264 F.3d 175 (2nd Cir. 2001), 00-9093, Benjamin v Fraser

Docket Nº:Docket Nos. 00-9093 (LEAD), 00-9095 (CON)
Citation:264 F.3d 175
Case Date:September 05, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 175

264 F.3d 175 (2nd Cir. 2001)




Docket Nos. 00-9093 (LEAD), 00-9095 (CON)

United States Court of Appeals, Second Circuit

September 5, 2001

Argued: March 12, 2001

Upon the motion of the defendant, New York City Department of Correction, pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626, to terminate previously entered consent decrees, the United States District Court for the Southern District of New York, Baer, Judge, conducted hearings to determine whether current or ongoing violations of detainee-plaintiffs' rights made continued prospective relief necessary. The court granted defendant's motion in most respects, but determined that prospective relief continued to be necessary for attorney visitation and to provide due process relating to the use of restraints.

Defendant appealed. The Court of Appeals, Leval, Circuit Judge, holds that (a) the "actual injury" requirement of Lewis v. Casey, 518 U.S. 343 (1996), does not apply to attorney visits to pretrial detainees; (b) the district court reasonably found that the Department's procedures unjustifiably obstructed plaintiffs' access to counsel; and (c) the district court did not err in finding that the procedural protections of Wolff v. McDonnell, 418 U.S. 539 (1974), are required by law when a pretrial detainee is classified in a manner that calls for imposition of special restraints.

Page 176

[Copyrighted Material Omitted]

Page 177

[Copyrighted Material Omitted]

Page 178

Florence A. Hutner (Leonard Koerner, Elizabeth I. Freedman, June R. Buch, on the brief), for Michael D. Hess, Corporation Counsel of the City of New York, New York, N.Y., for Appellants.

John Boston (Daniel L. Greenberg, Madeline H. deLone, Lisa Freeman, Dale A. Wilker, on the brief), The Legal Aid Society, New York, N.Y., for Appellees.

Before: Cardamone, Leval and Katzmann, Circuit Judges.

Leval, Circuit Judge

The New York City Department of Correction1 appeals from an order of the United States District Court for the Southern District of New York, Baer J., denying in part the Department's motion to terminate consent decrees pursuant to the Prison Litigation Reform Act ("PLRA"), Pub L. No. 104-134, 101 Stat. 1321-66 §§ 801-810 (1996), codified at 18 U.S.C. § 3626. The consent decrees concern jail conditions for pretrial detainees in Department facilities.2 The PLRA requires the termination of such consent decrees, upon a motion for termination under 18 U.S.C. § 3626(b), unless findings are made that prospective relief remains necessary to correct ongoing violations of a federal right and that the relief is narrowly drawn and the least intrusive means to correct the violation. See 18 U.S.C. § 3626(b)(3). In July 1996, the district court upheld the constitutionality of the PLRA and vacated the consent decrees. See Benjamin v. Jacobson, 935 F.Supp. 332 (S.D.N.Y. 1996) ("Benjamin I"). A panel of the Court of Appeals affirmed in part and reversed in part. See Benjamin v. Jacobson, 124 F.3d 162 (2d Cir. 1997) ("Benjamin II"). On rehearing in banc, the Court held that the plaintiffs were entitled to an opportunity to present evidence demonstrating the existence of current and ongoing violations of constitutional rights and the need for continuation of prospective relief. See Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) ("Benjamin III").

On remand, the district court held five days of hearings devoted to conditions affecting attorney visitation, use of restraints, restrictive housing, inmate correspondence,

Page 179

and law libraries.3 In a detailed opinion, Judge Baer granted most of the relief sought by the Department's motion, terminating the consent decrees that called for judicial supervision over restrictive housing, inmate correspondence, and law libraries. The court denied the Department's motion to terminate decrees relating to attorney visitation and due process affecting the use of restraints, see Benjamin v. Kerik, 102 F.Supp.2d 157 (HB), (S.D.N.Y. June 5, 2000) ("Benjamin IV"), and specified the terms of the continuing relief, see Benjamin v. Kerik, No. 75 Civ. 3073 (HB), slip op. at 1-2 (S.D.N.Y. August 3, 2000); Benjamin v. Kerik, No. 75 Civ. 3073 (HB), slip op. at 2-3 (S.D.N.Y. August 10, 2000). Defendants appealed.4


A. Attorney Visitation

Based on the evidence introduced at the hearings, the district court found that defense attorneys5 routinely face unpredictable, substantial delays in meeting with clients detained at Department facilities. The court determined that attorneys are forced to wait between 45 minutes and two hours, or even substantially longer, after arriving at a facility to see a client.6 See Benjamin IV, No. 75 Civ. 3073, at 34-35.

The record indicates that several factors contribute to these delays. First, many Department facilities have few counsel rooms relative to the number of detainees housed at the facility.7 Second, certain detainees may not be moved to counsel rooms without escort officers. Third, inmates are generally not brought to counsel rooms during inmate counts, which can delay visits for several hours. Since the counts are held at unpredictable times and the Department does not furnish schedules for attorneys, attorneys cannot time their visits so as to avoid the counts. The Department's Bureau Chief for Management and Planning conceded that security considerations did not require the freeze of inmate movement during counts, and that, while detainees are not brought to attorney

Page 180

visits during counts, they are taken to family visits. The defendants were unable to identify security or administrative problems that would result from such movement to meet with attorneys during counts.

The district court found that "attorney-client visitation has been significantly compromised" by the delays. Benjamin IV, No. 75 Civ. 3073, at 36. Several Legal Aid Society ("LAS") attorneys testified that they had largely stopped visiting clients at particular facilities, that they were sometimes forced to abandon efforts to meet with clients after arriving at Department facilities, and that the delays deterred necessary consultation, particularly given that LAS attorneys typically handle 60-100 cases at a time. For example, LAS attorney Heidi Segal testified that

[b]ecause you know you're experiencing significant delays... you make determinations about whether or not you even have the time to visit a client, so there are times that you would forego a visit if you only had four hours free that day as opposed to six or seven. On days... where I experienced significant delays, I would cut short my visit....

Similarly, Jesse Uhrman, the social work supervisor for LAS's Parole Revocation Defense Unit, stopped visiting clients at one of the facilities because of extensive delays. LAS witnesses, testified that the delays impaired their ability to establish rapport and trust with clients, to collect information from clients, to counsel clients in a crisis, and to assist clients in considering plea agreements.

Plaintiffs also established that courthouse visits are not an adequate substitute for jailhouse visits. See Benjamin IV, No. 75 Civ. 3073, at 34-35. Courthouse visits are not available on less than a day's notice, nor in the evenings or on weekends. Attorneys must call every hour to see if their client has been produced. Inmates may be returned to jail before the attorney arrives, or may not be produced at all. Some of the counsel rooms at the courthouses are not private. Finally, when attorneys rely on courthouse visits, the burden on the client may cause the attorney-client relationship to suffer. Inmates are awakened at 4:00 a.m. for transport to court and may wait eight hours in a bullpen to see their attorney. Depending on their restraint status, inmates may spend the entire day in restraints in order to meet with their attorney for a few minutes.

Judge Baer considered the viability of plaintiffs' suggestions for reducing delays and the extent to which the suggested measures would impose an intrusive burden on the Department's institutions. The suggested measures included providing counsel with a reliable pamphlet detailing visiting hours for different facilities, assigning more officers to escort duty, or initiating the process of bringing detainees to the counsel room at the point the attorney checks into the facility, rather than when the attorney reaches the visiting area. Noting that the plaintiffs had "`point[ed] to... alternative[s] that fully accommodate[] the prisoner's rights at a de minimis cost to valid penological interests,'" Benjamin IV, No. 75 Civ. 3073, at 35 (quoting Turner v. Safley, 482 U.S. 78, 91 (1987)), the court concluded that "current obstacles to attorney visitation are not justified by legitimate penal interests.... [T]he Department's facilities are frequently inadequate for counsel visits and defendants' institutional security regulations are not the sole or even the primary reason for undue delays to attorney visits." Id. at 36-37.

Having concluded that the defendant's policies "led to unconstitutional burdens to inmate access to counsel and courts," Judge Baer ordered the defendants to provide

Page 181

recommendations for prospective relief. Id. at 37. After reviewing these recommendations, the court issued an order which required that the Department establish procedures to ensure that attorney visits commence within 45 minutes of an attorney's arrival at Rikers Island, or within 30 minutes of an attorney's arrival at a borough facility. In addition, the order required the defendants to ensure both that an adequate number of attorney visiting rooms be made available and that such rooms foster the requisite degree of privacy. See Benjamin, No. 75 Civ....

To continue reading