dissenting in part and concurring in part:
In 1969 the Congress responded to requests from the District of Columbia and made the first appropriation for the survey which was required as the first step leading to the replacement and improvement of the old D.C. Jail facilities through the building of a new jail primarily for the housing of pretrial detainees.1 Some time thereafter in 1971, while the planning and design of the new jail to rectify housing conditions was in progress, several pretrial detainees at the old D.C. Jail brought this action.
I. THE COMPLAINT
Their complaint, filed July 21, 1971, sought (1) a declaratory judgment that the constitutional rights of the pretrial detainee plaintiffs were being violated by the “conditions” of their confinement in the “District of Columbia Jail” and (2) a permanent injunction against the responsible District of Columbia officials 2 from continuing to vio*554late plaintiffs’ alleged constitutional rights (Par. 1). Plaintiffs also assert that they are representative of a class of “unconvicted pretrial detainees incarcerated at the District of Columbia Jail . . . [and] pretrial detainees who will be incarcerated at the D.C. jail in the future” (Par. 5). The “jail” referred to was the only jail then in existence — but now the new jail has been built and is in use and the use of the oldest half of the old jail, Cellblocks 1 and 2, has been discontinued.
This litigation was directed at the old jail, as were practically all of the hearings thereon. Since then the situation has changed very substantially by the completion of the new jail with minimum capacity for 960 inmates in air conditioned comfort. Thus the situation complained of by appellants has practically disappeared and no complaint has been directed against the present facilities. The case is thus moot for all practical purposes and should be dismissed. Instead, however, the majority seek to gnaw on an old bone.
The majority opinion contends that the case is not moot — arguing:
The [District Court] order was addressed to policies of the District of Columbia Department of Corrections that are applicable to both the old and new jails. There is thus no question of mootness. (Maj. op., p.-of 188 U.S.App.D.C., p. 544 of 580 F.2d, emphasis added)
The suit was not directed ... at the physical stones of the old Jail . but at the policies through which [the] defendants operated the Jail facilities. (Extract from n. 46, Maj. op.)
The court’s assertion is facially fallacious. Merely addressing an order to policies at a jail that was not the subject of the litigation, and concerning which no adequate record has been made as to its policies, is an insufficient base to support the court’s order. The lawsuit did not involve the new jail and the testimony of record as to the old jail is insufficient to support the court’s order insofar as the new jail is concerned. While the same people administer and operate the new jail as did the old one (Maj. op., fn. 46), this is fundamentally irrelevant since with the opening of the new jail the factual circumstances on which the District Court relied, no longer exist. It is a gross distortion of the jurisdiction conferred on the court by the lawsuit to attempt to expand the court’s jurisdiction to include the new jail by ignoring the uncontroverted fact that the complaint was addressed only to conditions at the old jail and that the policies of the defendants that were the subject of controversy were inextricably intertwined and practically controlled by the structural limitations of the physical features of those facilities. Stone walls may not a prison make, but when a prison does have stone walls it is rather difficult to overcome their restrictive effect — even by a court order.
The complaint also alleges, inter alia, that plaintiffs are incarcerated solely because they are unable to post bond, that they are presumed innocent, that they are incarcerated solely to ensure their presence at trial and that the “physical conditions of [their] confinement constitute unconstitutional punishment” because they are “overcrowded” in cells that violate “minimal architectural standards and the jail is overcrowded and its heating, ventilation and other aspects of the physical condition constitute a health threat” (Par. 10). Plaintiffs also complain of inadequate food, recreation facilities, programs and contact with the general community. Included in the latter allegation is an objection to censorship of mail, limitation on visitors, lack of access to telephones, newspapers and other means of communications which it is asserted violate their “First, Fifth, Eighth and Fourteenth Amendment rights.” Hospital and medical services are alleged to be inadequate as are the “security measures,” i. e., protection from other prisoners. Through the foregoing allegations, and by others, plaintiffs assert practically all the possible prisoner complaints, including the charge that each complaint constituted a constitutional violation.
Finally, it is alleged that all these conditions of confinement are additionally uncon*555stitutional, because they are more severe than post-sentence punishment that plaintiffs might receive at other correctional institutions to which they might be sent (this includes Lorton Reformatory also administered by the District of Columbia), and that as “pretrial detainees” they should not be subjected to such confinement because they are awaiting trial and presumed innocent (Par. 15).
Their prayer for relief seeks a determination that their constitutional rights have been violated, that a permanent injunction issue against a continuation of such practices and omissions and that the D.C. authorities be required to submit a plan as a future guarantee against continuation of the alleged practices and conditions so complained of. Specifically demanded, among other relief, was the establishment of “a regular recreational . . . program,” “an educational . . . vocational . and voluntary work program,” “that prisoners have continuous opportunity to talk and associate with each other,” “that prisoners have access to a sufficient quantity and quality of books, magazines, and newspapers, law books and legal materials,”3 “that visiting conditions . . . ensure . privacy of conversations, conjugal rights, and additional visiting periods,” and “that no limitations be placed on persons an inmate may see, communicate with, and receive communications from.”
Hearings before the trial court were conducted from March 4 to March 13,1975 and covered 1372 pages of record testimony all dealing with operations at the old jail. A great many of appellants’ demands were denied, by the trial court, for obvious reasons, but some were granted. The majority opinion affirms the District Court in part but remands the record in material respects.
II. THE SUBJECT MATTER OF THE LITIGATION
From the allegations of the complaint it is obvious that “conditions” in the old jail were the subject matter of plaintiffs’ complaint. The suit was filed in July 1971 and that was the detention facility then being used by the District of Columbia and it was the situs of plaintiffs’ incarceration. The hearings before the trial judge were also directed to “conditions” at that jail. Some of its principal features are described in the majority opinion.
III. THE APPEAL
The District of Columbia defendants, who administer the jail facilities that the government has provided for the District of Columbia, appeal from the orders of the District Court of (1) March 21, 1975, (2) November 5,1975, and (3) May 24,1976. In response to appellants’ contentions the majority opinion concludes:
1. The jail conditions which the District Court finds objectionable serve no legitimate purpose of detention.
2. The opening of the New Detention Facility does not moot the case.
3. Each pretrial detainee is entitled to (a) a cell with a minimum of 48 square feet, (b) a regular change of linen and outer clothing, (c) some form of recreation each day, (d) a security classification to prevent harsh confinement and possibly to prepare the way for contact visits, (e) prompt psychiatric care, (f) court regulated use of restraints. (Maj. op., p. - of 188 U.S.App.D.C., pp. 551-552 of 580 F.2d).
*5564. The record is remanded for the District Court to consider whether the new jail, up to this point not the subject of this lawsuit, is overcrowded, and, if so, to order relief which may include the release of inmates from the jail.
As stated above, this lawsuit, started in 1971, was directed at conditions in the old jail. All the hearings before the trial court were directed at operation of the old jail and following completion of the original hearings the court order of March 21, 1975 was directed to operating conditions at the old jail. The principal complaint was directed against conditions in Cellblocks 1 and 2 which had been built in 1872. Cellblocks 3 and 4, completed in 1929, were in a different category.
All the time this lawsuit was pending, and for at least a year and a half before it was started, the D.C. authorities were attempting to correct the conditions here complained of by taking the necessary steps to obtain the erection of a new modern jail — adjacent to the old facilities. The new jail, with normal capacity for 960 inmates, was originally scheduled to be completed in January 1976 (Tr. Apr. 29, 1976, p. 158). Defendants in some of their representations to the court relied on this scheduled completion date. When the builders did not meet the anticipated date, the defendants were unable to comply on schedule with their plans for improving the conditions of incarceration by the scheduled transfer of upwards of a thousand prisoners and the closing of cellblocks 1 and 2. This delay led to some wrangling with the plaintiffs and the court. The delay in completion of the new jail was due to the contractors and their work force and was beyond the control of defendants, It is unseemly to take defendants to task for these delays in the construction schedule and I dissent from the apparent finding that defendants were guilty of “illegal conduct.” Maj. op., p.of 188 U.S.App.D.C., p. 541 of 580 F.2d.
The overcrowding of the old jail was not the primary fault of defendants. It was caused by the frequency of the apprehension of offenders by police and by the actions and orders of prosecutors, jurors, judges (including federal judges) and the Congress — all unpredictable and uncontrollable by defendants. Thus, while the defendants administered the jail they did not control its population. In this respect they were the handmaidens of the judges, magistrates and law enforcement personnel, police, FBI, Secret Service and the United States Attorney. Pretrial detainees were confined in the jail pursuant to arrest warrants and other court orders. Thus, much of the criticism directed at the defendant D.C. authorities over the excessive jail population was directed at people whose responsibility for causing that situation was very minimal if it existed at all. In the last analysis it was Congress that was required to appropriate the necessary money and the size of the appropriation it provided determined the size and capacity of the new jail. If present facilities are inadequate it is Congress that must eventually take action to correct the situation. The strident tones directed at the D.C. defendants should be softened because of their limited responsibility and their limited ability to rectify the situation. Whipping them in public does not get the job done. The defects in the proposals suggested by the District Court, discussed on pages 20-23 infra, are self-evident proof that something more may eventually be needed if the problem escalates.
IV. THE COURT HEARINGS
On the plaintiffs’ complaint extensive hearings were held covering the operational facts at the old jail. On March 21,1975, the court filed a memorandum and order declaring plaintiffs’ constitutional rights were being violated and directed defendants to comply with all aspects of the order no later than fifteen days from that date. Such time limit obviously did not address itself to practical realities.
Thereafter a hearing was. held on April 29 and 30, 1976 primarily on the issue of possible current overcrowding. During this hearing a few references were made to the situation that was developing with the completion of the new jail.
*557At that time some inmates in the old jail were being transferred to the new jail (Tr. April 29, 1976, 8) but transfers to the full capacity of the new jail were not completed until after its official completion date of August 10, 1976 (Tr. Apr. 29, 1976, 45).
The only hearing since the completion of the new jail was held on October 18, 1976 on the subject of “contact visits” (Tr. Oct. 18, 1976, pp. 1-6). Thus, no hearing has been held since the new jail came into use on the “conditions” of housing pretrial detainees under the presently existing circumstances. The new jail now has a normal capacity for 960 inmates and “with cell-blocks 1 and 2 . . . [closed since the] summer [of 1976]” (Maj. op. p.-of 188 U.S.App.D.C., p. 536 of 580 F.2d), the principal source for the complaint against the quality of housing conditions (as opposed to quantity) has been removed. It follows that, with the new jail being the principal source for housing inmates, the old record is stale and does not present substantial evidence sufficient to support the application of the court’s order to the new and radically changed presently existing “conditions” — concerning which no evidence has been adduced. The case involving, as it did, the old jail is thus moot — the conditions to which the plaintiffs’ complaint and the trial court’s hearings were addressed, no longer exist. The factual record in this case does not address the present operating conditions in the jails to which it is addressed. The order is thus not supported by substantial evidence and has become moot.
During the April 29, 1976 hearing before the trial court some concern was expressed over the status of the case involving the old jail because the Court of Appeals had pointed out that “the new jail is about to open.” At that time the trial court indicated it thought that statistics with respect to the old jail would be sufficient, by merely adding the normal capacity of the new jail, to support an injunction directing the operation of the new jail, and eellblocks 3 and 4 in the future. With such a material change in the housing of prisoners, as was occasioned by adding the most modern air conditioned accommodations for 960 inmates, the trial court rationally could not reach the conclusion it did. The factual record of the hearings did not address the situation in which the new jail became the principal detention facility. The court rationalized with plaintiffs’ counsel as to this deficiency in the trial record:
THE COURT: You can load the record with what has happened. . . . [I]f it were not for what had happened, we wouldn’t be here, right? . . . . And that is about the only thing we can make a record on. [This recognizes that a record could not be made against the new conditions]. You and I know when we get the testimony here that the prognosis is fairly gloomy. You and I know that they are overcrowded now [? see later comment], but I suspect that we don’t have to delve into the business of projections. [They should have looked at the new conditions in toto if they wanted to issue an order directed to new conditions. The failure “to delve into the business of projections” is a fatal error by the standards even of the majority opinion because the court did not consider “whether defendants’ illegal conduct is likely to recur . . .” [Maj. op. p.-' of 188 U.S.App.D.C., p. 541 of 580 F.2d] and cases there cited].
I guess we will nail down the capacity, right, and establish the fact that it has been overpopulated, and I suspect that ultimately you will ask me to fashion some relief that will prohibit it?
MR. HICKEY: That is correct.
THE COURT: It doesn't make any difference about the projections [involving the new jail] if that is so. [But the District Court could not determine whether “the allegedly wrongful behavior could . . . reasonably be expected to recur” [Maj. op., p. - of 188 U.S. App.D.C., p. 541 of 580 F.2d] unless it went into the “business of projections,” which it did not do].
MR. HICKEY: I guess what I am thinking about is the Court of Appeals’ language in the last stay order when they *558said that the new jail is about to open.. [This obviously was a disturbing thought to counsel, as it should have been to the Court].
This may be a bridge we don’t have to cross. They are in compliance today [this is a contradiction of the prior statement that “they are overcrowded now.”], so we will continue the stay of the overcrowding order [which was addressed to the old jail].
THE COURT: It seems to me, as you say, the subject matter of the lawsuit is the category of the people.
MR. HICKEY: That is correct.
THE COURT: Inmates wherever they are. [Actually the subject was inmate “conditions” at the old jail].
So, if that is so, then I can deal with the old facility and the new facility as a composite. [Without taking evidence]. It doesn’t make any difference whether they are in the new facility or the Armory or wherever they are. [In other words that the court has a continuing ability because there was a lawsuit directed at “conditions” in the old jail to thereafter deal with all D.C. prisoners wherever they are. Such wholesale expansion of the court’s authority on a stale complaint and a stale record is unwarranted].
It seems to me I deal with it in terms of other people. And if that is so, it seems to me we can avoid what Mr. Ned-rich [the Assistant U.S. Attorney] is talking about. Do you understand what I am saying to you?
MR. NEDRICH: Yes.
THE COURT: You and Miss Crisman talk about that, and the three of you talk about that. I think that is feasible.
I agree what [sic] what you are saying. We went into that before, you know.
I though [sic] we might have some leeway. I thought we might have, you know, but there is no head space.
I think we can get enough record to satisfy the Court of Appeals with what has happened up to now and what glimpse we get into what is going to happen tomorrow. We don’t have to unveil them all if he thinks somebody with anxiety and and [sic] neurosis is going to fill up the new jail.
Tr. Apr. 29, 1976, pp. 165-67 (emphasis added).
It is apparent from this colloquy that the underlying theory, subsequently announced by the court in its order, was that if the capacity of the old jail was established and such facility had been overpopulated, and there was a “gloomy prognosis,” the court, just by taking a “glimpse . . . into what is going to happen tomorrow” (emphasis added) with the new jail, and without “delving into the business of projections,” could decree the population limits of cellblocks 3 and 4 and the dormitories, merely add the normal capacity of the new jail and, without any further testimony showing any present, or projecting any future adverse effects from the operations and conditions of the facilities with the new jail, issue an injunction for the future against the entire detention center, new jail and all. The majority find that the “forecast” of the trial court, based on no more substantial evidence than a mere “glimpse,” constitutes “sufficient evidence in the record to sustain” the injunction, p.-of 188 U.S.App.D.C., p. 542 of 580 F.2d. The “forecast” and the “glimpse” however, without hearings and substantial evidence to indicate that past conditions will continue into the future, merely add up to nothing more than speculation and conjecture and therefore the majority remand the record on the injunction phase of the case to the District Court to determine “if the anticipated overcrowding has in fact occurred.” Maj. op., p. -of 188 U.S.App. D.C., p. 543 of 580 F.2d.
In sum, the District Court by refusing to delve into “projections” not only did not look into the future, it did not even look at the present conditions. It rested its case on the past and ignored the new jail completely except to tack on its normal capacity to the capacity of the restrained units and fix that as a limit. The difficulty with such conclusion is that the “if” is too specula*559tive, particularly when the District Court refused to consider any testimony as to the ultimate capacity of the new jail if some of the available areas were converted to dormitories. When the trial court, in the colloquy set forth at page-of 188 U.S.App. D.C., p. 560 of 580 F.2d infra (Tr. Apr. 20, 1976, p. 96) said to the United States Attorney: “You don’t want to advertise the top figure [maximum capacity for the new jail at 1700 people] no matter what it is”; and the United States Attorney answered affirmatively: “Right”; and the court stated: “I am not interested in advertising it either . ” (Emphasis added); at that point the court indicated it was “not interested” in hearing any testimony as to the maximum capacity of the new jail. Cf. Maj. op., n. 45. It should have been if it intended to include the new jail in its injunction and adjudicate the capacity of the new jail that was not based on any substantial evidence as to its maximum capacity. The court thus never made a supportable finding as to the exact capacity of the new jail or to “conditions” there. This is a fatal defect in its order.
Since there is no evidence here covering the actual handling of 960 prisoners with the new jail in full operation, with Cell-blocks 1 and 2 closed, or as to the maximum capacity of the new jail, the trial court’s order in respect thereto is clearly erroneous. The trial court made the same error that was made by the trial courts in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) and in O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). In Rizzo the Court opinion quoted the following from O'Shea:
In O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) . . . the Court concluded that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any ’ continuing, present adverse effects.” Id., at 495-496, 94 S.Ct. [669] at 676. The Court further recognized that while “past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury,” the attempt to anticipate under what circumstances the respondents there would be made to appear in the future before petitioners “takes us into the area of speculation and conjecture.” Id., at 496-497, 94 S.Ct. 669.
Rizzo v. Goode, 423 U.S. at 372-373, 96 S.Ct. at 605. (emphasis added). On the foregoing reasoning the Supreme Court held the record indicated that “the individual respondents . . . lacked the requisite ‘personal stake in the outcome,’ Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), i. e., [of] the order overhauling police disciplinary procedures.” 423 U.S. at 373, 96 S.Ct. at 605. The majority do not satisfactorily distinguish Rizzo. Maj. op., pp.---of 188 U.S.App.D.C., p. 526 of 580 F.2d.
A mere threat of future injury is insufficient to avoid mootness. Poe v. Ullman, 367 U.S. 497, 507, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961); United Public Workers v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 91 L.Ed. 754 (1947); see also, DeFunis v. Odegaard, 416 U.S. 312, 318, 349, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974); SEC v. Medical Committee for Human Rights, 404 U.S. 403, 406-407, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972). The majority’s warning that we should “beware of efforts to defeat injunctive relief by protestations of repentence and reform” (Maj. op., p. - of 188 U.S.App.D.C., p. 541 of 580 F.2d quoting United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978 (1952)), has no application here in view of the substantial change in circumstances occasioned by the completion of the construction and opening of the new jail, which was on the drawing boards even before this lawsuit was initiated. The new jail is an actuality not a promise.
While the controversy set forth in appellants’ complaint is clearly moot, the majority are insistent upon extending the court’s jurisdiction to assume complete control over the present situation and thereby more or less take over the management of the new jail on a continuing basis. That is not the lawsuit that was the subject of the court’s hearings, and I see no justification for it. *560However, on remand, the District Court will be required to take evidence on the maximum possible capacity of the new jail and will be able, if the complaint is amended to include present conditions, to examine the defendants’ actual record of performance in the first two years of operating the new jail — evidence far stronger than mere “protestations of repentence and reform” unaccompanied by any identifiable actions or changes in circumstances.
The transcript reference quoted above makes it clear that the district court considered that the “past wrongs” were sufficient, without any substantial investigation of the presently changed situation, to support an injunction against future operations. In thus relying on past wrongs and not delving into the business of projections the court relied upon speculation and conjecture, instead of substantial evidence, and in so doing it is submitted it issued a judgment that is clearly erroneous.
V. POTENTIAL ADDITIONAL INMATE CAPACITY
At the hearing on April 29, 1976, counsel for the District of Columbia defendants stated:
If we were pushed to the wall [with the new jail] we think we could hold 1700 people and still comply with Your Hon- or’s order and not double house. We could put . . . bunk beds in the . [recreation facility] and house 30 to 40 men in each of the 12 [recreation facilities]. Now, we are talking about 400 more spaces.4
Tr. April 29, 1976, pp. 95-97. The trial court did not inquire further into this potential capacity. It should have, even though the court and the defendants seemed to have some reluctance against “advertising” it.
THE COURT: You don’t want to advertise the top figure no matter what it is.
MR. NEDRICH: Right.
THE COURT: I am not interested in advertising it either .
(Tr. April 29,1976, 96). At this stage of the hearing it is not evident that the United States Attorney was aware that the court intended to include the new jail in its injunction without taking testimony thereon. This is evident from the following statement of the U.S. Attorney:
MR. NEDRICH: ... I don’t think your Honor would issue an order saying, “Everything is fine now, but I am going to order you in the event something goes wrong six months from now to do this.”
It doesn’t take that much effort to move men around and put bunks in, but don’t tell the world that is what we are going to do.
(Tr. April 29,1976, 99-100, emphasis added). The reference to bunks clearly indicates that using bunks for overflow inmates was clearly contemplated. That the court was going to include the new jail in the order in the manner it did developed later (Id., Tr. April 29, 1976, 165-67). However, if the court intended to fix a limit on the number of prisoners that could be housed in the new jail it was required to determine the “top figure.” The 1537 figure set by the order of May 24, 1976 5 did not consider evidence *561as to the maximum potential capacity of the Detention Center with the new jail and no testimony was ever taken thereon or as to conditions and operations at the new jail. Thus, because the District Court did not consider the full facts of the situation to which it addressed its order, it is clearly erroneous.
The majority opinion in footnote 44 quotes a portion of testimony that in passing referred to the maximum designed capacity (Tr. April 29, 1976, 97) of the new facility and then relies upon that isolated question and answer as a substitute for full inquiry into the maximum potential capacity of the new jail — which it is not. It is clear from the record that the trial court recognized that it was not. It is also crystal clear that the trial court did not desire to have a hearing on the maximum potential capacity of the new facility. This is self-evident from the court’s statement shortly after the colloquy quoted by the majority opinion in footnote 44:
THE COURT: ... I don’t know whether I am making myself clear to you or not, but for instance, I don’t want to get involved in dealing with the new facility and what is going to happen there
(Tr. April 29, 1976, 98, emphasis added). No statement could more clearly demonstrate, after the testimony the majority relies upon (n. 44), that the trial court recognized that the statement as to the maximum design capacity of the new facility did not constitute adequate inquiry into what the maximum potential capacity would be found to be if the court was “to get involved in dealing with the new facility.” It is this void in the present record, whereby the court refused “to get involved in dealing with new facility ” as it should have, if it intended to base its order on the maximum potential capacity, that renders the present record inadequate. This inadequacy requires the court “to get involved” and determine the maximum potential capacity, and the operating conditions that justify judicial intervention, if it intends to include the new facility in its injunction. Actually, however, since the lawsuit did not apply to the new facility, in my view there is no basis for getting involved in the lengthy hearing on the operation of the new facility that would be necessary in order to justify the extension of the court’s injunction to cover the new facility.
The foregoing is a further indication that the trial court is basing its conclusion on a stale record that ignores the materially altered factual situation that resulted when cellblocks 1 and 2 of the old jail were closed and new normal accommodations for almost a thousand inmates were added by the completion of the new jail.
I see no need for a further remand on the question of overcrowding and inmate capacity. Since there is no showing that there are any existing violations, I would hold that the opening of the new jail, and th¿ closing of the older parts of the old jail, have rendered this controversy moot. The plaintiffs have not alleged that there exist any unconstitutional conditions of confinement in the new jail, conditions which are substantially different from those in the old jail to which this entire litigation has heretofore been addressed. Judicial intervention into jail operations is justified only in extraordinary circumstances. Such circumstances have not even been alleged-much less explored in thorough evidentiary hearings or proven — with respect to the new jail, which was constructed for the purpose of alleviating many of the conditions in the old jail of which these plaintiffs first complained after the new jail was in progress.
VI. ATTEMPTS TO ALLEVIATE OVERCROWDING
The trial court found in its Proceedings on Remand, filed May 24, 1976 “that the defendants have failed to take reasonable and obvious steps to alleviate overcrowding” and on that basis indicated that an *562injunction should issue enjoining them from housing after June 1, 1976 “more than[:]
960 persons at the New Detention Facility .. .
215 in Cellblock 4 ... 6
161 in Cellblock 3 ... 7
110 persons in Dormitory 1
91 persons in Dormitory 2 at the old jail.8
(R. 166, p. 14). There is no justification for including the new jail in any injunction. There is no substantial evidence to support the court issuing a managerial injunction to control the operations of a facility that had never been shown to have been operated improperly and concerning which the court had never conducted any hearing on its operations. In fact, it had not been placed into full operation so the court could not have taken testimony on its operations. The court properly could not base an injunction regulating its future operations on pure surmise and speculation. There is no basis for including the new jail in an injunction just because Cellblocks 1 and 29 (now demolished) were antiquated and there had been prior overcrowding at the old jail. Also, there is no basis for limiting the population of the new jail to 960, without a hearing as to whether more inmates might properly be housed as suggested by counsel at the hearing.
In addition, while it does not completely defeat the court’s ability to issue an injunction limiting the jail population in the old jail, the justification is undercut by the several alternative steps that the court stated were “reasonable and obvious to alleviate overcrowding.” (R. 166, p. 14). While these steps, suggested by the trial court, might be “obvious” to consider, it is not “reasonable” to conclude that they would materially reduce the jail population. The trial court “suggested” 10 “alternatives” (A to J) which it characterized “remain open as options.” (R. 166, pp. 9-14). Are they reasonable options? Consider them seriatim:
A. Lorton Youth Centers 1 and 2 has its population controlled by an order of Judge Gesell. Suggestion: get Judge Gesell to increase the population limits. Impractical.
B. Confine youth offenders at Lorton while they are being evaluated as to their eligibility for a youth correction sentence. It is illegal to confine youth offenders in an adult facility or in an institution not certified by the Attorney General as a Youth Facility. 18 U.S.C. §§ 5011, 5012.10 To suggest that youth offenders should be taken from a jail and confined in a penitentiary while they are awaiting sentence is too extreme to even consider. It flies into the face of the entire Youth Corrections Act.
C. Confine persons serving misdemeanor sentences in the minimum security facility at Lorton. This was rejected because of insufficient security at such facility in Lorton. This involves a judgment factor by the administrators which should be respected by the court. Those guilty only of mis*563demeanors should not be imprisoned with felons — or be placed in maximum security prisons such as Lorton.
D. Misdemeanor sentences to the jail by judges should be changed to specify “halfway houses.” The sentencing judges know the available facilities and presumably sentence with all the alternatives in mind — including half-way houses. This suggestion would limit the sentencing judges’ choice of alternative dispositions on a basis which should be irrelevant to the judges’ decisions on sentencing.
E. Speed up transportation by U.S. Marshals of parole violators temporarily confined at jail. This should be done as expeditiously as possible, if it is not, but doing so would not substantially affect the jail population.
F. Install “demountable” housing units, i. e., trailers. The administrators previously considered these and concluded they were unsatisfactory.
G. Obtain the “consent” of those convicted of misdemeanors to confine them at Lorton penitentiary. Such consents would obviously be few. And there is no validity in the suggestion that 24 D.C.Code § 425, which allows for transfers of those convicted of D.C. offenses, would supersede 18 U.S.C. § 4083, which provides that misdemeanor sentences “shall not be served in a penitentiary without the consent of the defendant.” The federal statute is supreme, and it applies to “[pjersons convicted of offenses against the United States.” Id., supra. This includes those convicted of District of Columbia offenses. Beard v. Bennett, 72 U.S.App.D.C. 269, 270, 114 F.2d 578, 579 (1940) (Rutledge, J.).
H. Obtain the consent of judges for those sentenced to serve weekend sentences to serve them in half-way houses. This had some prior success and could be repeated, but its effect would be minimal.
I. Transfer to Lorton those convicted prisoners that the sentencing judge recommended serve their sentences in a federal penitentiary, to stay at Lorton until the Attorney General acts on the recommendations. This has some elements, of feasibility, but no sentenced prisoners are transferred to Lorton or any other institution until the Attorney General designates the place of confinement, and it is doubtful that they would make two designations.
J. Locate other space. The trial court’s opinion states, “no substantial efforts have been made by the Department to locate alternative housing facilities within the District of Columbia or at the Lorton Complex.” (R. 166, p. 13). This statement is contradicted by statements made at the various oral arguments of this case. At that time other facilities, even outside D.C. and Lorton were discussed. This suggestion has great facial merit but is of little practicality because in the long run it is permanent space that they assert is needed. Getting substantial additional jail facilities is a major undertaking. It should be pursued vigorously, but in light of the present situation, the failure to walk in step with the court’s suggestion does not authorize an injunction without convincing proof that the present jail facilities, new jail and Cell-blocks 3 and 4, will be operated in an unconstitutional manner.
Many of the foregoing suggestions are laden with another objection — 6 out of the 10 suggestions bring in the use of Lorton Reformatory which, in some instances would not be legally permissible, and the defendants state it also is overcrowded. In addition judicial notice is taken of the decision of the United States District Court for the Eastern District of Virginia, issued on June 30, 1976 in Civil Action No. 75-392A, Board of Supervisors of Fairfax County, Virginia v. Edward H. Levi [Attorney General] et al., which finds, inter alia, that “overcrowding” at Lorton is a problem and that there are “insufficient personnel” to adequately supervise the number of inmates presently confined, even though “defendants convicted of federal . . .offenses . . . are no longer incarcerated [there] . . . ” When this court’s judgment is added to Judge Gesell’s order of a similar nature addressed to Lorton youth facilities, it is obvious that other courts block the trial court’s suggestions. There*564fore, the several suggestions that Lorton can help out seem not to be well taken. In view of this interplay between the D.C. Jail and the Fairfax County Board, it seems that the court’s order in this case to deny the request of the Fairfax Board to intervene in this case was ill-advised. Intervention was requested on March 25, 1975 (R. 119A). No question is raised presently about this, but it seems clear that the intervention of the Fairfax Board would have permitted a better consideration of all the relevant facts.
On the foregoing analysis I disagree with the assertion that pursuing the above alternatives would obviate the problem. Maj. op., n.7.
VII. THE RELEASE OF PRISONERS
The District Court entered the following order directing the automatic release of prisoners in the event the population limit of 1,537 inmates, based mainly on the stale hearing, is exceeded:
ORDER ... if compliance requires a reduction in the inmate population at either facility, and other efforts to reduce the population are not successful within 48 hours after compliance ceases, the Director of the Department of Corrections and the Superintendent of Detention Services be directed to release on their own recognizance, within 48 hours of the admission to either facility of persons in excess of the numbers stated in the preceding paragraph, those pre-trial detainees held in default of the lowest amount of bail, and among those detainees held in the same amount of bail those held for the longest time, until compliance with that Order is obtained; provided that if the Board of Judges of the Superior Court, or the Chief Judge thereof, specify a different method of selecting the persons to be released, the defendants shall be governed accordingly.
District Court Order of May 24, 1976, pp. 14-15; Campbell v. McGruder, 416 F.Supp. 111, 117 (D.D.C.1976); and see Maj. op., n.43.
This order, directed to future operations, as it is, is not based on substantial evidence and I concur in what I construe is the refusal of the majority to affirm this order. Maj. op. p. - of 188 Ú.S.App.D.C., p. 543 of 580 F.2d. In directing the “release on their own recognizance,” of prisoners in excess of the limit fixed by its order, the District Court is in effect exercising habeas corpus jurisdiction in futuro without any court consideration. In most instances this would involve D.C. prisoners and this might exceed its jurisdiction. Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977).
Recognizing the disparity that exists between judges in setting bail, it is also my view that release should not be automatically based on the amount of bail. Rather, if such a situation should ever arise, on motion of the United States Attorney it should be brought to the attention of the judges of the court whose prisoners are to be released. The present order wholly ignores United States judges. The release of prisoners who are incarcerated because they cannot meet the ultra liberal release provisions of the Bail Reform Act should not be ordered on a perfunctory basis. If the drastic remedy of release was to be applied, the proper court should consider the alternative of releasing some of those serving misdemeanor sentences who are nearing their expiration date. Under the operation of the very liberal D.C. Bail Act, a pretrial detainee who is confined in the jail is most likely apt to have committed a very serious crime and to be a serious risk to the community. Such people should not automatically be released. It is also submitted that the comparative severity of the crime with which low bail detainees are charged should be a factor to be considered in releasing prisoners. Finally, it almost goes without saying that Superior Court judges of the District of Columbia should not pass on the release of prisoners confined pursuant to judgments of conviction and orders of United States District Court.
VIII. RECREATION
The majority affirms the District Court’s finding that the opportunity for some form *565of recreation must be provided to all inmates. It vacates the District Court’s order requiring that this be outdoor recreation, but remands “for a determination of the quality, duration and location of this recreation.” I see no problem with respect to recreation, and therefore no need or justification for the court to become involved with the question at all at this time.
The Department of Corrections is not opposed to proper outside recreation. What the District Court’s order is referring to is not ordinary physical recreation, but more frequently than not means just “hanging out in the rec. [recreation] yard — just walking around or just playing basketball freely” (Tr. Apr. 29, 1976, pp. 104-105). However, the new jail has 16 adequate recreational areas inside the detention facility and only two outside recreational areas. This is a jail not a penitentiary or reformatory. If the responsible authorities decide to establish recreational programs inside the jail that is within the supervisory power which inheres in their responsibility to manage the institution. Those administering the new jail would prefer to use the outdoor recreational facilities for planned recreational events — organized teams, etc. (Tr. Apr. 29, 1976, p. 105). They also may come to some more extensive outdoor recreation in the future. Juveniles presently receive daily outdoor exercise, and the trial court found that plans for outdoor exercise were being developed. Maj. op., n.48. This is an instance where we should follow Justice Powell’s admonition in Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974):
[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.
But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.
The defendants provide the opportunity for recreation. Since that is so, I do not see the justification for our intervening in this matter at all. The “quality, duration, and location” of jail recreation is to my mind a matter for the determination of the jail authorities over which judicial supervision is unnecessary — no inadequacy being shown. I therefore would vacate the District Court’s order in this respect and would not remand for further consideration of this issue.
No fundamental constitutional guarantee is violated by establishing for jail inmates a program of one hour of indoor recreation daily instead of outdoor idling. As a matter of fact one hour of indoor recreation in air conditioned facilities may be far superi- or to outside, so-called recreation — summer and winter. It must also be remembered that we are dealing here only with pretrial detainees. Those who are in some correctional institution to serve an extended term have some right and special need for exercise that is not shared by pretrial detainees. Inmates in jail are there for shorter periods and are less in need of exercise. The assurance of one hour indoor exercise for those in jail awaiting trial is very reasonable and certainly more than most jails provide for pretrial detainees.
IX. THE CLASSIFICATION SYSTEM AND CONTACT VISITS
The order of the District Court of November 5, 1975 directs the D.C. defendants to:
4. Establish a classification system which will make it possible to determine a) which inmates of plaintiff class require maximum security confinement; and b) which members of class can enjoy contact visits without jeopardizing the security of the facility, (p. 12). (Emphasis added).
If a classification system for pretrial detainees could determine that jails would be *566easy to administer, maybe the majority can suggest the system it has in mind. Insofar as requiring a classification system is concerned, this court once affirmed an order of the District Court requiring prison officials to grant press interviews of inmates on the basis of a classification system of individual inmates on the ground that, under the First Amendment, any blanket prohibition of such interviews was prohibited. The Supreme Court, however, reversed, holding that an even-handed blanket prohibition equally applicable to all inmates did nothing more than limit a manner of communication, was “entitled to great deference,” and, as such, did not unconstitutionally encroach on inmate rights. Saxbe v. Washington Post Co., 417 U.S. 843, 844-49, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). See also Pell v. Procunier, supra, 417 U.S. at 823-26, 94 S.Ct. 2800, 41 L.Ed.2d 495.
The majority “do not interpret [the foregoing] order [of the District Court] as mandating contact visits at this time ” (Maj. op., p. - of 188 U.S.App.D.C., p. 547 of 580 F.2d, emphasis added). Therefore the majority defers ruling on the validity of ordering them, remands this part of the court’s order and affirms the order “insofar as it requires the defendants to devise a classification system for maximum security assignments and contact visits . . . [that will permit] the District Court to proceed with the fashioning of an order on the subject of contact visits if it is so advised; such an order, of course, will be subject to later appeal.” Maj. op., p.-of 188 U.S. App.D.C., p. 548 of 580 F.2d (emphasis ■ added).
The procedure ordered is most strange. It is contradictory and, while disclaiming judgment, is almost suggestive. The majority affirms an order directing defendant to classify prisoners for “maximum security and contact visits ” (emphasis added) and at the same time states that it does not interpret the District Court’s order, which it affirms, as requiring contact visits. Actually it operates in reverse of the normal order. From my examination, there is no foundation in the record to support an order directing defendants to prepare a classification system for contact visits until a record is made supporting the necessity and validity of ordering contact visits. Therefore, until the necessary predicate is proved, I would conclude there is no necessity for the defendants preparing any classification system for contact visits. The same goes for maximum security classification — which is part of the contact visit issue in the mind of the majority — but so far as this case is concerned I fail to see how the plaintiffs have shown any standing to raise that issue. Just because there may have been some overcrowding in the past does not authorize a prisoner to attack everything in the management of a jail. At this time there is no necessity to discuss the validity of ordering contact visits, but I will deal with them if they are ordered.
What is involved in this issue of contact visits is that, pursuant to the considered judgment of the D.C. officials, the new jail, for security reasons, has been constructed so that there will be no contact visits except between prisoners and their lawyers and religious emissaries.11 This is a decision that is clearly within the legal power and discretion of the jail authorities, and in my opinion on the record to date they were most wise in deciding the matter as they did.
It was the “contact visit” portion of the trial court’s original order, affirmed by two judges of this panel, that has been stayed by our Circuit Justice. A reading of the transcripts in United States v. Gorham et al., 173 U.S.App.D.C. 139, 523 F.2d 1088 (1975) and United States v. Bridgeman et *567al., 173 U.S.App.D.C. 150, 523 F.2d 1099 (1975), cert. denied, 425 U.S. 961, 96 S.Ct. 1744, 48 L.Ed.2d 206 (1976), involving the recent riots and mass jail breaks at the D.C. Jail, reveals some of the recognized evils of “contact visits.” Such visits were the principal means used by the conspirators to cause both the riots and the escapes which ensued. Both the riot and the escapes occurred after planned “contact visits” to the principal conspirators. United States v. Wilkerson, 179 U.S.App.D.C. 15, 548 F.2d 970 (1976) and United States v. Gorham, 175 U.S.App.D.C. 363, 535 F.2d 1325 (April 1, 1976 Order and Memorandum) (hostages held by jail prisoners at cellblock in U.S. Court House, Washington, D.C.), were also recent cases where a contraband gun was obtained in some manner by two defendants confined in the D.C. Jail. The gun was subsequently used to obtain other weapons and terrorize hostages for several days.
It is generally recognized that weapons, hacksaw blades, knives, files, etc., which constitute an obvious means of breaching “security,” are not the only hazards or abuses that result from “contact visits.” One need only focus on the threats to security of the jail that result from breaches of its administrative regulations by prisoners importing other articles contrary to administrative regulations. Security at a jail cannot be easily assured by searches for weapons of those making contact visits or by running visitors through a metal detection screen. Security can be just as much violated by a breach of the administrative regulations when visitors making contact visits import drugs, money and other articles of value to inmates. Possession of drugs and money is a violation of jail regulations, and both can be and are used to effect escape, purchase weapons and otherwise interfere, through bribery, in the proper administration of a jail or other penal institution.
The expressed theory of the trial court is thus incorrect, and I vigorously dissent therefrom, that “none of the marijuana constitutes any real threat to the security of the institution” (Tr. October 18, 1976, 183) and that “the fact that some items of contraband get into the institution is [not] sufficient justification for walling off the institution from the type of visits that other people have found to be [beneficial].” This bespeaks an ignorance of actual D.C. Jail conditions — known to all. (Id., 171 — 72). When the risk to the security of the institution and others was brought up in opposition to this line of reasoning by the District Court, the judge replied: “. . . other people are taking a chance. You take a chance when you walk down the street.” (Id., 172). The theory of the trial court, now affirmed on a temporary partial basis by the majority, but subject to further appeal (an odd disposition) is that the District Court can interpose its will and compel the jail authorities to risk the security of the jail, its inmates and the public even though the jail authorities, with good reason, based on experience and common practice, have decided that such risk is undesirable and unnecessary and that this risk is justified because people take risks when they “walk down the street.” I submit that the two situations are not comparable. That citizens are subject to some risks when walking on the streets of Washington is no justification for increasing that risk by further action that might hazard the security of inmates in the jail and the general public. In my view that decision is within the lawful authority of the jail administrators to make, and since their decision is rational and based on substantial evidence it should be sustained. On this record the courts lack power to overrule the jail administrators.
After three major jail incidents within one year (one massive jail break and two hostage incidents), when the circumstances of those armed riots, etc., are analyzed, it cannot be denied that better security is needed at the jail. Drugs are difficult to detect in many visitors who may be allowed contact visits and the detection of money and valuables is not always considered too important by some. If contact visits are allowed there is no foolproof method to stop the introduction of contraband drugs. (Tr. Oct. 18, 1976, 69, 122, 138-39). Detection also requires considerable manpower and *568appropriations which may not be fully available from Congress. Thus, the problem is not solely confined to discovering guns and other direct threats to jail security. Money and drugs can buy guns and weapons.
It is also fallacious to consider the problem as though the sole consideration were that the detainees were presumed to be innocent. Discussing the “presumption of innocence” with respect to an accused person whom the court or magistrate, in accordance with the Constitution and statute, has determined must be confined because he is a danger to the community or there is no reasonable assurance that he will not flee, raises an issue that is largely irrelevant to his pretrial confinement. While the presumption of innocence is an active factor weighing on whether he should be released or not, once that presumption is rebutted by competent evidence and it is determined that he must be confined, the effect of the presumption is largely in repose until the time of trial, given of course that the nature of his confinement must be reasonably accommodated to mere confinement and not ordinarily to involve solitary confinement, prohibition of visitors, hard labor, etc.12 To say that pretrial detainees have the protection of the presumption is not to say that the dangerous characteristics of pretrial detainees are to be ignored in their confinement.
The majority opinion in n.14 attempts to deny this fact but ends up merely with a strong plea for a liberal bail policy which for some time has been established law and policy in the District of Columbia. It is this bail policy that has placed only the most dangerous prisoners in the D.C. Jail. It is hard to conceive a more liberal bail policy than the presently existing one. In fact, the public and some Congressmen have begun to complain of its extreme liberality. Under the existing Bail Reform Act of the District of Columbia (23 D.C.Code § 1324), accused persons who should not be detained in jail pretrial are not detained.
The majority attempt to divert the effect of this fact by asserting that nearly all the plaintiff unconvicted predetainees are jailed because “they cannot afford bail.” Maj. op., n.14. This is a myopic appraisal of the situation. It fails to see that they are jailed because they cannot afford bail in the amount fixed. And the amount varies with the magnitude of the crime, the danger to the community posed by the accused and the strength of the evidence against him. Under the law in the District of Columbia a *569person who is arrested and charged with a criminal offense:
. at his appearance before a judicial officer, [is] ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required or the safety of any other person or the community.
23 D.C.Code § 1321(a). If such determination is made, the magistrate must then consider outside custody, travel restrictions and only if these are not considered to be sufficient is bail required. In reaching its conclusions the court or magistrate must consider the following factors:
(b) In determining which conditions of release, if any, will reasonably assure the appearance of a person as required or the safety of any other person or the community, the judicial officer shall, on the basis of available information, take into account such matters as the nature and circumstances of the offense charged, the weight of the evidence against such person, his family ties, employment, financial resources, character and mental conditions, past conduct, length of residence in the community, record of convictions, and any record of appearance at court proceedings, flight to avoid prosecution, or failure to appear at court proceedings.
23 D.C.Code § 1321(b) (emphasis added).
Naturally, when these statutory standards are applied to offenders charged with very serious crimes or who have substantial records of prior convictions, or who are apt to flee the jurisdiction, and against whom the evidence of guilt is strong, a substantial amount of bail must be fixed. This results in the District of Columbia, with its very substantial load of serious crimes, in a number of situations where substantial bail must be fixed or else permit such persons to roam free in the community and hazard the populace. The majority attempts to paint this situation as one of discrimination against the poor because they are poor. That conclusion, however, is not supported by the statistics. It is a fact that few persons who are well to do commit armed robberies. So the most liberal Bail Act in the nation cannot actually be faulted in application; but of course if the theory expressed by the majority opinion is followed practically no person charged with crime would be detained until after his conviction was finally affirmed by the Supreme Court. That is an unreasonable position and misconstrues the Constitution which permits dangerous criminals to be confined prior to trial — though our Bail Act has substantially reduced this protection and in some instances obliterated it.
In the application of the Bail Reform Act in the District it is common knowledge, and proved by some of our cases, that many accused persons who have been released have subsequently committed very serious crimes while released, proving they should not have been released to prey upon the community. But they were, and the Act so provides. It leans in favor of releasing the accused. Apparently the majority are even dissatisfied with this.
Thus, those remaining pretrial detainees who are confined in jail, and who are the subjects of this litigation are those who, for the most part, it has already been determined are individuals (1) whose appearance at trial would not be reasonably assured if they were released, or whose release would not (2) “reasonably assure the safety of any other person or the community.” In other words the individuals who are in jail are those that the judicial process has already determined are likely to flee the jurisdiction or constitute a dangerous threat to some person or to the community.
It thus appears that the population of the jail is already the result of classification by the bail standards. They have been classified by the magistrates and courts. The inmates who are required by the Bail Act to *570be confined are no less dangerous when they are confined. Therefore the jail authorities should not be required, against their judgment, to order contact visits for any group of prisoners that have failed to qualify for release under the very liberal Bail Reform Act of the District of Columbia.
If those responsible for administering the D.C. Jail decide in the interest of better security to run a jail with no contact visits, it is my opinion that such decision is within their competence to make. Since this opinion was written the First Circuit has reached a similar conclusion. Feeley v. Sampson, No. 76-1508, 570 F.2d 364 at 372-373 (1st Cir. January 18, 1978). Recent events have proved that better security is needed at the jail and that contact visits were one of the causes of serious riots and mass jail breaks. Eliminating social contact visits would not be in any way discriminatory, and if the jail is properly constructed so that the risk of official contact visits could be reduced to the bare minimum, that would be a safer way to run the jail than the way the old jail was operated.
However, to my mind the decision is for the executive branch of government, and not for the courts. With the recent unsatisfactory jail incidents, two directly traceable to contact visits, the courts are in no position to second guess the present judgment of the D.C. correctional administrators in desiring tighter security, and the record here does not justify judicial intervention to override the judgment of the local officials. That they chose to tighten their security is commendable. Experience has demonstrated that it needs tightening. In these recent incidents, the jail authorities have found that just one small gun smuggled into the jail can put those in the jail in possession of a whole arsenal of guns and ammunition, and we know from the court records in those cases that contact visits were the cause of some of them. The status of the remand on contact visits thus does not bode well for the future.
All of the foregoing has some bearing on the “security” considerations to be evaluated in the matter. I am not unmindful of the decisions in some of the other districts dealing with this problem. Each one has a local flavor but the District of Columbia has its own special problems, too. We have our own Bail Act which is very liberal and we have our own special local crime problem which has some very serious offenders, and it has not been shown to my satisfaction that it is a violation of inmates’ constitutional rights to run a jail in a reasonably secure manner that affords some protection to the public against riots, mass jail breaks and against private citizens being taken hostage.
X. TRANSFER OF INMATES WITH PSYCHIATRIC SYMPTOMS
As for the regulations requiring the treatment and transfer of pretrial detainees with psychiatric symptoms, I agree that they must be given medical attention, but I do not think an order of this court is necessary, and in any order that was issued I would not set a dogmatic 48-hour time limit, which cannot be other than arbitrary. I would also permit a medical doctor or a psychiatrist to see a potential patient within the 24-hour period. Cf. Maj. op., p.of 188 U.S.App.D.C., p. 548 of 580 F.2d. Medical problems of individuals are not conducive to arbitrary handling by mandatory general orders of a court. The problem is difficult enough for doctors, even after personal examinations. Some potential patients require immediate attention and with others it can be deferred a substantial period of time. If I were to set a standard I would fix it at “within a reasonable period” after a finding of mental illness. This would require some patients to be transferred sooner than 48 hours, and for some the transfer could be delayed longer. The necessity for transfer depends upon the condition of the inmate, the availability of facilities, and the nature of the confinement or treatment he requires, and it is not within the province or ability of the judiciary to *571fix an arbitrary time limit that will be proper for all cases. The District has an absolute obligation to an inmate in its custody to furnish medical assistance within a reasonable period after it learns of the necessity therefor, and beyond so stating, I would not impose any fixed time limit. I would not release a mentally ill person if some arbitrary time limit cannot be met.
In my view it is also wholly unnecessary and improper for this court to order a continuing monitoring of medical transfers by requiring a “written report” to the District Court whenever the jail authorities have special cause to deviate from the 48-hour rule. Our attention has not been called to sufficient conduct by defendants that would justify such court intrusion into the exercise of their administrative responsibilities. As with the possibility of future overcrowding the facts do not present a case of sufficient “immediacy and relevancy” to justify declaratory and injunctive relief. Golden v. Zwickler, 394 U.S. 103, 109, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). The district court and the majority are overlooking the fact that primarily they have only judicial and not managerial power. They too quickly assume the latter.
XI. CLEAN CLOTHING
As for the order on clean clothing and restraints, the defendants generally conform to the standards stated in the order of the trial court. Therefore, I do not find substantial evidence that defendants have engaged in unconstitutional conduct with respect to such matters, or are likely to do so in the future, and hence I consider the order and the affirmance thereof to exceed the court’s jurisdiction.
XII. MISCELLANEOUS
There are a few isolated statements in the majority opinion that should not go unanswered.
A. It is incorrect for the District Court to assert that “there has been no planning for dealing with this problem by the City or the Department.” Quoted at Maj. op., p. - of 188 U.S.App.D.C., p. 541 of 580 F.2d. Such statement is incorrect. The City and the Department, as early as 1969, and possibly sooner (long before this lawsuit was ever started), began planning to acquire adequate jail facilities. See n.l. The City has also considered the Court’s suggested alternatives and cooperated with them to the extent that they were viable. The trouble is most of the court’s suggestions were unworkable. See text at-- - of 188 U.S.App.D.C., at 532-534 of 580 F.2d supra. It is also incorrect to characterize defendants’ activities as “resistance.” The trouble is the District Court and the majority are attempting to make a whipping boy out of a small group of defendants who have only a limited capacity to deal with the problem. Of course jail capacity should be adequate, but there is no factual showing in this record that present jail capacity and conditions are not presently adequate. No amount of repeating unsubstantiated assertions can supply this deficiency in the record.
B. How it is relevant to this controversy escapes me but the majority assert that those who are released prior to trial “[stand] a better chance of not being convicted or, if convicted, of not receiving a prison sentence.” Maj. op., p. -of 188 U.S.App.D.C., p. 531 of 580 F.2d. If that is a correct statement there is nothing remarkable or even noteworthy about it. That is exactly as it should be. The most serious offenders with the strongest evidence against them, with the most serious records, are the persons who are less frequently released and more frequently convicted and sentenced to prison for substantial terms. This is evidence that the standards of the Bail Act are being applied correctly.
C. Footnotes 20 and 21 of the majority opinion assert that pretrial detainees cannot be detained under “ ‘worse conditions than convicted prisoners’ within the same penal *572system.” Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974) is cited for the stated proposition. It has some defects. Most prison systems of any size have institutions where prisoners are allowed varying degrees of security and liberty depending on the nature of the prisoner’s offense, the duration of his sentence, the time remaining to serve, his prior record and his personal propensities. Thus, there are maximum security institutions, minimal security institutions and facilities where even great freedom is afforded the inmates — even halfway houses where convicted persons are free on their own part of the time. It is absurd to contend, much less hold, that pretrial detainees must be afforded the greatest amount of liberty afforded any convicted person. The “Son of Sam” in jail, prior to trial, should not be given a weekend furlough just because some inmate in prison received one.
Moreover, jail inmates are largely an unknown quantity. Jail officials know comparatively little about the backgrounds and propensity for violence or escape of each inmate. On the other hand, most convicted prisoners have undergone some type of diagnostic or classification procedure upon entry into the prison system, which gives the prison authorities some indication of which inmates will likely be able to handle relatively greater liberty without difficulty and with minimal danger to the public. Jail authorities, inherently unable to obtain equivalent information given the short-term nature of most jail detention, cannot reasonably be expected to give the undifferentiated mass of jail inmates the same degree of liberty accorded to those convicted prisoners deemed most trustworthy.
RESTRAINTS
I concur in that portion of the majority opinion which confines its references concerning the use of restraints on patients to those who are or appear to be, mentally ill. Thus, the prohibition against “unpadded” handcuffs would not prevent the use of normal handcuffs on normal prisoners in circumstances where unpadded handcuffs are normally applied.
CONCLUSION
Appellants have stated that if their position is not affirmed on this appeal they intend to petition the Supreme Court for a writ of certiorari to review the case.
The majority have decided part of the case and remanded the record on several very important issues to the trial court for further consideration, including contact visits, recreation, medical examination, and overcrowding and inmate capacity. This fragmentation of the case into two parts places appellants in an awkward position with respect to any petition for certiorari as it might compel their seeking a piecemeal review. In the light of appellants’ request, and of the importance that contact visits be considered in the light of all the other issues, and on the full record, it is suggested, and I would so order, that a stay be granted as to the matters presently decided, until the district court rules on contact visits and the other remanded issues and our decision thereon becomes final. The trial court can act expeditiously on contact visits and the other issues. As I construe the stay orders of the majority this is what is intended thereby.
To the foregoing extent I respectfully dissent from the opinion of the majority.
. S.Rep. No. 559 on H.R. 14916, 91st Cong., 1st Sess., December 3, 1969, p. 49 in the “Capital Outlay” appropriations of the District of Columbia Appropriations Bill there was included “$150,000 in survey funds for a new jail . . .”
. Defendants were (1) the Superintendent of the D.C. Jail, (2) the Director, D.C. Department of Corrections and (3) the Mayor and Commissioners of the District of Columbia. All were sued individually and in their official capacity (Par. 6, 7, 8).
. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), holds that prison authorities in a correctional institution must provide prisoners with access to law libraries or adequate assistance from persons trained in the law in order to guarantee their constitutional rights of “access to the courts.” Accord, Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), aff'g, Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970). While there are substantial differences between the legal status of prisoners in a jail and those in a correctional institution that might lead to less of a demand for law libraries in jails, the demand for law libraries by pretrial detainees, being based on their right of “access to the courts,” is answered insofar as the D.C. Jail is concerned by the availability in all cases of adequate assistance from persons trained in law.
. New Detention Center 960
Hospital spaces 75
Penthouse 10
Cellblocks 3 & 4 650
Total 1,695
More comfortable accommodations in Cell-blocks 3 & 4 would be 480, leaving a total of 1,525. The extra 400 would provide for 2,095 and 1,925 respectively.
. The trial court considered that defendants should be enjoined from housing after June 1, 1976 more than the following:
New Detention Facility 960
Cellblock4 215
Cellblock 3 161
Dormitory 1 (Old Jail) 110
Dormitory 2 (Old Jail) 91
Total 1,537
. The findings also indicated: “In addition, after June 1, 1976 no persons should be housed in Cellblocks 1 and 2 at the Old Jail.” (R. 166, p. 14).
. That Cellblocks 3 and 4 were found to furnish satisfactory accommodations for 376 inmates indicates that conditions in those cellblocks were satisfactory.
. Id.
. See text Maj. op. pp.---of 188 U.S. App.D.C., pp. 533-536 of 580 F.2d.
. The relevant statutes provide:
Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment. The Director shall from time to time designate, set aside, and adapt institutions and agencies under the control of the Department of Justice for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment.
18 U.S.C. § 5011.
No youth offender shall be committed to the Attorney General under this chapter until the Director shall certify that proper and adequate treatment facilities and personnel have been provided.
18 U.S.C. § 5012.
. The new jail has two types of facilities for visitors, namely, small cubicles, or rooms, designed to provide for attorney-client visits on a face-to-face basis in complete privacy, and booths to accommodate general visitors. These booths, which are air conditioned, will separate visitor from inmate via a clear partition, and will require communication by telephone line. No inmate at the new facility, regardless of classification or whether he is assigned to a work detail, will be able to have general contact visits. (Tr. December 30, 1975, 4; A. 480) (Appellants’ Br. p. 29).
. The majority opinion at page - of 188 U.S.App.D.C., p. 529 of 580 F.2d in" characterizing the foregoing comments on the presumption of innocence fails to consider the complete comment. Mr. Justice White in Coffin v. United States, 156 U.S. 432, 458-59, 15 S.Ct. 394, 404, 39 L.Ed. 481 (1895) described “the presumption of innocence [as] a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty.” Its most frequent application occurs in criminal trials. Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972); Coffin v. United States, supra. The majority apparently considers that pretrial detention violates the presumed innocence of the pretrial detainee. Maj. op., p.-of 188 U.S. App.D.C., p. 530 of 580 F.2d. This is an incorrect appraisal of the extent of the right. The presumption is a rebuttable one, not absolute. The force of the presumption just does not prevail over the evidence upon which pretrial confinement may be ordered. Thus no “paradox” exists when the limitations of the presumption are understood. It is also incorrect to infer from the fact that presentence incarceration is credited upon federal sentences that such credit exists as a right flowing from the presumption of innocence. Maj. op., p.of 188 U.S.App.D.C., p. 530 of 580 F.2d. The source is entirely statutory, 18 U.S.C. § 3568, and such credit is not constitutionally required. McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973).
Cummings v. Missouri, 4 Wall (71 U.S.) 277, 321-22, 18 L.Ed. 356 (1866), and Brown v. Wilemon, 139 F.2d 730, 732 (5th Cir.), cert. denied, 322 U.S. 748, 64 S.Ct. 1151, 88 L.Ed. 1579 (1944) cited at page of 188 U.S.App. D.C., at page 530 of 580 F.2d of the majority opinion, are wholly irrelevant to this case. They both consider whether denying a person the right to operate his business or practice his profession is “punishment,” and merely note in passing that deprivation of liberty is a form of “punishment.” They contribute nothing to the inquiry before us.