The opinion of the court was delivered by: FRANKEL
On November 28, 1975, this habeas petition was brought as a class action by people detained at our Metropolitan Correctional Center ("MCC") -- which was designed primarily for pretrial detainees, but also houses sentenced people (either serving their terms here or, more characteristically, awaiting shipment to a prison), witnesses in confinement, and some others -- complaining of an array of the jail's conditions including alleged over-crowding, double-celling, dead-lock practices, inadequate religious services, inadequate exercise, and visiting arrangements said to be unjustifiably and unlawfully restrictive. Subject to possible modifications contemplated by Fed.R.Civ.P. 23(c)(1), and in accordance with that provision, the court determined by order dated December 23, 1975,
that the suit may be maintained as a class action. Shortly before that, to promote effective presentation of the many questions presented, the court had appointed the Federal Defender Services Unit as counsel for petitioners.
On January 16, 1976, by order to show cause, petitioners moved for a preliminary injunction to bar implementation of respondents' announced plan to cut the visiting privileges effective the next day. At the outset of the case, the provisions for visits gave all inmates three visits per week, at the following hours:
2nd and 5th floor: 8:30-11:30 a.m., seven days a week
4:30-7:30 p.m., weekdays
9th floor: 8:30-11:30 a.m., seven days a week
3rd, 7th, and 11th floor: 12:30-3:30 p.m., seven days a week
Apparently, no precise limitations on the length of visits or the number of people per visit had ever been firmly established. Each inmate could have a list of six persons, whether family or friends, who would be entitled to visit. On or about January 13, respondents posted notices announcing that visits would be reduced "to two visits a week, a maximum time of one hour each."
In addition, visiting hours were altered according to the following schedule:
3rd, 7th, and 11th floor: 5:30-8:00 p.m. Tuesday and Thursday
8:30 a.m.-3:00 p.m. Saturday
2nd, 5th and 9th floor: 5:30-8:00 p.m. Wennesday and Friday
8:30 a.m.-3:00 p.m. Sunday
Finally, under the new directive, "visits will be limited to immediate family plus two friends. Under no circumstances, however, can there be more than 10 people on an approved list at any one time."
Although notices seem to have been posted on January 13 of the changes to be effective four days later, the court knows, as does everyone affected, that communications to and from the MCC are scarcely instantaneous. Counsel for petitioners moved with all desirable speed in bringing their order to show cause by January 16. On the afternoon of that day, after meeting with counsel for both sides, the court barred the imminent restrictions by a temporary restraining order.
Respondent Warden informs us that the suddenly announced diminution in visiting times "has been in the process of formulation by the MCC staff prior to the commencement of this proceeding and for more than three months * * *."
Since the changes would have an impact upon MCC staff, the Warden also says, he followed "binding past practice" (not otherwise specified, but entirely plausible) and "submitted the proposed duty roster to the union president approximately two weeks in advance of its implementation for review by the union."
The union gave its approval, and the effective date of January 17 was accordingly set.
Nobody thought it appropriate or necessary to have advance consultations with petitioners, their counsel, or the court. Although the already existing provisions for visits were under attack in this case, there was no arrangement of any kind to notify counsel or the court that more restrictive rules, unilaterally determined (so far as the parties here are concerned), would be promulgated. Instead, as has been mentioned, the news came on notices posted four days before the restricting changes were to be in force.
Apart from its other dubieties, this course of action was not softened by an excepting provision for visitors who might come from afar or who might otherwise fail to hear in time to alter visiting plans. As to the substantive grounds for the changes, respondents state that the old schedule was but temporary, designed to be changed as circumstances changed, and that the large number of visitors led to the revised schedule.
Specifically, we are told:
"During the first two months of operation, the inmate population and number of visitors were increasing. By the second week of September, the number of visitors had increased to approximately 1,500 persons per week and at certain times of the week (weekends and the beginning of the week) the number of visits would rise substantially, thereby straining the capacity of the visiting facilities and causing delays in processing the visitors."
Further, respondents report:
"The number of visitors at the MCC has risen to approximately 2,000 to 2,500 per week, with up to 500 of those visitors visiting on Saturday and 700 visiting on Sunday."
The altered regulations, respondents assert, were meant to meet the situation as thus described and were "intended to enable the inmates to foster and maintain close family ties and community contacts consistent with practical considerations of security, availability of staff and visiting space."
In response to the asserted justifications for the changes, petitioners show, by the submission of 92 inmate affidavits (said to be representative only because of the short time available for obtaining them), that the proposed hours and rules are more burdensome and restrictive than those currently in effect in that: many inmates now receive three visits per week; many inmates have spouses or other visitors who must care for children or the elderly during the non-school early evening hours; many inmates receive visitors from substantial distances who would be inconvenienced in attempting to return home after an evening visit; many inmates have more than two unrelated friends who are presently visiting.
It is surely true, as respondents stress, that executive officials rather than judges are in charge of prisons and jails. 18 U.S.C. §§ 4001, 4042 (1970); Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S. Ct. 1800, 40 L.ED.2d 224 (1974); Daughtery v. Harris, 476 F.2d 292, 294 (10th Cir.), cert. denied, 414 U.S. 872, 94 S. Ct. 112, 38 L. Ed. 2d 91, 94 S. Ct. 113 (1973). It is also clear, however, from the course of recent decisions, that people in confinement possess an expanding array of basic human rights. See Detainees of the Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392, 397 (2d Cir. 1975) (noting the recent erosion of "the historical reluctance of federal courts to interfere with the administration of penal institutions"); Inmates of the Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 684 (D.Mass.1973), aff'd, 494 F.2d 1196 (1st Cir.), cert. denied, 419 U.S. 977, 95 S. Ct. 239, 42 L. Ed. 2d 189 (1974). Central among these rights is the opportunity to communicate and visit with kin and with friends, Brenneman v. Madigan, 343 F. Supp. 128, 141 (N.D.Cal.1972), a reciprocal opportunity protected in law for those on the outside as well as those inside. Procunier v. Martinez, 416 U.S. 396, 406-14, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). The presumption is that these basic rights should be unfettered; restrictions on such valued rights must be justified by the requirements of the prison environment. Procunier v. Martinez, supra at 412-13, 94 S. Ct. 1800; Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct. 2800, 41 L. Ed. 2d ...