A companion case to Addington, Bell v. Wolfish also allowed the Court to distinguish regulation and punishment on sympathetic facts. Confinement itself was not in issue in Bell, only the conditions of the *357 confinement. Bell arose as a challenge to the conditions in which pretrial detainees were confined.[176] Petitioners, who in the absence of a criminal adjudication were subjected to the same conditions as convicted criminals, claimed their confinement was unconstitutional punishment.[177] The federal district court agreed that the detainees were entitled to different treatment than convicted felons, holding they could only be deprived of liberty as a matter of compelling necessity.[178] The district court then reviewed each of the petitioner's claims in light of the "compelling necessity"' standard.[179]

The court of appeals was sensitive to the conflict between the rights of pretrial detainees and the needs of prison administrators. Nonetheless, the court found that pretrial detainees must be given the rights afforded unincarcerated individuals[180] and stressed that pretrial detainees, as legally innocent persons, are entitled to a greater protection than afforded by the Eight Amendment:

[I]t is not enough that the conditions of incarceration for individuals awaiting trial merely comport with contemporary standards of decency prescribed by the cruel and unusual punishment clause of the eighth amendment. Time and again, we have stated without equivocation the indisputable rudiments of due process: pretrial detainees may be subjected to only those "restrictions and privations"' which "inhere in their confinement itself or which are justified by compelling necessities of jail administration."'[181]

The court of appeals then reviewed each of the factual situations considered by the district court.[182] Although they reached different conclusions on the constitutionality of certain situations,[183] the district court and the court of appeals agreed that it is constitutionally impermissible to subject pretrial detainees to the same conditions as convicted prisoners. The lower courts' reasoning that the presumed innocence of pretrial *358 detainees requires a finding of necessity before they can be confined[184] is compatible with the concerns expressed in Gault and Winship that persons not be deprived of liberty without due process of law.

Yet Justice Rehnquist's opinion for the Supreme Court[185] rejected this reasoning, stating that the presumption of innocence "has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun."'[186] More broadly, the Supreme Court held that the presumption of innocence has little significance outside of a criminal trial.[187]

The Supreme Court's determination that innocence does not entitle a detainee to better treatment stems from its analysis of detention versus punishment.[188] Rejecting the Winship standard that all detentions are punishments,[189] the Supreme Court found:

Once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Traditionally, this has meant confinement in a facility which, no matter how modern or antiquated, results in restricting the movement of a detainee in a manner in which he would not be restricted if he simply were free to walk the streets pending trial. . . . And the fact that such detention interferes with the detainee's understandable desire to live as comfortably as possible . . . during confinement does not convert the conditions or restrictions of detention into "punishment."'[190]

Public health jurisprudence has always accepted that detention to protect the general welfare is not constitutionally impermissible punishment.[191] If detention is not punishment, then an individual may be detained without full due process protections.[192] By basing its holding on a finding that detention related to criminal law violations is not necessarily punishment, the Bell Court prepared the way for later determinations that individuals may be detained to protect the public from criminal activity.[193]

*359 In Bell, the Supreme Court reinforced the parallel of criminal detention and traditional public health jurisprudence by stressing that courts should accord great deference to "expert"' prison administrators.[194] The Bell court recognized that prison officials, like health officers, sometimes are experts only by statutory title,[195] but argued that actual expertise is not the only basis for judicial deference. There is also a structural requirement for such deference, in that "the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial."'[196] This echoes the courts' assertions that public health decisions are to be made by legislatures and not by courts.

The Bell Court adopted a simple test for the bounds of administrative discretion: "It is enough to say that they have not been conclusively shown to be wrong . . . "[197] This deference to expert decision making was carried to its logical extreme in Barefoot v. Estelle,[198] where the Court allowed experts to decide whether a prisoner should live or die. Yet, while Barefoot is extreme as to the reach of expert discretion, the expert decisionmaker did not become involved until after a conviction with full due process protections. It was left to later cases to allow an expert to confine a defendant without a criminal conviction.

[175] 441 U.S. 520 (1979).

[176] Id. at 523. See United States ex rel. Wolfish v. Levi, 439 F.Supp. 114 (S.D.N.Y. 1977).

[177] Bell at 527.

[178] The district court found that because they were "presumed to be innocent and held only to ensure their presence at trial, 'any deprivation or restriction of . . . rights beyond those which are necessary for confinement alone, must be justified by a compelling necessity."' U.S. ex rel. Wolfish v. Levi at 124 (quoting Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (2d Cir. 1975)).

[179] U.S. ex rel. Wolfish v. Levi at 124-65.

[180] Wolfish v. Levi, 573 F.2d 118, 124 (2d. Cir. 1978).

[181] Id. (citing Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)).

[182] "In actuality, we have here decided not one, but twenty cases relating to specific conditions at the MCC."' Wolfish v. Levi, 573 F.2d at 133.

[183] See, e.g., id. at 126 (double celling); 130 (telephone privileges); 132 (right to possess a typewriter).

[184] "Neither respondents nor the courts below question that the Government may permissibly detain a person suspected of committing a crime prior to a formal adjudication of guilt."' Bell, 441 U.S. at 534.

[185] 441 U.S. 520. Rehnquist's majority opinion, was joined by four justices, with Justice Powell concurring in part and dissenting in part.

[186] Id. at 533.

[187] Id.

[188] Id. at 535.

[189] Winship, 397 U.S. at 365.

[190] Bell, 441 U.S. at 537.

[191] See In re Martin, 83 Cal. App. 2d 164, 188 P.2d 287 (1948).

[192] Bell, 441 U.S. at 536.

[193] See infra note 416-20 and accompanying text.

[194] "Prison administrators therefore 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."' Bell, 441 U.S. at 547.

[195] "We further observe that, on occasion, prison administrators may be 'experts' only by Act of Congress or of a state legislature."' Id. at 548.

[196] Id.

[197] Id. at 555 (citing Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 132 (1976)).

[198] See infra subsection 3.