A Wisconsin federal court held that a jail's disciplinary, mail, and publication rules were unconstitutional. The court declined to enjoin those practices, however, essentially rendering its holding a mere advisory opinion.

On September 29, 1970 pretrial detainees of the Milwaukee County Jail (MCJ) brought federal suit challenging jail practices and conditions. The challenge narrowed as the suit progressed. Ultimately, only four challenges reached trial, to-wit: that disciplinary, mail censorship, reading material, and telephone procedures were unconstitutional.

On January 17, 1973, the district court issued an opinion holding that all but the MCJ telephone policies were unconstitutional.

First, the court found that the jail's disciplinary procedures did not satisfy minimal due process requirements because there were no clearly defined rules, giving notice of the conduct that would result in discipline. The court observed that Stewart v. Jozwiak, 346 F.Supp. 1062 (E.D. Wis. 1972) outlined minimal due process protections for sentenced prisoners including: an impartial hearing officer; advance written notice of the hearing; written pre-hearing notice of the charges; the right to present witnesses; the right to confront and question accusers; and a short, written statement of the hearings officer's decision. Foreshadowing the Supreme Court's soon to follow holding in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974), the court determined that pretrial detainees should not be punished without complying with the requirements of Stewart.

Finding that pretrial detainees "retain the right to send and receive mail in the same fashion as other members of the general public, subject only to limited restrictions," the court held that the jail's mail restrictions were unconstitutional.

Likewise, the court found that "pretrial detainees have an unqualified right to read any publication which is legally available to members of the public generally." The court determined that "defendants' subscription-only rule unduly interferes with that right."

Finally, the court found "no constitutional difficulties" with the MCJ telephone policies. "In light of the previous ruling . . . with regard to mailing privileges, the telephone restrictions become somewhat less serious," the court found. "As long as inmates are allowed to communicate freely through the mails, the limitation of telephone availability for calls to attorneys, bondsmen and for emergency matters is not unlawful, absent a showing of abuse."

Ultimately, the Court concluded "that the policies and procedures presently in effect at the Milwaukee County jail offend the first and fourteenth amendments to the United States Constitution." Nevertheless, given that class action treatment had been denied and the named plaintiffs were no longer incarcerated, the court refused to grant injunctive relief, effectively reducing its holding to a toothless advisory opinion. See: Inmates of the Milwaukee County Jail v. Peterson, 353 F.Supp 1157 (ED Wis 1973).

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