dissenting:
Once again, this Court, after espousing the doctrine that courts are ill-equipped to deal with the problems of prison administration and that they must not become “surrogate Jail Superintendents for the State of New York”, has proceeded virtually as if the doctrine did not exist. My brothers now mandate a district judge sitting in Rochester, New York, to undertake the implementation of a “contact” visitation program in the jails of forty-three counties throughout the State of New York. Expense is to be no deterrent. Whatever the cost to the citizens of these counties, the district court must order it to be incurred. As the majority puts it, “[inadequate resources or finances can never be an excuse for depriving detainees of their constitutional rights.”
At the outset, I question whether this Court should become involved in the matter of class certification at the present time. During the past year, the Supreme Court has held that the rule denying the appealability of class certification orders should not be circumvented by allowing review under the “death knell” doctrine, Coopers & Lybrand v. Livesay, 437 U.S. 463,98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), or by equating the denial of certification with the denial of interlocutory injunctive relief. Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978). It is equally important, I believe, that the rule not be emasculated by the simple device of coupling every request for class certification with a motion for preliminary injunctive relief so that the certification order may be reviewed under the doctrine of pendent jurisdiction when the appeal from the preliminary injunction order comes up as a matter of right under 28 U.S.C. § 1292(a)(1).
*1245On some occasions, this Court has reviewed non-appealable orders by exercising pendent jurisdiction. See Sanders v. Levy, 558 F.2d 636, 643 (2d Cir. 1976), rev’d on other grounds sub nom. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). On other occasions, it has refused to do so. See General Motors Corp. v. City of New York, 501 F.2d 639, 648 (2d Cir. 1974). Because of the danger of abuse in the pendent jurisdiction method of review, see Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir. 1970); 16 Wright & Miller, Federal Practice and Procedure § 3937 at 270-71 (1977), it is a procedural device that should rarely be used. Id. at 271. In Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Court recognized the possibility of abuse in holding that interlocutory appellate consideration of the district court’s rejection of a double jeopardy claim did not permit the Court of Appeals to consider other claims of error included in the defendant’s motion to dismiss.
In disagreeing with my brothers, I need not decide whether Abney’s stringent holding should be followed in a civil action. I am content to suggest that we should rarely exercise pendent jurisdiction to review nonappealable orders. I am also content to follow the firmly established doctrines that the determination whether an action should proceed as a class action “is one which is peculiarly within the discretion of the trial judge”, Becker v. Schenley Industries, Inc., 557 F.2d 346, 348 (2d Cir. 1977), and that the trial judge’s findings of fact should not be overruled unless clearly erroneous. Palermo v. Warden, 545 F.2d 286, 293 (2d Cir. 1976), cert. dismissed, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977).1 With all respect to my learned colleagues, I fear that they are as ready to abandon these valuable precepts of appellate review as they are to ignore their professed sensitivity to the dictates of federalism. For the foregoing reasons, and those which follow, I respectfully dissent.
It seems to me that, before we set the district judge to the formidable task of restructuring jails in forty-three counties, we should first define clearly and explicitly the nature of the legal right upon which this extraordinary relief is based. A class action to enforce an undefined and indefinite right is a waste of judicial manpower and taxpayers’ money.2 My brothers should start by stating exactly what they mean by the term “contact visit”.
This Court has firmly committed itself to the proposition that pretrial detainees have a constitutional right to “contact visits”, without ever really stating how much contact there must be in such visits to satisfy the mandates of the Constitution. See Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978), cert. granted sub nom. Bell v. Wolfish, U.S. -, 99 S.Ct. 76, 58 L.Ed.2d 107 (1978); Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974) and 527 F.2d 1041 (2d Cir. 1975). If we are now going to regulate this aspect of jail management, the time has come to lay the cards on the table.
Pretrial detainees, we have said, are presumed to be innocent and therefore have the same rights as unincarcerated persons, except where the exercise of those rights is prohibited by the requirements of jail security. Rhem v. Malcolm, supra, 507 F.2d at 336. The pretrial detainee is to be subjected “to no greater restrictions on his liberty than are necessary to ensure either his attendance at trial or the security of the institution in which he is held.” Majority opinion, ante at 1236 n.7. The unincarcerated man has, of course, the right to “kiss a wife, or to fondle a child.” But he has more than that. He has the right to kiss a *1246child and to fondle a wife, and he has the right to do so in privacy. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Do our forceful statements mean that a presumptively innocent pretrial detainee is entitled to the same conjugal “contact” rights that he would enjoy were he not incarcerated, so long as the exercise of these rights does not cause a breach in jail security? If, as we hold, pretrial detainees retain “all the rights of an ordinary citizen except the right to go and come as they please”, Rhem v. Malcolm, supra, 507 F.2d at 337 (quoting Jones v. Wittenberg, 323 F.Supp. 93, 100 (N.D. Ohio 1971), aff’d sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972)), can the private and intimate contact rights of ordinary citizens be taken from the detainees without a compelling security reason? The only thing preventing the exercise of these rights within jail confines is cost. Extra rooms can be built, and more guards can be hired. This requires money, but the lack of money, we say, does not justify depriving pretrial detainees of their rights under the Constitution.
I do not know whether it would be wise to order that the citizens of New York be given complete physical access to their presumptively innocent spouses who are awaiting trial in jail. I would prefer to leave that decision to the officials of the New York correctional system, who are more knowledgeable than I in the field of penology.3 However, wisdom and judicial concepts of constitutionality do not always go hand in hand. My brothers have decreed that the constitutional rights of pretrial detainees are, except for security reasons, the same as those of men who are not imprisoned. Having proclaimed that to be the law, my brothers should now declare whether the pretrial detainees’ constitutional rights to “contact with their loved ones” are the same “contact” rights they would have if they were not imprisoned. The people of Monroe County and New York State are entitled to know this now, not to learn about it in installments. Moreover, Judge Burke should be provided with guidance if he is to attempt to carry out the mandate of this Court.
Carrying out this Court’s mandate will not be a simple and inexpensive matter. For example, at the same time my brothers hold the right to contact visits to be “founded on the bedrock of our criminal jurisprudence”, they say that pretrial detainees can be deprived of this valuable constitutional right through “classification” schemes designed by jail officials to weed out security risks. They do not explain how state officials can create a workable “classification” scheme for a group of pretrial detainees, all of whom are presumed to be innocent, that will mark one as a security risk and not another.4 They likewise do not state how the valuable constitutional right to contact visits can be taken from any detainee without the trappings of due process. See, e. g., Cardaropoli v. Norton, 523 F.2d 990, 994-97 (2d Cir. 1975); Sostre v. McGinnis, 442 F.2d 178, 196 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). Inevitably, the district court will become involved in the “minutiae” of jail adminis*1247tration as federal courts have done whenever they have undertaken to prescribe the constitutional rights of inmates. See, e. g., Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977).5
I am satisfied, moreover, that the cost of implementing the majority’s program in all the jails of New York will be high. I am more influenced than my brothers by the district court’s finding that the cost of undertaking simply a “shake a friend’s hand” and “kiss a wife” program in the Monroe County Jail would be $750,000, “$500,000 of which would be directly related to the cost of personnel and daily operation of such jail facility which would be a continuing and increasing cost.”6 If my brothers really mean it when they say that pretrial detainees are to be given “all the rights of the ordinary citizen except the right to come and go as they please”, the cost of a statewide program permitting the exercise of such rights will be astronomical.
This Court is now entering a new area of state prison regulation. We have made many broad and categorical statements about the rights of pretrial detainees. If we mean what we have said, let’s bite the bullet and order appropriate relief. If we actually mean something less, let us confess to exaggeration. In either event, let the correctness of our decision be contested in an arena that does not encompass forty-three separate counties. If we are wrong in whatever constitutional interpretation we make, our error will not have disrupted unnecessarily all the jails in the State of New York.
. Without belaboring the matter, I point out that the district court made factual findings that Sheriff Lombard was not representative of all the sheriffs and would not adequately represent them and that the two young lawyers seeking to represent the plaintiff class would not adequately do so.
. Unlike the court in Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff’d, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), we are not dealing here with a simple issue, such as the constitutionality of a statute requiring racial segregation in prisons and jails.
. Penal authorities in several countries permit prisoners to continue conjugal relationships with their spouses. See Jacobs & Steele, Sexual Deprivation and Penal Policy, 62 Cornell L.Rev. 289, 297-98 (1977). However, most American courts have not yet seen fit to treat this as a fundamental right for convicted prisoners. See Wolfish v. Levi, 439 F.Supp. 114, 142-43 (S.D.N.Y.1977). This Court, at 573 F.2d 118, affirmed Wolfish in part and reversed it in part but held specifically that pretrial detainees have a First Amendment right to contact visits. See id. at 126 n.16.
. Although this Court has previously approved the use of a “classification” system, see Rhem v. Malcolm, supra, 507 F.2d at 338, it has never discussed the criteria to be considered in the creation of classes. I suggest that an attempt to classify detainees on the basis of their previous record, the nature of the crime with which they are charged, or some similar criteria, would result in so many exceptions as to make the entire scheme worthless. In the final analysis, a jail superintendent who would deprive a detainee of the right to contact visits must do so on the strength of his own honest belief that he is avoiding those “demons — violence and contraband.”
. When this Court holds, as it did in Todaro, that the Constitution requires nurses in a prison infirmary to make rounds every two hours, it is not exactly avoiding “minutiae”.
. Without even discussing the clearly erroneous rule, my brothers state that other evidence “suggests” that the price could be less.