Jails

Until the late 1960s, state and federal courts refused litigation by jail and prison inmates against their keepers, preferring a "hands off " doctrine grounded in the constitutional separation of powers between the judicial and executive branches of government. This situation changed during the early 1970s owing to the expansion of defendants' pretrial rights and of judicial review of administrative agency activities. Federal writs of habeas corpus, litigation under the Civil Rights Act of April 20, 1871, 42 U.S.C. section 1983 (1976 & Supp. III 1979), and class action suits have brought relief in the form of release, injunctions, damages, and declaratory judgments for violations of inmates' constitutional rights.

Pretrial detainees are entitled to the presumption of innocence; hence, any imposition of punishment on them constitutes a denial of due process. In Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal. 1972), the court stated that convicted offenders are denied their liberty in the interest of satisfying such objectives of the criminal law as punishment, restraint, or rehabilitation. Consequently, they have fewer rights than detainees and can be subjected to a range of restrictions and correctional programs. By contrast, pretrial detainees have not been convicted of any crime and therefore should not be treated in the same manner. Since Brenneman, a number of courts of appeals adopted the "least restrictive alternative test" for detention, holding that jailers must use the least restrictive means when depriving detainees of their liberty pending trial ( Jonesv. Wittenberg, 323 F. Supp. 93 (N.D. Ohio 1971); Moore v. Janing, No. C-72-0-223 (D. Neb. 1976)).

In 1979, the U.S. Supreme Court overruled this test in Bell v. Wolfish, 441 U.S. 520 (1979), holding that restrictions on pretrial detainees violate the Constitution only if they affect an independent constitutional right or if they amount to the imposition of punishment. Although confirming that the due process clause prohibits officials from punishing persons awaiting trial, the Court noted that not every condition of confinement amounts to punishment. Thus, it upheld as reasonably related to the effective management of a detention facility such practices as housing two persons in cells designed for one. The Court also held that neither blanket prohibitions on contact visits for pretrial detainees, nor routine body cavity searches of inmates after contact visits, nor random "shakedown" searches violated the constitutional right to due process. However, since most correctional standards recommend single-cell occupancy (with the exception of housing for work release or similar minimum-security programs), contact visits (when appropriate), and protections against unreasonable searches, the Bell decision is clearly a backward step for corrections.

Since Bell, the determination of whether a particular restriction imposed on pretrial detainees violates due process requires courts to decide whether that restriction is for the purpose of punishment or whether it is reasonably related to a legitimate and nonpunitive governmental purpose (Robbins, 2000). In spite of this legal setback, Bell does not affect the rights of convicted prisoners, nor does it affect cases in which any or all aspects of incarceration are challenged in particular facilities. In general, Eighth Amendment prohibitions continue to set a minimum below which jail conditions may not fall. Recent data on jail litigation provide strong evidence of continuing court involvement with jail conditions. Of 112 reporting jail systems, sixteen percent indicated that one or more of jail facilities they were operating were under a court order in 1998. An additional 20 percent noted they were under court-mandated population caps, and 6 percent had facilities under the supervision of a court monitor or master (Criminal Justice Institute, 1998). Finally, definitions of what is considered cruel and unusual punishment will continue to change because of what a previous Supreme Court has called "the evolving standards of decency that mark the progress of a maturing society" (Trop v. Dulles, 356 U.S. 86 (1958)).