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Nassau County Jail Rule 36 (hereinafter NCJR 36)


A Nassau Sex Crime Lawyer said that, by way of habeas corpus, in an unusually literate Pro se application, the criminal defendant attacks his detention, pending trial, in the Nassau County Jail. The papers give a broad overview of, and an insight into, conditions in the Nassau County Jail, the way it is conducted and the life of both prisoners and those being held for trial because of an inability to post bail.

A Nassau Rape Lawyer said that, the defendant-petitioner (hereinafter, defendant) was arraigned on December 27, 1973, on an indictment which charged him with kidnapping in the second degree, rape in the first degree and robbery in the first degree. On another indictment he is charged with an attempt to commit the crime of murder, kidnapping in the second degree, rape in the first degree, sexual abuse in the first degree, and other crimes. According to the People, he has spent approximately 22 out of his last 25 years incarcerated in various institutions.

A Nassau Rape Lawyer said that, the heart of Petitioner’s argument is the indistinguishable experience in confinement of convicted and detained persons here in the Nassau Co. Jail. The latter is as much imprisoned in a ‘correctional facility’ as is the former. The confinement experiences of both are more than parallel; they are indistinguishable. The entire spectrum of Do’s and don’ts, of privileges and restrictions imposed upon the convict is equally imposed upon the detained. The two eat the same food, use the same library and canteen, wear the same ‘prison blues’, and are alike called ‘prisoner’ and/or ‘inmate’. They live in the same cells, write home on the same jail letterhead; know the same mail censorship and the same rule as to what kind of paper to write on and how many pages to write, as well as what they are permitted and not permitted to write about. Theirs are identical existences. They know the same liabilities and punishments for infractions (‘Hole’), the same denial of newspapers; they visit with their families through the same 10 7 double pane of plastic glass, forbidden and denied to touch and embrace. They know the same TV time schedule, are attended by the same physicians, retire and arise at the same time, are counted by the same correctional officers, advised and represented by the same ‘Inmate Council’, managed under the same security system operating out of the same centralized control center. The same educational classes are available to both, the same religious services. The lives of both are oversee red by the same official attitudes. If the convicted and detained are different, sired by distinctive legal categories, framed in different legal concepts, then these differences exist only on paper, and not in fact.’

A Nassau Sex Crime Lawyer said that, the Nassau County Commissioner of Corrections, submitted a lengthy affidavit describing the facilities and administration of the Nassau County Jail. According to this affidavit, detainees and prisoners are generally housed in separate cell blocks, though within the same building. While they eat the same food (as does the staff) and use the same recreational and educational facilities, they do so at different times. The recreational facilities include weights, punching bags, ping pong tables, TV, assorted games, handball, hi-fi, and the use of the main library which offers books, magazines, newspapers, McKinney’s Statutes and another hi-fi set with earphones. The jail will soon offer a $35,000 law library as well. Religious services, televisions in each cell block and weekly movies are also available to both detainees and prisoners. Detainees and prisoners intermingle in the remedial, vocational and high school equivalency courses provided for inmates and both may undertake college level correspondence courses.

The issue in this case is whether defendant’s petition for habeas corpus should be granted.

The mail of both detainees and prisoners is subject to regulation, but not censorship, under 7 NYCRR § 5100.5. Outgoing special correspondence to public officials, attorneys and the courts is regulated only to the extent that the envelope and its contents are examined in the inmate’s presence to insure the absence of contraband. It is neither read nor censored. Incoming special correspondence is subject to the same type of inspection. Other mail is subject to rules and regulations furnished inmates upon intake. Nassau County Jail Rule 36 (hereinafter NCJR 36) provides that letters may be sent to and received from an approved list of relatives and such others as approved by the warden. Inmates may not correspond with inmates in other penal institutions or with former inmates without the warden’s approval. (NCJR 38). Letters must be written on regulation stationery bearing the jail letterhead (NCJR 40, currently under revision) and cannot exceed two pages in length. (Since the application was made, the Court has received letters exceeding nine pages not on the jail letterhead). The latter requirement is premised on a concern for postage costs, but there is no limit on the number of letters written. NCJR 42 provides that inmates shall not discuss institutional matters or other inmates in their correspondence, but it is difficult to imagine how this rule can be enforced since NCJR 37 provides that there shall be ‘No censorship except for contraband’.

Detainees and prisoners are subject to the same rules and regulations governing visits. Each inmate with a good conduct record may receive visits once a week from no more than two individuals (NCJR 44) and only those listed on the correspondence list may pay visits to an inmate, with such exceptions as the warden may grant (NCJR 43). Visiting privileges may be suspended for poor conduct or for other good reasons (NCJR 46). No visiting privileges will be extended to anyone on Easter, Christmas, New Year’s Day, Thanksgiving and the Fourth of July. (NCJR 48). During visits a glass partition separates the visitor and the inmate. Communication is by telephone.

There are other rules and regulations applicable to both pre-trial detainees and convicted prisoners. To discuss them all would be pointless. For our present purposes, it suffices to note that respondent justifies such rules and regulations as are applicable to detainees as necessary to assure the detainees’ attendance at trial and the orderly operation of the jail.

The major thrust of the defendant’s argument is that the rights of the pre-trial detainee are violated when he is treated in the same fashion as the convicted prisoner.

‘There are certain minimum standards below which today’s society cannot sink in its treatment of those of its members who must, for one reason or another, be confined in jails and prisons.’ If convicted persons do not pass beyond the reach of constitutional guarantees upon crossing the prison threshold, then pre-trial detainees must retain rights of even broader scope. Among the rights retained are the Eighth Amendment’s prohibition on cruel and unusual punishment, the Fourteenth Amendment’s guarantee of equal protection and the due process clauses of the Fifth and Fourteenth Amendments. The Eighth Amendment’s ban on cruel and unusual punishment is made binding upon the states by the Fourteenth Amendment. Of course, since no punishment can be reconciled with the presumption of innocence, there is a certain incongruity in discussing the treatment accorded pre-trial detainees in terms of cruel and unusual punishment. Nevertheless, inasmuch as ‘the basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’ The rules evolved under that amendment provide a standard against which to measure the treatment of pre-trial detainees. The arrest was made for sex crimes.

Section 1 of the Fourteenth Amendment provides that ‘No State shall deny to any person within its jurisdiction the equal protection of the laws.’ This guarantee requires that those similarly situated be classified and treated similarly and that both the classification and treatment be rationally related to a legitimate state interest. The same state interest underlies the classification and treatment of pre-trial detainees and those released on bail; to wit, securing their attendance at trial. Consequently, any restraint imposed upon the pre-trial detainee in excess of those imposed upon individuals free on bail must be justified by a compelling necessity and must constitute the least restrictive method of achieving the legitimate state purpose. The simple fact of confinement, of course, entails some loss of liberty in excess of that suffered by an individual released on bail which is nonetheless permissible.

The rights retained by pre-trial detainees, both those already discussed and others not mentioned, may be conveniently summarized by simply noting that the pre-trial detainee is entitled to due process of law. ‘Due process of law is a summarized constitutional guarantee of respect for those personal immunities are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’, or are ‘implicit in the concept of ordered liberty. Restraints imposed upon pre-trial detainees in excess of those reasonably related to the purpose and fact of his confinement constitute a deprivation of due process.

Thus, one detained in lieu of bail before trial may be subjected to only such restraints as are reasonably related to assuring his attendance at trial. However, it does not follow that every restraint imposed equally upon the pre-trial detainee and the convicted prisoner is a violation of the detainee’s rights. That convicted prisoners are subject to punitive or rehabilitative measures does not mean that every rule or regulation applicable to them serves a punitive or rehabilitative purpose. Institutional life necessarily entails rules and regulations designed to promote order, health, safety and security. Such rules may be applied equally to pre-trial detainees and convicted prisoners without transgressing constitutional limitations. Thus, it is of no moment that pre-trial detainees and convicted prisoners confined to the Nassau County Jail must use the same library and canteen (at different times), wear the same uniforms occupy cells similarly appointed, share the same TV time schedules, be treated by the same physicians, rise and retire at the same hours or attend the same educational classes (at their own option). As applied to convicted prisoners, none of these conditions appears to serve a punitive or rehabilitative purpose such as would prevent their equal application to pre-trial detainees.

All this is not to say that the conditions under which pre-trial detainees are confined in Nassau County should not continue to be reviewed. Official regulations of correspondence by convicted prisoners and by pre-trial detainees is permissible where justified. It has been suggested that the limitations on length and permissible addresses as well as the requirement that letters be written on prison stationery appear to be excessively restrictive, at least as applied to those who are willing to obtain their own stationery and pay the postage. Similarly, the visitation restrictions have been criticized. Additionally, the right to deprive a pre-trial detainee of visiting privileges as a disciplinary measure has been questioned.

It cannot be said that the overall conditions under which the criminal defendant is confined constitute such an unreasonable encroachment on protected freedoms as to render the detention unconstitutional or otherwise illegal. To paraphrase Procurer, here the regulations and practices in question further an important or substantial governmental interest and the limitation of the defendant’s freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved.

Accordingly, the court held that the application for a writ of habeas corpus is denied.

The rule is that, detainees and prisoners are subject to the same rules and regulations governing visits. Each inmate with a good conduct record may receive visits once a week from no more than two individuals and only those listed on the correspondence list may pay visits to an inmate, with such exceptions as the warden may grant. If your constitutional right has been violated seek the help of a Nassau Criminal Attorney and/or Nassau Rape Attorney at Stephen Bilkis and Associates in order to handle your day in court.

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