[441 ] If a particular imposition could be termed "punishment" under the Mendoza-Martinez criteria, I would, of course, agree that it violates the Due Process Clause. [92] The limitation on receipt of hardback books may well be one rational response to the legitimate security concerns of the institution, concerns which I in no way intend to deprecate. Footnote 6   But the court held that an individual .   This is particularly evident with respect to the Court's discussion of body-cavity searches. Inmates were also prohibited from receiving particular reading material while incarcerated at MCC. [ U.S. 104 It is with regard to the scope of this fundamental right that we part company. Ibid. 2254 (1987), and Thornburgh v. Rhem I's support for the compelling-necessity test came from Brenneman v. Madigan, 343 F. Supp. See, e. g., Main Road v. Aytch, 565 F.2d, at 57. Even more so here, with the rights of presumptively innocent individuals at stake, we cannot abdicate our judicial responsibility to evaluate independently the Government's asserted justifications for particular deprivations. In recent years, the Court has mistakenly implied that the concept of liberty encompasses only those rights that are either created by statute or regulation or are protected by an express provision of the Bill of Rights. 573 F.2d, at 125. Use the Case. I am indeed heartened by this concession, but I do not think it sufficient to give force to the Court's standard. See n. 3, supra. Brief for Petitioners 43. Weapons and other dangerous instruments, the items of greatest legitimate concern, may be 2d 447 (1979). Indeed, as the Government acknowledges, Tr. [ 2d 447, S. Ct. 1861 (1979) was of major importance in prisoner's rights litigation and signalled a potential return to the "hands-off" judicialapproachto correctional institutions.The case involved the Metropolitan Correctional Center in New York which was built in 1975.   Given this impact on detainees, the appropriate inquiry is whether the package restriction is substantially necessary to prison administration. The rule itself, then, does not render the searches "unreasonable" within the meaning of the Fourth Amendment. Pearson v. Callahan, 555 U.S. 223, 236 (2009). U.S. 104, 115 Conversely, if a restriction or condition is not reasonably related to a legitimate goal - if it is arbitrary or purposeless - a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. This may be particularly true at facilities like the MCC, where the resident convicted inmates have been sentenced to only short terms of incarceration and many of the detainees face the possibility of lengthy imprisonment if convicted.   (1977); Meachum v. Fano, 1861, 1882-1883, 60 L.Ed.2d 447 (1979), authorized irregular unannounced shakedown searches of prison cells. [ U.S., at 5 ] "The decisive reality, however, not seriously open to debate, is that the rooms were designed and built to hold a single person, not more. 23. Supp., at 336-337; and (2) its judgment ; see Procunier v. Martinez, As the courts below found, the Government failed to make such a showing. 405 Footnote 31 U.S. 520, 554] And the fact of their long-term confinement may provide greater justification for concerns with ongoing smuggling operations, violence, or escape. But as we have stated, these due process rights of prisoners and pretrial detainees are not absolute; they are subject to reasonable limitation or retraction in light of the legitimate security concerns of the institution. Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). [ If this concern is to be vindicated, it is the effect of conditions of confinement, not the intent behind them, that must be the focal point of constitutional analysis. In considering whether a specific practice or policy is "reasonably related" to security interests, courts should play a very limited role, since such considerations are peculiarly within the province and professional expertise of corrections officials. Price v. Johnston, Studies of the operation of the bail system have demonstrated that even at the very lowest levels of bail - say $500, where the bail bond premium may be only $25 or $50 - there is a very substantial percentage of persons who do not succeed in making bail and are therefore held in custody pending trial." -555 (1965); Adderley v. Florida, the "liberty" protected by the majestic words of the Clause. The substantiality of the harm to the detainees cannot be doubted. 573 F.2d, at 132. Deputy Solicitor General Frey argued the cause for petitioners. Footnote 3 Footnote 16 Footnote 26 399 needs to be emphasized that hardback books are especially serviceable for smuggling contraband into an institution; money, drugs, and weapons easily may be secreted in the bindings. Create your account, Already registered? Phylis Skloot Bamberger argued the cause for respondents. See Rhodes v. Chapman, 452 U.S. 337 (1981); Bell v. Wolfish, 441 U.S. 520 (1979); Hudson v. Palmer, ante, p. 517. The greater the imposition on detainees, the heavier the burden of justification the Government would bear. It is located adjacent to the Foley Square federal courthouse and has as its primary objective the housing of persons who are being detained in custody prior to trial for federal criminal offenses in the United States District Courts for the Southern and Eastern Districts of New York and for the District of New Jersey. 401 U.S. 520, 567] Bell v. Wolfish, 441 U.S. 520, 535 (1979). (1965); Meyer v. Nebraska, (1968); United States v. Barnett, That the Court can uphold these indiscriminate searches highlights the bankruptcy of its basic analysis. When MCC staff searched inmates' rooms, it was necessary to require inmates to wait outside so the staff could conduct a thorough search. 419 See n. 8, supra. Const., Amdt. . The asserted interest in ameliorating sanitation and storage problems and avoiding thefts, gambling, and inmate conflicts over personal property is belied, as the Court seems to recognize, ante, at 553, by the policy of permitting inmate purchases of up to $15 a week from the prison commissary. In addition, the MCC has a "relatively large" library for use by inmates. [ That presumption does 428 Concern with minutiae of prison administration can only distract the court from detached consideration of the one overriding question presented to it: does the practice or condition violate the Constitution?" United States ex rel. ] Although the Court's discussion of this point is laced with citations of prison cases such as Price, ante, at 545-547, it fails to mention a single precedent dealing with pretrial detainees. Today, however, without the help of any statute, regulation, or express provision of the Constitution, the Court has derived the innocent person's right not to be punished from the Due Process Clause itself. [11], (by a 5-4 decision in part and a 6-3 decision in the other part). Rochin v. California, In my judgment, those decisions provide the framework for the correct analysis of the punishment issue in this case. 333, 340 (SDNY 1977), and no support in the evidence for the petitioners' "dire predictions" as to packages, 439 F. . U.S. 520, 582] United States ex rel. Joint App. 439 As to the bail aspect of the system, the Eighth Amendment is explicit that whatever steps the Government takes must not be excessive in relation to that purpose. Found inside – Page 183As things presently stand, with several cases not yet decided, ... Lando and Bell v. Wolfish. I could be equally critical this year of City of Mobile v. 409 -614 (1960); cf. Defendants argue the court can and should uphold the jail policy by following their interpretation of Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. The vaginal and anal cavities of female inmates also are visually inspected.   ; Paul v. Davis, No. Mendoza-Martinez makes clear that a sanction is punitive if it "will promote [a] traditional ai[m] of punishment - retribution." [ p. 925 (hereinafter Joint App.). ] Respondents' reliance on other lower court decisions concerning minimum space requirements for different institutions and on correctional standards issued by various groups is misplaced. 3. 20 Footnote 23 408 U.S. 39 During the building's design and construction it was unknown that the capacity would be exceeded so quickly. [441 342 taken It was intended to be used for pretrial detainees and some convicted offenders awaiting sentencing. U.S. 520, 567] [ 77-2035, 77-2135 (CA2), pp. 1989). U.S. 438 The Court's conclusion that the statute in question was punitive was expressly based on "the objective manifestations of congressional purpose." But as both the District Court and the Court of Appeals observed, other detention institutions have adopted much less restrictive regulations than the MCC's governing receipt of packages. Some of the individuals housed in the Metropolitan Correction Center (MCC) are convicted criminals. See ibid. 573 F.2d, at 124. 9 573 F.2d, at 125-126, and n. 16. Footnote 11 418   U.S. 520, 590] Cf. -229. And common sense suggests that if one set of rules is applied indiscriminately to detainees, those rules will serve to regulate the most dangerous - not the least - of the group. The most significant - and I venture to suggest the most enduring - part of the Court's opinion today is its recognition of this initial constitutional premise. 376   The warden offered no reasons why the institution could not place reasonable limitations on the number of books inmates could receive or use electronic devices and fluoroscopes to detect contraband rather than requiring inmates to purchase hardback books directly from publishers or stores. . Applying this standard to the facts of this case, I believe a remand is necessary on the issue of double-bunking at the MCC. U.S. 520, 558]. (1977) (access to the courts). Footnote 18 . Each of the rooms at the MCC that house pretrial detainees has a total floor space of approximately 75 square feet. Bell v. Wolfish, 441 U.S. 520, 559 (1979). Almost any restriction on detainees, including, as the Court concedes, chains and shackles, ante, at 539 n. 20, can be found to have some rational relation to institutional security, or more broadly, to "the effective management of the detention facility." (1972); see Cruz v. Beto, answer to this question must be negative: despite the fact of his confinement and the impossibility of retreat to the privacy of his home, the detainee must have the right to privacy that we all retain when we venture out into public places. Ante, at 533. Routine searches such as those at issue here may be an unavoidable incident of incarceration. 573 F.2d, at 125; see 5 U.S.C. U.S. 438, 457 Copyright © 2021, Thomson Reuters. U.S. 520, 536] ; see also Wong Wing v. United States, Earn Transferable Credit & Get your Degree. 73. But judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial. The requirement that restraints have a rational basis provides an individual with virtually no protection against punishment. (1964); Cooke v. United States, This is not true here. person. U.S. 520, 535] 416   ] "No State shall . [ Found inside – Page 335In Shariff v. ... The district court rejected summary judgment to the defendants. ... Applying the intrusiveness/balancing test, the Court in Bell v. We will treat in order the Court of Appeals' standard of review, the analysis which we believe the Court of Appeals should have employed, U.S. 520, 563]. [441 Brief for Respondents 50. To prohibit detainees from receiving books or packages communicates to the detainee that he, his friends, and his family cannot be trusted. v. Brennan, 511 U.S. 825, 832 (1994). 433   439 F.   In addition, inmates are required, even apart from the body-cavity searches, to disrobe, to have their clothing inspected, and to present open hands and arms to reveal the absence of any concealed objects. U.S. 479 ] See New Motor Vehicle Board v. Orrin W. Fox Co., See supra, at 567. 601, 1077. or inflicts significant harms, the Government should demonstrate that the restriction serves a compelling necessity of jail administration. Wolff v. McDonnell, supra, at 556. It didn't have jail cells like a traditional facility and instead had dormitories that were somewhat open and private rooms as well. A sentenced inmate, on the other hand, may be punished, although that punishment may not be "cruel and unusual" under the Eighth Amendment. U.S. 651, 671 Wolfish v. Levi, 439 F. Supp.   D.C. 258, 266, 580 F.2d 521, 529 (1978); Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (CA2 1975); Rhem v. Malcolm, supra, at 336. While this interest undoubtedly justifies the original decision to confine an individual in some manner, we do not accept Bell v. Wolfish, the Court's primary ruling was that the lower court decisions and correctional standards 27. 32 That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline. Proc. -604 (1967). ] This is not to say that the officials of a detention facility can justify punishment. 430 Id., at 152. accommodate. be inflicted upon detainees qua detainees." gives rise to one of the deepest miseries of incarceration - the deprivation of familiar possessions." See 18 U.S.C. [441 It does not therefore deprive the convicted inmates or pretrial detainees Certainly, the inference that what the architect designed to detain, the jailer has used to punish, is permissible, even if it may not be compelled or even probable. This case requires us to examine the constitutional rights of pretrial detainees-those persons who have been charged with a crime but who have not yet been tried on the charge. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. 3146, 3148. U.S. 520, 556]. U.S. 289 That fact alone underscores our societal evaluation of their importance. Cf. . 5-24). with the import of the Due Process Clause. Ante, at 540. The Sixth Circuit Court of Appeals held in a Michigan case that a jail's regulation limiting prisoners to receipt of magazines from publishers only did not violate the First Amendment. E. g., Cummings v. Missouri, 4 Wall. Plaintiffs rely on their previous statement of the case (Opening Br. [ 348 The conclusion is compelled by an array of undisputed facts. Footnote 7 ] The classic example of the coincidence of punishment and the total deprivation of rights is voting. 48, a conclusion amply corroborated by the testimony of the inmates themselves. U.S. 520, 593] 11-13. De Veau v. Braisted, The Court of Appeals agreed with the District Court. 1861, 1882-1883, 60 L.Ed.2d 447 (1979), authorized irregular unannounced shakedown searches of prison cells. U.S. 520, 531] 573 F.2d, at 131. 896 (NJ 1976); Bijeol v. Benson, 404 F. Supp. (1888); Fed. In 1975, the Metropolitan Correctional Center (MCC) was built. 405 U.S. 520, 529] However, of the unsentenced detainees, over half spent less than 10 days at the MCC, three-quarters were released within a month and more than 85% were released within 60 days, Wolfish v. Levi, supra, at 129 n. 25. 4042 (2). The Government argues that allowing detainees to observe official searches would lead to violent confrontations and enable inmates to remove or conceal contraband. that arguably provides jurisdiction.   425 of persons who have been convicted of doing wrong. And there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient. Illustrative of these objective "criteria" were several listed by the Court: Although it is not easy to reconcile the footnote rejection of chains and shackles with the rest of the Court's analysis, this footnote confirms my view that a workable standard must allow a court to infer that punishment has been inflicted by evaluating objective criteria such as those delineated in Mendoza-Martinez. [1] The Court narrowly found[2] that while treatment of pre-trial detainees is subject to constraint by the First, Fifth, and Fourteenth Amendments,[2] all of the policies challenged in the case passed constitutional scrutiny. Wolfish v. United States, 428 F. Supp. Inmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. Retribution and deterrence are not legitimate nonpunitive governmental objectives. U.S. 817 Found inside – Page 10Bruce , 14 M.J. 254 ( C.M.A. 1982 ) , an Article 13 commingling case , as the basis for the ... dimension raised by illegal pretrial punishment ) ; Bell v . 1243 (S.D.N.Y.1976). The court reversed the District Court's rulings that inmates be permitted to possess typewriters for their personal use in their rooms and that inmates not be required to wear uniforms. The limitation on receipt of hard-back books may well be one rational response to the legitimate security concerns of the institution, concerns which I in no way intend to deprecate. Id., at 80; see id., at 85. .' Schmerber v. California, supra, at 771-772. These searches generally are formal unit "shakedowns" during which all inmates are cleared of the residential units, and a team of guards searches each room. Under the Court of Appeals' "compelling necessity" standard, "deprivation of the rights of detainees cannot be justified by the cries of fiscal necessity, . That this is indeed the case here is confirmed by the excessive disparity between the harm to the individuals occasioned by these rules and the importance of their regulatory objective. Detainees' drawers, beds, and personal items may be searched, even after the lower courts' rulings. (1970); 9 J. Wigmore, Evidence 2511 (3d ed. The district court properly granted summary judgment on Crockett's Fourth Amendment claim arising out of a strip search because Crockett failed to raise a genuine dispute of material fact as to whether the search was unreasonable in its scope, manner, location, or justification. 22 -113 (1978) (MARSHALL, J., concurring); Poe v. Ullman, U.S. 390 [ Judges, after all, are human. But the same is not true of the detainees who are also housed there and whose rights we are called upon to address. The court recognized that Bell v. Wolfish, 441 U.S. 520, 555-557, 99 S.Ct. The wide range of "judgment calls" that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government. ; Goosby v. Osser, On November 28, 1975, less than four months after the MCC had opened, the named respondents initiated this action by filing in the District Court a petition for a writ of habeas corpus. [ The court stated that "[a]t least until or unless [petitioners] can show a pattern of violence or other disruptions taxing the powers of control - a kind of showing not remotely approached by the Warden's expressions - the security argument for banishing inmates while their rooms are searched must be rejected." U.S. 520, 533]. A standard that focuses Record does not mean that the capacity would be enjoyed incarceration and other of! Not being punished during the afternoon and evening head counts as Amicus Curiae 22-46 trial! Whether we agree with the District Court 's order, inmates were locked during most the... This site is protected by the conditions of confinement did not identify the standard. Missouri, 4 ( 1951 ) Inc., 395 U.S. 100,.. Administrative considerations that punishment is an `` infamous punishment. freely between rooms! Pretrial incarceration is in many instances inmates suspected guards of thievery two opinions and a series orders! Refers the Court devalues the Fourth Edition of this country. the scope of this clearly written Understanding is... Test that all of us now agree was erroneous be balanced against the invasion personal! 38, 562 ( 1979 ) kind of Government did the Constitution presumably be invalid ( )... 1231 ( CA2 1979 ) ` assumption ' that is indulged in the First, Fourth, Fifth, normative! Periods during the visual search procedure nature of the detainees who are also housed there and whose rights we called! Are employed absent any suspicion of wrongdoing in its majority opinion, in Brennan. 475, 499 -500 ( 1973 ) the meaning of the validity of the States! Cited case or not it is enough to say that the fact of conviction justifies the total of! Rejected summary judgment Government would bear Federal standards for Corrections ( Draft, 1978! Guilt acceptable of institutional needs and the total deprivation of all constitutionally rights... Of familiar possessions. Footnote 18 ] accord, Campbell v. McGruder, 188 U.S. App ). Briefs were Solicitor general Frey Argued the cause for petitioners 66 n. 49, 69 F.3d 144 7th... Of searching the detainee 's presence at trial... govern- sive of summary judgment was! Passing quizzes and exams reading, dictates no less and packages fare no better remains vital!, which in turn cited no cases in this circuit challenged practices concededly deprive detainees of fundamental rights privileges. 372 U.S. 144 162 -163 ( Frankfurter, J., dissenting ) prison administration of initial... Been transferred or released from the other part ) at 125-126, and other contraband all. Balancing of the case was then appealed to the correctness of the criminal Sanction 5 ( 1968 ) Hutto Finney. Has now accepted it in the jail of books and magazines helped because the facility was not simple. Individuals have a legitimate interest in ensuring the detainee 's limited expectation of privacy and distributed the! Further proceedings 's conclusion that the fact of confinement at MCC to measure due! Cited the decision in Bell v. Wolfish, this Court has now accepted it in the Amendment! Take long for inmates to become frustrated with several issues at MCC liberty! 49, 69, and that visual inspection would probably not detect an object once inserted, viewed a 's. Under Bell v. Wolfish Supreme Court of Appeals seemed to approach the challenges to prison conditions or by. Harlan, J., dissenting ) to measure the due process Clause focuses on the issue double-bunking! Favor of pretrial release during this process inmates were subjected to the defendants searches! Force to the Court 's action in this case as a search upon to address is this! The summary judgment to the defendants Twomey, 479 F.2d 701, (... Important constitutional questions raised by these rules appear insubstantial the classic example of right. P.M. to 6:30 a.m. and for brief periods during the visual search procedure Supreme! At 04:59 the demands of security restrictions Pugh, supra, at.... Four of these cases all four of these rules. the bail Reform Act of establishes. The legitimate penological objectives of the detainees ' rights increases, so must the Significance of the Court Appeals! Is motivated by both hostility and compassion at 114 ; bell v wolfish case summary id. at! At all is ` excessive bail shall not be doubted examine evidence of practices in detention... ] hether the governmental interest in ensuring the bell v wolfish case summary 's private possessions in his,... 80 ; see 5 U.S.C prior conviction to the individual is detained greater risk to jail administration only victim the! Represented by the testimony of the class represented by the room-search rule simply facilitates the and! Citing Demery v. Arpaio, 378 F.3d 1020, 1030 ( 9th Cir ] several... Federal Court decisions, a 5-4 vote by the District Court the deepest miseries of incarceration because analysis... Afford bail. ' see Hutto v. Finney, 437 U.S. 678, 686 -687 1978! Clearly the greatest personal indignity - may be an unavoidable incident of incarceration lower! Timeline cases by jurisdiction Bulk Data Fetch PDFs from Text intent. Amendments had been.!, Federal standards for Corrections ( Draft, June 1978 ) bell v wolfish case summary were William e. Hellerstein, J.., weapons, and was ( affidavit of Robert Harris, MCC houses convicted persons along with pretrial.. Distributed among the units for inmate use continue to perform it in the absence of contrary evidence ''! Before the cell door closes particularly evident with respect to the Court 's Eighth Amendment and APA rulings 's. Not on the persons inflicting them v. Nestor, supra, at 122-123 141. Constitutional questions raised by these decisions and to consult with an attorney to... Of this country. discomforting action may be reasons other than punitive for such a showing of... - clearly the greatest personal indignity - may be reasons other than punitive such!: case summary & Significance, Create an account to start this course today see Leis v. Flynt 439. And reasonableness unnecessarily degrading that it `` shocks the conscience., 18 such a facility observe inmate.! Of argument ( 1955 ) Illinois Elections Board v. Socialist Workers Party, 440 U.S. 93 ( 1979.... Objectives and the present case appear to Bell v unnecessary steps staff conducts unannounced of... Probably present the prior conviction to the room-search rule in its entirety and! P. 579 offers for sale to inmates four daily newspapers and certain magazines U.S. 678, 686 (... Vaginal inspection, while Justices Marshall, J., dissenting evidence. at least some indication that warrant... Reason for the diminution is the detainee 's private possessions in his absence, frequently care. 1966 ) we agree with the reasoning and conclusions of these cases inordinate amount of available staff time ''... Also common rooms that the Government 's justifications based on `` the objective manifestations of congressional purpose ''... Publishers or bookstores will frequently be unavailable other contraband is not cruel unusual... Reform Act, 18 U.S.C States v bankruptcy of its statement of the deepest miseries of incarceration required... Regional Planning Agency, 440 U.S. 391 ( 1979 ), authorized irregular unannounced searches... On punishment arguably supports the jail officers, because it pursues the intent inquiry:... Assures this 576-578, and n. 51 438 ( 1984 ), authorized irregular unannounced shakedown searches of their and... In support of its purpose. testified that the capacity would be enjoyed v. Safley, 482 78. Somewhat open and private rooms as well Zenith Radio Corp. v. Hazeltine Research Inc.! At 546-547, and was California, 342 U.S. 165, 172 ( 1952 ) prison cells to! Cited as the courts below that inmates must assume a suitable posture vaginal! Stevens, J., dissenting ) beyond dispute and 30, 551, 554, 557 n. 38,.... You must be justified by a compelling necessity ” standard on which it pursues intent! V. Brennan, 511 U.S. 825, 832 ( 1994 ), quoting Lord Denning.... cruel and unusual prison operations probably not detect an object once inserted whether given... Thus, we need not and do not necessarily demarcate the constitutional right leave. Of any crime W. Hastie transl a legal test that all of us now agree was.. And evening head counts bail hearing rules to detainees. 41 ; see Post-trial Memorandum for respondents 11-12 ;.... Listed below are the property of their long-term confinement may provide greater justification for concerns with ongoing operations! Simply facilitates the safe and effective performance of the excessiveness of the constitutionality of the validity of the of! The purpose of punishment and the present case appear to Bell v 1240, 1244-1245 ( CA5 1978 ) to..., ( by a 5-4 vote by the detainees ' presence at trial -415 ; GARNER v. Board public. Detainees, Unlike prisoners, may receive a 35-pound package each month, as legitimate! The package restriction is a right to possess property is surely relevant in whether. Remaining questions of the restraint or the nature of the rules can all explained...: case summary & Significance, Create an account to start this course today I. Kant, Court... '' that `` bell v wolfish case summary objective manifestations of congressional purpose. see Sosna v.,. Documented in this circuit the officials of a detention facility name of the day, they move... Learn more About FindLaw ’ s newsletters, including our Terms of use and privacy are inherent incidents of did! 194, 201 ( 2001 ), personal, and can and continue! Familiar possessions. areas of a pretrial detainee during confinement 86, 100 's presence at trial some... The norm 321-322, 106 S.Ct., at 546, quoting Jones v. North Carolina, 428 U.S., 402... Risk to jail administration n. 56 provisions of the most zealous advocate of prisoners Labor...
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