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Due Process Requires Contact Visits for Female Detainees

The New York Court of Appeals held that contact visits of reasonable
duration is required by the due process clause of the State Constitution.
Three female detainees filed a class action against the Monroe County Jail
for prohibiting pretrial detainees contact visitation, while allowing
convicted female felons contact visitation. Monroe County prison officials
agree that contact visits would be desirable, but state that they have not
been implemented because of additional security measures that would
increase costs. However, the Court held that contact visitation for female
detainees of the Monroe County Jail must be instituted within a reasonable
period time. See: Cooper v. Morin, 49 N.Y. 3d 69; 339 N.E. 2d 1188; 424
N.Y. 2d 168 (1979); (N.Y. App. 1979).

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Related legal case

Cooper v. Morin




[3] 399 N.E.2d 1188; 49 N.Y.2d 69

[4] Decided: December 19, 1979.


[6] Cross appeals, on constitutional grounds, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered September 15, 1978, which modified, and, as modified, affirmed a judgment of the Supreme Court (Edward O. Provenzano, J.; opn91 Misc. 2d 302) denying declaratory and injunctive relief with regard to visitation, recreation and discipline in the Monroe County jail, and denying a request by plaintiffs for attorneys fees. The modification consisted of requiring the institution of a program of contact visitation for female detainees of the Monroe County jail within a reasonable period of time. Cooper v Morin,64 A.D.2d 130, modified. Cooper v Morin, 49 N.Y.2d .

[7] Counsel

[8] David C. Leven and Ian C. De Waal for appellants-respondents.

[9] John D. Doyle, County Attorney (David Van Varick and Rae A. Clark, Jr., of counsel), for respondents-appellants.

[10] Counsel

[11] Robert Abrams, Attorney-General (Shirley Adelson Siegel and John J. Warner, Jr., of counsel), amicus curiae.

[12] Counsel

[13] William E. Hellerstein, John Boston and Clay Hiles for Legal Aid Society, Prisoners' Rights Project, amicus curiae.

[14] Judges Jones, Wachtler and Fuchsberg concur with Judge Meyer; Chief Judge Cooke concurs in result in a separate memorandum; Judge Gabrielli dissents and votes to modify in a dissenting opinion in which Judge Jasen concurs.

[15] Author: Meyer

[16] Opinion OF THE COURT

[17] This appeal requires that we pass upon the rights of persons incarcerated pending trial of criminal charges against them; specifically, whether a pretrial detainee has a right to contact visitation with her family; whether, if so, such a visit may be limited to 10 minutes; whether the penalties imposed for infraction of rules for behavior of jail inmates must be related to particular offenses. A subsidiary issue is whether plaintiffs are entitled to attorneys fees. We hold that pretrial detainees are entitled to contact visits of reasonable duration as a matter of State, though not of Federal, constitutional right, but are not entitled to a revision of the jail system of discipline under either the Federal or the State Constitution, their rights in that respect being adequately protected by available review procedures. On the subsidiary issue, we hold that neither under the Civil Rights Attorney's Fees Awards Act of 1976 (US Code, tit 42, § 1988) nor under CPLR 909 are plaintiffs entitled to attorneys fees.

[18] The action has been granted class action status under CPLR article 9, the class being "all women inmates of the Monroe County Jail from February, 1974 until the resolution of this action". The complaint alleges six causes of action under the Civil Rights Act (US Code, tit 42, § 1983) for which are sought money judgments for the named individual plaintiffs as well as declaratory and injunctive relief for the class. Additionally it sets forth five other causes of action, based upon claimed violations of the Federal and State Constitutions, for injunctive and declaratory relief. The comprehensive and thoughtful opinion of Mr. Justice Edward O. Provenzano (91 Misc. 2d 302) lists and passes upon some 21 separate categories of claimed constitutional rights. On plaintiffs' appeal to the Appellate Division with respect to visitation, recreational opportunities, disciplinary proceedings and attorneys fees, that court modified to require adoption within a reasonable period of time of a program of contact visitation, but otherwise affirmed and remitted for further proceedings (64 A.D.2d 130). On the appeal to this court the question of recreational opportunities has not been argued, and is deemed abandoned.

[19] The facts so far as necessary to determination of the issues remaining before us are not in dispute. The named plaintiffs are three pretrial detainees and three convicted and sentenced inmates of the Monroe County jail, and they represent as a class all women inmates since February, 1974. The jail occupies 55% of the space in the Monroe County Public Safety Building, which is a modern facility opened in 1971. It was originally intended that female inmates would occupy one half of the fourth floor of the new facility. However, subsequent events required the closing of the nearby county penitentiary, and in the fall of 1971, sentenced male prisoners transferred from that jail to the new facility occupied the fourth floor space.

[20] Lacking room for the female inmates, the county contracted with the City of Rochester to convert and use existing "lockup facilities" on the third floor of the abutting city public safety building. Although the new female detention area did not meet the requirements of the regulations of the State Commission of Correction then in effect, the commission approved the use of the facility on a temporary basis. At the time of trial in 1976 that "temporary" operation had continued for over five years.

[21] Of the women lodged in that facility, more than 90% were pretrial detainees; the rest were serving sentences upon conviction.*fn1 Currently the women are limited to non-contact visits from family and friends. Visiting hours are between 1:00 and 4:30 p.m. on Tuesday, Thursday and Sunday. While it appears from the stipulation of the parties that visits can be limited to 10 minutes, the trial court found that women inmates are permitted 15-minute visits and that they frequently ran longer. The facility's three visiting booths separate the inmates from their visitors by a floor-to-ceiling steel barrier, in which there is a window about two feet by seven inches in size, through which the inmate and her visitor can see each other. Conversation can take place only by use of telephones. Thus, there is no physical contact whatsoever between the inmate and her loved ones or friends.

[22] Direct contact visits are permitted at the Monroe County jail between inmates and attorneys, clergymen, parole and probation officers, drug counselors and persons involved in community projects at the jail. The evidence established also that in another correctional facility, run by the State, convicted female felons are permitted longer visits in an informal setting which allows for direct contact between the inmate and her family or friends. Indeed, the Monroe County prison officials agree that contact visits would be desirable, but state that they have not been implemented because they require additional security measures which would increase costs.

[23] The evidence with respect to the challenge to the system of punishment for violation of jail rules is that jail rules proscribe a variety of acts ranging from disrespectful behavior to cursing, for the infraction of which an inmate can lose the right to recreation or exercise, be confined to an isolation cell for up to 7 days, be confined to her locked cell for 23 hours each day for up to 14 days, or be subject to lesser penalties. Plaintiffs argue that the present system permits random imposition of disparate penalties for similar conduct and ask that the court require that a system which relates the penalty to the offense be established.

[24] The Appellate Division, in a decision written some nine months prior to the decision of the United States Supreme Court in Bell v Wolfish (441 U.S. 520), held that the due process clause of the Fourteenth Amendment of the Federal Constitution requires that a system of contact visitation be instituted, but that the manner and duration of the visits is a matter wholly within the discretion of the prison officials, and as such, beyond the reach of judicial supervision. It also held that since the imposition of specific sanctions was subject to judicial review, the claim that the system of discipline did not "make the punishment fit the crime" was not of constitutional dimension. Finally, it held that the trial court did not abuse its discretion in denying an award of attorneys fees.

[25] For the reasons hereafter set forth we conclude: (1) that (A) contact visitation is not required by either the due process or the equal protection clause of the Fourteenth Amendment to the Federal Constitution but (B) contact visitation of reasonable duration is required by the due process clause of the State Constitution; (2) that Monroe County's system of jail discipline has not been shown to be constitutionally infirm, and (3) that plaintiffs are not entitled to attorneys fees under Federal statute because they have not prevailed on their Civil Rights Act claims nor are they so entitled under State law because in failing to award them attorneys fees the Trial Judge did not abuse the discretion granted him under CPLR 909.

[26] I

[27] A

[28] In Wolfish v Levi (573 F2d 118) the Court of Appeals for the Second Circuit held that the due process clause of the Fifth Amendment requires that pretrial detainees in Federal custody be allowed contact visitation, and proscribes certain other practices then in force at the Metropolitan Correctional Center in New York. Though the matter was appealed to the Supreme Court, the ruling as to contact visitation was not appealed, and that court noted (Bell v Wolfish, 441 U.S. 520, 559, n 40, supra), that it expressed no opinion on that phase of the matter. Notwithstanding that it did not pass directly on contact visitation, it would seem from its analysis of the other issues in the case that its ruling will be that contact visitation between a pretrial detainee and his or her family or friends is not constitutionally required. In Bell the court considered challenges to: (1) the practice of double-bunking,*fn2 (2) the "publisher only" rule,*fn3 (3) body-cavity searches after contact visits, (4) the prohibition against receipt of packages, and (5) the practice of surprise searches of inmates' cells. The Court of Appeals for the Second Circuit had held that since pretrial detainees had not been convicted, and therefore were presumed to be innocent, due process required that they be subjected only to those restrictions and privations which inhere in their confinement itself or which are justified by compelling necessities of jail administration.

[29] Rejecting what it considered an intrusive standard of review, the Supreme Court focused instead on the various constitutional limitations on punishment in the criminal judicial process. The court agreed that the Eighth Amendment proscription against cruel and unusual punishment had no application to pretrial detainees, for they had yet to be convicted. It recognized that the due process clause of the Fifth Amendment proscribed punishment of pretrial detainees, but held that not all prison practices which go beyond the "compelling necessities of jail administration" constitute "punishment".

[30] Although the court suggested reference to the comprehensive test of what constitutes punishment which was enunciated in Kennedy v Mendoza-Martinez*fn4 (372 U.S. 144), it ultimately settled on a much less probing inquiry, which Mr. Justice Rehnquist explained as follows: "Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on 'whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]'. Kennedy v. Mendoza-Martinez, 372 U.S., at 168-169; see Fleming v. Nestor, supra [363 U.S. 603], at 617. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment'" (441 U.S. 520, 538-539, supra ; brackets in original). Applying this test, the court upheld all of the practices against due process challenges on the ground that they were reasonably related to the legitimate objectives of pretrial detention and prison security.

[31] Since the prohibition against contact visits is related to security concerns, which the search procedures outlined in Bell v Wolfish (supra) suggest will require expenditure for additional personnel if not also for rearrangement of the visiting areas, and since the evidence negates any intent to use denial of contact visitation as punishment, the prohibition must be held, as a matter of Federal due process, to be "reasonably related to a legitimate governmental objective".

[32] Nor does the Federal equal protection clause mandate that plaintiffs be granted contact visitation privileges. Even those courts that have held that the equal protection clause prevents treating pretrial detainees less favorably than convicted prisoners have applied the "rational basis" rather than the "strict scrutiny" test reserved for rights regarded as fundamental (see, e.g., Rhem v Malcolm, 371 F Supp 594, affd 507 F2d 333). Thus, all that need be shown as a matter of Federal constitutional law is that the differentiation made by the statute or regulation has some reasonable basis, not that there is any compelling necessity for it or that it is the least restrictive means possible (see Montgomery v Daniels,38 N.Y.2d 41, 59-61). That there are rational bases for differentiating between sentenced prisoners and persons detained while awaiting trial cannot be gainsaid. The much longer period of incarceration faced by the former and the fact that the locale of their imprisonment is usually, in the interests of security, in an isolated, rural setting distant from family and friends as distinct from persons awaiting trial whose detention is, generally, for a relatively short period and in facilities located in metropolitan areas near courts, but also near the detainees' family and friends (see Cooper v Morin,91 Misc. 2d 302, 323) are two such bases.

[33] It, thus, appears that neither as a matter of Federal due process nor Federal equal protection are plaintiffs entitled to an order requiring the allowance of contact visits.

[34] B

[35] That conclusion does not end the inquiry, however, for plaintiffs claim constitutional protection under the State as well as the Federal Constitution. While neither the Trial Judge nor the Appellate Division considered State constitutional claims, the complaint clearly presents them and they may, therefore, be reached by us.*fn5

[36] We have not hesitated when we concluded that the Federal Constitution as interpreted by the Supreme Court fell short of adequate protection for our citizens to rely upon the principle that that document defines the minimum level of individual rights and leaves the States free to provide greater rights for its citizens through its Constitution, statutes or rule-making authority (Sharrock v Dell Buick-Cadillac,45 N.Y.2d 152, 159-161; People v Isaacson, 44 N.Y.2d 511, 519-520; People v Hobson, 39 N.Y.2d 479, 483-484; People v Arthur, 22 N.Y.2d 325, 328-329; and see Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va L Rev 873; Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489).

[37] Section 6 of article I of our Constitution mandates that "No person shall be deprived life, liberty or property without due process of law". As we have noted in Wilkinson v Skinner (34 N.Y.2d 53, 58), "The requirements of due process are not static; they vary with the elements of the ambience in which they arise". While we are in agreement with the Supreme Court's holding in Bell v Wolfish (441 U.S. 520, supra) that due process forbids the punishment of pretrial detainees because punishment can only be imposed after conviction, we cannot agree that the validity of the regimen imposed upon such persons during detention turns on no more than whether a regulation has a legitimate purpose other than punishment and is not excessive in relation to that purpose. So one-sided a concept of due process we regard as unacceptable. In our view what is required is a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement.

[38] The approach is not novel in relation to prison regulations. The Eighth Circuit Court of Appeals in Moore v Ciccone (459 F2d 574, 576) used it, holding that "when the claim is that a prison regulation infringes upon a constitutional right, 'a court must balance the asserted need for the regulation in furthering prison security or orderly administration against the claimed constitutional right and the degree to which it has been impaired'" (quoting Smith v Robbins, 328 F Supp 162, 164, affd 454 F2d 696), and the Supreme Court itself has adopted it in Pell v Procunier (417 U.S. 817), in passing upon the First Amendment question whether newsmen need be given free access to convicted prisoners. It is, of course, the essence of the dissents in Bell v Wolfish (441 U.S. 520, supra) and has been applied by the Supreme Court of Alaska in McGinnis v Stevens (543 P2d 1221 [Alaska]; see, also, Note, Conjugal Visitation Rights and the Appropriate Standard of Judicial Review for Prison Regulations, 73 Mich L Rev 398, 414-416; Note, Constitutional Limitations on the Conditions of Pretrial Detention, 79 Yale LJ 941, 950). Indeed, it is not without significance in view of the part that English practices play in our analysis of traditional concepts of due process to note that Blackstone wrote in 1765 (4 Blackstone Commentaries, p 300): "[This] imprisonment, 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, or subject to other hardships than such as are absolutely requisite for the purpose of confinement only".