Alvin Jordan v. Michael S. Wolke, Etc.

615 F.2d 749, 1980 U.S. App. LEXIS 21551

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 8, 1980
• Docket: 78-2648
• Status: Published

Opinions

TONE, Circuit Judge.

This is an appeal from an injunction prohibiting overcrowding of pretrial detainees at the Milwaukee County Jail and requiring that they be allowed contact visitation with family members. After the case had been briefed and orally argued, we postponed our ruling to await the decision of the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Following that decision the parties filed written position statements with respect to its effect on the case at bar. Having considered those statements, we conclude that the principles announced in Bell v. Wolfish govern this case and require reversal.

Plaintiffs sue on behalf of themselves and other persons who are or will be incarcerated as pretrial detainees in the Milwaukee County Jail under conditions that are alleged to violate their due process and equal protection rights under the Fourteenth Amendment. Of the conditions challenged in the complaint, only overcrowding and denial of contact visitation remain at issue. The district court determined that the action was maintainable on behalf of the class with respect to those issues.

A preliminary injunction expanding visiting opportunities at the jail was reversed in part by an unpublished order of this court entered in August 1978 on the ground that the record was then insufficient to justify the requirements imposed with respect to contact visitation. Jordan v. Wolke, 7 Cir., 593 F.2d 772.

After a trial on remand, the district court entered a permanent injunction which, inter alia, requires that detainees be permitted contact visitation and prohibits confinement of more than two detainees in a single cell or confinement in quarters not providing each detainee with at least forty-five square feet of cell area. The defendant county officials appeal from these parts of the injunction order. Provisions of the order expanding the frequency of visitation opportunities and permitting longer visits are not complained of on appeal.

Overcrowding

The jail houses an average of 315 persons, 80 percent of whom are pretrial detainees. Approximately 45 percent of all inmates remain in the jail for less than eleven days and only five percent for over thirty days.

The multiple occupancy facilities complained of are eleven cellblock complexes, each housing twenty persons and consisting of five cells (four inmates to a cell), a corridor running along the front of the cells, and a connecting day room. Each cell measures nine feet by ten feet and contains two double bunk beds, a toilet, and a sink. The corridor measures eight feet by fifty feet. The day room contains 335 square feet. The area per inmate in each cellblock complex is thus fifty-nine square feet. The inmates are locked in their cells from 10:00 P.M. to 6:00 A.M., but during the remaining sixteen hours of the day are permitted to be anywhere in the common areas of the cell-block complex. Television is provided. There is no claim of lack of proper sanitation or any other condition not inherent in the space limitations.

Under the injunction issued by the district court, each existing cellblock would provide 118.5 square feet per inmate, counting the corridor and the day room. This total far exceeds the American Correctional Association’s standard for existing multiple occupancy cells, which, according to an expert called by plaintiffs, is fifty square feet per inmate in the cell area and thirty-five square feet in a separate day room, a total of eighty-five square feet. The evidence showed recommendations of other correctional experts, however, that would not be satisfied by the conditions the injunction required.

Contact Visitation

The visiting facilities at the jail are so arranged that the inmate and his visitors are separated by a plexiglass window, and they must talk through a power phone. The district court’s injunction requires the construction of visiting facilities that will permit contact visitation, i. e., visitation “without separation by wall or partition.” The facilities are to be “arranged so as to provide pretrial detainees and their visitors a reasonable degree of vocal but not visual privacy.” Compliance would require not only construction of new visitation facilities but the hiring of additional guards.

Bell v. Wolfish

At the time the district court rendered its decision, the applicable standard was provided by Duran v. Elrod, 542 F.2d 998, 999-1000 (7th Cir. 1976):

[A]s a matter of due process, pre-trial detainees may suffer no more restrictions than are reasonably necessary to ensure their presence at trial. . . . Since they are convicted of no crime for which they may presently be punished, the state must justify any conditions of their confinement solely on the basis of ensuring their presence at trial.

Despite this seemingly categorical statement, we also recognized in Duran that the state had an interest in maintaining “the security of the institutions” and avoiding “unreasonable expenditures.” Id. at 1000.

In an effort to reconcile these administrative interests with the liberty interests of pretrial detainees, the Second Circuit held that “pretrial detainees may be subjected to only those ‘restrictions and privations’ which ‘inhere in their confinement itself or which are justified by compelling necessities of jail administration.’ ” Wolfish v. Levi, 573 F.2d 118, 124 (2d Cir. 1978) (quoting Rehm v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)), rev’d sub nom., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

The Supreme Court granted certiorari in Wolfish “to consider the important constitutional questions raised by” the Second Circuit decision “and to resolve an apparent conflict among the circuits.” 441 U.S. at 524, 99 S.Ct. at 1866. The Court cited a number of decisions in the circuits which adopt varying standards, among them our decision in Duran v. Elrod, supra. 441 U.S. at 524 n.2, 99 S.Ct. at 1866 n.2.

Only one of the two challenged conditions of confinement involved in the case at bar, overcrowding, was at issue in Bell v. Wolfish. In deciding that issue adversely to the pretrial detainees, the Court declared that the following federal constitutional standards controlled conditions of confinement for pretrial detainees:

The due process clause does not impose the “compelling necessity” requirement enunciated by the Second Circuit. When only the due process clause and not an express guarantee of the Constitution is involved, “the proper inquiry is whether [the conditions of confinement] amount to punishment of the detainee” in a constitutional sense. 441 U.S. at 535, 99 S.Ct. at 1872-73. Neither “[l]oss of freedom of choice and privacy” nor interference “with the detainee’s understandable desire to live as comfortably as possible and with as little restraint as possible during confinement” amount to punishment. Id. at 537, 99 S.Ct. at 1873. Rather, the question is “whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. Absent an “expressed intent to punish,” the answer to that • question “generally will turn on ‘[w]hether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’ ” Id. at 538, 99 S.Ct. at 1873-74 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)).¹

Insuring a detainee’s presence at trial is not the only legitimate governmental purpose that may justify a condition of confinement. In addition, “the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such, restrictions are intended as punishment.” Id. at 540, 99 S.Ct. at 1875. The following illuminating footnote deserves special mention:

In determining whether restrictions or conditions are reasonably related to the government’s interest in maintaining security and order and operating the institution in a manageable fashion, courts must heed our warning that “[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to those considerations, courts should ordinarily defer to their expert judgment in such matters.”

Id. at 540-41 n.23, 99 S.Ct. at 1875 n.23 (quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)).

Application of Bell v. Wolfish to this Case

Applying the foregoing standards to the case at bar, it appears clear to us that neither the alleged overcrowding nor the denial of contact visitation in the Milwaukee County Jail amounts to “punishment” in a constitutional sense. With respect to overcrowding, we do not see a material distinction between the facts in Wolfish and the facts in the case at bar. Here, as there, detainees are required to spend only the sleeping hours in their cells and, “[djuring the remainder of the time, . . . are free to move between their rooms and the common area.” 441 U.S. at 543, 99 S.Ct. at 1876. Although the average floor space per inmate is apparently somewhat smaller here than in Wolfish, we do not think this difference can reasonably be viewed as a basis for distinguishing that case.² The facilities here were designed for the number of occupants they now contain, and, while that design is not generous with space, it hardly results in punishment in view of the temporary nature of detention at the jail. In Wolfish, the Court said that its conclusion that the crowding complained of did not violate the Constitution was “further buttressed by the detainees’ length of stay at the . . . [detention facility]. Nearly all of the detainees are released within 60 days.” Id. In the case at bar, the average length of stay seems to be shorter than it was in Wolfish. See 441 U.S. at 524-25 n.3, 99 S.Ct. at 1866 n.3. Although the Court in Wolfish was speaking of double bunking rather than quadruple bunking,³ its conclusion is instructive for the.case at bar:

We simply do not believe that requiring a detainee to share toilet facilities and this admittedly rather small sleeping space with another person for generally a maximum period of 60 days violates the Constitution.

Id. at 543, 99 S.Ct. at 1876.

For similar reasons we believe that the denial of contact visitation by the authorities who operate the Milwaukee County Jail does not constitute punishment in a constitutional sense. Plaintiffs’ sole complaint is that detainees are not allowed physical contact with visitors during the relatively brief periods of their detention. Although the Court in Wolfish did not address the issue of contact visitation, id. at 559-60 n.40, 99 S.Ct. at 1885 n.40, it did chart the path on which analysis must proceed. First, that prohibition of contact visitation is not intended by the defendants as punishment is undisputed. Second, the prohibition is rationally related to the legitimate purpose of preserving prison security and order. As the Supreme Court said, the authorities “must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees.” Id. at 540, 99 S.Ct. . Finally, the prohibition of contact visitation is not “excessive in relation to the . purpose” of maintaining security and order. Id. Wolfish itself sustained the validity of highly intrusive “body-cavity” searches of detainees that'were performed as a matter of course after each contact visit. In approving these searches, the Court noted that an alternative to their use would be to “abolish contact visits altogether.” Id. at 560 n.40, 99 S.Ct. at 1885 n.40. The Court thus recognized the dilemma of prison authorities. Some method must be employed to assure that weapons, drugs, and other kinds of contraband do not enter the jail. Where contact visitation is permitted, the Supreme Court has found it permissible to conduct body-cavity searches. Where no contact visitation is permitted, the searches are unnecessary.⁴ Neither alternative is so clearly preferable to the other that a court is warranted in substituting its judgment for that of “the persons who are actually charged with and trained in the running” of detention facilities. See id. at 560, 99 S.Ct. at 1886. Thus, under the standards prescribed in Wolfish, the Constitution was not offended.

The judgment is reversed with respect to overcrowding and contact visitation. With respect to matters not raised in this appeal, the judgment is of course left intact.

REVERSED.

1 . The complete list of criteria in Kennedy v. Mendoza-Martinez which the Court in Bell v. Wolfish quoted and described as “useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word,” is as follows:

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

372 U.S. at 168-69, 83 S.Ct. at 567-568 (quoted at 441 U.S. at 537-38, 99 S.Ct. at 1873).

2 . Here, as in Wolfish, the plaintiffs’ reliance on the opinions of correctional experts concerning the desirable amount of floorspace for multiple occupancy cells is misplaced. “[W]hile the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question.” 441 U.S. at 544 n.27, 99 S.Ct. at 1876 n.27.

3 . Justice Rehnquist, after noting that there was not “some sort of ‘one man, one cell’ principle lurking in the Due Process Clause,” did state that “confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process Clause.” 441 U.S. at 542, 99 S.Ct. at 1875. Here, as in Wolfish, however, “nothing even approaching such hardship is shown.” Id. at 542, 99 S.Ct. at 1875-76.

4 . Cf. Justice Powell’s separate opinion in Wolfish, 441 U.S. at 563, 99 S.Ct. at 1886.