570 F.2d 364 (1st Cir. 1978), 76-1508, Feeley v. Sampson

Docket Nº:76-1508.
Citation:570 F.2d 364
Party Name:Leo F. FEELEY, IV, et al., Plaintiffs, Appellees, v. George SAMPSON, etc., et al., Defendants, Appellants.
Case Date:January 18, 1978
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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570 F.2d 364 (1st Cir. 1978)

Leo F. FEELEY, IV, et al., Plaintiffs, Appellees,


George SAMPSON, etc., et al., Defendants, Appellants.

No. 76-1508.

United States Court of Appeals, First Circuit

January 18, 1978

Argued April 4, 1977.

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[Copyrighted Material Omitted]

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Carleton Eldredge Stratham, N. H., for defendants, appellants.

Douglass P. Hill, Portsmouth, N. H., with whom Robert D. Gross, Manchester, N. H., was on brief, for plaintiffs, appellees.

Before COFFIN, Chief Judge, MARKEY, Chief Judge, [*] CAMPBELL, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Having recently considered questions regarding the constitutional rights of sentenced prisoners, 1 we now confront questions relative to the status of unconvicted persons ("detainees") awaiting trial. This appeal by New Hampshire county officials is from a judgment of the district court ordering changes in the conditions under which detainees are confined at the Rockingham County Jail (the Jail). The changes are intended to bring the conditions under which this category of prisoners is confined into conformity with the Constitution. The Jail, an elderly structure, was transformed in 1961 from a house of correction to its present status. As well as detainees awaiting trial, it houses men serving short misdemeanor sentences. The present class action under 42 U.S.C. § 1983 was brought by a detainee who later, upon conviction, went on to serve his sentence in the New Hampshire State Prison. He has been joined as

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plaintiff by other detainees, and after discovery proceedings and in response to plaintiffs' motion for partial summary judgment the district court entered the order appealed from.


Some of the facts that were before the district court concerning the condition of detainees at the Jail are as follows: In 1975 the average length of a detainee's stay in the Jail was only about seven days. However, a stay of from three to four months was not uncommon and a few detainees were there for as long as eight or nine months. Detainees made up some 20-40 per cent of the population, which on the average totalled about fifty. Prior to the district court's intervention, the detainees were relegated to fourteen cells in the third tier, often two to a cell.

The detainees consist of persons accused of unbailable offenses, such as first degree murder, and those unable either to make bail or to qualify for release on recognizance. 2 Although presumptively innocent of the crimes for which they are being held for trial, detainees are almost invariably charged with misconduct far more serious than the minor misdemeanors for which convicted offenders are serving time in the Jail. Thus they may pose security problems, on one recent occasion having murdered a guard and more regularly engaging in incidents such as fights, arson, and the like "every couple of days" (Deposition of Sheriff Sampson). Detainees with drug or alcohol problems, only recently having been removed from the outside, are said to present special problems. Because the convicted misdemeanants work outside during the day, apparently with rather minimal security arrangements, contraband is easily smuggled to detainees inside the facility.

The detainees' cells are small (7' X 5' X 6 1/2') and contain a sink-toilet combination, two bunk beds, mattresses, sheets, pillows, blankets, a single shelf and a protected light bulb. The third tier cells face windows some 8 1/2 feet away, across the tier. When suit was brought, detainees were allowed out during the day only on the 36' X 4' walkway adjoining their cells. They were not allowed to use the Jail's day room with television, radio, games, ping-pong table and "library" (apparently 75 assorted books left behind by inmates), nor to use other recreational equipment, or participate in work programs. Their meals were served in the cells or on the tier, although the sentenced inmates ate in a dining room. Detainees were permitted three showers a week while those sentenced to the Jail could shower at any reasonable time.

Visits took place in a portion of the first floor which was partitioned by a thinly meshed steel screen with benches on both sides. Inmates and their visitors could not touch one another. Conversations were, however, not monitored. There were no private facilities for consultations between attorney and client.

A detainee had to sign a statement consenting to the censorship of his mail; if he refused, all mail was withheld from him. Incoming mail, except lawyer's legal correspondence and letters to the media and public officials, was opened and scanned. Books, magazines and newspapers were censored for content. Outgoing mail, except legal correspondence and letters to the media and public officials, was opened and scanned.

It was the custom of the Jail without any notice or hearing whatever to transfer inmates who acted up to "discipline" cells on the first tier or to the "safe-keeping" cell located in a tunnel connecting the Jail with another building. Confinement continued until "the problem conduct abate(d)."

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The Jail was administered virtually without written or oral rules. Correctional officers were told to use commonsense in disciplining. Decisions about who could visit and what mail would be censored were left up to the individual officers.


The district court summarized the issues before it as follows:

1. May defendants subject pretrial detainees to harsher conditions of confinement than those imposed upon sentenced prisoners;

2. Must defendants alter their visitation practices;

3. Must defendants provide plaintiffs greater access to telephones;

4. Must defendants alter their mail censorship practices;

5. Must defendants permit plaintiffs to possess various items of personal property;

6. Must defendants promulgate and distribute written, objective and reasonable rules governing the operation of the jail and delineating the rights and responsibilities of inmates;

7. Must defendants adopt certain disciplinary procedures;

8. Must defendants alter their practices concerning transfers of pretrial detainees to the New Hampshire State Prison.

Before addressing each of these questions, the court undertook to set out the principles it would apply. It said that detainees are "presumptively innocent individuals" and that they therefore "retain all the rights of free citizens" except that their mobility is necessarily curtailed and they must be subject to certain limitations to protect institutional security. The court felt that under the equal protection clause "any distinction between those detained and those free on bond must be based solely upon the precautions the state must take to assure the appearance of the accused at trial". Moreover, treatment of the detainees had to be equal to or less onerous than that accorded convicted offenders, "otherwise, the incarceration becomes punishment in violation of the Due Process Clause of the Fourteenth Amendment". In conclusion the court stated that "(t)he conditions of pretrial confinement must be the least restrictive means of achieving the state's sole legitimate end, the presence of the accused at trial," and that all restrictions, to be constitutional, had to be justified by "compelling necessity".

The court then applied these principles to the different grievances, ordering extensive relief. Only some of these remedial rulings, altering and improving conditions at the Jail, have been appealed. Officials have accepted the court's order that detainees be lodged in single cells and be permitted access to the same exercise and recreational facilities as sentenced prisoners; they have accepted some but not all modifications of visitation and mail censorship practices; they have accepted the court's order that written rules and regulations be promulgated setting forth the detainees' rights and obligations and the procedures for infractions; and they have accepted certain aspects of court-ordered disciplinary procedures. We need consider only those orders, described below, from which an appeal was taken. Before turning to the specific exceptions, we shall consider generally what constitutional constraints the fourteenth amendment imposes upon state and local authorities in the treatment of unconvicted detainees.


At common law pretrial detainees were differentiated from sentenced prisoners. Blackstone said that

"imprisonment (of those awaiting trial), as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity, and neither be loaded with needless fetters, nor subjected to other hardships than such as are absolutely requisite for the purpose of confinement only . . . ."

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4 W. Blackstone, Commentaries

In prohibiting excessive bail, the eighth amendment both limits pretrial confinement to situations where presence at trial cannot be safely assured by means other than confinement, see Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), and tacitly indicates the Founders' acceptance of the practice of pretrial confinement in such special cases.

While the Supreme Court has not yet discussed the status of detainees, there is general agreement among at least the four federal circuit courts that have ruled that the states may constitutionally deprive detainees of liberty only to the extent necessary to ensure their presence at trial. 3 Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976); United States ex rel. Tyrrell v. Speaker, 535 F.2d 823, 827 (3d Cir. 1976); Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974); Anderson v. Nosser, 456 F.2d 835, 837-38 (5th Cir. 1972) (en banc) (modifying 438...

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