The conditions of pretrial detention.

• Author: Struve, Catherine T.
• Position: Introduction through III. Guideposts from Related Areas of Supreme Court Case Law C. The Temporal Reach of the Fourth Amendment, p. 1009-1045

The Supreme Court has set forth in detail the standards that govern convicted prisoners' Eighth Amendment claims concerning their conditions of confinement, but has left undefined the standards for comparable claims by pretrial detainees. The law articulated by the lower courts is unclear and inconsistent, but on the whole shows a trend toward assimilating pretrial detainees' claims to those of convicted prisoners. Based on a review of Supreme Court case law concerning related questions, this Article argues that, for claims arising after a judicial determination of probable cause, the tests now prevailing in the lower courts should be replaced by a substantive due process framework that requires a plaintiff to show, at most, either punitive intent or objective deliberate indifference by the defendant. For claims arising after a warrantless arrest and before a judicial determination of probable cause, the Fourth Amendment's objective reasonableness standard should govern. The Article further notes a strong argument that this objective reasonableness standard should govern prior to arraignment, even when the arrest took place upon a warrant.

INTRODUCTION I. THE PUZZLE OF PRETRIAL DETENTION II. THE LOWER COURTS' CASE LAW A. The Early Period of Detention B. Equivocation C. Differentiation and Assimilation 1. General Conditions of Confinement 2. Medical Care, Suicide, and Attack 3. Force III. GUIDEPOSTS FROM RELATED AREAS OF SUPREME COURT CASE LAW A. Constitutional Law for the Guilty B. Expanding and Confining Police Discretion C. The Temporal Reach of the Fourth Amendment D. Deference and Security Concerns IV. JAILS AND THEIR INMATES V. A PROPOSED FRAMEWORK FOR PRETRIAL DETAINEES' CLAIMS A. Pre-Judicial Detention B. Judicial Detention Prior to Arraignment C. Judicial Detention More Generally D. Potential Objections CONCLUSION INTRODUCTION

More than thirty years ago, the Supreme Court ushered in the modern jurisprudence of inmates' rights with its decisions in Estelle v. Gamble (1) and Bell v. Wolfish. (2) In Estelle, the Court held that "deliberate indifference" to a convicted prisoner's "serious medical needs" violates the Eighth Amendment's ban on cruel and unusual punishment. (3) In Wolfish, focusing on the fact that detainees being held for trial cannot be punished (because they have not been convicted), (4) the Court held that to discern impermissibly punitive conditions of detention, the courts must ask whether the challenged condition "is reasonably related [and proportionate] to a legitimate governmental objective." (5)

In the years that followed, the Court returned repeatedly to the question of the Eighth Amendment standard for claims by convicted prisoners. It held that the Eighth Amendment requires a showing of subjective deliberate indifference for a convicted prisoner's claims concerning medical care, failure to protect from attack, or general conditions of confinement. (6) For a convicted prisoner's claim that a guard used excessive force, the Court held that the Eighth Amendment requires a showing of malice and sadism, (7) but does not require evidence of significant injury. (8) And the Court recognized that the Eighth Amendment extends to conditions of confinement that create an unreasonable risk of serious future harm. (9)

During the same time period, the Court also clarified the standards that govern the front end of the criminal justice timeline. The Fourth Amendment, the Court held, sets a standard of objective reasonableness for the police's use of force during the course of an arrest. (10) In addition to an overarching test of reasonableness under the circumstances, the Court specified particular tests for the use of deadly force against a fleeing suspect (11) and for intentional maneuvers designed to stop a suspect's car. (12)

By contrast, the Court has provided no further articulation of the standards that govern similar claims by pretrial detainees. (13) It has noted, without deciding, the question of whether the Fourth Amendment's reasonableness standard for the use of force extends beyond arrest and into pretrial detention. (14) It has observed that an arrestee's right to medical care is "at least as great" as that of a convicted prisoner, (15) but has twice avoided deciding whether "at least as great" means "greater than" or "equal to." (16) And as case law in related areas has developed, it has become more and more questionable whether the Wolfish reasonable-relationship test adequately reflects the standards that should govern pretrial detainees' claims.

The lower courts, lacking the luxury of discretionary jurisdiction, have had to face these questions. In some instances, they have sought to distinguish the standards for the treatment of pretrial detainees from those that govern the treatment of convicted prisoners. In many instances, however, the lower courts have assimilated pretrial detainees' claims to those by convicted prisoners, applying the Eighth Amendment standards to both. I will argue that the state of the law in the lower courts is substantively undesirable, and, in a number of instances, chaotic. The law varies among circuits, by type of claim, and even (sometimes) as to the same type of claim in the same circuit.

Commentators have criticized a number of aspects of this body of case law. These critiques, however, have tended to assess only a subset of the relevant questions. For example, some critiques have focused only on standards governing the use of excessive force (17) or only on standards concerning the provision of medical care. (18) Often, commentators' proposals fail to account for the full period of pretrial detention; some commentators focus on the initial stages after arrest (and the question of the boundary between the Fourth and Fourteenth Amendment protections), (19) while others neglect that initial period in order to focus on pretrial detention more generally (and the relationship between the Fourteenth and Eighth Amendment standards). (20) Further, the existing commentary largely predates the Supreme Court's most recent discussion of the treatment of pretrial detainees, in Florence v. Board of Chosen Freeholders. (21)

In this Article, I propose an overarching framework for claims by pretrial detainees. I address, in particular, how courts should treat the sorts of claims that, if brought by a convicted prisoner, would be analyzed under the Eighth Amendment: claims concerning general living conditions, inadequate medical care, suicide, failure to protect from attacks by other inmates, or the use of excessive force by guards. I argue that the familiar Fourth Amendment standard of reasonableness under the circumstances should govern the treatment of arrestees until there has been a judicial determination of probable cause. I also note that there is a strong argument for applying this reasonableness standard to all claims that arise prior to arraignment, even when the plaintiff was arrested upon a warrant. After that initial point of demarcation, whether it is the judicial probable cause determination or the arraignment, I argue that the treatment of the detainee should be governed by an intermediate standard which, in most of its applications, would result in a test of objective deliberate indifference.

In Part I of this Article, I note that the Supreme Court has failed to specify adequately the standards for treatment of pretrial detainees, and I point out problems in the operation of Wolfish's reasonable-relationship test. Part II summarizes lower courts' approaches to pretrial detainees' claims. Part III reviews related Supreme Court doctrines and distills principles with which a framework for pretrial detainee claims should accord if it is to be adopted without alterations in existing Supreme Court precedent. Part IV sets out data concerning jails and those who are housed in them. (22) In Part V, I sketch my proposed framework for pretrial detainees' claims and defend that framework against practical and conceptual objections.

1. THE PUZZLE OF PRETRIAL DETENTION

   In Wolfish, the Court reviewed challenges by federal pretrial detainees to five practices: double-bunking, limits on books and magazines, limits on packages, searches of living areas, and strip searches after contact visits. (23) The Court commenced by addressing the double-bunking issue because the plaintiffs' challenge to that practice rested solely on the Due Process Clause. (24) Where a pretrial detainee's challenge rests solely on the Due Process Clause, the Court held, "the proper inquiry is whether those conditions amount to punishment of the detainee." (25) That inquiry led the Court to formulate the following test:

   A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on "whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]." Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." (26) Applying this test, the Court held that the double-bunking practice did not cause hardship amounting to anything "even approaching" a due process violation. (27)

   The Court then turned to the other four practices, which the detainees had challenged under the First and Fourth Amendments as well as the Due Process Clause. (28) Noting its holdings that convicted prisoners retain constitutional protections during incarceration, the Court reasoned that "[a] fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held...