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RHEM v. MALCOLM

January 7, 1974

James RHEM et al., Plaintiffs,
v.
Benjamin J. MALCOLM, Commissioner of Correction for the City of New York, et al., Defendants


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Sixty-two years ago, Winston Churchill, then Home Secretary of Great Britain observed with characteristic eloquence that "the mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country". This suit raises most serious issues relating to one element of the criminal process -- the constitutionality of the conditions under which persons are held in pre-trial custody by the City of New York.

 Plaintiffs are unconvicted detainees housed in the Manhattan House of Detention for Men (MHD), popularly but forbiddingly known as the "Tombs". They bring this civil rights action claiming that numerous practices and physical conditions at MHD deprive them of rights under the First, Fifth, Sixth, Eighth and Fourteenth Amendments. Their suit under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 on behalf of all persons confined at MHD originally complained of overcrowding, unsanitary conditions, lack of light and air, excessive noise, mistreatment by guards, arbitrary disciplinary procedures, inadequate medical care, lack of recreation, and restrictions on visiting and mail.

 On October 26, 1970, the case was declared a class action. On March 17, 1971, Judge Mansfield denied the City's motion to dismiss, and granted a preliminary injunction against the City ordering the Department of Correction to adopt, publish and distribute to all inmates rules governing inmate behavior and other aspects of inmate life and prohibiting the Department from interfering with private consultations between inmates and their attorneys in cases in which the Commissioner or his staff were parties.

 On December 16, 1971, a motion by defendants Rockefeller, Oswald and Stevens (the State defendants) to dismiss as to them was denied.

 In the latter months of 1972 and January, 1973, constructive negotiations took place between parties, as the result of which the plaintiffs and the City entered into a stipulation of settlement as to the issues relating to overcrowding, unsanitary conditions, and inadequate medical care. A consent decree enforcing the stipulation was entered August 2, 1973. The remaining issues were tried to the court during several trial weeks.

 Plaintiffs' witnesses included four plaintiff detainees: John Anderson, Warden of Northumberland County Prison in Sunbury, Pennsylvania; Donald Goff, General Secretary of the Correctional Association of New York; William vanden Heuvel, then Chairman of the New York City Board of Correction; Dr. Karl Menninger, Chairman of the Board of the Menninger Foundation, Topeka, Kansas; Dr. Augustus F. Kinzel, formerly staff psychiatrist at the United States Medical Center for Federal prisoners at Springfield, Missouri; Dr. Stephen Teich, Director of Mental Health at MHD, and Richard Botshon, photographer. *fn1"

 Defense witnesses included: Hon. Benjamin J. Malcolm, Commissioner, New York City Department of Correction; Joseph D'Elia, Director of Operations of the City Department of Corrections; Peter M. Schaefer, then Deputy Warden-In-Command of MHD; Professor Hyman H. A. Cooper, Deputy Director of the Criminal Law Education & Research Center of the New York University School of Law and (by deposition) Louis S. Aytch, Superintendent of Prisons for the City of Philadelphia. *fn2"

 The court toured MHD on August 2, 1973 and February 26, 1973 in the company of counsel, some members of the plaintiff class, and officials of MHD. The court also visited the Federal Detention Center in New York City on February 8, 1973, in the company of counsel. On that occasion Warden Louis Gengler of the Federal Detention Center testified as a witness called by the court.

 I.

 MHD is a twelve floor structure forming part of a complex that includes the Criminal Courts of the City of New York and the offices of the District Attorney of New York County. The complex is located on Centre Street in the heart of Manhattan's Civic Center, heavily populated in the daytime and deserted at night. It consumes all of the city block on which it is built, leaving no open space or outdoor area.

 The official capacity of MHD (effective August, 1971) is 902. As of October 6, 1972, its population was 1301. (Stipulation of Facts #8 and 9.) Pursuant to the consent decree, the Department is now housing only one detainee to a cell (of which there are 808). There are approximately 100 convicted misdemeants housed on a dormitory floor, for a total authorized population of something over 900.

 Although all the plaintiff class and 80% of persons housed at MHD are unconvicted detainees, (the remainder being sentenced misdemeanants who have jobs at MHD) the building is a maximum security institution in every sense. One may surmise that its fortress-like character is the result partly of the penological philosophy in vogue at the time of its construction and partly of concern that its location was believed to provide an easy opportunity for an escapee to melt into the city population during the daytime, or evaporate into the dark of city streets at night. In fact, only one escape has occurred since the institution opened for business some forty years ago. There is no evidence whether this is the result of its maximum security features, or whether it proves that they are not necessary.

 The character of the structure is of more than passing narrative interest, since many of the conditions which form the issues of this case flow from that character; and the claimed need for a maximum security institution as well as the given fact of the building's character form the basis of defendants' justification of those conditions.

 Prisoners are housed in two-storied units of rectangular tiers of cells, each tier surrounding an unwindowed central "lock-out" area. The lock-out area derives its name from the fact that when inmates are allowed to leave their cells, they are prevented, or "locked-out" from returning to the cells. Each cell is, of course, only one floor high. But the lock-out area rises the full two stores from the bottom of the lower to the ceiling of the higher cells. A catwalk-gallery, used by prison guards, runs along the inside of the lock-out area, at the floor level of the upper deck of cells, allowing guards to see both the upper and lower decks. Each housing floor contains two such units (four cell tiers in all) divided by a hallway which gives access to the units on east and west, and to the elevators on the south. Except for the exterior walls of the building, constructed exclusively of masonry, some spaces of translucent (but not transparent) glass block and occasional high-set transparent windows, partitions on the housing floors consist solely of steel doors or gates. That is, each cell is secured by a steel barred door as is every access to the lock-out area.

 Some critical issues presented flow from the maximum security nature of the institution. These include allegations of excessive "lock-in" (in cells), undue restrictions on the length, conditions and number of visits, grossly inadequate opportunity for exercise and recreation and limitations on correspondence and access to reading matter. Others, such as intolerable noise, inadequate ventilation, severe heat in summer and cold in winter and an absence of transparent windows are largely functions of the building's architectural structure (although to some extent they are the result of its maximum security features). Still others are unrelated either to considerations of security or the nature of the building, such as mistreatment by officers -- said to be caused by overworking the guards: a fiscal question -- and a disciplinary procedure which is claimed to violate due process and which is the child of administrative policy only.

 To understand the significance of the facts, and the necessity of reviewing them quite fully, it is worthwhile sketching the major legal arguments at this point, although they are treated in detail later in this opinion. Plaintiffs argue that their incarceration at MHD (1) violates due process because, as unconvicted detainees, they are entitled to but are not being held under the least restrictive conditions necessary to assure the sole justification of their imprisonment: appearance at trial; (2) violates the equal protection clause because, although they are unconvicted detainees, they are held in undeniably harsher conditions than convicted prisoners and (3) violates the Eighth Amendment, because those conditions singly or collectively constitute cruel and unusual punishment. Defendants' answer, as we have earlier indicated, is that it is necessary that plaintiffs be held in maximum security, and that that necessity and the given character of MHD constitutionally justify existing conditions.

 We treat separately the facts raised by each issue.

 (1) Excessive Lock-In.

 Most cells are 4 ' 10" wide by 7' 11" deep (Stipulation of Facts #2), or about 5500 square inches. The American Correctional Association Manual of Correctional Standards (1971) (ACA Manual) specifies minimum cell size of 50 square feet (7200 square inches). *fn3" Inmates are locked in the cells 16 hours a day. This, of course, does not include the time locked in the "lock-out" area of 66 1/2 hours per week, excluding participation in such programs as are offered (Stipulation of Facts #20). The lock-out areas are a maximum of 68' x 9 '. A number are significantly smaller (Stipulation of Facts #16). Plaintiffs vigorously challenge the necessity of such extended lock-in hours.

 At trial, Donald Goff, General Secretary of the American Correctional Association (ACA) testified (Transcript 600) that, except for a range of 20-40% of detainees whose characteristics or offense might require maximum security confinement, it is not necessary to keep detainee-inmates in cells at all (Transcript 613). His views are supported by the ACA Manual which states (at 48) that "inside security cells [such as those at MHD], the most expensive type of construction, are necessary only for prisoners requiring maximum security, who in the average jail rarely exceed 20% of the population". It is true that the manual qualifies this statement by commenting that "in the large metropolitan jail with a high count and a turnover too rapid to allow time for classification of inmates it may be necessary to provide a higher proportion of maximum security housing", but, as we shall see, the question of whether a classification system (which does not presently exist) is not a workable possibility at MHD is very much at issue in this case.

 Goff stated further that it is not necessary in minimum or medium security facilities to lock in detainees more than for short periods (20 minutes or so) to count heads (Transcript 612-613).

 William vanden Heuvel, then Chairman of the City Board of Corrections criticized the inflexibility of the lock-in policy. He believed that detainees could safely be allowed greater freedom of movement after problem inmates had been identified through classification (Transcript 988, 1021-24).

 Defendants' witness, Louis Aytch, Superintendent of Philadelphia's City Prisons, testified that in Philadelphia detainees are permitted to remain out of their cells most of the day (Aytch deposition 37-8).

 Indeed, the City admits (Exhibit 43) that at the Bronx House of Detention -- a sister facility of MHD -- whose inmates are also unconvicted detainees facing trial for the same serious range of offenses as inmates at MHD, prisoners enjoy nearly 90 hours weekly out of their cells (compared with 56 at MHD), and that nearly 1/2 of the prisoners in the Bronx, living in dormitories, are never locked in cells (Transcript 1205). Dormitory arrangements exist also at the Federal House of Detention in New York City, where only a small percentage of detainees, classified for maximum security, are held in cells.

 (2) Visiting Conditions.

 While visits from family, friends (and lawyers) are the most important events of a prisoner's time in custody, in the eyes of MHD's administrators they entail perhaps the most significant threat to the security of the institution. It is, therefore, not surprising that no issue in this litigation has been more sharply contested than whether current visiting arrangements at MHD are constitutionally justifiable.

 Visits occur in special booths under what defendants' post-trial memorandum itself describes as a "rigorous security procedure". Each detainee is separated from his visitor by a steel wall and a pane of bullet proof glass 20" square. The booth is locked from behind on the detainee's side. Voice communication from the detainee's booth to the facing visitor is by sound powered telephone except for a limited number of high fidelity phones (Stipulation of Facts # 34). While new electronic instruments and larger booth windows have been ordered by city officials, they had not been received or installed at the time of trial, and in any event, such improvements, as useful as they may be, will leave unresolved the central issue between the parties.

 Non-contact booth visits are not unknown elsewhere; but it is significant to note that detainees in the Federal House of Detention in New York City, and the Westchester (N.Y.) County jail are accorded contact visits as are convicted prisoners in all New York State correctional facilities. (Deposition of Louis Gengler, Warden, New York City Federal Detention Center, passim ; Exhibit 13, p. 18; Stipulation re New York State Practices, Paragraph 1.)

 The impact of deprivation of contact visits, and its psychological importance are real. The limitations resulting from the booth system are exacerbated by the frequent non-function of the telephone instruments, and the noise arising from the physical arrangement of many contiguous booths occupied simultaneously. As Clayton Williams, a detainee, testified:

 
"When you visit in the old booths, the row of them, everybody has a defective phone and so the noise is consistent. Every inmate is yelling, you know, and it's hard to hear above the yelling from the guy next to you or either side of you." (Transcript 1053)

 The time taken to find a useable booth has frequently cut deeply into the 30 minutes allowed per visit (Transcript 760-61; 815-17; 1053-4). Inmates must stand on tiptoe to see a visitor of short stature through the high window. (Transcript 95-6, 813).

 Typical of inmate reaction to such truncated experiences are descriptions (Transcript 1051-5) by an inmate (whose daughter and sisters visited him for the first time in seven years) of loneliness after a visit is over, as compared to visits at Sing Sing Prison (now Ossining Correctional Institution), where contact visits were such that "you don't feel isolated", (Transcript 1056-7) or "bitter sweet" as to a wife's visit (Transcript 819-20). Self-serving as these declarations might be considered in ordinary litigation, they bore a stamp of candor and straightness in the testimony here: and however subjective the testimony of inmate witnesses, it was supported without qualification by expert witnesses and undisputed by defendants.

 Dr. Karl Menninger, the psychiatrist of national renown who has studied and written about prison conditions over a long lifetime, deplored non-contact visits as "the most unpleasant and most disturbing detail in the whole prison", and described them as "a violation of ordinary principles of humanity" (Transcript 859). Indeed, he remarked of booth visits " -- it's such a painful sight that I don't stay but a minute or two as a rule. It's a painful thing, your Honor. . . . I feel so sorry for them, so ashamed of myself that I get out of the room" (Transcript 910). In his view, the MHD visiting system deprives an inmate of "what little decency and humanity there is in the care of the prisoner" (Transcript 884). He described the critical value of direct visits: "the most positive experience . . . is going to be the reestablishment of a feeling of contact, of closeness with somebody who has enough love for him to come clear in there to see him" (Transcript 862-63). As Dr. Menninger put it:

 
". . . the one great thing that he [the inmate] can look forward to is the reestablishment, contact, with this world. Because everybody lives constantly with a lot of contacts established, with you, them, with the judge, with the grocer and so forth. These have all been broken for this man."
 
"Now, this makes for a dangerous state of instability, because without these contacts he can't live psychologically." (Transcript 863)
 
"All this is interposed into this establishment of this contact, a pane of dirty glass and a dim -- in my experience often a nonfunctional, nonfunctioning telephone -- I didn't get to test all the telephones over there, but if my experience in other places is any criteria, they don't work. A person goes in and shouts and the poor visitor stands up on his or her tiptoes and tries to see him. And he shouts and after a certain amount of frantic effort to establish a piece of communication, they just give it up. . . .
 
". . . it breaks that very important human lifeline of contact. . . ." (Transcript 864).

 Dr. Menninger's conclusion was that the MHD's visting system amounted to "dangling a fragment of meat in front of a dog and jerking it away" (Transcript 865).

 Menninger contrasted the MHD system with the contact visits which prevail in an equivalent Kansas institution where contact visits have been in effect for ten years without adverse consequence.

 He described the advantages and success of the Kansas method this way:

 
"I think the result is magnificent. I mean, the prisoner has a contact with -- a civilized contact. He can't leave but he can talk, he can ask questions, he can hold a wife's hand, he can have the advantage of tactile and visual and auditory -- reestablish contact in all these ways and I think the result has been magnificent." (Transcript 869)
 
* * *
 
"If you tell the relatives what they can't do, tell the prisoners what they can't do, that's that. We have very few violations of that. Nobody wants to give up a privilege like that." (Transcript 870)

 In Menninger's view, any security risks of contact visits can be controlled by careful searching of prisoner and visitor (Transcript 869-70) and by psychological evaluation which an experienced psychiatrist can easily perform (Transcript 899).

 Dr. August F. Kinzel, whose professional experience includes a stint as staff psychiatrist at the only United States medical center for prisoners (at Springfield, Missouri) agreed with Menninger that the MHD's visiting system causes severe prisoner frustration. He pictured it as ". . . like the carrot on the stick that is held in front of the person who can't quite attain it. . ." (Transcript 321). Kinzel told of the positive value of contact visits at Springfield which are open to both pretrial detainees and sentenced prisoners (Transcript 322-4). Indeed, it was his view that contact visits may even be suitable for detainees classified as violent (Transcript 324-6). As he saw it, contact visits were compatible with security requirements at MHD (Transcript 397-99) and were one of the most important opportunities a prison can provide (Transcript 409).

 Dr. Stephen Teich is Director of Mental Health at MHD itself. Even his testimony as a witness for plaintiffs was consistent with that of Menninger and Kinzel. He told of psychological damage to a prisoner who returned from visits ". . . even worse than when he went down because of the separation".

 Donald Goff's views were in harmony with those which have been cited. In his opinion, non-contact booth visits are necessary, at most, only for the 20-40% of prisoners who may require maximum security (Transcript 600, 605). He found no reason why detainees should not have the same opportunity for physical contact with their wives and children as New York State convicted prisoners (Transcript 606). As he put it:

 
"You are reducing tensions . . . you are reducing anxieties; you are reducing frustrations -- just to be able to touch somebody; not just to see them but just to be able to touch them." (Transcript 608).

 Contact visits are available to all convicted prisoners in New York State adult correctional facilities and detainees at the Federal House of Detention in New York City. While the New York State practice is of particular importance in assessing the validity of plaintiffs' contention that their right to equal protection is violated by treatment more restrictive than that of convicted prisoners, we put it aside for the moment because of the contrast between the MHD's central urban location as compared to the rural setting of New York State prisons. No such contrast exists between MHD and the Federal Detention Center which is located on a downtown Manhattan street adjacent to the West Side Highway. Furthermore, the Federal Center, like MHD -- and again in contrast to State prisons -- is populated almost exclusively by detainees, not convicted prisoners.

 Louis Gengler, an experienced prison administrator who is warden of the Federal Center, testified that visits are his "highest priority" (Gengler, Transcript 18). He regarded contact visits as more "humane" and booth visits as penologically obsolete. He remarked that:

 
"It is unbearable for me to go to a visiting room and see a wife talk to her husband through the telephone. To our way of thinking, that has gone out a of years ago." (Gengler Transcript 8-9).

 We shall discuss shortly the relationship of contact visits at the Federal Center to the security of the institution. At the moment, it is sufficient to note the practice of allowing contact visits for all inmates and that the practice has been successful. Indeed, it is planned that contact visits will be available to all at the new Federal Detention Center which is under construction as an annex to the United States Court House, located only two city blocks from the MHD itself. Contact visits at the Federal Center are, of course, approved by the United States Bureau of Prisons.

 In the summer of 1970, serious riots occurred at the MHD and were widely reported. This suit, indeed, constitutes the effort to secure by law the objectives of the 1970 violence. The New York State Senate Committee on Crime and Correction held hearings on the MHD disturbances and, on October 5, 1970, issued its report (New York Senate Committee Report). Its finding and recommendation on visits included the following (at 38):

 
"Another complaint of the inmates is that the visitation booths which separate the inmate from his visitor by thick, plate glass, do not always have telephones that are in working order, thus preventing any communication between the inmate and his visitor. The Committee recommends:
 
2. That the Department of Correction make immediate feasibility studies with the objective toward:
 
b. Making visits to detention prisoners on a face to face basis."

 No action has been taken on this recommendation.

 Even defendants' witnesses agreed that there are virtues to contact visiting, although as discussed below they believed that such visits were not feasible at MHD and that the advantage to the detainees was outweighed by the threat to institutional security. However, Joseph D'Elia, Director of Operation of the City Department of Corrections, who was the City's principal witness on the subject, admitted that contact visits might reduce prisoner anxiety and prison tension and to that extent increase security at MHD (Transcript 1255).

 Aytch, the Philadelphia Superintendent, called by defendants, testified that at the Philadelphia House of Correction "open" visits are allowed to the 900 detainees although actual contact is not permitted.

 Former City Commissioner of Correction, George F. McGrath (an original defendant in this case, who was Commissioner at the time of the 1970 riots and at the institution of this litigation), testified (by deposition, June 1971) that the City then had plans for a new MHD (since abandoned) including more open visiting for some of the detainee population, predicated upon an improved classification system, (Exhibit 36, page 62) and that he had opposed allowing children to visit because he concluded it would be harmful for a child to view his father only through the window of a booth "in those obvious prison surroundings". (Exhibit 37, pp. 192-93)

 In sum, all the witnesses agreed that booth visits were painful and psychologically harmful to inmates and that contact visits would be beneficial. The sole justification of the system by defense witnesses was that contact visits are not feasible because of the physical characteristics of the structure, and would constitute a threat to the security of MHD (including the introduction of contraband) since no classification system yet existed at the institution capable of determining which inmates were sufficiently trustworthy to be accorded contact with visitors.

 Defense witnesses testified that as a result of the vertical nature (i.e. high rise character) of MHD and its location, there was not enough space within the building to hold contact visits. In particular, they pointed to the facts that contact visits in themselves require greater space than booth visits and that this difficulty would be intensified by the need for an enlarged waiting room (presumably because more persons would take advantage of the opportunity to visit on a contact basis) and a strip search room to search inmates before and after visits.

 Furthermore, defendants contend that contact visits are inappropriate at MHD because inmates in its central urban location are "more predisposed to attempt an escape than they would be in a more rural location" (Defendants' Post Trial Memorandum, p. 23), and that detainees awaiting trial tend to be more anxious and likely to take precipitate action than sentenced persons. The defendants claim that the present system is a reasonable balance between the need to minimize security risks and acknowledged right of the inmates to humane treatment. Finally, defendants argue that it is "impossible" to grant contact visits to some inmates and not to others (Defendants' Post Trial Memorandum, p. 26). In any event, say the defendants, changes in the visiting system should be deferred until the institution is "adequately equipped" to handle them (thereby implying the possibility of such an event), and in particular until the completion of a study now being conducted by the Department to determine the feasibility of establishing a plan of classification for inmates.

 There can be no doubt that the necessity of assuring security must be balanced against the right to humane treatment of prisoners, and that if contact visits are incompatible with that need they must be sacrificed. The critical question is whether the two can coexist. We are persuaded that they can or that, in any event, the Department has not taken all reasonable steps -- which as indicated below it is obligated to do -- to determine the feasibility of contact visits at MHD. In reaching this conclusion, we do not suggest that defendants are not concerned with the welfare of the MHD inmates. We recognize that they conscientiously believe that contact visits may not be feasible at MHD, and that the present administration of the Department of Correction is entitled to public thanks for the significant improvement which, in an extraordinarily difficult situation, inordinately complicated by the obsolete and inhumane structure of MHD itself, and severe budget limitations, it has voluntarily achieved. Nevertheless, we cannot agree that even the difficult problem of security at MHD render booth visits the least restrictive alternative available in the circumstances.

 The vertical character of MHD is an obstacle, but not an insuperable obstacle, to transportation of inmates for visits. In the first place, inmates are presently being transported adequately. Reasonable adjustments can be made in the number and length of visits if future experience actually demonstrates that the number of visits grows unmanageably on a contact visit basis. The experience at the Federal Center, which, also is affected by limited elevator service and stairways, is some evidence that such limitations can be overcome. It is true that the Federal Center is only four stories high, whereas MHD is twelve; but that contrast is misleading, because at MHD inmates are not housed above the eighth floor. In any event, the plans for contact visits at the new Federal Center which will be eleven floors high demonstrate that such verticality need not prevent contact visits.

 Space limitations may be a greater difficulty, but again the evidence is not convincing. One method of alleviating space problems might be to spread visiting hours (thereby reducing the number of visits at a given time) rather than concentrate them in the evening. D'Elia agreed that this might be the effect (Transcript 1268). Furthermore, reduction of MHD's population pursuant to the consent decree should reduce the present number of visits.

 The evidence also establishes that the risk of introduction of contraband caused by contact visits is controllable. D'Elia conceded that metal detectors can be used to prevent visitors bringing weapons to detainees -- much as such detectors are now used regularly in aircraft boarding checks. Strip searches of detainees can, of course, be conducted to discover contraband. Defendants fear that contact visits may permit passage of drugs mouth-to-mouth (Transcript 1242), as apparently has happened on occasion; but such evidence as there was as to this esoteric practice indicated that its rate of occurence was of marginal significance, and several witnesses testified that it could be easily controlled by watchful guards. In any event, there is no evidence that the risk is greater than at State prisons or the Federal Center; and at the Department's own Adolescent Remand Shelter on Riker's Island (New York City), where contact visits are permitted for sentenced prisoners and strip searches are made, few instances of passing contraband have been noted. Mouth-to-mouth passage of drugs has been reported there, but the Department has nevertheless continued the contact visit system (Transcript 1266).

 The claim that MHD's urban location justifies booth visits is undetermined by experience at other urban institutions, such as Philadelphia and the present New York Federal Center, and by the plan for contact visits at the new center which will be only two city blocks from MHD and, like it, annexed to both a court house and prosecutor's office.

 While it may be true that pre-trial detainees are generally in a greater state of anxiety than convicted prisoners, there is simply no evidence in the record that as a consequence they are more precipitate in their actions or more predisposed to attempt escape. Indeed it could well be argued that a detainee would consider escape highly unwise because it would render him subject to imprisonment even if acquitted on the charge for which he was being held, or would seriously lessen the possibility of a satisfactory plea bargain or lengthen the sentence imposed on him for the original crime. Furthermore, experience at other urban institutions fails to support the claim of detainee predisposition to attempt escape.

 Whether changes to a contact visit should be deferred until a classification system is installed, is, of course, no argument against the right to such visits, but is an appropriate factor to be considered as to the terms of any relief which may be granted.

 Plaintiffs also contend that MHD's visiting regulations violate their rights, because of restrictions on visiting hours, visiting days, the length of visits and the number of visits.

 Before the 1970 riots each detainee was allowed five visits a week (Stipulation of Facts #3), and in recent earlier years an inmate could receive three visitors at a time (Transcript 1058-9). At present, visits are limited to two a week (at 4:30-7:30 P.M.), with a third visit possible by an inmate's child on a day set aside for that purpose. Prisoners are now permitted only one visitor at a time. No visits take place mornings, afternoons or weekends. Visits are limited to thirty minutes, a period which, as indicated above, is often shortened by the search for a booth with an operable telephone.

 These limitations contrast markedly with visiting policy at New York State prisons where daily visits are allowed, and where visits normally occur from 9:00 A.M. to 3:30 P.M. Inmates are allowed three visitors at a time at some institutions, four at others. Families traveling long distances, a situation which occurs at MHD when out-of-city defendants are held, (Transcript 818) may be granted permission to visit on successive days. This is not allowed at MHD. At some institutions visits may last an entire day, and the shortest period allowed appears to be two hours on weekends when there is a greater number of visits. When a visiting room becomes overcrowded the duration of visit may have to be curtailed, the visitors who came first being asked to leave first (all the above from Stipulation of Facts re New York State Correctional practice). Weekend and daytime visits are also allowed at the Federal Center and at the Department's own Brooklyn and Queens institutions visits are allowed both afternoon and evenings.

 The ACA Manual states (Exhibit 4 at p. 542), that:

 
"Correspondence and visiting privileges can be an important and valuable part of a realistic treatment program".

 and that:

 
"As a matter of general policy the members of the inmate's family should be permitted and encouraged to maintain close contact with the inmate. . ."

 The Manual recommends that:

 
"Ordinarily a visit of less than one hour would not be regarded as adequate."

 and that:

 
"The prison administrator should not, however, impose restrictions purely to suit the convenience of the institution." (p. 543).

 vanden Heuvel pointed out that MHD's practices imposed hardships on visitors who are employed, and prevented daytime visits by mothers whose children are in school and who cannot visit at other times. The Board of Correction has recommended allowing daytime and weekend visits, and its study presenting the recommendations (Exhibit 13) shows, for example, that Los Angeles, Denver, Chicago, Baltimore, the District of Columbia and Nassau County (New York) jails permit both weekend and daytime visits. The Board's report indicates that nearly 50% of MHD's inmates interviewed had no visitors, and concluded that the inconvenience of visiting hours was a cause of this condition (Exhibit 13, pp. 1, 8-9). Aytch testified that Philadelphia also allows weekend visits (Aytch Deposition, p. 31).

 The State Senate Committee Report, issued after the MHD riots, and at a time when five visits a week were permitted, recommended that visiting hours be lengthened. As stated above, visiting hours have not only not been lengthened, rather the number of visiting days has been cut from five to two.

 The chief obstacle to enlarging visiting hours and days to allowing a greater number of visitors per inmate appears to be a shortage of staff manpower, as indicated, for example, by Commissioner Malcolm's testimony. The only improvement which the Commissioner plans is to enlarge visiting time from 30 to 45 minutes (Transcript 1210). To his credit, the Commissioner has already alleviated the situation slightly by permitting visits by children of inmates and non-family adults; but these liberalizations, commendable as they are, do not affect the issues before us or explain why visiting opportunities at MHD should be so much more restricted than at comparable institutions; or so far below the level of 1970 arrangments at MHD itself.

 We are persuaded that given adequate manpower, the Department could and willingly would meet more acceptable standards of visiting hours and days and numbers of visitors. We treat the relationship of this fiscal problem to the case below in our discussion of the law.

 (3) Environment: Noise, Ventilation and Heat, Windows :

 Plaintiffs claim that dangerously high noise levels, excessive heat and inadequate ventilation and absence of transparent windows at MHD at least collectively constitute cruel and unusual punishment to those housed there, and in other ways violate their rights. The court's visits to MHD confirm that such conditions do factually exist. The legal consequences of these facts is discussed below.

 The present Departmental administration has made some laudable efforts to overcome the conditions criticized, but has by no means succeeded, and is swimming upstream partly because of problems inherent in the nature of the building and partly because of budgetary limitations imposed on it by the City government.

 Noise levels are intolerable. For example, on the eighth floor (a housing floor) a team of experts from the City's Environmental Protection Agency (EPA) which recently studied the situation with sophisticated noise-measuring instruments, found the volume of noise to be at least that of the New York City subways system (Transcript 1018). It must be emphasized that such levels are fairly constant during all waking hours.

 The structure, so largely built of steel and concrete, is a natural for noise, a perfect soundbox in itself. As vanden Heuvel put it:

 
". . . almost every acoustical advantage that could be available to lessen or deaden the sound was removed and you have steel hitting concrete, hitting solid walls and the cacophony of it is such that it has to be truly destructive to any orientation to institutional life." (Transcript 1017)

  The natural disadvantages of the building are exacerbated by the constant opiate use of television and radio, and court visits confirmed vanden Heuvel's description of the sound:

  
". . . the television playing against that steel and concrete and radios and a loudspeaker system and the yelling of prisoners who are communicating through blank walls, and the metal utensils, trays, et cetera, cups, that are used for eating. . ." (Transcript 1017-18)

  An inmate testified that:

  
"Early in the morning they have . . . emptying of the garbage cans . . . That's the first noise that you hear . . . the dragging of a stack of garbage cans. . . .
  
. . . then you have the radios turned on. Then you have the buildup of the voices, the clanking of the doors, and there's a real piercing sound from the trays that we use, the steel trays . . . they would be stacking the trays for the morning meal and it would just be a constant you know, high pitched clanking." (Transcript 798)

  Although inmate witnesses testified to the hardship imposed by noise and that, for example, it caused inmates to stay up late at night as the only quiet time, or the only time when reading was possible, it is unnecessary to rely on their testimony which was corroborated not only by observations on court visits but by the reactions of non-inmate witnesses.

  Warden Anderson found the level of noise exceptionally high even though his professional experience has generally inured him to prison clatter. Dr. Kinzel, testified that on a tour of MHD he and fellow visitors developed severe headaches from the noise. Nor did he believe that population reduction would solve the problem. As he observed:

  
"My impression as a non-architect is that it is the kind of building that you could drop a penny in and be the only person in the place and it would make a racket. . ." (Transcript 396)

  The effect of such noise levels on the health of inmates cannot be ignored. Kinzel testified that mental health students have established a correlation between high noise levels and irritability (Transcript 316). Dr. Menninger stated that the noise was worse than any of the 150 to 200 jails he has visited and that it was high on the list of damaging psychological effects of confinement at MHD (Transcript 883, 885).

  The findings reported by the EPA (Exhibit 12) are, as plaintiffs' memorandum describes them, startling. They establish that hearing loss is a real danger at decibel readings averaging 80dB, and that noise levels should remain 10-15dB below that level to insure safety. Decibel readings at the Center of the eighth floor bridge averaged 83dB, ranged as high as 87dB and never dropped below the danger point of 80dB. Readings for the tenth floor (then a housing floor) were only a few points lower. The report concluded:

  
"Noise exposure levels in the 10th floor detention area are such that long-term exposure to these levels may cause permanent hearing loss. The levels certainly interfere with normal speech conversation and listening and may well cause a number of psychological and physiological deleterious effects." (p. 9E)

  Extensive literature from the field of noise control is appended to the report in support of the conclusion. The decibel readings of the report are as great as or greater than the maximum noise levels for 1974 prescribed by the City's Noise Code (Exhibit 19) for air compressors, garbage trucks, and automobile horns (§§ 1403.3-5.11, 5.15 and 5.17 of Exhibit 19).

  EPA found television to be the major source of the very high noise levels (on the eighth floor) (Exhibit 12, p. 9B), and recommended isolation of television in separate rooms (at the Federal Center, a dormitory type institution, head-sets are available to listen to television, so that television noise is eliminated) or at least the use of evenly distributed low-level loudspeakers for both radio and television. However, EPA notes that decibel readings were very high even when television is eliminated, because of the hard reverberant acoustics of the building. The report's central recommendation is, therefore, to ...


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