The opinion of the court was delivered by: Glasser, United States District Judge
The warden of the Metropolitan Correction Center (MCC) was ordered to show cause why he should (1) not be directed to remove the defendant McTier from administrative detention in the Special Housing Unit (SHU), and place him in the general population; (2) not be directed to immediately take steps to restore the list of people to whom defendant McTier may make phone calls which was apparently deleted due to a computer malfunction and/or human error, and (3) not grant such further relief to the defendant McTier that this Court deems just and proper.
The warden was also ordered to show cause why he should (1) not be directed to release the defendant Russell from the SHU and place him in the general population; (2) not be directed to take the necessary steps to restore the visiting rights of the defendant Russell's mother, Ms. Elizabeth Jones, who has not been cleared to visit him since he was transferred to the MCC; and (3) not grant such further relief to the defendant Russell that this Court deems just and proper.
In an indictment filed on May 20, 2005, and a superseding indictment filed on November 2, 2005, McTier and Russell, together with five others, were charged in twenty eight counts with a variety of crimes. More specifically, McTier and Russell were charged with racketeering and racketeering conspiracy. McTier was charged with three counts of murder in aid of racketeering; three counts of attempted murder in aid of racketeering; one count of conspiracy to commit murder in aid of racketeering; one count of assault in aid of racketeering; and four counts of using and carrying a firearm in relation to a crime of violence. Russell was charged with one count of murder in aid of racketeering; one count of attempted murder in aid of racketeering; and two counts of using and carrying a firearm in relation to a crime of violence. Orders of detention were issued as to both.
McTier is a sentenced state inmate with a conditional release date of July 18, 2006, who was initially housed federally pursuant to a writ in the Metropolitan Detention Center (MDC) in Brooklyn. On January 11, 2006, he was transferred from the MDC to the MCC in Manhattan and admitted to the SHU pending classification and where he still remains.
Russell was transferred from the MDC to the MCC on March 3, 2006, and he too was admitted to the SHU pending classification where he still remains.
The warden submitted written responses and appeared by members of the MCC legal staff. His written response regarding McTier emphasized that his "administrative detention status is not punitive, rather it was implemented pursuant to the Bureau of Prisons' regulations and policies for the safety of inmates, staff and others, and to maintain the security and good order of this facility." The specific concerns which counseled the propriety of administrative detention were stated to be "his gang affiliations, his current offenses involving multiple murders and attempted murders for which he is eligible for the death penalty if convicted and his extensive history of violence consisting of robbery and menacing with a weapon. . . . His institutional adjustment while housed in general population at MDC Brooklyn was poor involving two disciplinary infractions within five months of each other" one of which involved a fight with another inmate.
The warden's written response regarding Russell echoed his response regarding McTier, namely, that his admission to the SHU was not punitive but deemed necessary for the safety of inmates and staff and for the security and orderly administration of the facility. The offenses for which he was detained mirrored those of McTier in addition to attempted murders of law enforcement officers and his extensive criminal history of violence involving assaults, robberies, attempted rape, attempted murder, resisting arrest, possession of weapons, possession of contraband while in prison and bribery of an official.
We begin with Bell v. Wolfish, 441 U.S. 520 (1979), in which the Court discussed the factors, legal and practical, that must be considered in addressing conditions of pretrial detention which are challenged as violating the demands of due process. In deciding whether the particular condition of pretrial detention is unconstitutional the Court must determine whether the condition complained of is imposed to punish or whether it is imposed to serve and is reasonably related to a legitimate governmental objective. 441 U.S. at 538. That, in essence, is the legal factor. The practical factors are the government's legitimate interest to maintain order and security that may justify conditions and restrictions of pretrial detention that negate any inference that they are intended as punishment. 441 U.S. at 540. In that vein, the Court cautioned that "Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Such considerations are peculiarly within the province and professional expertise of corrections officials, and in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." 441 U.S. at 547-48 (internal citations omitted).
The Code of Federal Regulations pertaining to inmate discipline and special housing units reflect the observations in Bell v. Wolfish. They embody the procedures which must be resorted to in determining whether assignment of these defendants to the SHU was for the purpose of punishment rather than for some other legitimate purpose and provide the administrative process for challenging that assignment.
28 CFR § 541.10 provides that prison authorities can impose discipline on inmates whose behavior does not comply with Bureau of Prisons rules so that inmates may live in a safe and orderly environment provided that disciplinary action is not capricious and retaliatory and applied consistently and impartially.
28 CFR § 541.22 defines Administrative detention as confinement in a special housing unit which serves to remove the inmate from the general population. Section 541.22(a) provides that the Warden may place a new inmate in administrative detention pending classification or when the inmate's continued presence in the general population poses a serious threat to life, property, self, staff, other inmates or to the security or orderly running of the institution.
§ 541.22(b) requires the Warden to prepare an administrative detention order detailing the reasons for placing an inmate in administrative detention with a copy given to the inmate within 24 hours of his placement.
§ 541.22(c) requires the Segregation Review Official (SRO) to conduct a record review within 3 work days of the inmate's placement and hold a hearing and formally review the status of any inmate who spends 7 continuous days in such detention and thereafter shall review the case on the record (in the inmate's absence) each week and shall hold a hearing and review the case formally at least every 30 days. ...