail to conditions rectify the new of constitutionality sciously the to consider detainees progress, pretrial was in several the Dis at the of confinement conditions brought the this action. old D.C. Jail of Jail.67 trict Columbia for clarification The record is remanded I. THE COMPLAINT of consideration and further paragraph 21, 1971, 5, July complaint, Their filed of the November paragraphs and 4 (1) judgment a that the sought declaratory stay our of the order. We continue rights pretrial of the detainee 21,1975 constitutional order of March District Court’s being violated the “condi plaintiffs were May stay its second order by confinement in the “District tions” of their the record for further consider- we remand (2) permanent in Jail” and a Except relief. mod- Columbia appropriate ation junction against responsible District of the orders of foregoing opinion, ified in the affirmed, continuing to officials from vio- are otherwise Columbia District Court authority prison grievance proce- single disposition As 67. one a a March not procedure it, grievance put had been tak- under the dures has “There are . . . adminis- (Foot- griev- or properly functioning en to either a state federal court. payoffs in a trative omitted.) present facilities. The case is thus moot for they bond, are post they unable to that are practical all purposes and should be dis- presumed innocent, they that are incarcer- Instead, however, missed. the majority solely presence ated to ensure their at trial gnaw seek to on an old bone. “physical and that the conditions of [their] The confinement majority opinion constitute unconstitutional contends that punishment” case is not arguing: they because are “overcrowd- moot— ed” in cells that violate “minimal architec- order was addressed [District Court] jail tural and the is standards overcrowded policies of the District of Columbia and its heating, ventilation and other as- Department of appli- Corrections that are pects of the physical condition cable to jails. both the old and new (Par. 10). constitute health threat” is Plain- question There thus no of mootness. food, tiffs (Maj. complain inadequate also op., p.-of rec- U.S.App.D.C., p. facilities, programs reation F.2d, and contact emphasis added) 544 of 580 general community. with the Included in The suit was not directed ... the latter allegation objection is an to cen- physical stones of the old Jail . mail, sorship of visitors, limitation on lack but at the policies through which [the] telephones, access to newspapers and operated defendants the Jail facilities. other means of communications which it is (Extract from n. Maj. op.) “First, Fifth, asserted Eighth violate their The court’s assertion is facially fallacious. rights.” Fourteenth Amendment Hos- Merely addressing an order to policies at a pital alleged and medical services are to be jail that was not subject litiga- inadequate measures,” “security as are the tion, and concerning adequate which no rec- e., protection i. prisoners. from other ord has policies, been made as to its is an Through allegations, foregoing support insufficient base to the court’s or- others, plaintiffs practically all the assert der. The lawsuit did not involve the new possible prisoner complaints, including the jail testimony and the as record charge complaint that constituted a each jail old support is insufficient the court’s constitutional violation. jail order insofar as the new is concerned. While the people oper- same administer and Finally, it all these alleged that condi- jail ate the new (Maj. op., as did the old one additionally tions confinement are uncon- II. THE SUBJECT MATTER OF severe stitutional, they more because plain- that punishment post-sentence than THE LITIGATION in- correctional might receive other tiffs allegations complaint From the (this might be sent they stitutions jail the old obvious that “conditions” Reformatory also adminis- Lorton includes plaintiffs’ com- subject were the matter Columbia), by the District tered July 1971 and filed plaint. The suit was they not be should as detainees” “pretrial being facility then that was the detention because such confinement subjected to and it was District of Columbia used innocent presumed awaiting trial and plaintiffs’ incarceration. situs of (Par. judge were also hearings trial before the a determina relief seeks prayer for Their jail. directed “conditions” at Some rights have their constitutional tion that principal features are described its injunction violated, a permanent been majority opinion. prac of such against a continuation issue au the D.C. omissions and tices and plan to submit required thorities be III. THE APPEAL against continuation of guarantee future defendants, The District of who Columbia com alleged practices and conditions so administer facilities demanded, among plained Specifically of. government provided for the District relief, the establishment of “a other Columbia, orders of appeal from the program,” . regular recreational . . 21, 1975, (2) (1) District Court of March . vocational “an educational 24,1976. 5,1975, May “that November voluntary program,” prison work ma- to talk and opportunity response appellants’ contentions

ers have continuous other,” “that associate with each jority oрinion concludes: quantity and to a sufficient have access 1. The conditions which newspa books, quality magazines, le- Court finds serve no objectionable materials,”3 “that legal pers, law books and gitimate purpose of detention. ensure . visiting conditions Detention opening 2. The of the New conversations, conjugal rights, privacy of Facility not the case. does moot periods,” and “that visiting additional and entitled to 3. Each detainee is in persons placed limitations be (a) cell with a minimum of see, with, and re communicate may mate square feet, (b) regular change communications from.” ceive (c) clothing, linen and outer some con- the trial court were Hearings before day, (d) a form of recreation each 13,1975 4 March and ducted from March to prevent security classification testimony of record all pages covered 1372 harsh possibly confinement and jail. old A dealing operations with at the visits, (e) prepare way the for contact were great appellants’ demands many of reg- psychiatric care, court prompt (f) court, denied, rea- the trial for obvious by p. (Maj. op., ulated use of restraints. - sons, granted. majority were but some pp. U.S.App.D.C., 551- part in the District Court opinion affirms F.2d). 552 of 580 respects. record in material but remands the legal Smith, substantial differences between the v. U.S. 3. Bounds prisoners jail prison in a (1977), in a and those authori status L.Ed.2d holds that might to less provide lead correctional institution in institution must ties a correctional jails, de- in the of a demand for law libraries law libraries or ade with access to detainees, by pretrial quate persons in mand for law libraries from trained the assistance being right guarantee based on their of “access in constitutional law order to courts,” Accord, D.C. Jail rights is answered insofar of “access the courts.” availability Gilmore, Younger in all cases concerned v. U.S. 92 S.Ct. adequate persons in aff'g, Lynch, trained (1971), assistance 30 L.Ed.2d 142 Gilmore (N.D.Cal.1970). While there law. police 4. The is remanded for the Dis- sion of offenders by record and ac- trict jurors, to consider whether tions and prosecutors, orders of point judges and the jail, up (including judges) this federal subject lawsuit, Congress unpredictable is overcrowd- and uncontrol- this —all Thus, ed, and, so, lable defendants. while the de- if to order relief which jail they fendants administered the did not may include the release of inmates respect its population. control In this jail. from the judges, were the handmaidens of magis- above, lawsuit, As stated started in personnel, trates law enforcement po- 1971, was directed at conditions in old lice, FBI, Secret Service the United jail. hearings All the before the trial court Attorney. States Pretrial detainees were operation jail directed at of the old confined in the pursuant to arrest war- following completion of original Thus, rants and other court orders. much hearings the court order of March of the criticism directed at defendant was operating directed to conditions at D.C. pop- authorities over excessive jail. principal complaint old di- was ulation was at whose re- people directed against rected conditions Cellblocks 1 and sponsibility causing that situation was 2 which had been built in 1872. Cellblocks very minimal it existed at all. In the last completed were in a differ- analysis required it Congress was was ent category. appropriate money and the necessary All the pending, time this lawsuit was provided size deter- appropriation it year least a before it half capacity jail. mined the size and of the new started, the D.C. authorities were at- present inadequate If facilities tempting to correct the conditions here Congress eventually that must take action complained by taking steps the necessary to correct the situation. The strident tones to obtain the еrection of a new modern directed the D.C. defendants should be jail adjacent old facilities. The new — responsi- softened because of their limited jail, inmates, capacity normal for 960 bility ability rectify and their limited was originally be completed scheduled to Whipping public situation. them in does January (Tr. Apr. p. not get job done. The defects Defendants representations in some of their proposals suggested by Court, the District to the court relied on this comple- scheduled infra, pages discussed on 20-23 are self-evi- tion date. When the builders did not meet dent proof something may more even- date, anticipated the defendants were tually be if the problem needed escalates. to comply unable on schedule with their plans for improving the conditions incar- IV. THE COURT HEARINGS up- ceration the scheduled transfer of plaintiffs’ complaint On the extensive wards the thousand and clos- hearings covering operational were held the ing of delay cellblocks 1 and 2. This led to jail. 21,1975, facts at the On old March wrangling some plaintiffs with the and the court filed a memorandum and order de- delay completion court. The of the new claring plaintiffs’ rights constitutional were jail was due to the contractors and their being violated and directed defendants to work force beyond and the control of comply aspects with all of the order no later defendants, It is unseemly take defend- days than fifteen from that date. Such ants delays to task for these in the con- obviously time limit did not address itself struction schedule I dissent from the practical realities. apparent finding that defendants were hearing April Thereafter a was. held on

guilty “illegal Maj. op., conduct.” p.- 29 and primarily on the issue U.S.App.D.C., p. 541 of 580 F.2d. possible overcrowding. During current this

The overcrowding jail the old was not hearing a few references were made to the the primary fault of defendants. It was developing with the com- situation that was apprehen- caused frequency pletion jail. of the new inmates, for 960 jail old ditioned accommodations in the some inmates that time At jail (Tr. rationally to the new could not reach the transferred the trial court being were 29, 1976, 8) to the full but transfers record of the April conclusion it did. factual completed jail were not of the new capacity hearings the situation in did not address completion date of its official after until principal jail which the new became 29, 1976, 45). (Tr. Apr. August rationalized facility. The court detention deficiency to this plaintiffs’ counsel as completion of hearing since the in the trial record: was held on October jail the new (Tr. subject of “contact visits” Oct. on the load the record You can THE COURT: Thus, hearing has 1-6). no pp. . . . happened. with what has [I]f into jail new came use held since the been happened, we what had housing pretrial de- on the “conditions” here, right? . . . And . wouldn’t existing circum- presently tainees under only thing can make we that is about the jail has a normal stances. The new now rec- recognizes that a on. record [This and “with cell- 960 inmates capacity for against new ord could not be made . . since blocks the] [closed when we I know You and conditions]. (Maj. op. p.-of summer 1976]” [of prognosis here that the get testimony F.2d), p. U.S.App.D.C., 536 of and I know that fairly gloomy. is You complaint against for the principal source they now see later are overcrowded [? (as housing op- quality of conditions we comment], suspect but I don’t It has been removed. posed quantity) projec- delve into the business of have to being that, jail with the new follows at the [They tions. should have looked inmates, housing principal source for new if wanted to conditions in toto present and does not old record is stale issue an order directed to new conditions. support evidence sufficient substantial The failure “to delve into the business application the court’s order by the stan- projections” a fatal error is presently exist- radically changed majority opinion dards be- even of the concerning no evi- ing “conditions” — “whether cause consider the court did not The case involv- dence has been adduced. likely to is illegal defendants’ conduct did, jail as it the old is thus moot —the ing, [Maj. op. recur .” p.-' of 188 complaint plaintiffs’ to which the conditions U.S.App.D.C., p. 541 of F.2d] hearings were ad- the trial court’s cases there cited]. dressed, The factual record longer exist. capacity, guess I nail down the will present does not address case it has fact that right, and establish the jails to which it operating conditions suspect I overpopulated, been sup- is thus not is The order addressed. to fashion ultimately you will ask me ported by evidence and has be- substantial it? prohibit some relief that will come moot. HICKEY: That is correct. MR. hearing During April before any dif- It doesn't make THE COURT: expressed trial court some concern was [involving projections ference about involving the case the old over status of jail] the new so. [But point- Appeals had because the not determine District Court could open.” about to ed out that “the new wrongful “the behavior allegedly whether it trial court indicated At that time the expected reasonably could . . . respect to the thought with statistics - [Maj. op., p. to recur” of 188 U.S. sufficient, by merely add- jail old would be App.D.C., p. 541 of 580 unless it F.2d] jail, the new to ing capacity the normal projections,” went into the “business injunction directing opera- the support an which it did not do]. eellblocks and jail, tion of the new and am what I guess HICKEY: I MR. change material such a in the future. With Appeals’ thinking is the Court about housing prisoners, as was occa- they when language stay last order air modern con- the most by adding sioned jail open.. happen about to said that new is tomorrow. We don’t have to un- obviously disturbing thought a somebody was veil them all if he thinks [This counsel, anxiety as it been to the should have and and neurosis to going is [sic] up jail. fill the new Court]. may bridge This be a don’t have to we Apr. 29, pp. (emphasis Tr. 165-67 add- They compliance today

cross. are in ed). [this prior is a contradiction statement apparent It is colloquy from this that the now.”], so “they are overcrowded we subsequently underlying theory, announced stay will continue the overcrowd- order, by the court in its was that if the ing order was addressed old [which jail capacity of the old was established and jail]. facility overpopulated, such had been me, THE It as you COURT: seems “gloomy court, prognosis,” there a subject say, the matter of the lawsuit is just by taking “glimpse into category people. is going happen (em what tomorrow” MR. That HICKEY: is correct. added) phasis jail, with the new and with THE COURT: Inmates wherever they “delving projec out into the business of are. [Actually subject was inmate tions,” population could decree the limits jail]. “conditions” at the old dormitories, cellblocks 3 and So, so, if that is can then I deal with merely capacity add the normal of the new facility the old facility and the new as a jail and, any testimony without further composite. taking showing any present, [Without or projecting any evidence]. fu It doesn’t make whether difference operations ture adverse effects from they are in the facility new or the Ar- and conditions of facilities with the new mory or wherever are. other jail, [In an injunction issue the future words that the court a continuing has center, against the jail entire detention ability because there was lawsuit di- and all. The the “fore majority find rected at “conditions” in the old court, cast” of the on no more trial based thereafter deal with all D.C. “glimpse,” substantial evidence than a mere wherever they are. Such wholesale ex- constitutes “sufficient evidence in the rec pansion of court’s authority on stale ord to injunction, sustain” the p.-of cоmplaint and a stale record is unwar- U.S.App.D.C., p. 542 of 580 F.2d. The ranted]. however, “forecast” “glimpse” It seems to me I deal with it in terms hearings without and substantial evidence people. so, of other And if that past indicate that conditions will contin seems to me we can what Mr. avoid Ned- future, ue into merely up add to noth rich Assistant Attorney] U.S. talk- [the ing more speculation conjecture than you about. Do understand what I am and therefore the majority remand the rec saying to you? injunction ord phase of the case to

MR. NEDRICH: Yes. the District Court to determine “if the an ticipated overcrowding THE fact COURT: You Miss has in oc Crisman that, Maj. op., p. talk about and the curred.” -of you U.S.App. three of talk D.C., p. 543 of about I 580 F.2d. that. think that is feasible. agree you I saying. what what [sic] sum, by refusing the District Court before, We went into you know. “projections” delve into did not though might I we have some lee- future, [sic] look into the it did not even look at have, might I way. thought you its present conditions. It rested case on

know, space. but there is no head past ignored complete- the new get I think we enough ly can record except capacity to tack on its normal satisfy of Appeals the Court with what capacity the restrained units and fix happened up to now and what as a difficulty limit. The with such glimpse get going specula- into what is conclusion is that the “if” is too

559 anticipate under what circumstances the District Court tive, particularly when ap- testimony respondents as there would be made to any consider refused to petitioners jail pear if some of in future before new capacity ultimate speculation and converted dor- “takes us into the area areas were the available 496-497, court, Id., 669. conjecture.” in the collo- 94 S.Ct. the trial at mitories. When figure quy the United States firmatively: D.C., blocks 1 and the court indicated it ney: n. include the new order the actual “I the new capacity The trial court made the same error that mum adjudicate at thus never made 1976, was not based the exact was made L.Ed.2d 561 quoted its “conditions” ton, Goode, junctive effects.” the Court concluded that present case or Since nied 45. It am 1700 hearing order. set forth at (1974). illegal p. 96) said to the p. 560 of 580 F.2d infra O’Shea capacity “You don’t not [maximum its . ” people] respect there is no evidence U.S. of the new jail should have interested in maximum (Emphasis capacity handling following conduct does not relief, however, any 38 L.Ed.2d Id., (1976) there. This “Right”; and the court stated: U.S. In Rizzo in full closed, ’ capacity the trial courts in Rizzo on continuing, no matter thereto testimony Littleton, page-of jail in its want to advertise controversy regarding in- capacity any supportable 495-496, 94 S.Ct. further Attorney new or from O'Shea: added); capacity. The court jail, operation, with been if was “not interested” United States substantial advertising of the new as to the the Court is a fatal defect in jail. clearly what O’Shea Little the trial court’s as for the “[p]ast exposure present adverse 94 S.Ct. recognized new in itself injunction S.Ct. here it intended to answered af- to the maxi- 188 at that (Tr. finding as to U.S. Cf. unaccompa- 38 L.Ed.2d erroneous. jail maximum U.S.App. v. Maj. op., is”; covering evidence jail Apr. new it either 598, 46 ^[669] opinion 488, 94 show Attor- or to point Cell- jail top 20, v. 369 U.S. reasoning the at 605. 526 of 580 satisfactorily distinguish Rizzo. sonal gaard, 416 U.S. 373, pp.---of Rizzo v. ord dents police 663 (Maj. op., p. 367 U.S. 40 L.Ed.2d jurisdiction to assume tial 989 cient 406-407, ware Mitchell, 330 U.S. by opening of the lants’ was initiated. The no L.Ed. less take over drawing boards even before ty Committee for Oregon A While the are insistent protestations application (1962), a promise. present change indicated that majority’s mere threat of 580 96 completion (1961); stake in the of efforts to avoid mootness. 754 complaint disciplinary procedures.” (emphasis . S.Ct. S.Ct. State Medical Goode, 423 497, 507, 186, (1947); F.2d. . i. S.Ct. situation and controversy 164 at 605. e., - 204, Supreme . United here in circumstances warning that we should “be- Human new 312, upon to defeat [of] of future added). lacked the quoting (1974); 75, see outcome,’ ‍‌​​​‌‌‌‌‌​​‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌​‌​​‌​​​​​​​‌‍clearly management 81 S.Ct. of 188 U.S. 82 S.Ct. repentence and reform” “the jail, 188 U.S.App.D.C., p. the construction the order 89-90, L.Ed. 978 also, the court’s extending complete control over Society, The view of the substan- Rights, Public Workers Court at L.Ed.2d individual set moot, On SEC 372-373, 96 United States thereby more U.S.App.D.C., injury is insuffi- DeFunis Ode- injunctive majority Poe v. 1752, 6 L.Ed.2d 67 691, Baker forth in requisite is an occasioned 94 S.Ct. held the rec 404 this lawsuit S.Ct. overhauling (1952)), has 423 was on of the new v. Medical 7 L.Ed.2d foregoing Maj. op., U.S. actuality v. Ullman, respon majori- v. U.S. 556, do (1972). appel- relief Carr, 1704, S.Ct. ‘per 403, not 91 at p. v. v. That is not the continuing basis. bearing on “past are evidence wrongs while subject of the court’s was the lawsuit that a real immediate whether there is for it. justification attempt hearings, I see repeated injury,” threat of 560

However, remand, have, tential It capacity. on the District should even required will be to take evidence on the though the court and defendants possible jail maximum capacity of new against seemed have some reluctance able, complaint and will be if the is amend- “advertising” it. conditions, ed to present include examine THE COURT: You don’t want to ad- perform- defendants’ actual record top figure vertise the it matter what ance in the years operating first two is. new jail stronger far than mere —evidence Right. MR. NEDRICH: “protestations of repentence reform” THE I not COURT: am interested unaccompanied by identifiable any actions advertising it either . changes in circumstances. transcript quoted reference above (Tr. 29,1976, 96). April stage At this it makes clear that the district con- court hearing it the United is not evident wrongs” sidered that the “past were suffi- Attorney States that the court aware cient, investigation without substantial jail new intended to include the its in- presently situation, changed sup- junction taking testimony without thereon. port injunction an against opera- future following This is evident from the state- past tions. on relying wrongs thus Attorney: ment of the U.S. delving projections into business of MR. I NEDRICH: ... don’t speculation upon court relied con- your think Honor would issue order

jecture, evidence, instead substantial now, saying, “Everything is fine but I am doing in so it is submitted it judg- issued a going you to order in the event some- clearly ment that is erroneous. thing goes wrong six months from now to

do this.” It doesn’t take much effort V. POTENTIAL ADDITIONAL in, put move men around and bunks but INMATE CAPACITY don’t tell the world that is what we are 29, 1976, hearing At the April counsel going do. for the District of Columbia defendants stated: (Tr. 29,1976, 99-100, April added). emphasis If we pushed to the wall [with clearly reference to bunks indicates jail] we think we 1700 could hold using inmates was bunks overflow people comply and still with Your Hon- clearly the court was contemplated. That or’s order and not double house. We going the new in the order to include put . could beds bunk (Id., developed later Tr. manner did facility] and house [recreation However, April 29, 1976, 165-67). if the 40 30 to men in each of the 12 [recreation court fix intended to a limit on the number Now, we are talking about facilities]. that could be housed in the new 400 more spaces.4 “top it was required to determine the figure.” Tr. April pp. figure 95-97. The trial The 1537 set the order 5 inquire May court did not did po- further into 1976 not consider evidence New Detention Center 5. The trial court considered that defendants Hospital spaces enjoined should be housing after June Penthouse 1976 more than following: Cellblocks 3 & 4 Facility New Detention 1,695 Total Cellblock4 More Cellblock comfortable accommodations in Cell- Dormitory (Old leaving blocks 3 Jail) & would total Dormitory (Old Jail) 2,095 1,525. provide The extra 400 would 1,925 respectively. 1,537 Total justify that operating the conditions capacity of and potential to maximum as the intervention, to include jail judicial if it intends new and Center with the the Detention Actually, injunction. facility new in its ever taken thereon or the testimony no was apply to however, did not the lawsuit jail. at the new sinсe operations to conditions is no in view there facility, my Thus, did not the new the District Court because lengthy involved getting of the situation to basis for consider the full facts facility the new operation order, clearly hearing it is on the which its it addressed justify in order necessary that would be erroneous. injunction to court’s of the the extension footnote majority opinion The in facility. the new cover testimony pass- that in quotes portion indication that The is further foregoing designed ca- ing maximum referred the basing its conclusion on a trial is the court 97) new (Tr. April pacity materially the al- ignores stale record that that facility upon then relies isolated that resulted when tered factual situation as a for full question and answer substitute jail 2 of old were cellblocks 1 and the closed potential capaci- the inquiry into maximum and new accommodations for almost normal jail is It is new it not. ty the —which by the com- a thousand inmates were added the record that the trial court clear from jail. pletion of the new crys- It is also recognized that it was not. not tal clear that the trial court did desire I see no need for a further remand the hearing poten- on the maximum have question overcrowding capac- and inmate facility. new This capacity tial ity. Since there is showing there from the statement self-evident court’s violations, any existing I would hold colloquy by the shortly quoted after th¿ opening jail, the new in footnote 44: majority opinion closing jail, old parts the older controversy have moot. rendered this The I don’t know THE COURT: ... plaintiffs alleged not that there have exist you clear making myself I am whether unconstitutional conditions confine- instance, not, or but for I don’t want jail, ment in new conditions dealing fa- get involved in with new from those in the substantially different old happen there cility going and what is jail litigation to which this has here- entire tofore been addressed. Judicial interven- jail operations justified only tion into 29, 1976, 98, (Tr. added). April emphasis extraordinary circumstances. Such circum- clearly No statement could more demon- alleged-much stances not been even strate, testimony majority after re- explored thorough evidentiary less hear- 44), upon (n. lies recog- trial court proven ings respect to the new —with nized that statement as to the maxi- jail, which purpose was constructed for design capacity facility mum of the new did many of alleviating conditions adequate inquiry not what constitute into jail old plaintiffs which these first com- potential capacity the maximum would plained progress. after the new found to be if the court was “to in- get dealing facility.” volved in It record, present whereby is this void in the VI. TO ALLEVIATE ATTEMPTS get

the court refused “to involved in deal- OVERCROWDING ” have, facility with new as it should its on the maxi- trial intended base order court Proceedings found in its on Remand, mum potential capacity, renders filed May 1976 “that This present inadequate. inadequa- record defendants have failed to take reasonable steps “to cy requires get court involved” obvious to alleviate overcrowd- ing” and potential on that capacity, determine maximum basis indicated that an several injunction enjoining steps should issue them from alternative that the court stat- housing 1976 “more after June ed obvious to allevi- than[:] “reasonable (R. 166, persons p. New Detention Facili- ate overcrowding.” at the While ty court, .. steps, these the trial suggested consider, might it is 215 in ... be “obvious” Cellblock 4 “reasonable” to conclude would 161 in Cellblock 3 ... materially population. reduce Dormitory persons in (A trial court “suggested” “alternatives” persons Dormitory jail.8 2 at the old J) open which it characterized “remain (R. 166, 14). justification is no p. There options.” (R. 166, pp. 9-14). they Are rea- including injunction. jail any new sonable options? Consider them seriatim: There is no substantial evidence to support issuing managerial injunction the court A. Lorton Centers 1 its Youth and has control the of a operations facility that population had by Judge controlled an order of never operated been shown to have been Suggestion: get Gesell. Judge Gesell concerning improperly and which the court increase the limits. population Impractical. had never any hearing conducted on its B. at Lorton youth Confine offenders operations. fact, had not been placed they being while evaluated as to their operation into full the court so could not eligibility youth for a correction sentence. testimony operations. taken on its illegal youth It is an to confine offenders in The court not base properly could an in adult an facility or in institution not certi junction future regulating operations its on fied by Attorney General as a Youth pure surmise and There speculation. is no Facility. To 5012.10 §§ U.S.C. basis for jail including injunc in an suggest offenders youth should be tak just tion (now because Cellblocks 1 and 29 en penitentia from a confined in a and demolished) antiquated were and there had ry they awaiting while too sentence is prior been overcrowding at jail. the old extreme to even consider. It flies into Also, there is no for limiting basis the popu face of the entire Youth Corrections Act. lation of the new without a hearing as to whether more might inmates C. Confine persons serving misdemeanor properly suggested be by housed as counsel sentences in security facility the minimum at the hearing. at rejected Lorton. This because

In addition, security insufficient at facility such in Lor- while it does not completely defeat ability ton. judgment by court’s to issue This injunc- involves factor tion limiting jail population respect- old administrators should be jail, justification by undercut by ed guilty only Those of mis- court. findings addition, camps, agencies also indicated: “In and other af- other that will persons ter June provide 1976no should be housed in the essential varieties of treatment. (R. 166, p. Cellblocks 1 and 2 at the Old Jail.” desig- The Director shall from time to time 14). nate, agencies aside, adapt set institutions Department under control 7. That Cellblocks 3 and were found to furnish practical, of Justice for Insofar as treatment. satisfactory accommodations for 376 inmates agencies such only fenders, institutions shall be used indicates that conditions in those cellblocks youth of committed of- treatment satisfactory. youth and such offenders shall be segregated offenders, from other and classes 8. Id. youth segre- of committed offenders shall be gated according to their needs for treatment. Maj. op. pp.---of 9. See text 18 U.S.C. § 5011. App.D.C., pp. of 580 533-536 F.2d. youth No offender shall be committed provide: Attorney 10. chapter relevant statutes General under this until certify proper youth the Director shall Committed offenders not condition- adequate ally personnel undergo treatment facilities and released shall treatment in insti- provided. security, have been tutions of maximum medium securi- ty, security types, including or minimum U.S.C. 5012. § schools, training hospitals, farms, forestry elements, This has some tions. feasibili- imprisoned demeanors should not be are transfer- ty, but no sentenced security maximum placed felons —or red to other institution until Lorton prisons such as Lorton. designates place Attorney General jail by to the D. Misdemeanor sentences confinement, it is doubtful that specify “half- judges changed should be designations. would make two sentencing judges know way houses.” The space. J. other The trial court’s Locate presumably facilities and sen- available states, opinion “no substantial efforts have tence with all the alternatives mind —in- Department been made locate suggestion cluding half-way houses. This Dis- housing alternative facilities within the choice of sentencing judges’ would limit the trict Columbia or the Lorton Com- dispositions alternative a basis which plex.” (R. p. This statement judges’ be irrelevant decisions should contradicted statements made on sentencing. arguments various of this case. At oral E. U.S. Speed up transportation Mar- facilities, that time other even outside D.C. parole temporarily con- shals of violators sugges- and Lorton were discussed. This be jail. exped- fined at This should done merit but of little great tion facial is not, possible, doing if it is but so itiously as long run it practicality because is jail popu- not affect the substantially would space they that assert is needed. permanent lation. Getting additional facilities substantial units, housing F. major Install “demountable” undertaking. pur- It should be is e., previously i. in vigorously, light present trailers. The administrators but sued situation, in step considered these and concluded the failure walk with suggestion court’s does not authorize an unsatisfactory. convincing proof injunction without that con G. Obtain “consent” of those facilities, present jail and Cell- victed of misdemeanors to confine them operated in and will be an uncon- blocks penitentiary. Lorton Such consents would stitutional manner. validity be no obviously few. And there is suggestions Many foregoing suggestion in that D.C.Code § objection out laden with another allows of those which for transfers convict —6 use suggestions bring in the of Lorton offenses, supersede ed of D.C. would which, in instances some Reformatory provides that misde U.S.C. which § and the permissible, would not be legally not meanor be served in sentences “shall In is overcrowded. defendants state it also consent of the de penitentiary without the is of the deci- judicial addition notice taken supreme, is The federal statute fendant.” District Court for sion of the United States convicted of applies “[pjersons and it Virginia, issued on the Eastern District Id., against offenses United States.” 75-392A, No. June Action Civil supra. This Dis includes those convicted of County, Supervisors of Fairfax Board of trict of Columbia offenses. Beard v. Ben [Attorney Virginia v. Edward H. Levi Gen- 269, 270, 114 nett, U.S.App.D.C. al., finds, alia, et inter eral] (1940) (Rutledge, J.). “overcrowding” problem Lorton is a judges for H. Obtain the consent of personnel” there are “insufficient weekend those sentenced serve sentences of in- adequately supervise the number half-way houses. This had serve them confined, though presently mates even “de- repeated, prior some success and could be . .of- . fendants convicted of federal but minimal. its effect would be longer . . incarcerated fenses . ” I. Transfer to Lorton those convicted judg- court’s When this [there] sentencing prisoners judge recom- of a Judge ment added order Gesell’s youth in a federal mended serve their sentences to Lorton similar nature addressed stay facilities, until other courts penitentiary, at Lorton is obvious that There- suggestions. on the recommenda- block the trial court’s Attorney General acts fore, order, operations, the several Lorton directed to future suggestions that This is, is not on substantial evidence as it based help can seem In out be well taken. I concur in what I construe is the view of this interplay between the D.C. Jail majority this refusal of the to affirm order. Board, County the Fairfax it seems - Maj. op. p. Ú.S.App.D.C., p. deny the court’s order in this case to directing of 580 “release F.2d. the request of the inter- Fairfax Board to recognizance,” own vene in this case was ill-advised. Interven- order, its excess of fixed the limit tion requested (R. on March exercising inis effect habeas District Court 119A). question No presently raised without corpus jurisdiction in futuro this, about but it clear that inter- seems instances In most this court consideration. vention of the Fairfax Board would have might prisoners and would involve D.C. permitted a better consideration of all the v. Pressley, jurisdiction. exceed its Swain relevant facts. 51 L.Ed.2d 411 97 S.Ct. analysis On foregoing disagree I (1977). pursuing assertion that alter- above exists Recognizing disparity be- problem. natives would Maj. obviate bail, it judges setting my is also tween op., n.7. view that should not be automatical- relеase Rather, ly based on the amount of bail. arise, such situation should ever on mo- VII. THE OF RELEASE PRISONERS Attorney tion the United States it should The District Court following entered the brought judges to the attention of directing order the automatic release of the court prisoners whose to be re- prisoners in population the event the limit present wholly ignores leased. The order 1,537 inmates, mainly based on the stale United judges. pris- States The release of hearing, is exceeded: oners who are incarcerated because ORDER provi- ... if re- cannot meet ultra liberal release compliance quires Reform not a sions Bail Act should be popula- reduction in the inmate perfunctory on a If the ordered basis. dras- tion at either facility, and other efforts to remedy applied, tic of release was to be reduce the population are not successful proper court should consider the alternative compliance ceases, within 48 hours after releasing serving some of those misde- Department Director of the of Cor- nearing meanor sentences who are their and rections of De- Superintendent expiration operation date. Under the tention Services be directed to release on Act, very pretrial liberal D.C. Bail their recognizance, own within 48 hours jail detainee who is confined in is most of the admission to either facility per- likely apt to very have committed a serious sons in excess of the numbers stated crime and to be serious risk to the com- the preceding paragraph, pre-trial those munity. people Such should not automati- detainees held in default of the lowest be cally released. It is also submitted that bail, amount of among those detain- comparative crime severity of the with ees held in the same amount of bail those which low charged bail detainees are should time, held the longest for compli- until be in releasing a factor to be considered obtained; ance with that is provid- Order prisoners. Finally, goes it almost without ed Judges Board saying judges of Superior Superior Court, or Chief there- Judge pass District of Columbia should not on the of, specify a different method of selecting pursuant release confined released, the persons to be the defendants judgments of conviction orders Unit- governed shall be accordingly. ed Court. States District May 24, pp. Court Order of VIII. RECREATION 14-15; Campbell McGruder, (D.D.C.1976); Maj. and see op., The majority affirms the District Court’s n.43. finding opportunity that the some for form prison regulation When a practice to all in- or of- provided must be of recreation order It the District Court’s guar- mates. vacates fends a fundamental constitutional recreation, outdoor antee, this be requiring discharge will federal courts a determination remands “for protect but duty rights. constitutional recrea- location of this duration and quality, provide opportunity The defendants with problem I see no tion.” respect so, is see for recreation. I do not Since recreation, justifi- or need therefore our in this justification intervening become involved cation for court duration, “quality, matter at all. time. question at all with the jail my recreation is to mind a location” op- not Department of Corrections jail matter for the determination of the What proper recreation. outside posed judicial supervision authorities over which referring to is order is the District Court’s unnecessary inadequacy being —no recreation, more ordinary but physical shown. I therefore would the Dis- vacate just “hanging means frequently than not respect trict Court’s in this would order yard just walk- in the rec. out [recreation] — not remand further consideration of this or free- just playing around basketball issue. 104-105). How- (Tr. Apr. pp. ly” guarantee No constitutional fundamental ever, adequate new has 16 recrea- jail jail establishing for inmates a is violated facility and areas the detention tional inside recreation program one hour indoor This is areas. two outside recreational only idling. As a mat- daily instead of outdoor reformatory. If jail penitentiary not a or ter of fact one indoor hour of recreation to estab- responsible authorities decide may superi- far air conditioned facilities inside programs lish recreational outside, recreation —summer so-called supervisory power is within and winter. It must also be remembered manage the responsibility inheres in their dealing that we are here administering the institution. Those are in correc- detainees. who some Those recrea- prefer use the outdoor would to serve extended term tional institution planned recreational tional facilities for right special for exer- have some need teams, (Tr. Apr. etc. organized events— by pretrial that is not shared detainees. cise may to some p. They also come periods for Inmates in are there shorter in the more extensive outdoor recreation in and are less need of exercise. The assur- daily presently future. Juveniles receive for those ance of one hour indoor exercise exercise, outdoor and the trial court found very and jail awaiting trial is reasonable plans for outdoor being exercise were jails for certainly provide more most than is an in- developed. Maj. op., n.48. This pretrial follow Justice Pow- detainees. stance where we should Martinez, ell’s admonition in Procunier v. 396, 405-06, 1800, 1807, 40

416 U.S. S.Ct. IX. THE CLASSIFICATION SYSTEM (1974): L.Ed.2d 224 AND CONTACT VISITS with the to equipped ill deal [C]ourts of No- order The Court increasingly problems prison of urgent vember the D.C. defendants 1975 directs rec- reform. Judicial administration and to: no more ognition of that fact reflects system 4. a classification Establish More- a sense of realism. healthy than possible to determine which will make it over, penal where state institutions require a) plaintiff of class inmates involved, a further federal courts have confinement; b) and security maximum appropriate for reason deference can enjoy of class contact which members prison authorities. security of jeopardizing visits without But a restraint cannot policy judicial added). 12). (Emphasis facility, (p. encompass cognizance to take any failure for de- system whether If a classification of valid constitutional claims jails would be arising in a federal or state institution. tainees could determine added) at administer, maybe majority can the same time easy to states that it suggest system interpret it has in mind. Insofar does not the District Court’s or- der, affirms, a is con- requiring system requiring as classification which it as contact cerned, Actually this court an order of operates once affirmed visits. in reverse of examination, requiring prison my the District Court officials the normal order. From grant press interviews of inmates on the no there is foundation the record to a system support directing basis of classification individual an order defendants to that, on ground prepare system inmates under the First a classification for contact Amendment, any prohibition blanket a supporting visits until record is made such prohibited. interviews was The necessity validity ordering Su- contact preme Court, however, reversed, holding Therefore, necessary predi- visits. until the prohibition that an even-handed proved, blanket cate is I conclude there is would no applicable to all equally inmates did noth- preparing any for necessity the defendants ing more than a limit manner communi- system contact visits. classification cation, great deference,” “entitled goes security same for maximum classifica- and, such, unconstitutionally did not en- part tion—which is of the contact visit issue rights. on croach inmate v. Wash- majority Saxbe mind of the so far as —but 844-49, ington Co., Post case is I fail how the concerned to see plaintiffs (1974). any standing S.Ct. have L.Ed.2d See also shown raise Procunier, supra, 823-26, may Pell issue. Just because there U.S. overcrowding been past 41 L.Ed.2d some does prisoner every- authorize attack majority not interpret “do fore- [the thing in management jail. At this going] order the District as man- [of Court] ” time necessity there to discuss the dating contact (Maj. visits this time op., visits, validity ordering contact I - but will p. U.S.App.D.C., p. 547 of 580 deal with them they are ordered. F.2d, emphasis added). Therefore the ma- jority defers on ruling validity of order- What is involved in this issue of contact them, part remands this that, court’s visits is pursuant to the considered order and affirms the order “insofar officials, as it judgment jail, of the D.C. the new requires the defendants devise classifi- security reasons, has been constructed system cation security for maximum assign- so that there will contact except be no visits ments and visits contact between their lawyers [that permit] will the District proceed religious This is a decision emissaries.11 fashioning with the of an legal order clearly power within advised; subject of visits so authorities, contact if it is my discretion order, course, such subject will opinion they on the record date op., later appeal.” Maj. p.-of most deciding U.S. wise in the matter as n p. App.D.C., 548 of 580 did. (emphasis added). It portion was the “contact visit” of the

The procedure strange. order, ordered is original most It trial court’s by affirmed two and, is contradictory while disclaiming judges panel, stayed of this that has been judgment, suggestive. is by almost our reading ma- Circuit Justice. A jority affirms an order directing defendant transcripts in United States v. Gorham et to classify prisoners for al., “maximum security U.S.App.D.C. 523 F.2d 1088 ” and contact (emphasis (1975) visits Bridgeman and United States v. et jail tion, types require by 11. The new will has two and of facilities for communication tele- visitors, namely, cubicles, rooms, phone small facility, de- line. No inmate at the new signed provide attorney-client regardless visits on a he classification or whether is complete detail, privacy, assigned face-to-face basis in to a and work will be to have able general general (Tr. booths to accommodate visitors. contact visits. December booths, conditioned, 4; 480) (Appellants’ p. 29). These which are air will A. Br. separate parti- visitor a clear from inmate via get into the institution al., 1099 contraband U.S.App.D.C. [not] denied, walling 96 S.Ct. (1975), justification cert. off the sufficient involving the (1976), L.Ed.2d visits that other type institution from the jail mass breaks at the D.C. recent riots and This people have to be found [beneficial].” Jail, recognized evils of some of the reveals Jail bespeaks ignorance of actual D.C. prin were the “contact visits.” Such visits (Id., to all. conditions —known 171— conspirators to by cipal means used the security the institu- When risk which escapes cause both the riots and the up opposi- brought was tion and others oc escapes the ensued. Both the riot and by the reasoning District tion to this line of visits” to planned “contact curred after Court, other replied: “. judge v. principal conspirators. United States taking a chance. You take a are people Wilkerson, 548 F.2d U.S.App.D.C. the street.” walk down you chance when Gorham, United States court, theory the trial (Id., 172). The (April 535 F.2d 1325 U.S.App.D.C. partial basis temporary a now affirmed on Memorandum) (hostages 1, 1976 Order ap- subject to further by majority, but by jail cellblock in U.S. held (an disposition) is that peal odd D.C.), House, were also Washington, compel its interpose Court can will gun was recent cases where contraband jail security to risk the authorities by defend obtained in some manner two though even jail, public its inmates and the gun ants confined in the D.C. Jail. The reason, authorities, jail good based weapons other subsequently used obtain experience practice, have and common hostages days. and terrorize for several undesirable and decided that such risk is weapons, It is generally recognized is justified risk unnecessary and this files, etc., blades, knives, hacksaw “walk when people because take risks breaching constitute an obvious means two down street.” I submit “security,” hazards or abus- only are not That citi- comparable. situations are One es that from visits.” result “contact walking subject zens are to some risks when security need focus on the threats justifica- is no Washington on the streets of its jail result breaches by further ac- risk increasing tion for by prisoners im- regulations administrative in- security of might tion that hazard the contrary porting to adminis- other articles public. In jail general and the mates jail can- Security trative regulations. the lawful my view that decision is within weap- not be assured searches for easily authority jail administrators making ons of contact visits or those make, rational since decision running through visitors a metal detection evidence it should and based on substantial Security just can as much vio- screen. the courts lack be sustained. On record lated administrative a breach of the jail power to overrule administrators. regulations making when visitors contact import arti- drugs, money major visits and other within jail After three incidents cles of value to inmates. Possession of two (one massive break and year one drugs money jail regu- is a violation hostage incidents), circumstances when lations, and are used and both can be riots, etc., analyzed, of those armed weapons other- escape, purchase effect security is cannot be denied that better interfere, bribery, prop- through wise difficult Drugs needed at jail. penal er or other administration may be allowed many detect in visitors who institution. money contact visits and detection too considered always not and valuables is is The the trial court expressed theory of are visits important by some. If contact incorrect, vigorously thus dissent I stop method to foolproof is no allowed there therefrom, marijuana the that “none of (Tr. drugs. the of contraband introduction security real to the constitutes threat 122, 138-39). 18, 1976, 69, Detection 1976, (Tr. 18, Oct. October of the institution” manpower and 183) requires of also considerable and that “the fact that some items say dangerous that the may fully which not be appropriations characteristics of Thus, prob- the Congress. pretrial ignored from available to be in their detainees are solely discovering is lem not confined confinement. securi- guns and other direct threats attempts majority opinion The in n.14 buy guns and ty. Money drugs can deny up merely this but with a fact ends weapons. strong plea policy for a liberal bail which prob the It is also fallacious to consider some time has been established law the were though lem sole consideration policy in is the District of Columbia. It this presumed to be the that detainees policy placed only bail that has the most Discussing “presumption of innocent. the dangerous prisoners in the D.C. Jail. It is respect per to an accused innocence” with hard to a policy conceive more liberal bail magistrate, in ac son whom the court or existing fact, the presently than one. statute, cordance with the Constitution and public the and some Congressmen have be- must be confined because determined gun to complain of its extreme liberality. danger community he or there is is existing Under the Bail Reform Act of the that he not no reasonable assurance will (23 1324), District of Columbia D.C.Code § flee, raises issue is largely that irrele persons accused who should not be detained to his the pretrial vant confinement. While jail pretrial are not detained.

presumption of innocence is an active factor attempt The to divert the effect majority weighing be released on whether he should asserting nearly that all by fact not, presumption or once that is rebutted plaintiff jailed predetainees unconvicted are competent is determined evidence and Maj. “they because cannot afford bail.” confined, he must the effect of the be op., n.14. is myopic appraisal This of the presumption repose until the largely jailed they situation. It fails to see that trial, given time of course that the na because cannot bail afford reasonably ture his confinement must be amount fixed. And the amount varies accommodated mere confinement crime, magnitude danger ordinarily solitary not to involve confine ment, visitors, community posed prohibition labor, hard accused and To say pretrial strength against etc.12 detainees have of the evidence him. protection presumption is not Under the law in the District of Columbia a - majority opinion “paradox” 12. The exists when of 188 limitations page U.S.App.D.C., p. presumption F.2d in" of 580 character are understood. It is also incor- izing foregoing presump presentence comments on the rect to infer from the fact complete upon tion innocence fails to consider the incarceration is credited federal sentences right flowing comment. Mr. Justice White in Unit Coffin v. such credit exists as a States, 432, 458-59, 394, presumption Maj. p.- ed 156 U.S. op., S.Ct. of innocence. 404, (1895) pre U.S.App.D.C., p. 39 L.Ed. 481 of 188 described “the 530 of 580 F.2d. The sumption entirely 3568, statutory, source is innocence a conclusion drawn § U.S.C. [as] citizen, by constitutionally required. law in favor of such credit is not virtue whereof, Royster, brought upon when McGinnis v. 410 U.S. 93 S.Ct. to trial a criminal charge, (1973). acquitted, prov he L.Ed.2d 282 must unless he is guilty.” frequent application to be en Its most Cummings Missouri, (71 U.S.) v. Wall States, occurs criminal trials. v. United Cool 321-22, (1866), and Brown v. L.Ed. 409 U.S. L.Ed.2d 335 Wilemon, (5th Cir.), 139 F.2d cert. (1972); States, supra. Coffin United denied, 322 U.S. 64 S.Ct. 88 L.Ed. majority apparently pretrial considers that de U.S.App. page of cited at presumed D.C., tention violates innocence of the page majority 530 of 580 F.2d of the p.-of op., detainee. opinion, wholly Maj. irrelevant to this case. App.D.C., p. They 580 F.2d. is an denying person This both consider whether appraisal right. right incorrect operate the extent of the practice the profession his his business one, presumption is a “punishment,” merely rebuttable not abso note in presumption just deprivation lute. The passing liberty force does is a form of prevail upon pre “punishment.” They nothing over evidence contribute may inquiry trial confinement be ordered. Thus no before us. populace. majority attempts paint charged with a person who is arrested and this situation as one of discrimination criminal offense: poor. are against they poor the because judi- appearance at his before however, conclusion, supported is not That officer, pending cial ordered released [is] few It is a fact the statistics. recognizance upon or personal trial on his commit persons who are well do armed appearance the execution an unsecured Bail most Act robberies. So the liberal judi- the specified by bond in an amount actually the cannot be faulted nation officer, determines, cial officer unless the theory if the application; but of course discretion, in the of his that such exercise expressed by opinion is fol- majority the assure reasonably a release will not the charged person lowed with practically no appearance person as crime would be until after his con- detained required any person or the other safety by the finally viction was affirmed Su- community. or the preme posi- an unreasonable Court. That is 1321(a). If such determina- D.C.Code § tion the Constitution and misconstrues made, then magistrate tion is the must con- criminals to be permits dangerous travel restrictions and custody, sider outside though our Bail Act prior confined to trial — if are considered to be suffi- these not protection has substantially reduced required. reaching is In its con- cient bail it. and in some obliterated instances magistrate must con- the court or clusions application In of the Bail Reform Act following factors: sider knowledge, the District it is common (b) determining which conditions of cases, proved by many of our some release, assure any, reasonably will persons been released accused who have as or appearance person required very subsequently have committed serious safety any person other the commu- or released, they proving while should crimes shall, nity, judicial officer basis upon prey not been released information, available take into were, community. they and the Act so But such nature account matters provides. releasing It leans in favor charged, circumstances the offense majority even are Apparently accused. against per- weight of the such evidence dissatisfied with this. son, ties, family employment, his finan- resources, cial and mental con- character Thus, remaining those pretrial detainees ditions, conduct, length past of residence who are the jail, who are confined in convictions, record of community, who, subjects those litigation of this are appearance record at court any already been deter- part, most it has proceedings, flight prosecution, to avoid appearance whose mined are individuals appear proceedings. or at court failure reasonably assured if at trial would not be released, would or whose release added). 1321(b) (emphasis 23 D.C.Code § safety assure the (2) “reasonably statutory when these stan- Naturally, community.” In other person other or the charged applied dards are to offenders with are the individuals who are words very crimes or who have substantial serious process already judicial those that convictions, prior apt records of or who jurisdiction likely to flee the determined flee jurisdiction, against whom dangerous threat to some constitute a guilt strong, a substantial the evidence person community. or to the amount This of bail must be fixed. results Columbia, appears population its It very in the District of thus crimes, of classification already load of in num- result substantial serious They have been classi- bail bail ber situations where substantial standards. courts. persons fied permit magistrates must fixed or else such by the Bail Act community required roam free in the and hazard the inmates who are bearing on dangerous foregoing All of the has some be confined are no less when “security” they jail the the considerations to be evaluat- are confined. Therefore au- ed in the I am not unmindful matter. required, against thorities should not be the in some of the other decisions districts judgment, their to order visits for contact problem. this a dealing with Each one has any group of prisoners that have failed to but the local flavor District of Columbia qualify very for release under liberal the our special problems, its own too. We have Bail Reform Act of the District Colum- very own Bail which is liberal and Act bia. special problem have our own local crime responsible administering If those for the offenders, and very which has some serious Jail D.C. decide in the interest better my it been shown to satisfaction has not visits, contact security jail to run a with no it is violation of inmates’ constitu- a my opinion is is within it that such decision jail reasonably rights tional to run a a competence opin- their make. Since protection that affords some secure manner ion was written the Circuit has First riots, against jail mass breaks public Feeley reached similar conclusion. private against being citizens taken Sampson, 76-1508, No. 364 at 372- 570 F.2d hostage. (1st 18, 1978). Cir. January Recent proved events have security that better is X. OF TRANSFER WITH INMATES jail needed at the contact and that visits PSYCHIATRIC SYMPTOMS were one of the causes of serious riots and jail mass Eliminating breaks. social con- regulations requiring As for visits tact would any way not be in discrim- treatment and transfer of detainees inatory, and if jail properly is psychiatric symptoms, agree construct- I given they attention, ed so that the must medical I risk of contact be but official visits do not think an order this court is neces- minimum, could be reduced to the bare sary, I and in order that was issued be a way jail would safer to run than lim- dogmatic would not 48-hour time set way jail the old operated. it, I arbitrary. which cannot be other than However, my mind the decision is for permit would also a medical doctor or executive branch government, psychiatrist potential patient to see a with- for the courts. With the recent unsatis- Maj. period. op., p.- the 24-hour Cf. jail incidents, factory directly two traceable U.S.App.D.C., p. 548 of 580 F.2d. visits, contact posi- in no courts are Medical con- problems individuals are not guess present judgment tion second arbitrary handling by mandatory ducive to D.C. correctional administrators general of a problem orders court. The desiring tighter security, and record doctors, enough difficult for per- even after judicial here does not justify intervention to sonal potential pa- examinations. Some the judgment override of the local officials. require tients immediate attention and with That chose to tighten security others it can be deferred a peri- substantial Experience commendable. has demonstrat- I od of time. If I were to a standard set ed these tightening. needs recent period” would fix it “within a reasonable incidents, jail authorities found finding after a illness. This mental just gun smuggled one small into the require patients would some to be transfer- put possession can those hours, red and for some sooner than ammunition, a whole guns arsenal of longer. The ne- delayed transfer could we know from the records in court depends upon the cessity for transfer condi- those cases that contact visits inmate, availability tion of facili- cause of some of them. The status ties, nature of the or and the confinement remand on contact visits not bode requires, thus does treatment he and it is not within for the province ability well future. or judiciary problem dealing City with this arbitrary fix time limit that will be an p. Quoted Maj. op., proper Department.” all cases. District has - its obligation absolute to an inmate in cus- of 580 U.S.App.D.C., p. tody to furnish medical assistance within incorrect. statement is F.2d. Such period learns of the ne- early reasonable after it as Department, City and the therefor, I cessity beyond stating, and so law (long this sooner before possibly and any fixed time limit. I impose would not started), planning began suit was ever mentally if person not release a ill would n.l. facilities. See acquire adequate jail time arbitrary some limit cannot met. the Court’s City has also considered cooperated with alternatives and suggested my wholly unnecessary view it is also viable. they them to the extent improper and for this court to order a con- sugges is of the court’s The trouble most monitoring of tinuing medical transfers text at-- tions were unworkable. See requiring a report” “written to the District - at 532-534 U.S.App.D.C., Court whenever the authorities have It is also supra. F.2d incorrect special cause to deviate from the 48-hour “re activities as defendants’ characterize rule. Our attention has not been called is District Court The trouble sistance.” sufficient conduct defendants that would make a attempting justify majority such are court intrusion into the exer- group of de whipping cise of a small responsibilities. boy administrative out capacity possibility As with the of future a limited overcrowd- fendants who have ing Of course present the facts do not problem. case suffi- to deal with cient is no “immediacy and but there relevancy” justify adequate, capacity should be declaratory injunctive present relief. Golden v. showing this record factual Zwickler, present not U.S. are jail capacity conditions (1969). L.Ed.2d The district court repeating un adequate. No amount of ly majority overlooking are the fact that supply this de can assertions substantiated primarily they only judicial and not ficiency in the record.

managerial power. They quickly too as- controversy it is relevant to B. How sume the latter. assert majority escapes me but to trial prior are released

those who being of not con- chance a better XI. CLEAN “[stand] CLOTHING convicted, receiving or, not victed As order on clean clothing Maj. p. -of op., sentence.” prison restraints, generally the defendants con- If that F.2d. p. of 580 U.S.App.D.C., form to the standards stated in the order of nothing is re- there is a correct statement Therefore, the trial court. I do not find noteworthy about it. markable or even substantial evidence that defendants have be. The most should exactly is as it That engaged unconstitutional conduct with strongest evi- with the serious offenders respect matters, likely to such to do are serious them, most with the against dence future, so in the and hence I consider the less fre- records, who are persons are order and the to exceed affirmance thereof frequently con- more quently released and jurisdiction. the court’s for substan- prison victed and sentenced stan- This evidence tial terms. is XII. MISCELLANEOUS applied being Act are of the Bail dards correctly. There a few isolated statements

the majority opinion go that should not majority and 21 of the C. Footnotes unanswered. cannot pretrial detainees opinion assert that “ than ‘worse conditions A. under It is be detained incorrect for District Court penal the same within planning prisoners’ to assert “there been no convicted ‍‌​​​‌‌‌‌‌​​‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌​‌​​‌​​​​​​​‌‍has Malcolm, prevent not system.” Rhem v. handcuffs would the use of (2d 1974) cited for stated prisoners Cir. normal on handcuffs normal It some proposition. unpadded defects. Most circumstances where handcuffs size prison systems have institutions normally applied. varying

where are allowed de- grees security liberty depending CONCLUSION offense, prisoner’s nature posi- Appellants have stated that if their sentence, duration of his the time remain- tion appeal affirmed on this serve, prior person- his his record and petition Supreme intend Thus, propensities. al there are maximum writ of certiorari to review case. institutions, security security minimal insti- great tutions and facilities where even free- majority part have decided dom is afforded the inmates —even half- case and remanded the record on several way persons houses where convicted important very issues to the trial court for free on part their own of the time. It is consideration, including vis- further contact contend, hold, absurd to much less its, recreation, examination, and medical pretrial detainees must be afforded the overcrowding capacity. This inmate greatest amount liberty afforded any fragmentation parts into two case person. convicted jail, The “Son of Sam” places appellants position an awkward trial, prior to given should not be week- respect any petition for certiorari as furlough just end because some inmate in seeking piecemeal might compel prison received one. light request, review. In the of appellants’ Moreover, jail largely inmates are an un- importance and of the visits be contact known quantity. Jail know officials com- light is- considered of all other paratively little about the backgrounds sues, record, it is suggested, the full propensity for violence or escape of order, each stay granted and I would so that a be inmate. hand, On the other most decided, convicted until presently to the matters prisoners have undergone type some of di- the district сourt rules on contact visits agnostic or procedure classification upon the other remanded issues and our decision entry prison into the system, which gives trial can thereon becomes final. The court prison authorities some indication of act visits and the expeditiously on contact likely inmates will be able to handle stay other orders issues. As I construe relatively greater liberty without difficulty this is what intended majority danger and with public. minimal thereby. authorities, inherently Jail unable obtain respectfully I foregoing To the extent equivalent given the information short- opinion majority. dissent from detention, term nature of most cannot reasonably expected give the undif-

ferentiated mass inmates same

degree of liberty accorded to those convict-

ed deemed most trustworthy.

RESTRAINTS

I concur in that portion of the majority

opinion which confines its references con-

cerning the use of patients restraints on be,

those who appear mentally are or ill.

Thus, prohibition against “unpadded” notes bring- It is ideal means of ance mechanism. which, clarity rationality policies to study grievance example, ward 66. For mechanism, scrutiny grievance under of a Authority procedures Youth of the California eliminated, daily justified, explained, grievances must percent sub- found that “in 69.2 modified, replaced. mitted, by grievant requested ‘Customs’ and ‘tradi- was the relief Keating, supra granted part.” exposed be either in whole or tions’ are as such and can Jr., Improved Keating, evenly poli- See M. note at 147. enforced eliminated or made into A Technical Assistance cy.” Grievance Procedures: Keating, Mecha- J. Prison Grievance Community (Center Justice (The Manual Communi- A Center for nisms: Manual 1976). 1977). ty Justice help procedures also to defuse will Grievance See, jail. potential within the for violence Cong., S.Rep. 91st 1st 559 on H.R. No. Advisory g. on Crimi- e. National Commission “Capital Sess., p. 49 in the December (1973): nal Justice Standards Goals Outlay” appropriations of Co- of the District procedure insure that offend- A formal Appropriations included Bill lumbia there fairly grievances al- ers’ are resolved should jail “$150,000 survey . . .” funds for a new existing tension within leviate much institutions. . . Peaceful avenues prerequisite grievances are a redress Superintendent 2. Defendants were all means to be avoided. Thus violent Jail, (2) Director, Department D.C. D.C. respon- agencies only a have not correctional (3) Mayor and Commis- of Corrections and sibility in main- but an institutional interest were All sioners the District of Columbia. are, appear taining procedures individually capacity and in sued their official be, designed offenders to resolve 7,6, (Par. complaints fairly. 46), plaintiffs’ alleged rights fundamentally late constitutional fn. irrelevant (Par. 1). Plaintiffs also assert that since opening jail with the of the new representative of a class of “unconvicted factual circumstances on which the District detainees incarcerated the Dis- relied, gross longer exist. It trict of pre- Columbia Jail jurisdiction distortion of [and] conferred on trial detainees who will be incarcerated at attempt the court ex- lawsuit to jail (Par. 5). the D.C. in the future” pand jurisdiction the court’s include “jail” jail only referred was the then in jail by ignoring new the uncontroverted jail the new existence —but now has been fact that the complaint was addressed built and is in use and the use of the oldest conditions at old and that jail, half of the old Cellblocks policies of that were the the defendants been discontinued. subject controversy inextricably in- practically controlled tertwined and litigation jail, This was directed at old physical structural limitations of the fea- as were practically hearings all of the may tures of those facilities. Stone walls thereon. Since then the situation has make, a prison prison when a does but changed very substantially by the comple- have stone walls it is rather difficult tion of the capacity minimum overcome their restrictive effect —even for 960 inmates in air conditioned comfort. court order. Thus the complained by appel- situation practically disappeared lants has and no complaint alia, alleges, also inter complaint against has been directed plaintiffs solely are incarcerated because

Case Details

Case Name: Leonard Campbell v. Anderson McGruder Superintendent, Detention Services, (Two Cases)

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 30, 1978

Citation: 580 F.2d 521

Docket Number: 75-1350 and 75-2273

Court Abbreviation: D.C. Cir.