The conditions of pretrial detention.

• Author: Struve, Catherine T.
• Position: III. Guideposts from Related Areas of Supreme Court Case Law D. Deference and Security Concerns through Conclusion, with footnotes, p. 1045-1079

4. Deference and Security Concerns

   Whatever distinctions may be drawn among the constitutional standards for the treatment of arrestees, pretrial detainees, and convicted prisoners, the standards share a common concern for the need to give weight to the judgments of government officials on security issues. The Court's frequent citations of Wolfish for this principle underscore the fact that the Court views this need for deference as a crosscutting issue that shapes the tests for the treatment of convicted prisoners and pretrial detainees alike. Even in the context of police pursuits and seizures, the Court's decisions stress the need to provide room for police judgments in fast-moving situations. The Wolfish Court held that jail 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." (215) Though Wolfish involved pretrial detainees, the Court relied for this proposition on cases involving convicted prisoners; it explained that the governing considerations applied equally to both types of inmates: "[T]he realities of running a corrections institution are complex and difficult, courts are ill equipped to deal with these problems, and the management of these facilities is confided to the Executive and Legislative Branches." (216) Further, the Court reasoned that pretrial detainees may pose at least as much of a security challenge as convicted prisoners:

   There is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates. Indeed, it may be that in certain circumstances they present a greater risk to jail security and order. In the federal system, a detainee is committed to the detention facility only because no other less drastic means can reasonably assure his presence at trial. As a result, those who are detained prior to trial may in many cases be individuals who are charged with serious crimes or who have prior records. They also may pose a greater risk of escape than convicted inmates. (217) A few years later, in Block v. Rutherford, the Court applied Wolfish in rejecting pretrial detainees' challenges to a jail's ban on contact visits and policy of searching cells in the occupants' absence. (218) The Court in Block opened its analysis by citing "the ease with which one can obtain release on bail or personal recognizance." (219) Based on that premise, the Court reasoned that "[t]he very fact of nonrelease pending trial thus is a significant factor bearing on the security measures that are imperative to proper administration of a detention facility." (220) Upholding the jail's across-the-board ban on contact visits, the Court reiterated and elaborated on the Wolfish Court's comments concerning the dangerousness of pretrial detainees: "Detainees-by definition persons unable to meet bail--often are awaiting trial for serious, violent offenses, and many have prior criminal convictions." (221)

   In light of the Wolfish Court's reliance on precedents involving convicted prisoners, it is unsurprising that its discussion of deference quickly migrated into the case law concerning the treatment of such prisoners. As noted in Section III.A, the Court in Rhodes v. Chapman relied heavily on the notion of just deserts for convicted criminals when it ruled that a double-ceiling practice did not violate the Eighth Amendment. (222) But the Rhodes Court also asserted the need for deference; for example, it rebuffed the plaintiffs' argument that crowding would lead to violence by citing Wolfish for the proposition that "a prison's internal security is peculiarly a matter normally left to the discretion of prison administrators." (223)

   The Wolfish Court's deference principles also informed the Court's articulation, in Turner v. Safley, of a more general framework for addressing "prisoners' constitutional claims." (224) Noting that it had left open in Procunier v. Martinez the question of the standard that governs such claims, (225) the Court summarized four post-Martinez cases in which it had discussed "prisoners' rights." (226) Two of those cases, involving convicted prisoners' claims, had been cited in Wolfish; (227) the two additional cases were Block and Wolfish itself. The Turner Court did not mention that Wolfish and Block had involved claims by pretrial detainees rather than convicted prisoners. Rather, the Court labeled all four of these cases "'prisoners' rights' cases," and drew from them the following test: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." (228) Subsequent decisions applying Turner to constitutional challenges by convicted prisoners have followed suit by citing Wolfish as well as Turner in support of this deferential standard. (229)

   As I discussed in Part I, the Court has applied Turner to a broad range of constitutional challenges to prison regulations, but not to Eighth Amendment claims. (230) However, the Court's Eighth Amendment decisions do sometimes cite Wolfish to underscore the need for deference to prison administrators.

   The citations to Wolfish have been particularly prominent in the Court's Eighth Amendment decisions concerning excessive force. (231) In Whitley v. Albers, the Court addressed the standard that "governs a prison inmate's claim that prison officials subjected him to cruel and unusual punishment by shooting him during the course of their attempt to quell a prison riot." (232) The Court stressed that during a riot, officials must urgently balance competing concerns; they "must take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used." (233) To account for this balancing, the Whitley Court held that the use of force against a convicted prisoner during a prison disturbance violates the Eighth Amendment only if it is "applied ... maliciously and sadistically for the very purpose of causing harm." (234) Citing Wolfish and other cases, the Court explained that it gave "special weight" to the need for deference in cases involving "actual unrest and conflict." (235)

   Although the Whitley Court thus justified the malicious-and-sadistic test on a theory of exigent circumstances, in Hudson v. McMillian the Court extended that test to cover all Eighth Amendment excessive force claims by convicted prisoners. (236) Regardless of the circumstances, the Court reasoned, guards face the same task of weighing the need for force against the risk to the inmate. (237) Repeating Whitley's quote from Wolfish, the Hudson Court explained that riot and nonriot situations share key commonalities:

   Both situations may require prison officials to act quickly and decisively. Likewise, both implicate the principle that "'[p]rison 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." (238) Four Justices questioned this extension of Whitley. The use of force during a riot, Justice Stevens pointed out, differed significantly from the beating inflicted by two of the defendants upon the shackled plaintiff in Hudson. (239) Whitley's "particularly high standard of proof," Justice Stevens argued, should apply only when justified by "the exigencies present during a serious prison disturbance." (240) Justice Blackmun noted that he had dissented in Whitley, and objected to its extension. (241) Justice Thomas, joined by Justice Scalia, dissented from the majority's holding that Eighth Amendment excessive force claims do not require serious injury. (242) That holding, he argued, improperly "eliminat[ed] the objective component" for Eighth Amendment excessive force claims (that the harm or risk of harm imposed by the defendant's action be sufficiently serious). (243) Conversely, he faulted the majority for setting the subjective requirement for Eighth Amendment excessive force claims unduly high:

   Many excessive force cases do not arise from guards' attempts to "keep order." ... The use of excessive physical force is by no means invariably (in fact, perhaps not even predominantly) accompanied by a "malicious and sadistic" state of mind. I see no justification for applying the extraordinary Whitley standard to all excessive force cases, without regard to the constraints facing prison officials. (244) In contrast to this debate over whether to extend Whitley's test to all Eighth Amendment excessive force claims, all the Justices agreed, in Graham v. Connor, that the Whitley test is inappropriate for Fourth Amendment claims arising from the use of force during an arrest. (245) The Fourth Amendment test, the Graham Court explained, is one of objective reasonableness under the circumstances. (246) But even this reasonableness standard, the Court ruled, must make allowances for exigent circumstances: in applying the standard, courts must eschew "the 20/20 vision of hindsight" and bear in mind "that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." (247)

   Crashes during high-speed vehicular chases provide a revealing setting in which to study the Court's views on deference to officers' judgments, because the same factual setting can generate the application of different constitutional tests depending on whether the police did or did not intend to stop the plaintiff's vehicle. If the police intended to stop the vehicle, then their actions in stopping it will be considered a seizure and reviewed under Graham's Fourth Amendment reasonableness test. If...