Warren E. Burger: We'll hear arguments next in Bell against Wolfish. Mr. Frey I think you may proceed when you are ready, now.
Mr. Andrew L. Frey: Thank you. Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari to the Court of Appeals for the Second Circuit to review certain aspects of its decision relating to conditions of confinement at the Metropolitan Correctional Center, a federally operated short-term custodial facility in New York City. There are five issues presented to you for decision. The first and perhaps potentially the most significant from the standpoint of constitutional doctrine, involves the constitutionality of double-bunking pretrial detainees in rooms designed for single occupancy.
William H. Rehnquist: Mr. Frey when you say pretrial detainees I take it you are excluding those who are confined other than in a status as pretrial detainees?
Mr. Andrew L. Frey: That's right. There are various classifications of inmates that are kept at a facility like the MCC in addition to persons who are being held in lieu of bail or awaiting trial in criminal charges. There is a significant group of inmates who are -- have been brought in on ad testificandum or ad prosequendum writs to appear in Federal Court proceedings who are prisoners serving other state or federal sentences. There are persons awaiting parole and probation revocation hearings, and there are sentenced inmates whose sentences are such a short duration that it is deemed desirable to have them serve their sentence in New York.
Potter Stewart: Well, all those categories of people are people who have been convicted and sentenced to confinement?
Mr. Andrew L. Frey: That's correct.
Potter Stewart: And since the Court of Appeals for the Second Circuit did not find that this was in any way cruel and unusual punishment and no appeal was taken from that, those people are out of the case, aren't they?
Mr. Andrew L. Frey: As to the double-bunking issue.
Potter Stewart: As to the double-bunking business.
Mr. Andrew L. Frey: That's correct; they are out of the case.
Warren E. Burger: Now the people who will remain there, who are awaiting trial, by definition they have not been able to secure release on bail or they wouldn't be there?
Mr. Andrew L. Frey: The group of people that we're talking about in connection with the double-bunking issue are people who have been unable to secure a release on bail.
Thurgood Marshall: [Inaudible]
Mr. Andrew L. Frey: Is there any difference in the facility?
Thurgood Marshall: I know it's new and all, but is it the same group of people?
Mr. Andrew L. Frey: I believe it is generally the same group of people. Actually there maybe some categories that were kept at West Street and they were shifted to other facilities when the MCC opened because of the population increase of people committed to bureau's custody, immigration, deportation cases and others.
Lewis F. Powell, Jr.: Are the people being held because the -- they either were not allowed to put up bail or couldn't do it; those have been indicted for felonies or are there some people charged with misdemeanors?
Mr. Andrew L. Frey: I don't know the record. I simply don't know the answer to that question.
John Paul Stevens: Mr. Frey before you get into your argument, if this were a state facility the cause of action would be brought under 1983 I would suppose. Have you given any thought to what's the source of the cause of action that's asserted in this case? I know that's not really your responsibility, but I'm just interested in your --
Mr. Andrew L. Frey: Well, it was brought as a habeas corpus class action, certified as a class action. We have not challenged the jurisdiction. We contested the wisdom of certifying a class action, but that was done and we have not challenged that in this Court.
John Paul Stevens: You agree these issues are properly raisable in a habeas corpus proceeding?
Mr. Andrew L. Frey: Well, I have not focused my attention in preparing the argument on that question. I am not prepared to dispute --
John Paul Stevens: It just struck me, it's somewhat anomalous. I was trying to think it through myself, I didn't know the government had a position like that.
Mr. Andrew L. Frey: Not one that I could state.
Warren E. Burger: Is there any history of class-- habeas corpus class action that you're familiar with?
Mr. Andrew L. Frey: Well, I believe there is some authority for habeas corpus class actions and there have been questions that have come to our attention in the Solicitor General's office in connection with whether that should be challenged, but to this point we have not sought to challenge the propriety of that, and we don't do it in this case.
Potter Stewart: A basic question, didn't the Preiser case hold that when all that is challenged, the conditions of confinement by contrast with the fact of confinement, that habeas corpus is inappropriate? That habeas corpus is appropriate only to secure release in other words?
Mr. Andrew L. Frey: I'm not sure if that's correct, but I'm -- well I'm generally familiar but I have not refreshed.
Potter Stewart: You're generally familiar [Voice Overlap]
William H. Rehnquist: Well in Middendorf against Henry which is October term 1975, I think the opinion of the Court expressly reserved the prior -- the question as to whether a habeas corpus action could be a class action. I don't think this Court has ever approved it.
Mr. Andrew L. Frey: I haven't suggested that this Court has, but I don't think -- I don't perceive of that as the kind of threshold jurisdictional question that you must decide even though we have not brought it to you for decision.
Potter Stewart: Well, the class action is one thing, but the basic availability of habeas corpus is more fundamental. That's jurisdictional, isn't it?
Mr. Andrew L. Frey: Well, I think that would right and I'm not sure perhaps my colleague can answer. There maybe alternative grounds such as mandamus for –
Potter Stewart: [Voice Overlap] you want the lawsuit or otherwise [Inaudible]
Thurgood Marshall: The question I thought my brother is do you agree that there is habeas for conditions?
Mr. Andrew L. Frey: Well, I think my answer is that we have not asked this Court to overturn the judgment below on the grounds that there is a lack of jurisdiction or on the grounds of any challenge to the propriety of a class action certification and I'm reluctant to state a position for the government on these issues without having giving it a greater deal of thought.
Thurgood Marshall: Well, one way would be if we rule against you then --
William J. Brennan, Jr.: Did you say, what percentage of the total population is represented in the class [Inaudible]
Mr. Andrew L. Frey: Well, the class consists of the total population of inmates both sentenced and pretrial detainees.
William J. Brennan, Jr.: I see.
Mr. Andrew L. Frey: I think that that are some internal conflicts of interest between these groups that are -- request to have such separate subclasses certified was denied by the District Court.
William J. Brennan, Jr.: So we have the whole population?
Mr. Andrew L. Frey: You have the whole population, but not as to every issue. The double-bunking issue, the disposition in the Court of Appeals was that it reversed the District Court's ban as applied to sentenced inmates and remanded for further proceedings. It affirmed as applied to pretrial detainees because it perceived that a different legal standard was appropriate to judge the claim in that context. There are also four rules or practices that are before this Court that are justified on security grounds, the right to receive packages, the so called publisher only rule, the validity of visual inspection of body cavities after contact visits and the right to be present or the inmate to present and observe room searches. Now --
William J. Brennan, Jr.: And issues concern the whole --
Mr. Andrew L. Frey: With the exception of the room search issue which applies only to pretrial detainees, no distinction was drawn on the other three issues between sentenced inmates and pretrial detainees, arguably one might be but none has been. Now these five issues are the rump contingent of a veritable army of complaints about the operation of the MCC that marched into the United States District Court in November 1975, less than four months after the MCC opened. The issues raised covered such diverse subjects as housing, food, clothing of inmates, visiting, library facilities, staffing, educational and job opportunities, grievance procedures, mail, telephone service, noise levels, various aspects of the treatment of personal property and many others, they're numerous to name here. After initially resolving a few of the issues on summary judgment including the double-bunking and the publisher only issue, the District Court conducted hearings and issued an extensive opinion granting much of the relief respondents sought and denying others of their claims. The court relied on both constitutional and statutory grounds for its decision. Some of its rulings, the government acquiesced and others were appealed to the Court of Appeals and the Court of Appeals in turn affirmed in part and reversed in part. It rejected any statutory basis for the District Court's orders prohibiting various MCC practices and conditions, finding that the case generally involved matters committed to agency discretion by law, and accordingly rested it's own ruling solely on constitutional grounds. And as I've said in setting forth the constitutional standards that distinguish between sentenced inmates and pretrial detainees. As to the former challenged conditions were to be judged by the Eighth Amendment, Cruel and Unusual Punishment Standard, the detainees -- the Court relied on the presumption of innocence to set a much higher standard. It stated that pretrial detainees maybe subject to “Only those restrictions and privations which inhere in their confinement itself or which are justified by compelling necessities of jail administration.” And it made quite clear that challenges to conditions of confinement for detainees are to be adjudicated without consideration of either physical or administrative justifications for the particular practice. It applied these standards for the double-bunking issue by in affect adopting a per se rule that two inmates may not be housed in the room designed for one. With regard to the other issues that are before this Court, the Court of Appeals acknowledged that the maintenance of security and order is a compelling necessity of jail administration, but it nevertheless concluded that the government had failed to establish sufficient justification for the practices or rules in question. Now as I indicated at the beginning the case breaks down into two different types of issues. The first involves the standards by which the due process rights of pretrial detainees are to be evaluated in the context of a challenged or alleged overcrowding at the MCC. The second involves the security related issues. Now since the first issue was potentially the more novel and substantial constitutional issue, I intend to devote most or all of my limited time to that question and to rely on the briefs for the other issues. I'd like to say a brief word about the MCC itself before getting into legal arguments. It is one of a very limited number of Federal facilities, specifically designed to house pretrial detainees and other short-term inmates. As the Court of Appeals described that the MCC represented the architectural embodiment of the best and most progressive penological planning. The key design element of the MCC that's relevant to the double-bunking issue and that indeed is the central element of the facility, is the modular unit concept. In this concept there are self contained residential units in lieu of the traditional cell block. Typical unit contains 48 rooms, which would join large multipurpose rooms with facilities for recreation, education, exercise, and dining. The common areas are carpeted, sleeping rooms have doors rather than bars and for the virtually the entire day except seven sleeping hours between 11 in night and 6 in the morning the inmates are free to move about their unit without restriction. Also visiting facilities are attached to each of these units rather than having a central facility for the institution. I understand that there are slides in the record with photographs of the institution if you deem it useful to get a look at what it's like. The MCC was designed to house 449 inmates, however contemporaneous with its opening in August 1975, there was a sharp and unexpected increase in the number of persons committed to the Bureau of Prisoners Custody, who the Bureau determined had to be or should be housed at the MCC. Because the number of inmates exceeded the designed capacity of the institution, the Bureau determined in order to meet its custodial obligations that a number of the rooms should be used to house two inmates and that bunk bed should replace single beds in the dormitory areas. Accordingly, bunk beds were installed in place of single beds in 73 of the 389 residential rooms at the MCC. Now the respondents have invoked and the Court of Appeals has relied upon the Due Process Clause for striking down the double bunking in this case. The focus of the issue therefore concerns the substantive content of that clause. The Court of Appeals held that the Due Process Clause by its own force and without the aid of any other constitutional provision, confers upon pretrial detainees the right to be free of cramped housing conditions in the absence of a governmental showing of compelling necessity.
William H. Rehnquist: Was that a liberty interest or a property interest?
Mr. Andrew L. Frey: I believe they viewed it as a liberty interest and we do not dispute in this case the pretrial detainees retain those liberty interests that are not inconsistent with the fact of confinement itself. We simply dispute that the standard that was applied by the Court of Appeals in evaluating the practices that arguably impinged upon those liberty interests was the right standard. Now we think that the Court of Appeals Standard lacks any basis in the constitutional decisions of this Court dealing with the subject of substantive due process and we think that the proper resolution of the issue that was before the Court of Appeals required that the government be afforded an opportunity to adduce the factors that brought about the challenged conditions and the propriety of the government's action having to be assessed by its reasonableness in relation to the legitimate governmental objectives at stake. Now two aspects of the constitutional backdrop to this issue are worth highlighting. First, there is no dispute that the conditions of confinement for both pretrial detainees and sentenced inmates must meet minimum levels of decency with regard to such consideration as housing, food, sanitation, and medical care and we have spelled out in our brief the reasons for our contention that these standards have been fully satisfied at the MCC.
Potter Stewart: Do you say there are no disputes they must and you mean constitutionally?
Mr. Andrew L. Frey: Constitutionally.
William H. Rehnquist: Because of the cruel and unusual punishment.
Potter Stewart: Cruel and unusual punishment clause.
Mr. Andrew L. Frey: And as pretrial detainees the Due Process Clause.
Potter Stewart: What's a due process has to do with it?
William H. Rehnquist: What's that have to do with it?
Mr. Andrew L. Frey: Well, it has to do with it in the same sense I think that conditions of this kind can be viewed as cruel and unusual punishment under the Eighth Amendment. We are in agreement that pretrial detainees cannot under the Due Process Clause be punished prior to a trial.
Potter Stewart: [Voice Overlap] isn't he?
Mr. Andrew L. Frey: Well, after to conviction, when they see --
Potter Stewart: But you said pretrial detainees.
Mr. Andrew L. Frey: They can't be punished.
Potter Stewart: That's all.
Mr. Andrew L. Frey: That's correct.
Potter Stewart: Not only could be usually punished they can't be punished at all can they?
Mr. Andrew L. Frey: That's true.
Potter Stewart: And that is matter of due process you said.
Mr. Andrew L. Frey: Yes we agree.
John Paul Stevens: That is the standard that you suggest one that if we were to conclude that a particular type of treatment really had to be classified as punishment then that would violate the Due Process Clause, it didn't have to be cruel and unusual, but just as long as --
Mr. Andrew L. Frey: If you concluded that it was punishment then it would violate the Due Process Clause. Now we have a great deal of difficulty with the respondent's argument that what was involved in this case was demonstrated to be punishment. We think the concept of this punishment is they're using it as a trivial or totalogical concept. It's punishment because they repeatedly say it's punishment, but --
Thurgood Marshall: What do you call it incarceration?
Mr. Andrew L. Frey: Why do I call incarceration?
Thurgood Marshall: If it's not punishment what is it?
Mr. Andrew L. Frey: Well, this is not punishment, its custody. It can be incarceration of course, it can be punishment.
Potter Stewart: But it is if it's inevitably punishment then there could be no pretrial detainees?
Mr. Andrew L. Frey: Well, that's and if that's the case then the Due Process Clause allows punishment to the extent that pretrial --
Potter Stewart: It doesn't allow punishment of anybody who is not been convicted of a criminal offense?
Mr. Andrew L. Frey: But, I think we are getting into a circularity. I don't think there is any substantial dispute.
Potter Stewart: If it is punishment there can be no such thing as a pretrial detainee, everybody have to be released?
Mr. Andrew L. Frey: No one is questioning the validity of the institution of pretrial detention.
William H. Rehnquist: So then, doesn't your Right to Detain have to depend on the finding that these people were found, not likely to show up in for their trials where upon furnishing a bail, therefore you had to detain them in order to assure their presence at trial.
Mr. Andrew L. Frey: Well the detention involves an impairment of a fundamental liberty interest protected by the Due Process Clause and the standard that the Court of Appeals applied to double-bunking is clearly inappropriate standard to apply to pretrial commitment, and indeed the both the Constitution and the statutes require a kind of least restrictive alternative test so that detention is the last step after you've excluded any other reasonable measure to assure presence at trial.
William H. Rehnquist: But if you've met all those tests then you're depriving them of liberty simply in order to assure their presence at trial --
Mr. Andrew L. Frey: That is the purpose for which they're being --
William J. Brennan, Jr.: But Mr. Frey some of these people at least would have been released if they could have raised the bail?
Mr. Andrew L. Frey: That's true. I assume, I assume very few if any --
William J. Brennan, Jr.: You're not keeping them because the people who wouldn't show up when they're supposed to show up. You're keeping them because even though they would show up they couldn't afford to --
Mr. Andrew L. Frey: Well I don't think -- I don't think that's right because the amount of bail is set in the amount necessary to assure their appearance at trial, and if they don't post that amount, then it follows that there has been an determination that with some lesser amount or Personal Recognizance bond, their appearance at trial cannot be assured and that's the reason why they are --
William J. Brennan, Jr.: But whatever the amount is? Had they've been able to raise it, they would have been released?
Mr. Andrew L. Frey: That's correct but they would have then been deterred from fleeing or failing to appear by the --
Byron R. White: It's what you said -- applicable statutes on bail?
Mr. Andrew L. Frey: I think the -- I believe it is. We've citied section 3146 I think in our brief in terms of --
Byron R. White: But doesn't there have to be some finding that some alternatives besides bail wouldn't --
Mr. Andrew L. Frey: There are consider -- there are considerations of a number of alternatives, money bail being low down on the list.
Byron R. White: Well, so that isn't -- what you said really doesn't cover the kind of a determination that's been made. You have to arrive at -- you have arrive at some conclusion if other alternatives weren't suffice to --
Mr. Andrew L. Frey: Well, we don't -- I agree with that I am not sure what the bearing of -- I don't know what the bearing of that is in the context of this case because no one is contesting the validity of the institutional pretrial detention. No one is contesting -- we're not contesting that a compelling necessity standard is appropriate and the respondents are not contesting that these people can be detained. It's the subsidiary conditions of confinement incidental to this massive restriction on liberty that's involved in the detention that are at issue.
William H. Rehnquist: But the purpose of the detention must have some bearing on the standard of review. If it's punishment, it's one thing. If it's simply assuring that they will show up for trial because there is no other way that you can assure their appearance is may be another.
Mr. Andrew L. Frey: Well, let me explain the role that I think punishment properly plays in this. When a challenge is presented to a condition of confinement, the government is obliged assuming the challenge crosses some constitutional threshold of presenting some kind of claim of liberty interest, the government is obliged to show in some fashion and by some standard a justification for the action that it has taken, which has impaired this interest. Now the -- in the case of a pretrial detainee, the government cannot say, one of the reasons we're doing this is to punish them; or one of the reasons that justifies this practice is to rehabilitate them, or to deter others from committing the offense. Those are -- those are governmental objectives that can only be invoked to support a condition of confinement in the case of convicted inmates. In the case of pretrial detainees, there must be other kinds of considerations invoked. Our concern in this case is that the very real and substantial physical and administrative considerations that made it necessary to resort to a degree of double-bunking were totally foreclosed from consideration by the Court under a standard which in effect said per se, “You just can't put two people in a room that was designed for one. We don't want to hear why you're doing it.” Now in this connection there is a lot of suggestion that physical considerations and administrative convenience are some how insubstantial excuses that the government makes up to justify its practices, and that it's something -- administrative convenience is something like not having to work overtime or not having to make modifications and establish routines and we think administrate convenience is much more in this context. The Bureau of Prisons has as a certain population of inmates committed to its custody. It has no control over the number of these inmates. It has to house them. The kinds of considerations of administrative convenience which are included in this, in this concept involve, where are you going to put these people? If you can't double-bunk in the MCC, then a number of people who perhaps should be in New York City, including and it didn't happen in this case but it could, pretrial detainees will be moved way from their family and friends, away from their lawyers --
Thurgood Marshall: You can move them to state facility in New York, they're --
Mr. Andrew L. Frey: No there too, we could not, but this is the kind of issue that would have explored at a trial, and it is not simply administrative convenience of the administrators but encompassed within this rubric is the welfare of the people committed to their custody as a group and when the MCC was told, you can't double-bunk anymore, what happened was that 90 inmates who the Bureau of Prisons judged ought to be housed at the MCC were sent off to other facilities, possibly more crowded or for other reasons less suitable for them. Now I do want to I think save the balance of my time for a rebuttal, if I may.
Phylis Skloot Bamberger: Mr. Chief Justice.
Warren E. Burger: Mrs. Bamberger.
Phylis Skloot Bamberger: Thank you Your Honor. Mr. Chief Justice and may it please the Court. The government's application of the compelling interest test as the appropriate standard for determining the rights of pretrial detainees ignores the historically legal context of that standard and indeed the very facts of this case. Furthermore the government misconstrues the Second Circuit's test. What we are dealing with here is the fundamental right of a pretrial detainee not to be punished. This right persists even though the pretrial detainee is placed in custody to assure his appearance in court at the time of trial. This fact of detention has not constitutionally been considered punishment, because the Eighth Amendment permits bail and by inference permits custody in lieu of bail in order to assure the appearance of the defendant for trial.
Warren E. Burger: Would you think Mrs. Bamberger that double-bunking, as it has been described, is in itself a punishment?
Phylis Skloot Bamberger: Double-bunking as the District Judge saw it and found it, it's an incentive punishment because it is not necessary in order to assure the appearance of the defendant at trial and for the security of the institution, which are the only two factors which can be considered in determining whether or not a condition of confinement that is above and beyond the fact of incarceration is punishment.
Warren E. Burger: Would double-bunking be -- would double-bunking a form of punishment in the military services for example ,in an army camp?
Phylis Skloot Bamberger: Well, we have to look at the particular --
Warren E. Burger: They're all -- they're detained under military discipline.
Phylis Skloot Bamberger: Are you talking about normal military condition?
Warren E. Burger: Army, Navy, Marine Corps?
Phylis Skloot Bamberger: Yes Your Honor there's a vast distinction between the governmental purpose in the military context and the governmental purpose here.
Warren E. Burger: No, I'm talking about double-bunking. Now you say -- you are supporting the idea that double-bunking is per se punishment?
Phylis Skloot Bamberger: Oh! No Your Honor, indeed we're not. We are saying that overcrowding which was in part caused by double-bunking in this case on the --
Warren E. Burger: Now is the overcrowding caused by double-bunking or the double-bunking caused by overcrowding?
Phylis Skloot Bamberger: No, well there would have been no overcrowding if there had been no double-bunking. The government has never indicated on the facts of this case inability to comply with the District Court's order. They have been in compliance for two years without a single request for a stay, without returning to the court for relief from the order prohibiting double bunking.
William H. Rehnquist: How you defined overcrowding?
Phylis Skloot Bamberger: Okay, we defined it, for purposes of this case, as the District Court saw it and as he made findings, we have two people housing a cell, which the Judge found was built for one. The results of this housing of two people in a cell built for one was that there was a very small space for movement of the two people. He looked at it and he saw there was very narrow aisle. Secondly, it requires urination and defecation in the close presence of the other person with the resulting discomforts which the Judge described in his opinion.
William H. Rehnquist: I don't mean to be anecdotal but the troopship I came back from the Second World War had bunked stacks six high in the hold of a ship and I don't think the common view then was that was form of punishment or that it was necessarily overcrowding given the circumstance.
Phylis Skloot Bamberger: Well I think, I think Your Honor that is a point which can be easily explained. The government's compelling interest in wartime is far different from the government's compelling interest as it exists with a detention of presumptively innocent detainees. The purpose of the war time confinement was to create a fighting unit which could defend the government which could defend this country.
Warren E. Burger: Well if you go into some military camps right today and when we are in no war, you will find a considerable amount of double bunking.
Phylis Skloot Bamberger: Indeed Your Honor and the conditions of confinement in a military camp even in normal times can be justified by the government because of the government's need to create a unified fighting force, capable of taking orders and directions and indeed in wartime conditions leaving under a very severe restrictions and conditions. That's not true here. The government's compelling interest is limited to making sure that the individual shows up for court and for protecting the security of the institution and the government does not claim and indeed it never has that overcrowding by double-bunking in this case is justified by anything other than cost and convenience.
Potter Stewart: May be not providing each pretrial detainee a suite of rooms is not necessary to assure you showing up at trial or not providing each one a private bathroom?
Phylis Skloot Bamberger: No that's not.
Potter Stewart: Why does the, I don't understand the connection?
Phylis Skloot Bamberger: The connection in this case Your Honor is that the conditions which were imposed resulted in a severe loss of the privacy and dignity as the judge found on this specific facts in this case.
Potter Stewart: So arguably, would depriving somebody of a suite of rooms and private bathroom.
Phylis Skloot Bamberger: Yes but they are all admittedly limitations.
Potter Stewart: They are, aren't there?
Phylis Skloot Bamberger: Yes they all are in limitations and that's why this is not a per se case. That's why in every case --
Potter Stewart: Well it's not -- is it a per se case even with respect to the class? Now by definition these people are impoverished people or else they could have made bail and been out released on bond. Wouldn't it be necessary to compare their living conditions before they were in this facility with their living conditions in the facility? Some might be better some might be worse and some might be arguably about same.
Phylis Skloot Bamberger: That might very well be true Your Honor, but this is an imposed condition, a condition imposed by the government. Also in a free atmosphere the individual would be free to pick himself and go to up and go to one other street or take a bus or go to a museum or a library.
Potter Stewart: That's you concede, it cannot be allowed to these people, don't you? You concede the legitimacy of pretrial detention, do you not?
Phylis Skloot Bamberger: Yes we do concede that, but what we are saying is that they are confined to this very small space. We can go -- the judgment further than just looking at the single cells with the exposed toilet and the excretory functions performed in the presence of another and the use of the bunk bed which on one wall causes cold air to blow in on the persons sleeping on the top bunk so that his freedom of movement is restricted and if you shifted to the bunk bed to the opposite wall, one end of the bed would be blocking the window.
William H. Rehnquist: Couldn't we put a blanket on?
Phylis Skloot Bamberger: They did put a blanket on it and what the judge found was it a result of, as a result of that the ventilation system was not functioning properly. So they --
William H. Rehnquist: This isn't supposed to be a spa, it's a prison?
Phylis Skloot Bamberger: Well we are not urging that its if, it should be a spa, my urging is that in these conditions on these facts the individuals were deprived and the judge found if minimal privacy and dignity the Court of Appeals agrees. Excuse me Your Honor.
Thurgood Marshall: Bunk bed is punishment because if so I'm going to apologize to my sons.[Laughter]
Phylis Skloot Bamberger: No.
Thurgood Marshall: I mean, would I not be obliged to?
Phylis Skloot Bamberger: Yes you would except if you lived in a room like this where if he slept in the top bunk he would be unable to move when if he slept in the bottom bunk with the bunk bed in the room --
Thurgood Marshall: What do you mean he couldn't move?
Phylis Skloot Bamberger: Because the air-dent will let cold the air right across the top of the inmates body on the top bunk bed so that his movement was restricted, he couldn't lift his legs, he couldn't turn over, he couldn't prop himself up against the wall because his body was --
Thurgood Marshall: That's because of his size, if that wouldn't have big --
Phylis Skloot Bamberger: No way it would be because Your Honor.
Thurgood Marshall: It might be cruel when you put me in with an another guy of my size. But how about 225 pound fellows, is it is that punishment for them?
Phylis Skloot Bamberger: Well it --
Thurgood Marshall: Is it?
Phylis Skloot Bamberger: It would be if they couldn't move in the room.
Thurgood Marshall: If the room, this size room and they 225 pound guys in it?
Phylis Skloot Bamberger: Well we're free to leave this room.
Thurgood Marshall: No they can move around in that room.
Phylis Skloot Bamberger: Yes we would but the judge found that they couldn't move around in that room.
Thurgood Marshall: Regardless of their size.
Phylis Skloot Bamberger: Regardless of their size.
Thurgood Marshall: You mean the wall shrunk?
Phylis Skloot Bamberger: No it meant that after there was the desk and the two chairs which the second chair had to be put in because there was a second person and the bunk bed that the room, that the aisle was too narrow for them to move around that they couldn't leave each others company in any way that they were forced to remain together all the time in that within one inches, within few inches of each other they have to use the toilet facility and that when if the bed was not placed on the wall with the vent, it would be placed on the opposite wall where --
Thurgood Marshall: Is that a private toilet for use?
Phylis Skloot Bamberger: Not if, not per se. But the private toilet, how the private existed in this case was that there was no room for the person not using the toilet to remove himself from in any – for any distance except several inches or perhaps to --
Thurgood Marshall: This is untrue. My whole point is I understand the government's position is that they weren't permitted it to show anything.
Phylis Skloot Bamberger: That Your Honor is not --
Thurgood Marshall: Not anything but close to it?
Phylis Skloot Bamberger: The record in this case disputes that. The government filed several sets of affidavits. I believe what the government is contesting in this case is that they were not given the opportunity to present their cost and justification, cost and inconvenience justifications. As a matter of law if the fundamental right, not to be punished is infringed upon here by this -- by the conditions of confinement, cost and inconvenience are simply legally irrelevant. Even under the government's enhanced scrutiny test caused an inconvenience, cannot be the sole fact.
Thurgood Marshall: Well what would you do in the mean time while you are building a new facility?
Phylis Skloot Bamberger: The -- that question doesn't come up here because the government has never asserted that a new facility --
Thurgood Marshall: Is there a new facility available?
Phylis Skloot Bamberger: The government's never asserted the need for one. Here on appeal in the district court the government has the right.
Thurgood Marshall: Well I don't feel the government will show anything when the court case was issued that two people in one cell is bad and denial of Due Process?
Phylis Skloot Bamberger: But they didn't say that.
Thurgood Marshall: What did they say?
Phylis Skloot Bamberger: The court said that with a functional unit system which was used by the bureau of prisons for this institution, the inmate's could, the institutions could not service a population which was in excess of the population for which the institution was built, 449.
Thurgood Marshall: Well doesn't that may require a new institution?
Phylis Skloot Bamberger: No it doesn't require a new institution.
Thurgood Marshall: But then you require another institution or turn them loose?
Phylis Skloot Bamberger: Not on this record, there is no indication of that.
Thurgood Marshall: Well how else would you handle on this --?
Phylis Skloot Bamberger: The Court of appeals found that the government handled it simply by removing from the institution those inmates who were serving their sentences but were kept at the institutions as part of a workforce for the government's own convenience.
Potter Stewart: Mrs. Bamberger that leads me to ask questions beyond on my mind. I got it some where in these briefs which I read it, good time to go, Christmas time, that there is been a change in the situation since this litigation was commenced and that there is no considerably less if indeed any overcrowding in this facility? Am I mistaken about that?
Phylis Skloot Bamberger: Well that the government has been in compliance with the court's full order on overcrowding since August 28 1978. And they have never returned to the court with proof, with assertions, with facts which would indicate that they are incapable of maintaining that and in fact they conceded in their briefs that they are capable of maintaining --
Potter Stewart: In fact there is no overcrowding of the kind about what your complaining, is that right?
Phylis Skloot Bamberger: As far as I understand, that has to be --
Potter Stewart: And is the case moot?
Phylis Skloot Bamberger: Well the government says that they should be relieved of the obligations because the situation may come up again.
Potter Stewart: Well it may, but it's disappeared now hasn't it, haven't they changed their policy? Don't they, no longer keep in custody here for the workforce?
Phylis Skloot Bamberger: They are no longer keeping custody --
Potter Stewart: Then why isn't the case moot?
Phylis Skloot Bamberger: Well I think Your Honor with all due respect has to ask the government, whether their statement in their brief that they intent overcrowded if --
William H. Rehnquist: Well if you comply with an injunction presumably to avoid contempt you can nonetheless appeal?
Phylis Skloot Bamberger: Exactly Your Honor but the point is that is the government didn't seek a stay of the double-selling or the overcrowding double-selling order they never have.
William H. Rehnquist: That's in the prerequisite to avoidance of mootness?
Phylis Skloot Bamberger: There are two more factors involved here. First they have never returned to the district court claiming impossibility or that they have to construct a new institution or that there has been a substantial change in facts which requires them to be relieved of their obligations under the order.
William H. Rehnquist: Well those may support your contention here that the order was proper but I don't see how they support their contention that the case is moot because the court ordered the government to do something but it didn't want to do voluntarily, the court -- the government complied with that order under the threat of contempt sanction and appeal.
Phylis Skloot Bamberger: Yes what.
Potter Stewart: It's conceivable that the case could become -- this place had burned down and there were no more MCA, then the case would probably been moved, wouldn't it?
Phylis Skloot Bamberger: Yes that's correct but it's the government position here that leaves it open to, because they say that if they need, if they say if they are, if they have a lot of prisoners again that they would put them in any institution convicted, non-convicted, pre trail whatever it may be. The other fact is that --
Thurgood Marshall: Ms. Bamberger please don't push to point that it's moot because if it is moot, joint junction is wrong.
Phylis Skloot Bamberger: No I'm not pushing that it's moot, [Attempt to Laughter] what I'm urging Your Honor.
Thurgood Marshall: I just want to.
Phylis Skloot Bamberger: I'm urging Your Honor is that we have a situation here which the government claims as capable of repetition and we are urging that this order is proper on that assertion. To return to the question of the government's compliance the district court included in its order a provision which would permit the warden of the institution to certify that he needed to overcrowd because of an emergency or immediate severe overcrowding. The government has never availed itself of that portion of the order.
William H. Rehnquist: I think that the government's position as a matter of law, that it is entitled to act on its own without going to the district court and asking it for a certificate?
Phylis Skloot Bamberger: It doesn't have to go to the court. It just has to file a copy of it own certification with the court.
William H. Rehnquist: Well isn't its position that it doesn't have to be subjected to that sort of requirement?
Phylis Skloot Bamberger: Its position is that but even though that order is in effect now. The prohibition on overcrowding is in effect now. While the case is before this Court they haven't used that remedy.
William H. Rehnquist: Well but if they feel the remedy is improperly imposes a matter of constitutional law, I suppose they have a right to appeal even though you suggest they have perhaps an easier out by simply complying with the order, but that doesn't moot the case?
Phylis Skloot Bamberger: No, no we are not asserting that the case is moot. We are just saying that there is no factual assertion in this record for the government's justification that caused an inconvenience, permit the overcrowded housing that existed in this facility at the time that this case was tried. That those conditions, those justifications --
John Paul Stevens: Mrs. Bamberger, how can cost or inconvenience have anything to do with the question of whether the particular condition is punishment or not?
Potter Stewart: That's what I want to know?
Phylis Skloot Bamberger: Well that's the government's theory and I don't understand that because if it's --
John Paul Stevens: And either its punishment or not if it is punishment seems to me they concede that they have to spend what ever money is necessary to remove the punishment.
Phylis Skloot Bamberger: That's exactly the point.
John Paul Stevens: So why are we fighting about money?
Phylis Skloot Bamberger: Well.
John Paul Stevens: I don't understand.
Phylis Skloot Bamberger: With that I will move on to one additional issue --[Laughter]
Warren E. Burger: Before you move on to that, will you tell me please, what authority the District Court or the Court of Appeals relied upon to say that the ancient remedy of habeas corpus is a class action, could be used under a class action umbrella?
Phylis Skloot Bamberger: There have been decisions which I don't have in my head at this moment Your Honor in the Florida and California Federal courts involving capital punishment sanction in which those cases decided the issues based upon class action status.
Warren E. Burger: It was with the habeas -- with the habeas.
Phylis Skloot Bamberger: I believe Your Honor that they were habeas corpus proceedings. Habeas corpus has been used by the courts and the Second Circuit. For instance, I cite saw Sostre against McGinnis, to release an individual not necessarily from full custody, but from those conditions which are unconstitutional.
Warren E. Burger: Well but in a class action that's all I am addressing myself to now?
Phylis Skloot Bamberger: I say I believe that there are cases which I will be happy to supply to the court with. One additional fact which the court considered in the over crowding issue which was the entire set up of the functional unit system where inmates had to spend virtually 23 hours of every day in that one functional unit and Mr. Frey described for the Court that it meant that the inmates were confined to this area for virtually all activities. Now what the judge found was that the institution couldn't supply the activities which these multi-purpose functional unit rooms were supposed to supply because of the overcrowding and this resulted in a rate down in the functioning of the institution.
William H. Rehnquist: Ms. Bamberger what if the place have been designed originally so that the sleeping rooms were to house two people in exactly the way that the government ultimately ended up housing them, but the other facilities had met the standards that you think they are to mean. So there wasn't a question later putting in more people they were designed for, but just designing of close, more closely confined sleeping room. Do you think that would be unconstitutional?
Phylis Skloot Bamberger: I think that would present a more difficult case because.
William H. Rehnquist: Why?
Phylis Skloot Bamberger: Well because the conditions in the room, the denial of privacy, the cold air blowing into the vent, the presence of the exposed toilet would still exist.
William H. Rehnquist: Well supposing that was all present, but it was simply designed that way. The government just decided they put twice as many people, but that was of the architect's plan?
Phylis Skloot Bamberger: Well if that was the architects plan I would submit that the Court could disregard the architects plan just as though just as the Court could consider it as an element in deciding whether the room was appropriate for housing more than one person.
William H. Rehnquist: So it isn't a question about going beyond what the capacity of prison was originally supposed to house? It's a question of some standard that a court gets from somewhere as to how many square feet each prisoner should have regardless of what the architect plans?
Phylis Skloot Bamberger: That's correct and indeed the bureau of prisons has itself has presented testimony in cases which would indicate that 50 square feet is the minimum required per inmate in a cell in order to give him adequate movement space, adequate psychological space. That testimony is cited in Campbell against McGruder by the DC Circuit. The draft standards proposed by the justice department indicate that the space which was provided per inmate in this double-celling overcrowded situation is inadequate.
William H. Rehnquist: Do you think those are absorbed in the Constitution?
Phylis Skloot Bamberger: I don't think that they are absorbed into the Constitution, but I suggest to the Court that they are valid evidence which can be considered, expert evidence from, in the case of the government drafted standards it's own correctional officials, which would indicate what they believe to be adequate and I think that is evidence which the district court considered and which is appropriate to consider in making an evaluation. It's the same ways in the medical case, doctor's assertions are not constitutional principles, but they are valid evidence in determining what is the proper legal standard to apply.
Lewis F. Powell, Jr.: Ms. Bamberger if you are finished responding to Mr. Justice Rehnquist I would like to ask a question. You emphasized privacy, does that mean that you would take the same position if the room were, say the size of ordinary double room in a small town hotel with twin beds. Do you object to the fact that two people in the same room?
Phylis Skloot Bamberger: No sir, there is no objection to that and the record doesn't present that in this case.
Lewis F. Powell, Jr.: What are the dimensions of these cells? I know they are in the record but I can't put my hand on.
Phylis Skloot Bamberger: They are about 75 Square feet.
Lewis F. Powell, Jr.: Well what are the dimensions?
Phylis Skloot Bamberger: It's --
Lewis F. Powell, Jr.: 30 feet long and how many feet wide? I thought I saw some --
Phylis Skloot Bamberger: Yes they are in a supplement appendix, (Voice Overlap) Excuse me Your Honor.
Warren E. Burger: It shouldn't be much over 10 and by 7.5?[Laughter]
Phylis Skloot Bamberger: That's right.[Laughter]
Lewis F. Powell, Jr.: What are they?
Phylis Skloot Bamberger: Approximately 10 X 7.5.[Laughter]
Lewis F. Powell, Jr.: You are relying on the Chief Justice or the record?
Phylis Skloot Bamberger: Yeah, well I think he is good authority [Laughter]. Now in this room the toilet juts about 2 feet in to the center of the room, so that --
Lewis F. Powell, Jr.: Is that opposite to bunks?
Phylis Skloot Bamberger: I'm sorry.
Lewis F. Powell, Jr.: Is the toilet opposite to bunks?
Phylis Skloot Bamberger: Well it's not exactly opposite because it is in to the middle of the room so that if the bunk bed were on the side where the toilet juts out towards the bottom bunk would be just inches from the toilet and the other end of the bed would be at the window.
Lewis F. Powell, Jr.: How far is the mattress on the top bunk from the ceiling?
Phylis Skloot Bamberger: That fact is not in the record Your Honor.
Lewis F. Powell, Jr.: I thought you knew because you said that one couldn't turn over and one couldn't --
Phylis Skloot Bamberger: No it wasn't the ceiling height Your Honor, that was significant, it was the height of the ventilations, the vent which supplied the air that went in and out of the room.
Lewis F. Powell, Jr.: It's the cold air is what prevents one from turning over?
Phylis Skloot Bamberger: That's right. It's about one foot above the body level of the -- of a person lying on the bed.
Lewis F. Powell, Jr.: How wide are the bunks?
Phylis Skloot Bamberger: There is only one piece of evidence in the record which would indicate that and that was one of our experts who testified that the bunks were 6 feet by 3 feet. They are 6 feet long by 3 feet wide.
Lewis F. Powell, Jr.: If so bunks 3 feet wide in a room 7.5 feet wide would leave 4.5 feet and you said that the people couldn't pass each other?
Phylis Skloot Bamberger: Well the aisle is, the judge found that was approximately 30 square feet in width, I'm sorry 34 square feet so it would be 4, if it --
Lewis F. Powell, Jr.: The square feet wouldn't necessarily affect the width of a room, it would depend on how they were structured?
Phylis Skloot Bamberger: No that's correct, so if it would tender it would be 3 foot.
Lewis F. Powell, Jr.: But my point is you were saying that they couldn't pass each other?
Phylis Skloot Bamberger: Well it's about 3 feet wide, the width of the aisle that was left in the room.
Lewis F. Powell, Jr.: It will be tight but your math is little different from that and perhaps you are right.
Phylis Skloot Bamberger: In any case the judge made a specific finding that the space would make it very crowded and very difficult to move about.
John Paul Stevens: Are the rooms rectangular in shape, I think some these facilities have triangular rooms, is that correct?
Phylis Skloot Bamberger: They are -- no they are not triangular, they're irregular because of the way the fixtures for plumbing and electricity cut into the room. These are all in an exhibit one to the government's 9(g) statement and they are exhibits before the court. And so the scheme of the room with the placement of the articles it's in there. The government also relies upon a distortion of the Second Circuit's case to make its argument here. The Second Circuit said, “ that even though there was a compelling interest not to be punished by conditions which were more severe than necessary in order to justify appearance in court and the security of the institution, the particular intrusion imposed by the government had to effect -- had to be a substantial intrusion, so that even the application of the Second Circuit's compelling interest test would leave the government enormous amounts of room in which to function without returning to the Court each time it had to make a decision. And indeed that is what Judge Kaufman said in his opinion on page 2A of the petition, Certiorari Petition Appendix. Judge Kaufman says twice that the intrusions must be substantial ones and I think that that the government fears about a returning to court for every time they have something to do which is simply unfounded. There are four other issues which were presented to this Court by the government, the question of the anal and genital cavity perusals after each visit -- I believe my time is up…
Warren E. Burger: No, it's just your five minute warning.
Phylis Skloot Bamberger: Sorry, anal and genital cavity perusals after every visit in a context of enormous security precautions, searches, strip searches which required the inmate to completely disrobe. The second issue presented by the government relates to the total prohibition on all written material to all inmates in the institution except those coming from the publisher.
Warren E. Burger: Now the reason for that was to prevent drugs and weapons from being concealed in a book and related matters, is it not?
Phylis Skloot Bamberger: That is true, but the District Court found and the Court of Appeals agreed that they were less restrictive, not so overboard measures which could control that.
Warren E. Burger: Maybe we should make the District Judge or some judge the Director of the Institution?
Phylis Skloot Bamberger: No, Your Honor and in fact the District Court completely disowned that responsibility as did the Court of Appeals. They found inappropriate as overboard only the most extreme measures imposed by the government.
Warren E. Burger: You regard it as an extreme measure to prohibit books being handed to the prisoners without inspection?
Phylis Skloot Bamberger: Oh! Yes, but the Court said they could inspect. What the government was doing here is that they were totally prohibiting it. We assured it that they could search, they could limit the quantity. They could limit the amount that comes in each month. They could say only one, only two, but they couldn't totally prohibit. That was what the courts were getting at, that the restrictions which the government imposed were way beyond what was needed to protect a security interest. And based on the evidence in large part from the government's own witnesses, the courts below found that their restrictions on First, Fourth and Fifth Amendment rights were far more than was necessary to protect the interest and intermediate interests or intermediate regulations with which involved less restrictions, but could nevertheless protect the government's security interest could be imposed and this did not prevent the government from using reasonable means. The choice was theirs. They could do whatever they chose to do to protect their interest as long as the restriction that was ultimately found to be used by the government was not so over broad that it went beyond what was necessary to protect the interest.
John Paul Stevens: May I ask two related questions? First I am not clear, the regulations that are challenged here, were they just for the New York Institution or are they the nationwide regulation for the Bureau of Prison, that was my first question. Let me give you the second you can answer both together. The second question is the strip search problem; does the record show that every time there is a visit to an inmate there is a strip search or is it done --?
Phylis Skloot Bamberger: It's done every single time.
John Paul Stevens: Every single time --
Phylis Skloot Bamberger: Regardless of -- notwithstanding that the government has enormous search processes, the strip search is still required.
John Paul Stevens: The answer is yes in another words, tell me…
Phylis Skloot Bamberger: Yes, now with respect to the nationality or the nationwide application of the rules; the government's publisher only rule has national application and indeed the government has indicated here that they don't even need that board rule, that they're going to – now the rule.
John Paul Stevens: How about strip search regulations?
Phylis Skloot Bamberger: I am not aware of the general applicability of strip search or of the other two. The government drafted standards by the way indicate that observed visits need not result in anal and genital perusals in every situation without cause and our assertion here is that and the record establishes beyond any doubt that these visits are observed. There is a guard, a guard takes the inmates into the visiting room. There is a guard that constantly observes the visiting room, the lavatories are not available to inmates, a visitor using the lavatory needs to have a key, there is a door in the lavatory room, the inmates wear jumpsuits and the testimony was uncontradicted that contraband could not be inserted while wearing those jumpsuits.
John Paul Stevens: But the government quoted some witness that said diametrically the contrary, said yes it could be?
Phylis Skloot Bamberger: No well, the government and we apparently have disputed to the significance of that testimony. However, the District Court did make a finding that these perusals were not necessary and that they were alternative means and that therefore I think we can infer that every fact which was not found against us was found for us. The government does not claim that our interpretation was clearly erroneous. What their witness was talking about was the ability to hide things orally and swallow them which certainly wouldn't be covered by anal and genital inspections. The question of the total prohibition on property from outside the institution is not nationally applied. Thank you.
Warren E. Burger: Thank you Mrs. Bamberger. You have about five minutes.
Mr. Andrew L. Frey: Thank you Mr. Chief Justice. First of all with regard to the testimony of government experts in other cases about the amount of space that's necessary, the other case was a case that involved a cell in which people were locked for substantial portions of the day. The central to the concept of the MCC and if there is repeating that people are not locked into their rooms except during sleeping hours. So the inconveniences that we are talking about in this case of two people being in cramped quarters and we don't deny that the quarters are cramped, is an inconvenience in terms of forced togetherness that exist for a period of relatively brief period and in fact none of, essentially none of the waking hours except when there were certain times when everybody has to go to their rooms for a cell count. Now there was no hearing in this case, not only to hear the government's justifications for resorting to double-bunking, but also no hearing to examine the effect of double-bunking on the inmates. The only evidence that was before the District Court in this case was affidavit of the government psychiatrist who had examined the facility and who concluded that there was no substantial evidence that this was emotionally detrimental under the conditions that existed at the MCC. Now the response to this is on the part of both the District Court and the Court of Appeals in large part was we already settled this in another case. The other case in which they already settled it and the Court of Appeals made a revealing error in their original opinion, at page 18 A of the Appendix, they stated “Inmate testimony revealed that double celling had produced numerous disagreements over the choice of activities within the room, had spawned fights, charges of theft, frequent involuntary contact,” that was testimony as they later amended the opinion in another case. The other case was a case in which there were 40 square feet for two inmates instead of 76 or 77 as in this case. The other case was a case in which the inmates were locked in their room for approximately twice the time that they were in this case. The other case was the conventional cell block kind of jail.
Thurgood Marshall: Mr Frey, were the government denied the right to put on testimony?
Mr. Andrew L. Frey: A summary judgment was granted against us. We submitted affidavits. The District Court went to the jail, visited it and said as, as people have been known to say about obscenity, it's unconstitutional I know when I see it. This we consider to be an unsatisfactory way of dealing with this issue and I would like at this point to get back to the question of punishment. One thing that's very important you ask why are we inquiring into physical and administrative reasons for the double-bunking. Nobody in the lower courts has based any decision on the grounds of what happened here was punishment, that was not the basis of the decision. That is the argument of the respondents in an effort to surmount the lack of authority to support the Court of Appeals' conclusion that a compelling necessity standard was appropriate to judge the restriction on the liberty of the inmates that was involved. The Court of Appeals did not say this was punishment. Now, they say it's punishment, but they do not analyze the concept in the way this Court has analyzed it, that is they do not look to the standards in Mendoza-Martinez that suggest how you go about the inquiry of determining whether or not something is punishment. And we think if you apply that inquiry in this case, you would not conclude that what happened here was punishment. So I come back to the point that, Your Honor --
Potter Stewart: It's your submission that unless or until there's a finding that this amounts to punishment, the Due Process Clause is not implicated?
Mr. Andrew L. Frey: Well, our argument is that unless or until there is a finding that there is a lack of a reasonable relationship under whatever level of judicial scrutiny might be given to government's justification between the practice of double-bunking and the government – legitimate governmental objectives that might support that practice, the practice stands –-
Potter Stewart: In other words you don't accept my, the series suggested in my question. Do you think that it violated the Due Process Clause even if it is not punishment [Voice Overlap]
Mr. Andrew L. Frey: We think that it could, but that is because we don't think the concept of punishment has a useful role to play in an analyzing the due process plan.
Potter Stewart: Then how was the Due Process Clause implicated? Obviously, I think everybody would agree that government cannot punish somebody until or unless he's convicted of a criminal offense beyond a reasonable doubt and therefore you can't take a pretrial detainee and put him or do anything else, that's obviously punishment.
Mr. Andrew L. Frey: Right.
Potter Stewart: Now that would clearly implicate the Due Process Clause in this case of the Fifth Amendment, but absent a finding a punishment how is the Due Process Clause involved?
Mr. Andrew L. Frey: Well, that now depends upon what view you take. The view that you have taken in the Moore case I believe and perhaps in other places is that it has to be one of a specific category of interest that are fundamental and that are subjected to searching scrutiny and punishment would be such an --
Potter Stewart: [Voice Overlap] Constitution and then in order to find the answer to a constitutional question you look at the Constitution, don't you?
Mr. Andrew L. Frey: Well, I understood the Moore case to suggest that there were five votes on this Court at least for the proposition that the due process concept is a rational continuum in Justice Harlan's words and that is not include just a series of points that are picked out. In our view of course it doesn't matter for the disposition of this case. We were entitled to hearing to show the reasons why and to explore the effects of the conditions.
Potter Stewart: Well, if its punishment, all the reasons in the world wouldn't make this constitutional, would it, if you show there are good reasons to whip these people once a day?
Mr. Andrew L. Frey: I agree, if its punishment, we would be defendants.
Potter Stewart: Then there wouldn't be no [Voice Overlap] at all constitutionally?
Mr. Andrew L. Frey: That's correct.
Byron R. White: [Inaudible] cells were six -- they had ten square feet and then when two people, just room for two chairs and they kept them in there 24 hours a day, would you think you could be enjoined from --
Mr. Andrew L. Frey: Yes.
Byron R. White: On grounds of the Due Process Clause?
Mr. Andrew L. Frey: Well, yes on the grounds of the Due Process Clause, now, there are there are two separate ways however to look at the due process analysis. One, is an importation of the Eighth Amendment Standard into to Due Process Clause and the second is to view it independently as a liberty interest not to be subjected to over crowding --
Byron R. White: But that involves punishment, doesn't it, the Eighth Amendment?
Mr. Andrew L. Frey: Well the Court --
Byron R. White: That means that there is some punishment.
Mr. Andrew L. Frey: The Court has, has I think the courts have approached that concept in a pragmatic way that is they're prepared to say the conditions of confinement that fall below minimal standards of decency to constitute punishment.
Byron R. White: Let me get one thing straight. I take it you – you'd making the same argument here if this facility had been deserve the way it's been used? It would be, you know, perhaps isn't relevant but it isn't crucial that it was planned to hold X number and all of a sudden it had the whole 2X.
Mr. Andrew L. Frey: Well the case might be different because the Court of Appeals made it per say probation turned upon the design quality or the aspect of the case. It was designed for one person they said you cannot two people in a room designed for one.
Byron R. White: Well my question still is if it has been designed the way it has been used you would be still be here defending it?
Mr. Andrew L. Frey: We would defend it of course.
William H. Rehnquist: Won in the Court of Appeals?
Mr. Andrew L. Frey: We might have won in the Court of Appeals, that was the point I was trying to say.
Potter Stewart: Mr. Fery, with respect to the publisher-only rule you indicate in your briefs as I remember that the government is now changed as practice and policy and there's no longer enforced such rule with respect to paperback books?
Mr. Andrew L. Frey: That's correct.
Potter Stewart: And therefore to that extent you're not –
Mr. Andrew L. Frey: We're not asking you to –
Potter Stewart: planning about asking that the court of appeal's judgment be disturbed in that aspect?
Mr. Andrew L. Frey: That's correct.
Potter Stewart: Now how about the more general change of conditions in the overcrowding in this facility?
Mr. Andrew L. Frey: Well --
Potter Stewart: Isn't it -- don't you represent to us now that there is no more overcrowding?
Mr. Andrew L. Frey: We have explained to the Court that we have been able to comply with the outstanding injunction because the number of pretrial detainees has at present is dramatically lower than it was two years ago.
Potter Stewart: But you're still complaining?
Mr. Andrew L. Frey: We still take the position, the population in the institution at present is fluctuating at or near 449 people the present capacity --
Potter Stewart: It's designed for 449?
Mr. Andrew L. Frey: It's designed for 449. The present capacity in terms of numbers of beds as hired because there are 30 extra beds in the dormitory, so actually up to 479 could be held. In fact, as a practical matter you can't always do it because you have classifications that is you have a unit for women, male prisoners are not put in that unit, you might have 10 empty beds in there but you simply can't use them and there are other kinds of problems like that. But it is our position that an injunction has been issued against us that we believe is improper and unauthorized and without constitutional basis and that we would if the need arose again and it may, resort to double-bunking --
Potter Stewart: So you would vigorously object any suggestion that this case is moot?
Mr. Andrew L. Frey: Well I don't know, I don't -- we would object to a disposition that involved let's say I dismissal of the writ. I don't know that we would object to a disposition of vacating the injunction and remanding it. We just think that under the -- I think United States V. W. T. Grant is a case which indicates that it would not be moot where we say that we will again do what the injunction prohibited. I don't know in the District Court when it gets back there if you do reverse whether there will be a meaningful controversy because I don't know how the District Court is going to decide whether double-bunking is justified at a time when it's not --
Potter Stewart: When it doesn't exist.
Mr. Andrew L. Frey: doesn't exist.
Warren E. Burger: Do I understand the government concedes or taking no position on the question of a writ of habeas corpus is subject to a class action, not a very important question?
Mr. Andrew L. Frey: It may be a very important question. My understanding and when I made inquiry about that I was advised that there is some Court of Appeals' authority to the affect that habeas corpus this class action --
Warren E. Burger: None here --
Mr. Andrew L. Frey: -- there is none here I am simply --
Warren E. Burger: Don't you think that's an important question in this case?
Mr. Andrew L. Frey: I think it's an important question. I don't think it's an important question in this case because we didn't raise it until, well perhaps it would have been an important question that we might have raised. I don't mean to facetious. I am not clear that it's before the Court presently for decision --
Warren E. Burger: But there's no jurisdiction, it's before the Court whether anyone raised it or not?
Mr. Andrew L. Frey: Well, but there is a distinction between the kind of subject matter jurisdiction in habeas corpus over a claim and the question of whether class action was improperly certified. We do have another --
Warren E. Burger: But this one which deserves some exploration, would you not agree?
Mr. Andrew L. Frey: Well, we would be prepared if the Court wants us to research the question and submit our views on it.
Warren E. Burger: No we'll pass on that later. We'll resume -- excuse me, we'll resume arguments at 1 o'clock, but subject to Mr. Justice White's question.
Byron R. White: Now?
Warren E. Burger: Yes, you won't be back at 1 o'clock?
Byron R. White: Well, I might if you're asking. Mr. Frey, do you think the issue on the books is moot, is that what you're suggesting?
Mr. Andrew L. Frey: Now we're not suggesting that at all.
Byron R. White: What are you suggesting?
Mr. Andrew L. Frey: We are suggesting that we are not requesting relief except as regards --
Byron R. White: Where do you put – you raised this question in your petition?
Mr. Andrew L. Frey: We have raised in our petition.
Byron R. White: And you've briefed it?
Mr. Andrew L. Frey: Well, the way we've – at the time that we brief that the policy had already been changed and our briefing was intended to focus.
Byron R. White: So does that mean that the issue has become moot since the filing the petition for certiorari?
Mr. Andrew L. Frey: Well, I think if the hardcover books were not involved, and the injunction had been issued only against soft cover books then I think they should be moot. As I was saying earlier because we have not intention --
Byron R. White: And the injunction would then be vacated to that extent?
Mr. Andrew L. Frey: I guess, I am not sure that it would draw a matter of something.
Warren E. Burger: Thank you. The case is submitted.