cruel or unusual, and the wisdom of the disparate regulations will be left to the judgment of state penologists.

537 F.2d at 216.

A prisoner's allegation that the prison officials failed to follow their own regulations in their treatment of him states a cause of action. 542 F.2d 250 (5th Cir. 1976) stated:

Finley makes an alternative argument that the Board of Corrections arbitrarily failed to follow its own regulations in its treatment of his application. The district court held that the complaint did not state a claim for relief regardless of the extensive factual substantiation presented by plaintiff because a prisoner has no constitutional right to work release status. While this may be so, the complaint clearly contains substantial allegations of denial of procedural due process, and seeks to compel the state corrections officials simply to duly administer the "procedural amenities believed to have been arbitrarily

withheld."

542 F.2d at 251.

Finley v. Staton,

However, in Slotnick v. Staviskey, 560 F.2d 31 (1st Cir. 1977), cert. denied, 434 U.S. 873, 98 S.Ct. 1268, 55 L. Ed. 2d 783 (1978), the court stated: "The simple fact that state law prescribes certain procedures does not mean that the procedures thereby acquire a federal constitutional dimension. 560 F.2d at 34.

b. Pretrial Detainees

In Dillard v. Pitchess, 399 F. Supp. 1225 (C.D. Cal. 1975), a case involving pretrial detainees, the court stated:

The Sheriff necessarily has developed
a list of rules of conduct that
prisoners are obliged to obey.
These rules should be posted in a
more legible and widespread manner,
and amendments thereto should be
promptly and more thoroughly
publicized, in order to insure that
the inmates understand clearly
what is expected of them.

339 F.Supp. at 1241.

In Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978), the court of appeals disapproved the district court's involvement in the emotion-laden controversy concerning prisoners' telephone services. The court stated: "Although pretrial detainees enjoy a first amendment right to communicate by telephone with persons outside the prison, that right has never been construed to mandate a special level of telephone service. 573 F.2d at 126.

There was evidence in Williams v. Hoyt, 556 F.2d 1336, 1338 (5th Cir. 1977) to support the jury's verdict that plaintiffs' rights were not violated when their hair was sheared after their arrest. The defendants had claimed that plaintiffs' hair had been "filthy and insect-infested" and that it was sheared under the sheriff's jail regulations in the interest of "health, sanitation, and the maintenance of a clean, disease-free jail."

The district court in Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978) had improperly ordered that pretrial detainees were to have the same full and free access to telephones as persons freed on bail--the opportunity to "call anyone to discuss any matter without having to account for the reasons for the call." 570 F.2d at 373:

Id.

consider whether limitations on telephone use reasonably reflected legitimate apprehensions about

the security and order of the Jail.

The court in Dillard v. Pitchess, 399 F.Supp. 1225 (C.D. Cal. 1975) discussed the right of pretrial detainees to have access to telephone communications.

Under present regulations, prisoners
may make outgoing telephone calls
only pursuant to court order and in
emergency situations as authorized
by the watch commander. Nothing in
the need to detain a prisoner pending
trial requires that he be substantially
restricted in his ability to be in

telephone communication with the outside
world. Pay telephones should be installed
in such numbers and at such locations
that all prisoners can have reasonable
access to them at all reasonable times.

399 F.Supp. at 1240.

In Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal. 1972), the court noted that "[w]hile a convicted prisoner may have no right to make any telephone calls at all, . a pretrial detainee does."209* 343 F.Supp. at 141.

Wolfish v. Levi, 573 F.2d 118, 132-33 (2d Cir. 1978) held that the district court had improperly required prison officials to permit pretrial detainees to wear their own clothes unless they volunteered to wear correctional uniforms. Although the jumpsuits were "aesthetically obnoxious" to some inmates, the institution had demonstrated a legitimate security interest in readily identifying inmates that outweighed the inmates desire to control their own appearance.

Seale v. Manson, 326 F.Supp. 1375 (D. Conn. 1971) held that the regulations prohibiting beards and goatees could not be applied to plaintiff Seale, a pretrial detainee, but that the restrictions on dress complained of by plaintiff Huggins were reasonable.

209. See also Collins v. Schoonfield, 344 F.Supp. 257, 259 (D. Md. 1972).

Detainees are protected from unconstitutional conditions of confinement by the due process and equal protection clauses of the Fourteenth Amendment. Some circuits apply the Eighth Amendment's proscription against cruel and unusual punishment although pretrial detainees have not been convicted of a crime and their incarceration is therefore not punitive.

In this section the guiding principles discussed by the circuits will be reviewed. However, since pre

trial detainees generally complain of the same conditions challenged by convicted prisoners under the Eighth Amendment, cases by pretrail detainees complaining of specific conditions of confinement are discussed in the previous sections on specific Eighth Amendment violations.

Campbell v. McGruder, 580 F.2d 521, 527 (D.C. Cir. 1978) observed that a consideration of the conditions of confinement of pretrial detainees must begin with the premise that they are presumed innocent. Since they are not convicted of a crime they cannot be punished. The court stated:

[E]ach restriction of the jail regimen
must be carefully examined to determine
if it is justified by substantial
necessities of jail administration.
To evaluate these necessities we will
look to the needs of the state to pro-
duce the detainee for trial, to
maintain the security of the jail, or
generally to sustain the institution
of pretrial detention at a feasible

cost.

Second, the presumption of innocence requires that, to as great an extent as practically possible, the pretrial detainee leave jail no worse off than he entered it

Therefore, conditions of confinement that are likely to impair a detainee's mental or physical health should be subjected to the closest scrutiny and can be justified only by the most compelling necessity.

209a. The Criminal Appeals Bureau of the Legal Aid Society of the City of New York has prepared an exhaustive outline, "Index to the Law of Conditions and Practices of Pre-Trial Detention."

Third, pretrial detention occurs
in the important interval directly pre-
ceding trial. The conditions of

pretrial confinement cannot be permitted
negatively to affect the outcome of the
criminal process.

Fourth, the responsibilities of the jail increase as the period of the detainee's incarceration grows longer. Conditions that might be tolerable for ten days, might be unacceptable if imposed for a month or longer.

Finally, we will not engage in balancing to determine the constitutionality of conditions of pretrial confinement if they are otherwise violative of the Constitution.

580 F.2d at 531-32. The court agreed with the Second Circuit that pretrial detainees are entitled to protection from cruel and unusual punishment as a matter of due process.

The First Circuit, in Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978), observed that other circuits had ruled that states may deprive pretrial detainees of liberty only to the extent necessary to insure their presence at trial. However, jail order and security are entitled to great weight when balancing the state's interest against the liberty interest of detainees. The court determined that the constitutional provision which most appropriately protects pretrial detainees is the due process clause of the Fourteenth Amendment. The court stated: "Restrictions on conditions of confinement that are without reasonable relation to the state's purpose in confining a detainee his production at trial -- violate due process." 570 F.2d at 369. The court further observed that the detainee's presumption of innocence does not require his jailors to act as if he were not a security risk. 570 F.2d at 369 n. 4. Commenting on the relevance of cases decided under the Eighth Amendment, the court stated:

The due process clause requires a state to play its limited custodial role in a reasonable, and hence a