C. Constitutionality of Conditions Upon Being Transferred
Plaintiffs claim that the 1973 transfers violated sentenced inmates' Eighth Amendment rights because the transfers subjected them to the cruel and unusual conditions existing in state institutions. The Court agrees with plaintiffs' argument so far as it extends to the State Correctional Institution at Rockview; the proof with regard to the other state institutions, although tending to establish that unconstitutional conditions existed in certain other state prisons, was insufficient to permit the Court to declare additional Eighth Amendment violations. But clearly the conditions at Rockview were intolerable. Inmates were locked in filthy cells for long periods of time with no or little time out for exercise and meals; they were not provided with hot and cold running water. Birds flew around the cells, leaving their droppings. Subjecting inmates to these conditions for a short period of time might be permissible, but incarceration under these circumstances for periods extending from a week to more than a month was inhumane. Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). The presence of birds at Rockview already has been found to be cruel and unusual punishment by Judge Muir in Brown v. Mazurkiewicz, No. 73-697 (M.D.Pa. February 25, 1974). These conditions offend the "dignity of man", Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), and appear "so barbarous that (they) offends society's evolving sense of decency." Nadeau v. Helgemoe, 561 F.2d 411, 413 (1st Cir. 1977).
What relief is required upon finding that some sentenced inmates transferred to Rockview were subjected to cruel and unusual punishment in 1973 is another question. If these conditions existed today, the Court would probably enjoin transfers to Rockview. But that has not been shown to be the case. In addition, it is the present policy of the Bureau of Correction to transfer Philadelphia's sentenced inmates only to the State Correctional Institution at Graterford. Given that sentenced inmates are not likely to be transferred to Rockview and that Rockview is not presently subjecting inmates to these conditions, no basis exists for granting injunctive relief. Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614 (3d Cir. 1969); Knuckles v. Prasse, 302 F. Supp. 1036 (E.D.Pa.1969).
IV. THE CLAIMS OF PRETRIAL DETAINEES
Both substantive and procedural due process objections are raised to the transfer of pretrial detainees to state correctional institutions. However, the procedural due process issue of whether hearings are required prior to the transfer of pretrial detainees need not be reached, as the Court finds plaintiffs' substantive due process argument persuasive.
To determine whether a person's due process rights have been violated, it may be necessary to engage in three separate inquiries. It is essential first to ask whether the interest allegedly infringed by the challenged government action comes within the Fourteenth Amendment's definition of "life, liberty or property,"
Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977); if it does not, the Due Process Clause affords no protection. If a "life, liberty or property" interest is found to exist and to be threatened by the state's conduct, the next two queries will concern what process is due before the government can encroach upon the interest. As the Due Process Clause offers two types of protections procedural and substantive the questions asked concern whether these protections have been afforded. The "procedural" inquiry looks to the proper procedures that the individual must be accorded before the interest is infringed; proper procedures vary with the fact situation, and can involve, for instance, a hearing before an impartial tribunal. See Wolff v. McDonnell, supra; Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The "substantive" question is limited to whether the infringement is justified by legitimate state reasons; the necessary degree of justification depends upon the interest involved. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Moore v. East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977).
Turning then to the first due process inquiry, clearly pretrial detainees have greater liberty interests than sentenced inmates. Their freedoms have not been extinguished by a conviction. Pretrial incarceration infringes upon their liberty, but for one purpose only "to secure their presence at trial." Norris v. Frame, 585 F.2d 1183 (3d Cir. 1978); United States ex rel. Tyrrell v. Speaker, 535 F.2d 823 (3d Cir. 1976). Therefore, they, unlike sentenced inmates, retain Fourteenth Amendment liberty interests which demand safeguarding.
The transfer of a pretrial detainee incarcerated in Philadelphia County prisons to state correctional facilities encroaches upon the "liberty" the detainee retains. In the state institutions, the detainee's movement is more restricted than in Philadelphia County facilities. See Finding 35. His or her freedom to participate in programs is curtailed. See Finding 39. Because of the increased distance between the place of incarceration and the inmate's home, the transfer's effect is to decrease the detainee's ability to visit with family and friends. See Finding 41. And, most importantly, an untried inmates' ability to prepare for trial and communicate with his or her attorney and the courts is severely hampered by the transfers. See Findings 42-45. The transfers have the same effects today as they did in 1973. See Findings 55-57.
Substantive due process requires adequate justification for these additional infringements upon the pretrial detainee's liberty. Various approaches have been adopted by the Courts to determine whether such justification exists. See, e.g., Feeley v. Sampson, supra; Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978), Cert. granted sub nom.; Bell v. Wolfish, 439 U.S. 816, 99 S. Ct. 76, 58 L. Ed. 2d 107 (1978); Campbell v. McGruder, 188 U.S.App.D.C. 258, 580 F.2d 521 (1978). In Tyrrell v. Speaker, Supra, the Court of Appeals for the Third Circuit held that the state could not impose additional restrictions on the liberty of an untried inmate solely because the inmate had not yet been convicted; such restrictions were found not to serve the "only legitimate interest" the state had in detention of the accused, I.e., guaranteeing the inmate's presence at trial. A year later this standard was modified somewhat or, perhaps, just elaborated upon in Main Road v. Aytch, 565 F.2d 54 (3d Cir. 1977), and just recently the Court of Appeals instructed that restrictions on a detainee's liberty "are defensible only when they can be justified by the requirements of prison administration, or are inherent in the nature of confinement." Norris v. Frame, supra at 1187. The Court recognized that inherent in the nature of confinement is protection of the security of the prison. In this regard, the Court stated:
"If the fact of confinement itself justifies challenged restrictions, the Court will not "second-guess' administrators regarding the best means to protect their legitimate security interests. But in order for the prison to defend the means it has chosen, it must demonstrate that they are means aimed at the proper end: the security interests of the prison." Id. at 1188.
In this case, defendants claim that the 1973 transfers were required because of "security". The Court agrees that in 1973, when Philadelphia County prison officials transferred detainees, they believed the transfers were necessary to relieve overcrowding and defuse the tensions created by the Holmesburg murders. Although the latter was a legitimate security consideration the officials did not determine or even, in fact, consider whether it was necessary to transfer Detainees to secure the jails. Aytch ordered the compilation of a "troublemakers" list and did not ask for pretrial detainees to be distinguished. And in finalizing the transfer list to submit to the Court of Common Pleas, the officials did not consider what steps could be taken to isolate pretrial detainee troublemakers within Philadelphia. It was never determined that the transfer of pretrial detainees was necessary.
As the purpose of the 1973 transfers of detainees was to insure the prisons' security, it can be seriously argued that under Norris v. Frame, supra, the Court should not question the legitimacy of employing these means, even though they were not necessary to guarantee institutional security. And, if the denial of liberty that detainees suffered was confined to losses of programs and visits with family and friends, the Court might be very reluctant, in light of Norris, to further scrutinize defendants' actions. But this case involves an important freedom, which was jeopardized by the transfers. Because of the transfers, many inmates were unable to prepare effectively for trial and communicate with their attorneys and the courts. Therefore, this Court believes that defendants must demonstrate that the transfers were necessary to insure the security of the jails.
In the Norris decision, the Court of Appeals stated that it would not second-guess the prison officials' decision that security considerations justify infringements on a detainee's liberty. But the Court in that case, where a detainee's right to continue using methadone was in question, was not addressing the protections that must be afforded liberty interests which generally are given greater judicial safeguarding, such as the freedom to prepare for trial and communicate with court and counsel. See Wolfish v. Levi, supra. Therefore, it is this Court's opinion that the Court of Appeals, as have other courts, would require defendants to demonstrate that the means which they choose to insure security and that cause encroachment upon these important liberty interests of detainees are necessary to attaining the end that they seek.
In Campbell v. McGruder, supra, the Court of Appeals for the District of Columbia formulated a test for determining whether substantive due process is offended when a detainee's ability to prepare for trial is infringed by a prison restriction or condition.
"Conditions of confinement that impede a defendant's preparation of his defense (apart, of course, from the fact of confinement itself) or that are so harsh or intolerable as to induce him to plead guilty, or that damage his appearance or mental alertness at trial, are constitutionally suspect and can be justified only by the most compelling necessity." Id., 188 U.S.App.D.C. at 269, 580 F.2d at 532.