Appeal and cross-appeal from an order entered in the United States District Court for the Western District of New York, Harold P. Burke, District Judge, denying plaintiffs' motion for certification of a defendant class, and granting in part and denying in part plaintiffs' motions for preliminary injunctive relief and certification of a plaintiff class. The preliminary injunction and plaintiff class certification are vacated, and the cause is remanded with directions to certify the plaintiff and defendant classes requested by plaintiffs and grant classwide preliminary relief.
Before Kaufman, Chief Judge, and Smith and Van Graafeiland, Circuit Judges.
Recent years have witnessed an explosion of litigation testing the rights of prisoners who have not been convicted of a crime but are merely held in custody to ensure their attendance at trial. A recurrent issue has been the extent to which these pretrial detainees must be permitted "contact visits," and, since 1974, we have repeatedly held that due process forbids denying detainees the right "to shake hands with a friend, to kiss a wife, or to fondle a child," Rhem v. Malcolm ("Rhem I"), 371 F. Supp. 594, 626 (S.D.N.Y.), Aff'd, 507 F.2d 333 (2d Cir. 1974). Accord, Wolfish v. Levi, 573 F.2d 118, 126 n. 16 (2d Cir.) (recognizing First Amendment basis to right), Cert. granted, -- - U.S. -- , 99 S. Ct. 76, 58 L. Ed. 2d 107 (1978); Rhem v. Malcolm ("Rhem II"), 527 F.2d 1041, 1043 (2d Cir. 1975).
Before the instant litigation, however, the cases have focused on one institution at a time, and our decrees have had a practical impact only on the inmates of the particular facility under consideration in each suit. Thus, the sheriffs of 47 of New York's 62 counties continue to deny pretrial detainees in their custody*fn1 the contact with friends and loved ones that Rhem I established as their due. At Monroe County Jail, for example, which was built in 1970 and is considered one of the most modern jails in the state, the detainee and his visitor are kept apart by a ceiling-high wall. They see each other only through a small plexiglass window, and they talk by telephone. The visiting facilities at the other 46 jails whose inmates are denied contact visits are similar.
New York State officials have not been unmoved by the plight of the detainees in the county jails. In 1976, following our decisions in Rhem I and Rhem II, the State Corrections Commission promulgated regulations requiring each facility to adopt a contact visitation program. 9 N.Y.Codes, Rules & Regs. §§ 7008.1 to .8 (1976).*fn2 The sheriffs, however, viewed this action by the Commission as infringing on their prerogatives as administrators of the jails, and they secured a state court injunction against enforcement of the regulations. McNulty v. Chinlund, 62 A.D.2d 682, 406 N.Y.S.2d 558 (3d Dep't 1978), Aff'g 89 Misc.2d 713, 392 N.Y.S.2d 790 (Sup.Ct., Albany Co. 1977).*fn3
In November 1976, shortly after the Corrections Commission's regulations were promulgated, Joseph Marcera and John Dillman, two inmates of the Monroe County Jail, commenced this action to enforce their right to contact visitation. Seeking the broadest possible vindication of this right, they sought to maintain the suit as a double-edged class action under Rule 23 of the Federal Rules of Civil Procedure. Specifically, on behalf of themselves and a plaintiff class of pretrial detainees throughout the state, they sought relief against a defendant class of 42 sheriffs who deny contact visits in their jails.*fn4 Sheriff William Lombard of Monroe County was named as representative of the proposed defendant class.*fn5 Plaintiffs promptly moved before Judge Burke for certification of plaintiff and defendant classes, and they also requested preliminary injunctive relief to facilitate implementation of contact visitation at the 42 affected jails.
On a prior appeal, we held that Judge Burke erred in denying the relief sought out of hand, without holding a hearing. Marcera v. Chinlund, 565 F.2d 253 (2d Cir. 1977) (Per curiam ). Although we stated that plaintiffs had raised "substantial claims of deprivations of (constitutional) rights," the virtually nonexistent record precluded us from ruling on the merits. Id. at 255. After the required hearing, the district judge determined that plaintiffs had demonstrated neither irreparable injury nor likelihood of success on the merits. In addition, he found that significant differences in jail construction, staffing, and inmate population among the 42 counties precluded Sheriff Lombard from adequately protecting the interests of the absentee defendants. Judge Burke therefore declined to certify either a defendant class or a statewide plaintiff class,*fn6 and he denied most of the requested preliminary relief. He did, however, certify a plaintiff class consisting of Monroe County inmates, and he ordered Sheriff Lombard to ask the County Legislature for funds with which to implement a contact visitation program.*fn7
The sheriff appeals this directive, and plaintiffs appeal the denial of statewide class certification*fn8 and the refusal to enter a more comprehensive preliminary injunction. Because we believe the district judge has misconceived both the nature of the constitutional issues and the appropriate procedural response, we reverse the order denying class certification and direct the district court to grant the interim relief requested by plaintiffs.*fn9 To avoid further shuttling between this court and the district court, we shall also attempt to provide some guidance for the future conduct of the litigation.
I. THE CONSTITUTIONAL FRAMEWORK
As we noted earlier, we have repeatedly held that it is unconstitutional to deny inmates regular contact visits while they are incarcerated awaiting trial. This right is founded on the bedrock of our criminal jurisprudence: an individual accused of a crime is presumed innocent, and may not be punished, until a jury finds him guilty beyond a reasonable doubt. Accordingly, pretrial detainees may be subjected only to those restraints on their liberty that inhere in the confinement itself or are clearly justified by the "compelling necessities of jail administration." E. g., Wolfish v. Levi, supra, 573 F.2d at 124.
Moreover, it is equally well established that these "compelling necessities" do not include cost or mere administrative inconvenience, for "inadequate resources (or) finances can never be an excuse for depriving detainees of their constitutional rights," Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 399 (2d Cir. 1975). Accord, Rhem II, supra, 527 F.2d at 1043-44; See, e. g., Wolfish v. Levi, supra, 573 F.2d at 124; Todaro v. Ward, 565 F.2d 48, 54 n. 8 (2d Cir. 1977). To be sure, the legitimate and vital interests of jail security may be protected, but only by rules carefully tailored to cause no more restrictions of inmates' rights than essential. Thus, reasonable classification schemes, designed to weed out those detainees who would present intolerable security risks if granted contact visits, are permissible. Rhem I, supra, 507 F.2d at 338; 371 F. Supp. at 626; See id. at 603-04, 617-20. Blanket prohibitions, however, are banned. See Rhem II, supra, 527 F.2d at 1043; Miller v. Carson, 563 F.2d 741, 748-49 (5th Cir. 1977); Detainees of Brooklyn House of Detention v. Malcolm, 421 F. Supp. 832 (E.D.N.Y.1976). In sum, it is too late in the day to suggest that it does not offend the Constitution not to permit pretrial detainees contact visits. Judge Burke clearly erred in finding that plaintiffs suffered no irreparable injury and were unlikely to succeed on the merits, and his failure to award effective interim relief was thus an abuse of discretion. The true issues on this appeal concern not the right to relief but the scope of relief; not whether to enter an injunction but against whom and to what extent.
We turn, therefore, to the district court's rulings on the class certification motions. Under Fed.R.Civ.P. 23, of course, a moving party must demonstrate that the putative class not only meets each of the four criteria of subsection (a) but also fits one of the three categories set forth in subsection (b). See, e. g., Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968), Cert. denied, 395 U.S. 977, 89 S. Ct. 2131, 23 L. Ed. 2d 766 (1969). These twin requirements apply equally to plaintiff and defendant classes. See, e. g., Research Corp. v. Pfister Associated Growers, Inc., 301 F. Supp. 497 (N.D.Ill.1969), Appeal dismissed sub nom. Research Corp. v. Asgrow Seed Co., 425 F.2d 1059 (7th Cir. 1970); Note, Defendant Class Actions, 91 Harv.L.Rev. 630, 633 (1978). In this case, however, there is an additional hurdle to overcome. Unless the custodians of the 41 affected jails outside Monroe County are members of a proper defendant class, it would be an exercise in futility to define the plaintiff class to include detainees in counties other than Monroe. Indeed, because there is surely no case or controversy between Sheriff Lombard and non-Monroe detainees, to certify a statewide plaintiff class and not a corresponding defendant class would violate Article III as well. See generally Developments in the Law Class Actions, 89 Harv.L.Rev. 1318, 1460-63 & nn. 47 & 48 (1976) (citing cases). Thus, we first consider Judge Burke's refusal to certify a defendant class.
There is little doubt that the 42 sheriffs constitute a group sufficiently large to meet the numerosity requirement of Rule 23(a)(1). See 1 H. Newberg, Class Actions 171-76 (1977), and cases collected therein. Moreover, the constitutionality of denying contact visits is a "question of law . . . common to the class" of sheriffs within the meaning of 23(a)(2). And although a literal reading of the rule might indicate otherwise, See Note, Federal Rules of Civil Procedure 23: A Defendant Class Action with a Public Official as the Named Representative, 9 Val.L.Rev. 357, 390-96 (1975), it is now settled that 23(b)(2) is an appropriate vehicle for injunctive relief against a class of local public officials. E. g., Lee v. Washington, 390 U.S. 333, 88 S. Ct. 994, 19 L. Ed. 2d 1212 (1968) (Per curiam ), Aff'g 263 F. Supp. 327 (M.D.Ala.1966) (3-judge court); Lynch v. Household Finance Corp., 360 F. Supp. 720 (D.Conn.1973) (3-judge court); Note, Supra, 9 Val.L.Rev. at 391 & n. 128; Note, Defendant Class Actions, supra, 91 Harv.L.Rev. at 634.*fn10 The propriety of certifying a defendant class in this case depends, therefore, on whether Sheriff Lombard's defenses are typical of those of the class, and whether he can adequately protect the interests of the absentee sheriffs. Not surprisingly, Lombard has vigorously asserted that he passes neither test, and the district court agreed. We conclude, however, that the sheriff's defenses are indeed typical of those of his colleagues, and that he will continue to protect their interests as firmly and vigorously as he has in the litigation thus far.
1. Typicality of Defenses
Lombard presents two interrelated defenses. He asserts, first, that contact visits pose an intolerable threat to the security of the Monroe County Jail. In addition, he contends that any security arrangements he could make that would provide adequate protection against the twin evils of inmate violence and introduction of contraband would require him to spend money he does not have and has no hope of obtaining.
There can be little question that these defenses are familiar and, indeed, are always put forward as justification for denials of contact visits. The demons cost, violence, and contraband have been evoked in every reported contact visitation case. See, e. g., Rhem I, supra; Miller v. Carson, supra, 563 F.2d at 748-49; O'Bryan v. County of Saginaw, Mich., 437 F. Supp. 582, 595, 598-99 (E.D.Mich.1977). Moreover, Lombard has not cited, nor have we discovered, a single case in which a corrections official raised a defense other than those advanced here. In any event, we need not speculate as to possible defenses the sheriffs might raise, for there is hard evidence available on the matter. Fifty-one of New York's sheriffs joined in bringing the McNulty action to enjoin enforcement of the State Correction Commission's contact visitation regulations, and the principal grounds they asserted were cost and security. See 406 N.Y.S.2d at 561.*fn11
Lombard contends, nevertheless, that a single sheriff's defenses cannot possibly be typical of the entire class because of the substantial variations among detention facilities with respect to architecture, staffing, and inmate population. How, he asks, can the problems of Monroe County Jail a modern, urban, maximum-security installation with a capacity of 325 inmates be comparable to those of the small jails in rural counties such as Wyoming? The short answer to this argument is that it is the settled law of this Circuit that considerations of cost, architecture, or administrative convenience are simply insufficient to justify blanket denials of contact visits. See Part I Supra. The size of the county and the nature of its jail are therefore irrelevant to the issue of liability. And although, as we discuss in Part III Infra, these considerations may be significant in fashioning a decree, it is solidly established that a possible need for individual relief should not deter a court from certifying a class at that stage of the proceedings when the court is engaged only in resolving the merits of the plaintiffs' claims. See, e. g., Green v. Wolf Corp., supra, 406 F.2d at 300-01; Samuel v. University of Pittsburgh, 538 F.2d 991 (3d Cir. 1976) (Clark, J.); In re Master Key Antitrust Litigation, 70 F.R.D. 23 (D.Conn.1975), Appeal dismissed, 528 F.2d 5 (2d Cir. 1976). This principle is by no means limited to plaintiff classes. See In re Gap Stores Securities Litigation, 79 F.R.D. 283 (C.D.Cal.1978); United States v. Trucking Employers, Inc., 75 F.R.D. 682, 689 n.2 (D.D.C.1977). Should the need to restructure the litigation arise in later stages, subsections (d) and (c)(4) of Rule 23 provide the trial judge with ample discretion to respond flexibly. We conclude, therefore, that the differences among jails do not render the cost and security defenses raised by Sheriff Lombard atypical of those of his class.
2. Adequacy of Representation
In contrast with representatives of plaintiff classes, named defendants almost never choose their role as class champion it is a potentially onerous one thrust upon them by their opponents. See generally Note, Supra, 91 Harv.L.Rev. at 648-50. It is not surprising, therefore, that Lombard opposes certification on the ground that, as an unwilling representative, he is unlikely to protect the interests of absentees. But courts must not readily accede to the wishes of named defendants in this area, for to permit them to abdicate so easily would utterly vitiate the effectiveness of the defendant class action as an instrument for correcting widespread illegality. Rule 23(a) (4) does not require a willing representative but merely an adequate one. It will often be true that, merely by protecting his own interests, a named defendant will be protecting the class. Where, as here, the legal issues as to liability are entirely common to members of the defendant class, there is little reason to fear unfairness to absentees. See Note, Supra, 91 Harv.L.Rev. at 643-44. In this litigation, Sheriff Lombard has vigorously and ably defended a difficult position. A measure of his resourcefulness as an advocate for the class is the fact that today more than two years after this suit was commenced and in the face of clear and controlling cases to the contrary the 42 county jails are still pursuing the visitation policies of their choice. Under these circumstances, his opposition to certification merits only "token weight." Research Corp. v. Pfister Associated Growers, Inc., supra, 301 F. Supp. at 499. We believe, therefore, that the district court erred in denying the motion to certify the statewide defendant class.
We may dispose of the remaining certification issue briefly. In certifying a limited plaintiff class, the district court clearly found that the requirements of Rule 23(a) were met as to the class of Monroe County inmates. We agree.*fn12 Moreover, it is well established that civil rights actions are the paradigmatic 23(b)(2) class suits, for they seek classwide structural relief that would clearly redound equally to the benefit of each class member. See, e. g., Alliance to End Repression v. Rochford, 565 F.2d 975, 979 n.9 (7th Cir. 1977); Notes of Advisory Committee on Rules, 39 F.R.D. 69, 102 (1966); 1 H. Newberg, Supra, at 240. But we do not agree with the district court that the putative unfamiliarity of the plaintiff class attorneys with jails outside Monroe County should prevent certification of a statewide plaintiff class. We have already held that variations among jails are irrelevant to liability, and, even with respect to relief, the record already contains some evidence concerning non-Monroe County jails. Discovery of absentee class members, See United States v. Trucking Employers, Inc., 72 F.R.D. 101, 104-05 (D.D.C.1976), is available to fill what gaps remain. Accordingly, the district court should have granted the plaintiffs' motion for certification of a statewide plaintiff class.
In considering the relief to be awarded the plaintiff class, we are mindful that there are compelling reasons for federal courts not to become enmeshed in the minutiae of day-to-day prison administration. Both the Supreme Court, in Procunier v. Martinez, 416 U.S. 396, 404-05 & n.9, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), and we in Wolfish v. Levi, supra, 573 F.2d at 124, have recognized that "courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform," 416 U.S. at 405, 94 S. Ct. at 1807. And where, as here, the litigation affects a substantial proportion of a state's jail facilities, we must be particularly sensitive to the dictates of federalism. Federal courts must not become surrogate Jail Superintendents for the State of New York.
Nevertheless, we have repeatedly and firmly declared that neither convenience of judicial administration nor concern for the delicacies of federal/state relations will excuse a failure to remedy clear constitutional violations. E. g., Wolfish, supra, 573 F.2d at 124; Todaro v. Ward, supra, 565 F.2d at 53-54. The judgment in this action must be adequate to redress the patently unconstitutional visiting procedures pursued by the defendant class.*fn13
On this appeal, however, we are not in a position to direct entry of a final decree. The record clearly establishes the existence of constitutional violations by the defendant sheriffs, but it also suggests that there may be significant differences among the jails in architecture, staffing, and inmate population. Although these differences were irrelevant to the issue of liability, they assume importance in considering appropriate remedies, which may involve architectural changes, adjustments to security systems, and timetables for implementation. Recognizing that the persons best placed to determine how contact visitation should be implemented are the sheriffs themselves, plaintiffs asked that the district court preliminarily require submission of plans by each member of the defendant class. We believe this is appropriate, and the district court should grant this relief upon receipt of our mandate. The Corrections Commission has repeatedly offered technical assistance to counties implementing contact visits, and we trust that such aid is still available.*fn14
Once the plans are submitted, the district court must determine whether the suit should continue to be maintained as a class action. Decertification under subsections (d) and (c)(4)(A) of Rule 23 is permissible if it appears that highly individualized relief is necessary in each county. The district court, however, ought not to take such action without considering all the alternatives, for there may be no need for extensive litigation with respect to each plan.
First, the district judge should consider any plan offering to implement contact visitation within one year. If he concludes that the proposal will in fact meet constitutional standards, the county submitting it should be permitted to have a consent decree entered embodying the offer. Even if the plans offered by the sheriffs do not resolve the litigation, there may be no need to fragment the lawsuit. It may be that formulation of relief against all the defendants will require only a small number of decrees. Useful models are provided by the Corrections Commission's abortive 1976 regulations and by the decrees issued in prior contact visitation cases, both in this Circuit and elsewhere. And documents produced in connection with the deposition of Chairman Chinlund of the State Corrections Commission indicate that the counties that established contact visitation programs in response to the Commission's 1976 regulations encountered little difficulty, either in effecting the change or in maintaining security thereafter.*fn15 Indeed, it is highly significant that, as Chairman Chinlund testified, the facilities already permitting contact visitation are typical, in terms of architecture, location, and other relevant factors, of the full spectrum of New York State's county jails. Pleas of special circumstances or extraordinary hardship, therefore, should be examined with care before it is concluded that decertification is warranted.
We are somewhat distressed with both the tone and content of our Brother Van Graafeiland's dissent in an area charged with so much emotion. Elsewhere in this opinion we have responded to several of his complaints, and we will not repeat them here. We note, however, that much of the dissent is a transparent attempt to set up straw men by altering today's holding. For example, whether pretrial detainees have a right to conjugal visits has not been presented to us, nor was that issue before us in Wolfish, supra. But, its mere mention is more likely to inflame than shed light. We believe it neither helpful nor relevant to the final solution of these difficult issues, involving intensified feelings, to resort to this type of argument. What is before us is the right of prisoners who have not been convicted of ...