James Dimarzo v. Robert E. Cahill, Frank A. Hall, James Dimarzo v. Robert E. Cahill ( 1978 )

LEVIN H. CAMPBELL, Circuit Judge

(concurring).

The district court’s resolution recognizes that jail authorities are constitutionally bound to maintain a safe and humane environment, but at the same time reflects a proper sensitivity to the narrow role which a court should play in these matters. While I thus concur with my brethren in affirming the decision below, I wish to make it clear that I would not agree that merely because sentenced prisoners are given a certain amount of out-of-cell time, detainees are constitutionally required to receive the same. A mechanistic approach to constitutional analysis seems to me inappropriate. See generally Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978). There are plausible reasons why a short-term detainee might reasonably be subjected to greater limitations than those imposed upon a regular inmate. Some regular inmates, like those serving short sentences for misdemeanors, are not security risks. Detainees, on the other hand, are likely to be recidivists or persons charged with serious crimes. Furthermore, long-term sentenced prisoners are more obviously entitled to opportunities •for exercise and recreation than persons being held for a few days or weeks. Thus I think the kind of simple comparison my brothers would make, while reasonable enough on occasion, is no substitute for a more comprehensive analysis.

In this case, however, the authorities principally concerned — the county commissioners and sheriff — have not seriously objected on security grounds, or even on grounds of expense, to the district court’s order in regard to out-of-cell time, and I think it can be fairly assumed that the district court’s determination rests on a reasonable and practical view of what can and should be done, in keeping with principles set forth in Feeley, rather than upon a mere mechanical comparison.