THE BASICS: Pretrial detainees have most of the same rights as convicted prisoners.
THE RULE: Jail conditions must not be punitive or an exaggerated response to a security need.

Not everybody who is incarcerated in a prison or jail has been convicted. Many people are held in jail before their trial, and are referred to in the Handbook as “pretrial detainees.” As a pretrial detainee, most of the legal standards explained in the above sections apply to you.

However, there are some differences in law for pretrial detainees. As you know from the above sections, the Eighth Amendment prohibits cruel and unusual punishment. This protection only applies to people who have already been convicted. Since detainees have not been convicted, they may not be punished at all until proven guilty. One legal result of this is that jail conditions for pretrial detainees are reviewed by courts under the Fifth or Fourteenth Amendment Due Process Clause, not the Eighth Amendment prohibition of cruel and unusual punishment.

The most important case for pretrial detainees is Bell v. Wolfish, 441 U.S. 520 (1979), which was a challenge to the conditions of confinement in a federal jail in New York. In Bell, the Court held that jail conditions that amount to punishment of the detainee violate due process. The Court explained that there is a difference between punishment, which is unconstitutional, and regulations that, while unpleasant, have a valid administrative or security purpose. It held that regulations that are “reasonably related” to the institution’s interest in maintaining jail security are not unconstitutional punishment, even if they cause discomfort. This is why detainees can be put into punitive segregation or SHU.

You can prove that poor conditions or restrictive regulations are unconstitutional punishment in two different ways:

(1) by showing that the prison administration or individual guard intended to punish you, or

(2) by showing that the regulation is not reasonably related to a legitimate goal. This can be because the regulation doesn’t have any purpose or because it is overly restrictive or an exaggerated response to a real concern. On example of a case like this is Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008). In that case, a court held there was no legitimate reason for pretrial detainees in SHU to only get 90 minutes of exercise per week.

As with the Turner standard (see Section A) for convicted prisoners, courts defer to jail officials in analyzing what is a “legitimate concern.” Security is a legitimate concern of jail officials, so they can put you in the hole for breaking a jail rule, just like a prison can.

Although the standard in Bell for analyzing the claims of pretrial detainees is well-established, the courts are not in agreement as to whether the content of that standard is actually any different from the content of the Eighth Amendment standard explained in Section F. In City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983), the Supreme Court held that pretrial detainees have due process rights that are “at least as great” as the Eighth Amendment protections available to prisoners.

Other courts have held that pretrial detainees should have more protection than convicted prisoners. Two examples are Gibson v. County of Washoe, 290 F.3d 1175, 1188 n. 9 (9th Cir. 2002) and Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986). However, when faced with claims by pretrial detainees, many courts simply compare the cases to Eighth Amendment cases. If you are a pretrial detainee, you should start by reading Bell v. Wolfish, and then research how courts in your circuit have applied that standard.

One area where the law may be different for pretrial detainees is when and how you can be searched. The Second Circuit, for example, has held that strip searches of pretrial detainees who are in custody for misdemeanor or other minor offenses are unconstitutional unless the guard or officer has a “reasonable suspicion” that the detainee has a concealed weapon or contraband of some sort. Reasonable suspicion means that the official searching you must have specific facts for suspecting you of having contraband. One case that explains this issue is Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001). However, other circuits have held that the practice of conducting full body visual strip searches on all jail detainees being booked into the general population for the first time does not violate the Fourth Amendment. Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008).

The Second Circuit has also stated that pretrial detainees retain a limited expectation of privacy under the Fourth Amendment that protects them from searches that are not done for legitimate security reasons. This means that the jail cannot search your cell looking for evidence to use against you in trial, only for contraband or other risks to jail security. United States v. Cohen, 796 F.2d 20 (2d Cir. 1986). Other courts do not agree with the Second Circuit on this.

In a few states, under state law, pretrial detainees retain a similar “limited but legitimate expectation of privacy … [if] the search of the pre-trial detainee’s cell is … solely for the purpose of uncovering incriminating evidence which could be used against the detainee at trial, rather than out of concern for any legitimate prison objectives.” State v. Henderson, 271 Ga. 264, 267 (1999). See also Rogers v. State, 783 So.2d 980 (Fla. 2001).

One other area in which pretrial detainees may get more protection is around procedural due process challenges to placement in segregation. In Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir.1996), one appellate court held that a pretrial detainees may be subject to disciplinary segregation only after a due process hearing to determine whether they have violated any rule, regardless of the difficult question, described in Section D, of whether the conditions in segregation are so serious and unusual as to create a liberty interest.

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