Bell v. Wolfish, 441 U.S. 520 (1979)

MR. JUSTICE MARSHALL, dissenting.

The Court holds that the Government may burden pretrial detainees with almost any restriction, provided detention officials do not proclaim a punitive intent or impose conditions that are "arbitrary or purposeless." Ante at 539. As if this standard were not sufficiently ineffectual, the Court dilutes it further by according virtually unlimited deference to detention officials’ justifications for particular impositions. Conspicuously lacking from this analysis is any meaningful consideration of the most relevant factor, the impact that restrictions may have on inmates. Such an approach is unsupportable, given that all of these detainees are presumptively innocent and many are confined solely because they cannot afford bail.{1}

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

I

The premise of the Court’s analysis is that detainees, unlike prisoners, may not be "punished." To determine when a particular disability imposed during pretrial detention is punishment, the Court invokes the factors enunciated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), quoted ante at 537-538 (footnotes omitted):

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

A number of the factors enunciated above focus on the nature and severity of the impositions at issue. Thus, if weight were given to all its elements, I believe the Mendoza-Martinez inquiry could be responsive to the impact of the deprivations imposed on detainees. However, within a few lines after quoting Mendoza-Martinez, the Court restates the standard as whether there is an expressed punitive intent on the part of detention officials, and, if not, whether the restriction is rationally related to some nonpunitive purpose or appears excessive in relation to that purpose. Ante at 538-539. Absent from the reformulation is any appraisal of whether the sanction constitutes an affirmative disability or restraint and whether it has historically been regarded as punishment. Moreover, when the Court applies this standard, it loses interest in the inquiry concerning excessiveness, and, indeed, eschews consideration of less restrictive alternatives, practices in other detention facilities, and the recommendations of the Justice Department and professional organizations. See ante at 542-543, n. 25, 543-544, n. 27, 554. By this process of elimination, the Court contracts a broad standard, sensitive to the deprivations imposed on detainees, into one that seeks merely to sanitize official motives and prohibit irrational behavior. As thus reformulated, the test lacks any real content.

A

To make detention officials’ intent the critical factor in assessing the constitutionality of impositions on detainees is unrealistic in the extreme. The cases on which the Court relies to justify this narrow focus all involve legislative Acts, not day-to-day administrative decisions. See Kennedy v. Mendoza-Martinez, supra, (Nationality Act of 1940 and Immigration and Nationality Act of 1952); Flemming v. Nestor, 363 U.S. 603 (1960) (Social Security Act); De Veau v. Braisted, 363 U.S. 144 (1960) (New York Waterfront Commission Act). In discerning the intent behind a statutory enactment, courts engage in a familiar judicial function, usually with the benefit of a legislative history that preceded passage of the statute. The motivation for policies in detention facilities, however, will frequently not be a matter of public record. Detainees challenging these policies will therefore bear the substantial burden of establishing punitive intent on the basis of circumstantial evidence or retrospective explanations by detention officials, which frequently my be self-serving. Particularly since the Court seems unwilling to look behind any justification based on security,{2} that burden will usually prove insurmountable.

In any event, it will often be the case that officials believe, erroneously but in good faith, that a specific restriction is necessary for institutional security. As the District Court noted, "zeal for security is among the most common varieties of official excess," United States ex rel. Wolfish v. Levi, 439 F.Supp. 114, 141 (SDNY 1977), and the litigation in this area corroborates that conclusion.{3} A standard that focuses on punitive intent cannot effectively eliminate this excess. Indeed, the Court does not even attempt to "detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention." Ante at 540. Rather, it is content merely to recognize that

the effective management of the detention facility . . . is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.

Ibid.

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

B

Although the Court professes to go beyond the direct inquiry regarding intent and to determine whether a particular imposition is rationally related to a nonpunitive purpose, this exercise is, at best, a formality. Almost any restriction on detainees, including, as the Court concedes, chains and shackles, ante at 539 n. 20, can be found to have some rational relation to institutional security, or more broadly, to "the effective management of the detention facility." Ante at 540. See Feeley v. Sampson, 570 F.2d 364, 380 (CA1 1977) (Coffin, C.J., dissenting). Yet this toothless standard applies irrespective of the excessiveness of the restraint or the nature of the rights infringed.{4}

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

in the adoption and execution of policies and practices that, in their judgment, are needed to preserve internal order and discipline and to maintain institutional security.

Ante at 547.{5} Reasoning that security considerations in jails are little different than in prisons, the Court concludes that cases requiring substantial deference to prison administrators’ determinations on security-related issues are equally applicable in the present context. Ante at 546-547, nn. 28, 29.

Yet as the Court implicitly acknowledges, ante at 545, the rights of detainees, who have not been adjudicated guilty of a crime, are necessarily more extensive than those of prisoners "who have been found to have violated one or more of the criminal laws established by society for its orderly governance." Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 129 (1977). See Campbell v. McGruder, 188 U.S.App.D.C. 258, 264 n. 9, 580 F.2d 521, 527 n. 9 (1978). Judicial tolerance of substantial impositions on detainees must be concomitantly less. However, by blindly deferring to administrative judgments on the rational basis for particular restrictions, the Court effectively delegates to detention officials the decision whether pretrial detainees have been punished. This, in my view, is an abdication of an unquestionably judicial function.

II

Even had the Court properly applied the punishment test, I could not agree to its use in this context. It simply does not advance analysis to determine whether a given deprivation imposed on detainees constitutes "punishment." For in terms of the nature of the imposition and the impact on detainees, pretrial incarceration, although necessary to secure defendants’ presence at trial, is essentially indistinguishable from punishment.{6} The detainee is involuntarily confined and deprived of the freedom "to be with his family and friends and to form the other enduring attachments of normal life," Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Indeed, this Court has previously recognized that incarceration is an "infamous punishment." Flemming v. Nestor, 363 U.S. at 617; see also Wong Wing v. United States, 163 U.S. 228, 233-234 (1896); Ingraham v. Wright, 430 U.S. 651, 669 (1977). And if the effect of incarceration itself is inevitably punitive, so too must be the cumulative impact of those restraints incident to that restraint.{7}

A test that balances the deprivations involved against the state interests assertedly served{8} would be more consistent with the import of the Due Process Clause. Such an approach would be sensitive to the tangible physical and psychological harm that a particular disability inflicts on detainees and to the nature of the less tangible, but significant individual interests at stake. The greater the imposition on detainees, the heavier the burden of justification the Government would bear. See Bates v. Little Rock, 361 U.S. 516, 524 (1960); Shapiro v. Thompson, 394 U.S. 618, 634 (1969); Kusper v. Pontikes, 414 U.S. 51, 58-59 (1973).

When assessing the restrictions on detainees, we must consider the cumulative impact of restraints imposed during confinement. Incarceration, of itself, clearly represents a profound infringement of liberty, and each additional imposition increases the severity of that initial deprivation. Since any restraint thus has a serious effect on detainees, I believe the Government must bear a more rigorous burden of justification than the rational basis standard mandates. See supra at 567. At a minimum, I would require a showing that a restriction is substantially necessary to jail administration. Where the imposition is of particular gravity, that is, where it implicates interests of fundamental importance{9} or inflicts significant harms, the Government should demonstrate that the restriction serves a compelling necessity of jail administration.{10}

In presenting its justifications, the Government could adduce evidence of the security and administrative needs of the institution, as well as the fiscal constraints under which it operates. And, of course, considerations of competence and comity require some measure of deference to the judgments of detention officials. Their estimation of institutional needs and the administrative consequences of particular acts is entitled to weight. But as the Court has repeatedly held in the prison context, judicial restraint "cannot encompass any failure to take cognizance of valid constitutional claims." Procunier v. Martinez, 416 U.S. 396, 405 (1974); Bounds v. Smith, 430 U.S. 817, 832 (1977). Even more so here, with the rights of presumptively innocent individuals at stake, we cannot abdicate our judicial responsibility to evaluate independently the Government’s asserted justifications for particular deprivations. In undertaking this evaluation, courts should thus examine evidence of practices in other detention and penal facilities. To be sure, conditions of detention should not survive constitutional challenge merely because they are no worse than circumstances in prisons. But this evidence can assist courts in evaluating justifications based on security, administrative convenience, and fiscal constraints.

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

III

A

Applying this standard to the facts of this case, I believe a remand is necessary on the issue of double-bunking at the MCC. The courts below determined only whether double-bunking was justified by a compelling necessity, excluding fiscal and administrative considerations. Since it was readily ascertainable that the Government could not prevail under that test, detailed inquiry was unnecessary. Thus, the District Court granted summary judgment, without a full record on the psychological and physical harms caused by overcrowding.{11} To conclude, as the Court does here, that double-bunking has not inflicted "genuine privations and hardship over an extended period of time," ante at 542, is inappropriate where respondents have not had an adequate opportunity to produce evidence suggesting otherwise. Moreover, that the District Court discerned no disputed issues of material fact, see ante at 541 n. 24, is no justification for avoiding a remand, since what is material necessarily varies with the standard applied. Rather than pronouncing overbroad aphorisms about the principles "lurking in the Due Process Clause," ante at 542, I would leave to the District Court in the first instance the sensitive balancing inquiry that the Due Process Clause dictates.{12}

B

Although the constitutionality of the MCC’s rule limiting the sources of hardback books was also decided on summary judgment, I believe a remand is unnecessary.{13} That individuals have a fundamental First Amendment right to receive information and ideas is beyond dispute. See Martin v. Struthers, 319 U.S. 141, 143 (1943); Stanley v. Georgia, 394 U.S. 557, 565 (1969); Red Lion Broadcasting v. FCC, 395 U.S. 367, 390 (1969); see also Brandenburg v. Ohio, 395 U.S. 444, 448 (1969). Under the balancing test elaborated above, the Government must therefore demonstrate that its rule infringing on that interest serves a compelling necessity. As the courts below found, the Government failed to make such a showing.{14}

In support of its restriction, the Government presented the affidavit of the MCC warden, who averred without elaboration that a proper and thorough search of incoming hardback books might require removal of the covers. Further, the warden asserted, "in the case of all books and magazines," it would be necessary to leaf through every page to ascertain that there was no contraband. App. 24. The warden offered no reasons why the institution could not place reasonable limitations on the number of books inmates could receive or use electronic devices and fluoroscopes to detect contraband, rather than requiring inmates to purchase hardback books directly from publishers or stores.{15} As the Court of Appeals noted, "other institutions have not recorded untoward experiences with far less restrictive rules." Wolfish v. Levi, 573 F.2d 118, 130 (1978).

The limitation on receipt of hard-back books may well be one rational response to the legitimate security concerns of the institution, concerns which I in no way intend to deprecate. But our precedents, as the courts below apparently recognized, United States ex rel. Wolfish v. United States, 428 F.Supp. 333, 341 (SDNY 1977); 573 F.2d at 130, require some consideration of less restrictive alternatives, see, e.g., Shelton v. Tucker, 364 U.S. 479, 488-490 (1960); Keyishian v. Board of Regents, 385 U.S. 589, 602-604 (1967). There is no basis for relaxing this requirement when the rights of presumptively innocent detainees are implicated.

C

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

Denial of the right to possess property is surely of heightened concern when viewed with the other indignities of detainment. See App. 73. As the District Court observed, it is a severe discomfort to do without personal items such as a watch or cosmetics, and things to eat, smoke, or chew. Indeed, the court noted, "[t]he strong dependence upon material things . . . gives rise to one of the deepest miseries of incarceration -- the deprivation of familiar possessions." 439 F.Supp. at 150. Given this impact on detainees, the appropriate inquiry is whether the package restriction is substantially necessary to prison administration.

The Government’s justification for such a broad rule cannot meet this burden. The asserted interest in ameliorating sanitation and storage problems and avoiding thefts, gambling, and inmate conflicts over personal property is belied, as the Court seems to recognize, ante at 553, by the policy of permitting inmate purchases of up to $15 a week from the prison commissary. Detention officials doubtless have a legitimate interest in preventing introduction of drugs or weapons into the facility. But as both the District Court and the Court of Appeals observed, other detention institutions have adopted much less restrictive regulations than the MCC’s governing receipt of packages. See, e.g., Miller v. Carson, 401 F.Supp. 835, 885 (MD Fla.1975), aff’d, 563 F.2d 741 (CA5 1977); Giampetruzzi v. Malcolm, 40 F.Supp. 836, 842 (SDNY 1975). Inmates in New York state institutions, for example, may receive a 35-pound package each month, as well as clothing and magazines. See 439 F.Supp. at 152.{16}

To be sure, practices in other institutions do not necessarily demarcate the constitutional minimum. See ante at 554. But such evidence does cast doubt upon the Government’s justifications based on institutional security and administrative convenience. The District Court held that the Government was obligated to dispel these doubts. The court thus required a reasoned showing why "there must be deprivations at the MCC so much harsher than deemed necessary in other institutions." 439 F.Supp. at 152. Absent such a showing, the court concluded that the MCC’s rule swept too broadly, and ordered detention officials to formulate a suitable alternative, at least with respect to items available from the commissary. Id. at 153. This holding seems an appropriate accommodation of the competing interests and a minimal intrusion on administrative prerogatives.

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

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

D

In my view, the body cavity searches of MCC inmates represent one of the most grievous offenses against personal dignity and common decency. After every contact visit with someone from outside the facility, including defense attorneys, an inmate must remove all of his or her clothing, bend over, spread the buttocks, and display the anal cavity for inspection by a correctional officer. Women inmates must assume a suitable posture for vaginal inspection, while men must raise their genitals. And, as the Court neglects to note, because of time pressures, this humiliating spectacle is frequently conducted in the presence of other inmates. App. 77.

The District Court found that the stripping was "unpleasant, embarrassing, and humiliating." 439 F.Supp. at 146. A psychiatrist testified that the practice placed inmates in the most degrading position possible, App. 48, a conclusion amply corroborated by the testimony of the inmates themselves. Id. at 36-37, 41.{17} There was evidence, moreover, that these searches engendered among detainees fears of sexual assault, id. at 49, were the occasion for actual threats of physical abuse by guards, and caused some inmates to forgo personal visits. 439 F.Supp. at 147.

Not surprisingly, the Government asserts a security justification for such inspections. These searches are necessary, it argues, to prevent inmates from smuggling contraband into the facility. In crediting this justification despite the contrary findings of the two courts below, the Court overlooks the critical facts. As respondents point out, inmates are required to wear one-piece jumpsuits with zippers in the front. To insert an object into the vaginal or anal cavity, an inmate would have to remove the jumpsuit, at least from the upper torso. App. 45; Joint App. in Nos. 77-2035, 77-2135 (CA2), p. 925 (hereinafter Joint App.). Since contact visits occur in a glass-enclosed room, and are continuously monitored by corrections officers, see 439 F.Supp. at 140, 147; Joint App. 144, 1208-1209,{18} such a feat would seem extraordinarily difficult. There was medical testimony, moreover, that inserting an object into the rectum is painful, and "would require time and opportunity which is not available in the visiting areas," App. 49-50, and that visual inspection would probably not detect an object once inserted. Id. at 50. Additionally, before entering the visiting room, visitors and their packages are searched thoroughly by a metal detector, fluoroscope, and by hand. Id. at 93; Joint App. 601, 1077. Correction officers may require that visitors leave packages or handbags with guards until the visit is over. Joint App. 1077-1078. Only by blinding itself to the facts presented on this record can the Court accept the Government’s security rationale.

Without question, these searches are an imposition of sufficient gravity to invoke the compelling necessity standard. It is equally indisputable that they cannot meet that standard. Indeed, the procedure is so unnecessarily degrading that it "shocks the conscience." Rochin v. California, 342 U.S. 165, 172 (1952). Even in Rochin, the police had reason to believe that the petitioner had swallowed contraband. Here, the searches are employed absent any suspicion of wrongdoing. It was this aspect of the MCC practice that the Court of Appeals redressed, requiring that searches be conducted only when there is probable cause to believe that the inmate is concealing contraband. The Due Process Clause, on any principled reading, dictates no less.

That the Court can uphold these indiscriminate searches highlights the bankruptcy of its basic analysis. Under the test adopted today, the rights of detainees apparently extend only so far as detention officials decide that cost and security will permit. Such unthinking deference to administrative convenience cannot be justified where the interests at stake are those of presumptively innocent individuals, many of whose only proven offense is the inability to afford bail. I dissent.

1. "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S.Const., Amdt. 14, § 1.

2. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S.Const., Amdt. 8.

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

4. Because MR. JUSTICE MARSHALL does not accept this basis for analysis, see ante at 568-569, I have added this separate dissent even though I agree with much of his analysis and most of his criticism of the Court.

5. See Meachum v. Fano, 427 U.S. 215, 230 (STEVENS, J., dissenting).

6. See Leis v. Flynt, 439 U.S. 438, 443; Paul v. Davis, 424 U.S. 693.

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

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

9. See Webster’s Third International Dictionary 1804 (1961) (As "often" used, a "prison" is "an institution for the imprisonment of persons convicted of major crimes or felonies: a penitentiary, as distinguished from a reformatory, local jail, or detention home").

10. Long-term incarceration and other postconviction sanctions have significant backward-looking, personal, and normative components. Because they are primarily designed to inflict pain or to "correct" the individual because of some past misdeed, the sanctions are considered punitive. See E. Pincoffs, The Rationale of Legal Punishment 51-57 (1966). See also Gregg v. Georgia, 428 U.S. 153, 184, and n. 30 (opinion of STEWART, POWELL, and STEVENS, JJ.); H. Hart, Punishment and Responsibility 5 (1968); id. at 158-173; F. Dostoevski, Crime and Punishment (Coulson transl.1964); I. Kant, The Philosophy of Law 195-198 (W. Hastie transl. 1887).

By contrast, pretrial detention is acceptable as a means of assuring the detainee’s presence at trial and of maintaining his and his fellows’ safety in the meantime. Its focus is therefore essentially forward-looking, general, and nonnormative. Because this type of government sanction is primarily designed for the future benefit of the public at large, and implies no moral judgment about the person affected, it is properly classified as regulatory. See H. Packer, The Limits of the Criminal Sanction 5 (1968).

The Court’s bill of attainder cases have recognized the distinction between regulation and punishment in analyzing the concept of "legislative punishment." Thus, on the one hand, post-bellum statutes excluding persons who had been sympathetic to the Confederacy from certain professions were found unconstitutional because of the backward-looking focus on the acts of specific individuals. Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277. However, later statutes requiring persons to take loyalty oaths before getting the benefits of certain labor legislation and before being employed in a public job were found constitutional because of their future orientation and more general purpose. American Communications Assn. v. Douds, 339 U.S. 382, 413-415; Garner v. Board of Public Works, 341 U.S. 716, 722-725.

11. On at least two occasions, this Court has relied upon this presumption as a justification for shielding a person awaiting trial from potentially oppressive governmental actions. McGinnis v. Royster, 410 U.S. 263, 273 ("[I]t would hardly be appropriate for the State to undertake in the pretrial detention period programs to rehabilitate a man still clothed with a presumption of innocence"); Stack v. Boyle, 342 U.S. 1, 4 ("Unless [the] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning"). These cases demonstrate that the presumption -- or, as it was called last Term, the "assumption" -- of innocence that is indulged until evidence has convinced a jury to the contrary beyond a reasonable doubt, see Taylor v. Kentucky, 436 U.S. 478, 484 n. 12, colors all of the government’s actions toward persons not yet convicted. In sum, although there may be some question as to what it means to treat a person as if he were guilty, there can be no dispute that the government may never do so at any point in advance of conviction.

Relying on nothing more than the force of assertion, and without even mentioning McGinnis and Stack, the Court states that the presumption of innocence "has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun." Ante at 533. But having so recently reiterated that the presumption is "fundamental," see Taylor v. Kentucky, supra at 483, I cannot believe the Court means what it seems to be saying.

12. In many instances, detention will occur although the risk of flight is exceedingly low. This is because there is

a large class of persons for whom any bail at all is "excessive bail." They are the people loosely referred to as "indigents." Studies of the operation of the bail system have demonstrated that even at the very lowest levels of bail -- say $500, where the bail bond premium may be only $25 or $50 -- there is a very substantial percentage of persons who do not succeed in making bail, and are therefore held in custody pending trial.

Packer, supra,n. 10, at 216.

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

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

15. Even if the Court were to apply this aspect of its test in a meaningful way, it would add little to the concept of punishment that is impermissible under the Due Process Clause. The Court states this test as follows:

[I]f a restriction or condition is not reasonably related to a legitimate goal -- if it is arbitrary or purposeless -- a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.

Ante at 539. It is readily apparent that this standard is nothing more than the "rational basis" requirement that even presumptively valid economic and social regulations must satisfy to pass muster under the Due Process Clause. Accordingly, if a court followed the path proposed in the quotation above, it would take unnecessary steps. For governmental activity that affects even minor interests and is "arbitrary or purposeless" is unconstitutional whether or not it is punishment. See, e.g., Rinaldi v. Yeager, 384 U.S. 305; Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173.

16. Beyond excluding expressly intended punishment, the Court puts no restrictions on the goals that it recognizes as legitimate; under its test, the Government need only show some rational nexus to security, order, or the apparently open-ended class of "operational concerns" facing the jail administrator, ante at 540, and the restriction will be upheld.

17.

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

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

Packer, supra,n. 10, at 32-33.

18. Accord, United States v. Lovett, 328 U.S. 303, 311.

19. Some state courts have had to resort to such criteria even when analyzing the punitive content of legislation because many state assemblies publish no record of their deliberations. E.g., Starkweather v. Blair, 245 Minn. 371, 71 N.W.2d 869 (1955).

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

21. Although the Court’s discussion of this point is laced with citations of prison cases such as Price, ante at 545-547, it fails to mention a single precedent dealing with pretrial detainees. Cf. Houchins v. KQED, Inc., 438 U.S. 1, 37-38 (STEVENS, J., dissenting); O’Brien v. Skinner, 414 U.S. 524; Goosby v. Osser, 409 U.S. 512.

Having concluded that detainees’ rights are "Limited," the Court is reduced, for example, to analyzing restrictions on First Amendment rights in the deferential language of "minimum rationality" -- language traditionally applied to restrictions on economic activities such as selling hot dogs or eyeglasses. New Orleans v. Dukes, 427 U.S. 297; Williamson v. Lee Optical Co., 348 U.S. 483.

The First Amendment is not the only victim of the Court’s analysis. It also devalues the Fourth Amendment as it applies to pretrial detainees. This is particularly evident with respect to the Court’s discussion of body cavity searches. Although it recognizes the detainee’s constitutionally protected interest in privacy, the Court immediately demeans that interest by affording it "diminished scope." The reason for the diminution is the detainee’s limited expectation of privacy. Ante at 557, 558. At first blush, the Court’s rationale appears to be that, once the detainee is told that he will not be permitted to carry on any of his activities in private, he cannot "reasonably" expect otherwise. But "reasonable expectations of privacy" cannot have this purely subjective connotation, lest we wake up one day to headlines announcing that. henceforth, the Government will not recognize the sanctity of the home, but will instead enter residences at will. The reasonableness of the expectation must include an objective component that refers to those aspects of human activity that the "reasonable person" typically expects will be protected from unchecked Government observation. Cf. Katz v. United States, 389 U.S. 347, 361 (Harlan, J., concurring). Hence, the question must be whether the Government may, without violating the Fourth Amendment, tell the detainee by words or by action that he has no or virtually no right to privacy. In my view, the answer to this question must be negative; despite the fact of his confinement and the impossibility of retreat to the privacy of his home, the detainee must have the right to privacy that we all retain when we venture out into public places. And surely the scope of that privacy is not so diminished that it does not include an expectation that body cavities will not be exposed to view. Absent probable cause, therefore, I would hold that such searches of pretrial detainees may not occur.

22. The classic example of the coincidence of punishment and the total deprivation of rights is voting. Thus, in Richardson v. Ramirez, 418 U.S. 24, the Court, although recognizing the importance of the right to vote, id. at 54, see Reynolds v. Sims, 377 U.S. 633, 561, found support in § 2 of the Fourteenth Amendment for denying convicted felons the right to vote. Cf. O’Brien v. Skinner, supra, (finding certain restrictions on absentee voting by pretrial detainees unconstitutional under the Equal Protection Clause). See also Goosby v. Osser, supra.

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

23. E.g., Wolff v. McDonnell, supra at 555; Richardson v. Ramirez, supra at 43-53. The Court has probably relied upon historical analysis more often than on any of the other objective factors discussed in Kennedy v. Mendoza-Martinez, in determining whether some government sanction is punitive. E.g., Cummings v. Missouri, 4 Wall. 277; Ex parte Wilson, 114 U.S. 417, 426-429; Mackin v. United States, 117 U.S. 348, 350-352; Wong Wing v. United States, 163 U.S. 228, 237-238.

24. The prospect of long-term incarceration facing an inmate increases his incentive to use illicit means to obtain luxuries that his imprisonment would otherwise deny him. Moreover, the fact of long-term incarceration of a large number of persons is conducive to the development of an institutional subeconomy and even subgovernment that often thrives on contraband and is inconsistent with the orderly operation of the facility. See, e.g., H. Mattick, The Prosaic Sources of Prison Violence, Occasional Papers of the University of Chicago Law School, No. 3, Mar. 15, 1972. As the foregoing indicates, I believe the analysis of the four rules as applied to convicted prisoners is different from that as applied to pretrial detainees. Not only do the due process and other rights of the two have different scope, but the Government’s security interests also differ. In my view, the courts below, in erroneously applying the same standards to both sets of inmates and in focusing on detainees, did not adequately develop the record with respect to convicts. Accordingly, I would remand the question of the validity of the four rules in the context of convicted prisoners for further proceedings. Cf. United States ex rel. Miller v. Twomey, 479 F.2d 701, 719 (CA7 1973).

25. In fact, the Government admitted below that the "restrictions on the possession of personal property" at MCC "serve the legitimate purpose of punishment" with respect to convicted inmates as well as the security purposes relied on in the present context of pretrial detainees. United State ex rel. Wolfish v. Levi, 439 F.Supp. 114, 153 (SDNY 1977).

26. This affront may itself constitute punishment because of its retributive character. Mendoza-Martinez makes clear that a sanction is punitive if it "will promote [a] traditional ai[m] of punishment -- retribution." 372 U.S. at 168-169. In its retributive aspect, "`[p]unishment is the way in which society expresses its denunciation for wrongdoing.’" Gregg v. Georgia, 428 U.S. at 184, and n. 30 (opinion of STEWART, POWELL, and STEVENS, JJ.), quoting Lord Justice Denning’s testimony before the Royal Commission on Capital Punishment. See also letter from Judge Learned Hand to the editors of the University of Chicago Law Review (undated), reprinted in 22 U.Chi.L.Rev. 319 (1965); sources cited in the first paragraph of n. 10, supra. A focus of this "denunciatory" approach is the right of society, in significant respects, to deny the civic and human dignity of persons who have been convicted of doing wrong. Cf. Gregg v. Georgia, supra at 173, 182 (fundamental violations of "human dignity" may constitute cruel and unusual punishment).

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

28. The District Court reserved decision on all of these practices save the restriction on receipt of hard-back books until a full trial on the merits. It is accordingly appropriate to resolve these issues now without a remand.

29. I do not understand how the Court, having quite thoroughly demonstrated that the District Court applied an erroneous legal test, ante at 530, 532-535, can nonetheless rely on that court’s conclusion that no disputed issues of material fact prevented it from applying its erroneous test to the housing issue. Ante at 541 n. 24.

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

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

It is not necessary by any means to rely solely on what the architect said; the plain visual evidence of what he did demonstrates that the rooms he designed were for one inmate, not two or more. There is no place for each of two people, assigned by others to this unwanted intimacy, to walk or eat or write a letter or be quiet or be outside another’s toilet. There is one shelf for toiletries and one for other things, neither adequate for two people. In the larger group of 100 double-celled rooms, there is no place to hang a garment. The double-decker bunks by which these rooms have been changed from singles are so constructed that air from a vent, cold during our winter visit, blows out onto the upper bed a foot or so above body level. Many of the prisoners have blocked the vents to cope with this architecturally unintended unpleasantness. And, as a result, the rooms are musty and unpleasant smelling. The single beds originally designed for these rooms each had two drawers built under them, mounted on casters for reasonably convenient use. In the reconstruction to house two inmates, it was found necessary to dismantle these caster arrangements; now each "double" room has one of the old drawers lying loose under the lower bed or none at all for the two assigned occupants.

United States ex rel. Wolfish v. United States, 428 F.Supp. 333, 33337 (SDNY 1977) (footnote omitted; emphasis in original).

31. To these facts may be added some of the findings of the District Court: (1) Even at design capacity, "movement is more restricted at the MCC than in most other federal facilities," including those that exclusively house convicts, 439 F.Supp. at 125; (2) the doubling of the design capacity of individual cells leaves "no place for each of two people, assigned by others to this unwanted intimacy, to walk or eat or write a letter or be quiet or be outside another’s toilet," places the person in the newly added upper bunk directly under the cold air vent, renders some of the furniture designed for the rooms unusable, and in general subjects the inmate to "foul odors, social stigma, humiliation, and denials of minimal privacy," 428 F.Supp. at 337, 339; (3) overall, the

living conditions [are] grossly short of minimal decency, and [have] no semblance of justification except [for] the general defense that the facilities of the Bureau of Prisons are in toto insufficient to house all the people consigned to them,

439 F.Supp. at 135. Without so stating expressly, the Court has rejected these findings. Ante at 542-543. Because that rejection is not permissible absent a determination of clear error, and because no such determination has been made, its treatment of the District Court’s findings is inexplicable. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123.

32. The ameliorative factors discussed by the Court, ante at 542-543, might well convince the factfinder that the housing conditions are not punitive.