Full opinion text
THORNBERRY, Circuit Judge: Appellants are inmates in custody of the Texas Department of Corrections. In this class action brought under 42 U.S.C.A. § 1983 they challenge the constitutionality of various aspects of the treatment accorded them by the Texas prison system. Specifically at issue is whether the Texas Department of Corrections (TDC) regulation banning all inmate assistance in the preparation of writs of habeas corpus and other legal work is, under the teaching of Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1968), unconstitutional even though what appellee contends to be reasonable alternatives are in existence; whether the loss of statutory good time by those who have violated this regulation is justified; and whether, in light of the special circumstances peculiar to Death Row inmates, the regulation, at least as applied to them, is unconstitutional. In addition, appellants attack the conditions of solitary confinement as administered in Texas as constituting “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments. The district court, 320 F.Supp. 1206, found against appellants on all of these issues. We conclude, however, that in light of Johnson v. Avery, supra, and Beard v. Alabama Bd. of Corrections, 5th Cir. 1969, 413 F.2d 455, the legal assistance regulation in question cannot stand. We affirm the district court’s holding that solitary confinement as administered in Texas is not unconstitutional. Inmate Assistance In Johnson v. Avery the Supreme Court held that Tennessee could not constitutionally ban fellow-prisoner assistance in the preparation of habeas corpus petitions so long as the state provided prisoners with no alternative assistance, since such a regulation effectively denied indigent, illiterate prisoners any access to the courts. As the Court stated: There can be no doubt that Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file ha-beas corpus petitions. Here Tennessee has adopted a rule which, in the absence of any other source of assistance for such prisoners, effectively does just that. The Court went on to notice that many states had alternative programs to supply legal assistance to prison inmates although it did not express its judgment concerning these plans. The Court did note their existence and indicated that “techniques are available to provide alternatives if the State elects to prohibit mutual assistance among inmates.” Johnson v. Avery, 393 U.S. at 490, 89 S.Ct. at 751. It is undisputed that Texas prison officials prohibit any form of legal assistance by one inmate to another. Appellees argue, however, that they have provided appellants with reasonable alternatives to inmate assistance and thus are in compliance with Johnson v. Avery. In examining these alternatives, the trial court noted: The department provides at each of its units a “writ room,” available each week during specified hours and in which an inmate must perform all his legal work. A small “library” is available there, and respondents have recently directed that prisoners be allowed to utilize the law books of fellow inmates as well as those maintained by the State. An extensive legal manual, composed in layman’s language, will soon be available in the writ room and prison libraries to assist inmates in the preparation of petitions. In addition, prisoners may freely correspond with legal service organizations. ***** * In September, 1969, the prison system employed an attorney, Mr. Harry Walsh, whose sole responsibility is the provision of legal assistance to inmates. Mr. Walsh testified that another full time attorney is now on the prison staff; that three senior law students were employed at the prison during the summer of 1970; and that law students may soon be available for inmate assistance throughout the year. Clearly, the TDC has been making progress toward complying with the dictates of Johnson v. Avery and Beard v. Alabama Bd. of Corrections, supra, in which this Court said: A regulation prohibiting the granting of assistance altogether might well be sustained if the state were to make available a sufficient number of qualified attorneys or other persons capable and willing to render voluntary assistance in the preparation of petitions for habeas corpus relief. Beard, 413 F.2d at 457. Nevertheless, after studying the record carefully, we are unable to conclude, as the district court did, that the State carried the burden of proving that it provided at the time of trial a reasonable alternative to inmate legal assistance. The State has failed to convince us that its effort was sufficient. Many questions were left unanswered by the State that would have been relevant to our inquiry into the adequacy of the State’s alternatives to inmate assistance. For instance, we would have been interested to know how many of the approximately 12,000 prisoners in the TDC expressed a need for legal assistance in seeking post conviction relief. There is vague testimony that only a small number of the total prison population actually are interested in seeking post conviction relief, but that testimony was insufficient to present any clear picture of the magnitude of the problem. Additionally, we would have been interested to know how much time is required to handle each prisoner’s file. It might be, for example, that many of the complaints concern rather routine matters that could be handled adequately in an hour’s time. If this were the case, the fact that a single attorney handled 1300 files his first year might be less striking. Moreover, the hiring of a second attorney and three summertime law students should have relieved the situation considerably, but we were given very little specific information as to what degree, if any, the situation was relieved. Finally, we were told nothing specific about what amount of outside legal assistance in the form of legal aid and public defender programs might be available to prisoners. Johnson v. Avery appears to invite states to utilize such outside help in providing alternatives to inmate legal assistance. What we have concluded, in short, is that although we cannot be certain from this record that the TDC has not provided a reasonable alternative to inmate legal assistance, neither can we be certain that the TDC has provided the requisite alternative. And since we think Johnson v. Avery places the burden of justifying its regulation against inmate legal assistance on the State, we must conclude that the State so far has failed in carrying that burden. Having found that the State has failed to prove that it has provided a reasonable alternative to inmate assistance, we feel we should offer some guidance for future State action. We would require the State to carry the burden of justifying its regulation against inmate assistance by producing evidence that establishes in specific terms what the need is for legal assistance on habeas corpus matters in the TDC, and by demonstrating that it is reasonably satisfying that need. In defining the need for assistance and in responding to the need, TDC should give special consideration to the high illiteracy rate of the inmates, to the fact that a substantial number are Mexi-ean-Amerieans who speak little English, and to the great geographical dispersion of the Texas correctional facilities. We would permit the state to draw upon any source of assistance available, whether it be voluntary or remunerated, and whether it be licensed or unlicensed to practice law, as long as that service could be systematically relied upon. We think the record in this case demonstrates that TDC has been making a substantial effort since Johnson v. Avery to provide a reasonable alternative to inmate legal assistance. The TDC could not, of course, develop a complete legal assistance program overnight. As soon, however, as the TDC has developed an alternative to inmate assistance that it feels would be acceptable to this Court, it will of course be free to return to court to seek approval of that alternative. Because we are not convinced that Johnson v. Avery has been complied with in this case, we hold that the loss of good time suffered as a result of violating the regulation against inmate assistance must be restored to appellants. Appellants also set forth the peculiar difficulties of Death Row prisoners in obtaining legal assistance. Some of the services performed by the “writ writers” included assisting Death Row prisoners obtain stays of execution. Because what we have decided regarding prisoners in general is applicable to those on Death Row, it is not necessary to examine their arguments separately. Solitary Confinement In view of recent tragic incidents in this Nation’s prisons and of the frequent assertions of the inadequacy of our penal systems, the burden of judging weighs upon us more than usual as we turn to appellants’ contention that solitary confinement as administered by the TDC is cruel and unusual punishment. Just as our dissenting brother, we are deeply troubled by the lightless cell, the limited bedding, and the minimal food provided prisoners in solitary confinement in Texas. Nevertheless, we do not find that the imposition of these conditions constitutes cruel and unusual punishment as forbidden by the Eighth Amendment. As judges, we must look to the extant law and the general practices of our society. Otherwise, we run the risk of imposing our own personal moral code on a perhaps unready society. We begin by turning to the long line of cases, to which we have found no exception, holding that solitary confinement per se is not “cruel and unusual.” Sostre v. McGinnis, 2d Cir. 1971, 442 F.2d 178; Burns v. Swenson, 8th Cir. 1970, 430 F.2d 771; Courtney v. Bishop, 8th Cir., 409 F.2d 1185, cert, denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Graham v. Willingham, 10th Cir. 1967, 384 F.2d 367; United States ex. rel. Knight v. Ragen, 7th Cir. 1964, 337 F.2d 425, cert, denied, 380 U.S. 985, 85 S.Ct. 1355, 14 L.Ed.2d 277 (1965). Our inquiry does not, however, end here since appellants challenge solitary confinement as implemented by the TDC. We must, therefore, examine the particular conditions that existed in each system previously scrutinized by the courts. Holt v. Sarver, E.D.Ark.1969, 300 F.Supp. 825. On the question of particular conditions, there are several cases that have concluded that certain prison conditions were so “base, inhuman and barbaric” that they violate the Eighth Amendment. We have studied these cases and the conditions depicted therein rather carefully, and find in none of them support for condemnation of solitary confinement in this case. In the first place, there is a common thread that runs through all these cases and that is not present in our case. That thread is the deprivation of basic elements of hygiene. See, e. g., Wright v. McMann, 2d Cir. 1967, 387 F.2d 519 [complaint alleged cell encrusted with excrement, plaintiff entirely naked, forced to sleep on concrete floor, windows open throughout subfreezing weather, no soap, towel or toilet paper]; Hancock v. Avery, M.D.Tenn.1969, 301 F.Supp. 786 [hole for waste, flushed irregularly by guard, no soap, towel or toilet paper, prisoner slept naked on floor]; Holt v. Sarver, supra [isolation cells dirty and unsanitary, pervaded with bad odors, plain cotton mattress uncovered and dirty; conducive to spreading, and did spread, infectious diseases]; Jordan v. Fitzharris, N.D.Cal. 1966, 257 F.Supp. 674 [cells not cleaned regularly, prisoner had no means to clean himself, a hole for receiving bodily wastes, no flushing mechanism]. By contrast with these cases, the prisoners in the TDC solitary confinement cells are deprived of none of the basic elements of hygiene. It is uncontradicted that solitary cells are scrubbed by the guards each time the prisoner leaves to bathe, which occurs at least three times a week. The cells are identical to the regular cells of the TDC in size and facilities ; they contain flush toilets, a drinking fountain, and a bunk. The prisoner is supplied with toilet paper, a toothbrush and toothpaste. Although the bunk is stripped in the sense that it has no mattress or pillow, the prisoner is given two blankets and is clothed in a gown or other garb, so that there is nothing to compare with the reports of prisoners sleeping naked on concrete floors in the above-cited cases. In addition, solitary cells in the TDC have the same temperature controls that regular cells in the prison have. We think it is correct to say, therefore, that no case has found conditions comparable to those in the TDC unconstitutional. More important, most of the conditions challenged by appellants have withstood scrutiny by other courts, and are to be found in differing variations in almost every jurisdiction in the country. See Sostre v. McGinnis, supra, 442 F.2d at 193. Finally, the TDC has been ranked second or third among the Nation’s prisons for its progressiveness in prison administration and reform. This, to us, should be a weighty fact in any evaluation of the TDC under the cruel and unusual punishment clause. We would not put so much stock in the TDC’s fine reputation if we did not find that reputation borne out by the record in this case. The impression we have of the TDC from this record is that it has progressed rapidly under Dr. Beto’s administration, and that it engages in constant efforts to reform and to police itself. We think this may be demonstrated by a description of the TDC’s policy with respect to solitary confinement. This policy is set out in a TDC memorandum of “Disciplinary Procedures” directed to all wardens from the TDC’s Assistant Director for Treatment. It appears in the Record as defendant’s exhibit D-14. As we understand the testimony in this case, this memorandum is modeled after, and complies substantially with, the American Correctional Association’s Manual on Correctional Standards. The most effective way to reveal the thrust of the memorandum, which is 23 pages long, is to quote certain passages from it: “Preventive Discipline The capable and experienced official resolves most problems before they occur. He constantly corrects conditions that cause bitterness and unrest. He ‘spots’ and segregates ringleaders and agitators who foment trouble. Preventive discipline consists of effective initial orientation . . . and continuing group and individual instruction . . . with a view to preventing a repetition of deviation without the necessity of taking punitive action. These correction techniques should be employed when trivial deviation occurs due to ignorance or lack of understanding, or when resulting from carelessness or faulty habits. In many instances a word of caution or instruction, an expression of genuine interest in the conduct of an inmate may show the subject how to avoid future errors. * * * ” The Memorandum then describes at great length the Disciplinary Procedures "utilized in the TDC. These procedures include an initial report containing not only the correction officer’s statement of the offense charged, but also the inmate’s version of the offense; a hearing before the Unit Disciplinary Committee, at which the inmate is read the charge against him, and is given an opportunity to state his case; and, finally, the procedures require that the Committee give a statement explaining what action it has taken and why. Once there has been a decision to discipline an inmate for a rule infraction, the Disciplinary Committee may choose from among several disciplinary measures. The Memorandum instructs those administering discipline “to use only as much punishment as will effect the necessary change in the individual’s conduct.” The list of disciplinary procedures include “A. Counsel or Reprimand. B. Loss of Privileges [deemed one of the most effective methods of controlling the prisoner’s behavior] — Includes such measures as loss of recreation time, commissary privileges, movies, T. V. and other leisure time activities. States the Memorandum, ‘It is usually not advisable to restrict the inmate’s letter writing privileges unless the offense is in violation of the regulations relating to these practices.’ C. Negative Points — Possession of points creates eligibility for promotion and ultimately for pardon and parole. D. Suspended Sentence — -Imposition of Penalty is suspended contingent upon further good conduct. E. Extra Duty — Inmate is assigned extra duty labor on Saturday and during leisure hours. F. Demotion in Class — Involves loss of trusty status, etc. G. Loss of Overtime or Good Time. H. Segregation — This includes administrative and punitive segregation.” Since Punitive Segregation is what concerns us here, we think it would be helpful to set out substantially the TDC’s entire procedure. The instructions begin with the following caveat: “Punitive segregation is ordinarily used as punishment when reprimands, loss of privileges, suspended sentences, and similar measures have been tried without satisfactory results. Punitive segregation is a major disciplinary measure and should be used judiciously when all other forms of action prove inadequate, where the safety of others is concerned, or when the serious nature of the offense makes it necessary.” Then, after describing the more lenient forms of Punitive Segregation (which include restriction to one’s cell with loss of privileges and a limited diet), the Memorandum sets out procedures to be followed in administering solitary confinement. “Solitary Confinement: Confined inmates in a punishment status, placed on a restricted diet, with loss of privileges and placed in special facilities for a comparatively brief period. Ordinarily no inmate should be retained in punishment segregation on restrictive diet more than 15 days, and normally a shorter period is sufficient. Punitive segregation is not for indefinite or permanent segregation. A. Punitive segregation procedures (1) Period of confinement: Fifteen days should be the maximum time spent in solitary. Recalcitrant inmates at the end of this period should be taken out of solitary, placed in a cell or if dormitory residents, left in cell with door open. After two or three days, depending upon physical condition, he may be returned to solitary and the procedure continued. (2) Diet A. Inmates in solitary are to be fed one slice of bread twice a day and are to be given unlimited drinking water. B. Each 72 hours inmates are to be fed a full meal. The meal shall be identical to the meal on the steam table at that time for the working inmates, i. e., seasoned foods, salad, meat, dessert, drink. C. If an inmate remains recalcitrant at the end of a 15-day period and is handled as defined above, he should be fed the regular full ration (three full meals) for a minimum of two days. The number of days he is fed full ration in his cell should be determined by physical condition and rapidity of strength renewal. When returned to solitary, restricted diet procedure will be in force. (a) Written records should be made regarding date and time of feeding, and menu fed. (3) Medical Care and Procedure A. Inmates who are to be placed in solitary should be cheeked by a physician or medical officer prior to confinement. In the event neither is available, the medical classification should be carefully checked on the travel card, if medical classification is such that life will not be jeopardized, the inmate may be placed in solitary and checked by medical personnel at first available period. When there is doubt regarding health, the inmate should be placed in administrative segregation until evaluated by medical personnel. Diabetics, Epileptics, heart cases, cases of high blood pressure, ulcers, generally debilitated conditions should not be placed in solitary but all privileges may be denied to them and they may be confined in a hospital or clinic cell. B. Inmates should be weighed at least once a week and more often if possible by medical personnel, written record reflecting weight should be kept either on solitary cell door, treatment card, or in a book reserved for this purpose. C. All inmates in solitary must be checked by a physician or medical officer at least once a day. Written record of visit should be kept on treatment card or in a book reserved for this purpose. D. Personal hygiene should be encouraged. Inmates should be given a bath at least three times a week. Inmates should be allowed to brush their teeth daily. Male inmates should be shaved twice a week. (4) Clothing Inmates in solitary confinement should be given coveralls, a gown or some other form of clothing, i. e., tee shirt and undershorts, tee shirt and regulation trousers. Changes of clothing shall be effected at least two times per week. (5) Bedding Inmates in punitive segregation, solitary, should be furnished with the necessary number of blankets to keep them warm. (6) Visits to Segregation Prisoners in punitive segregation will be visited, observed, or evaluated a minimum of: A. Two times each shift by a correctional officer. B. Daily by both the officer in charge of the day shift and the officer in charge of the night shift. C. Daily by medical personnel. D. As frequently as necessary by Disciplinary Committee members to assure inmate’s welfare is properly provided for and to determine time and method of release. E. Daily by either warden or assistant warden. (7) Release from Punitive Segregation Disciplinary Committee members will frequently review the ease of each inmate in punitive segregation, determine the inmate’s attitude, and return the inmate to the regular inmate population when, in the Committee’s opinion, he may reasonably be expected to adequately adjust and conform to the rules and regulations. Segregation for punishment should always be for the. shortest period of time that will accomplish the desired results of favorable adjustment. (8) Return to Work After a man has been in solitary over an extended period, he will become weak and in no condition to do a hard day’s work. He should be treated as a ‘new inmate’ and given a light but productive work assignment until his strength returns, this will vary according to the individual and his work assignment. EXERCISE CAUTION SO THAT HEALTH IS NOT JEOPARDIZED. After studying this record in its entirety, we have found ample evidence to establish that the TDC complies with virtually all of these guidelines in its administration of solitary confinement. First, there are statistics in the record to show that the ratio of the average number of male inmates confined to solitary on a given day to the average total inmate population over a period of one year runs around 2.1%, indicating that solitary is indeed used sparingly. Secondly, there are computerized reports kept on all inmates who are confined to solitary. These reports record, among other things, the duration of the inmate’s stay in solitary. They reveal that of the 132 prisoners confined in solitary at the time the reports were compiled, one had been in for a 14-day period, and 35 had been in for 7 days or more. The remaining 96 had been in for 6 days or less. Of the 11 who were let out on the day this report was compiled, 2 had been in for a full fifteen-day period, one had been in for one day only, 4 had been in for 6 days or less, and the remaining 4 had been in for 8-14 days. In addition, another yearly report showing the history of solitary confinement in the TDC revealed that most of those who had been confined were confined only once (in other words, the treatment was not repeated), while no more than 10% were returned after a second treatment for further periods of confinement. These reports convince us that solitary confinement is used sparingly in the TDC, that the period of confinement seldom equals the maximum fifteen-day period and is frequently well under that period, and that comparatively few of the prisoners in the TDC who are confined to solitary once have the punishment repeated a second time, and many fewer have it repeated a third time. We turn now to the named prisoners who instituted this suit and who testified to their complaints about solitary confinement in the TDC. We think it should first be pointed out that each of the prisoners who testified came from the Ellis Unit, which is the TDC’s maximum security unit where prisoners considered to be high security risks are housed. Each of them had compiled rather long records of non-conformity with prison rules. A brief sampling follows: The Appellant Brown had on his record two attempted escapes, two charges of possessing contraband [a knife in both instances], numerous charges of agitation, fighting, creating a disturbance, disobeying a direct order, not working properly, and stealing. Appellant Brassell had compiled an offense record which also included an attempt to escape, refusal to work and insolence. Appellant Cruz’ record contains such offenses as refusal to work, insubordination, threatening the life of another inmate, impudence, possession of a prohibited weapon and agitation. The confinement of each of these prisoners for violation of the prison regulation against inmate legal assistance should be viewed in the context of their entire records, and not as though this was the only offense they ever committed. It seems fair to say that the prison authorities might have concluded that these were prisoners upon whom all lesser forms of discipline had failed. We have set out the above information in detail because it is important to view the use of solitary confinement in the TDC in the context of the whole prison system. We cannot view such conditions as a bread and water diet supplemented every 72 hours by a full meal in a vacuum. We must also take into account the fact that the prison authorities as a matter of policy are careful to limit use of the diet to avoid damage to the prisoner’s health. Thus, as we consider each of the conditions in solitary, we must keep in mind that solitary is imposed as a last resort to obtain obedience from recalcitrant prisoners, that it is imposed for a limited amount of time [indeed, as we understand the testimony in this case, a prisoner will be released from solitary any time he asks to be released and agrees that he will abide by the prison rules], and that precautionary measures are taken to protect the prisoner from an overdose of solitary. Used in this manner, solitary confinement serves a legitimate purpose in the prison community as a deterrent and a punitive force. Both the testimony of the prisoners in this case and the statistics revealing the low rate of returns to solitary support the conclusion that solitary is an effective deterrent of nonconforming prison conduct. On this point, we differ with the dissent, which concludes that solitary “has a totally negative impact on any hope for rehabilitation.” First, we would point out that while there is testimony by one psychologist that solitary confinement has no rehabilitative value, this testimony was contradicted by a psychiatrist who stated that often belligerent prisoners need to be segregated temporarily for their own good, as well as for the protection of others. In fact, the experts testified that there is an ongoing debate in their field over the harmful vis-a-vis the helpful effects of solitary confinement. See Sostre v. McGinnis, supra, 442 F.2d at 193, n. 25. There is also, of course, a vigorous debate over the comparative roles of punishment and rehabilitation in the correctional stage of our criminal justice system. It is not our place, however to resolve that debate. We think it is enough simply to say that, as of now, deterrence and punishment still have an active place in our prisons. It is beyond dispute, of course, that order must be maintained in the prisons. And when a prisoner continues to break prison rules even after losing such privileges as going to the movies and being assigned extra work, the authorities must have some harsher measure to induce compliance with prison regulations. Our role as judges is not to determine which of these treatments is more rehabilitative than another, or which is more effective than another. The Constitution does not answer such questions. The scope of our review is very limited under the cruel and unusual punishment clause. And there are good treasons for the limitations on the scope lof that review. In the first place we simply are not qualified to answer the . many difficult medical, psychological, sociological, and correctional questions when it comes to choosing between one form of treatment and another. It is for this reason, we think, that courts have traditionally confined their review of prison regulations to such standards as “barbarous” and “shocking to the conscience.” See Church v. Hegstrom, 2d Cir. 1969, 416 F.2d 449. See also Royal v. Clark, 5th Cir. 1971, 447 F.2d 501 (“Federal courts will not interfere in the administration of prisons absent an abuse of the wide discretion allowed prison officials in maintaining order and discipline, . . . ”). More important, however, we think it is apparent from our experience with this case, if it had not been apparent before, that courts simply are not equipped to police the prisons. There was testimony in this record, for example, that the prison medical officers did not always check on the prisoners in solitary. We cannot, however, condemn the whole system because the prison personnel deviate occasionally from the prison policy. Obviously, we cannot follow the medical officers on the rounds each day to see that they comply with their assigned duties. While we are not so naive as to believe that every prison employee obeys prison regulations to the letter, we believe that, absent a showing of bad faith on the part of prison officials, we must rely on the prison administrators to enforce the policies they adopt. We think it is clear from the record that Dr. Beto is doing a creditable job in this respect. He testified that he makes the rounds of all 14 units in the TDC weekly to see that prison policy is being followed by the wardens and guards. He interviews the prisoners to be sure they are treated fairly, and has instituted a rotation plan for his wardens, so that one authority does not remain in one unit over too long a period of time. Viewing the record as a whole, therefore, we have concluded that solitary confinement as it is used in the Texas Department of Corrections does not violate the cruel and unusual punishment clause. In reaching this conclusion, we have compared the TDC’s practices with those of other prison systems. We have considered that solitary is used sparingly and only as a last resort to inducing compliance with prison regulation. We have considered the fact that the authorities as a matter of prison policy take many precautionary steps to see that the use of solitary does not result in harm to the prisoners. On this record we cannot conclude that the TDC’s system is cruel and unusual, much less barbarous or shocking to the conscience. Affirmed in part, reversed in part. . On tins point, we share the views of Judge Kaufman of the Second Circuit, writing for the majority of that Court en lane, in Sostre v. McGinnis, 2d Cir. 1971, 442 F.2d 178, at 191, who stated: [e]ven a lifetime of study in prison administration and several advanced degrees in the field would not qualify us as a federal court to command state officials to shun a policy that they have decided is suitable because to us the choice may seem unsound or personally repugnant. As judges we are obliged to school ourselves in such objective sources as historical usage . . . , practices in other jurisdictions . . . and public opinion, . . . before we may responsibly exercise the power of judicial review to declare a punishment unconstitutional under the Eighth Amendment. (Emphasis in original) . In Ford v. Board of Managers, 3d Cir. 1969, 407 F.2d 937, for example, a bread and water diet supplemented by a regular meal each third day withstood the scrutiny of a federal court. See also the conditions described in Krist v. Smith, S.D. Ga.1970, 309 F.Supp. 497, aff’d, 5th Cir. 1971, 439 F.2d 146. The dissent has cited conditions in federal solitary confinement as favorable by comparison. We would point out, however, that the federal practice is to leave prisoners in solitary confinement indefinitely. See Sostre v. McGinnis, 2d Cir. 1971, 442 F.2d at 193. Moreover, while federal prisoners in solitary have light in their cells and a mattress on their bunks at night, their cells are stripped during the day and they have only a floor toilet. Moreover, as we understand the testimony in this case (there is some confusion between administrative segregation and punitive confinement throughout the record), the federal prisoners in solitary received a “bland loaf.” Dr. Beto testified that the prisoners in the TDC had expressed a preference for bread and water as opposed to the federal loaf. In short, while it seems that no two systems are alike, they all use variations of the same theme. In addition, there is testimony that the main reason for the differences between the federal and state facilities is that federal prisons contain fewer persons who are in on assault and murder charges. The state prisons have more need to adopt measures designed to cope with inmates prone to violence. This appears to be the reason inmates in the TDC are usually given a thin gown rather than a full prison uniform when they go to solitary. Apparently, there was reason to believe that the inmates in solitary would use the heavier clothing to attack the guards or to stuff the toilet, causing it to flood. . We find this fact particularly persuasive in light of the Supreme Court's tendency to strike down a choice of punishments “only when the penalty is authorized in almost no other civilized jurisdiction.” See Sostre v. McGinnis, supra, at 193, note 22. . Appellant Cruz is not a stranger to this Court. See, e. g., Cruz v. Beto, 5th Cir. 1971, 445 F.2d 801. . See note 1 supra. . The limits of our ability to police the prisons manifests itself in various ways. One, of course, is the fact that prison reform is primarily a task for legislators and administrators. We cannot express this point better than did Judge Kaufman in Sostre v. McGinnis, supra, 442 F.2d at 205: We do not doubt the magnitude of the task ahead before our correctional systems become acceptable and effective from a correctional, social and humane viewpoint, but the proper tools for the job do not lie with a remote federal court. The sensitivity to local nuance, opportunity for daily perseverance, and the human and monetary resources required lie rather with the legislators, executives, and citizens in their communities.
TUTTLE, Circuit Judge (concurring in part and dissenting in part): Although I agree with the majority, in so far as it holds that TDC’s ban against inmate assistance cannot stand, I do so because I am convinced that this record affirmatively shows that the TDC has not supplied a reasonable alternative rather than because of the failure of the TDC to make a sufficient showing. The best illustration of this is the circular published by the prison authorities themselves. In part, this states: “. . . The lack of education and financial status of the average inmate prevents seeking ‘outside’ legal assistance. Therefore, the inmate is relegated to fighting for his rights unaided by legal counsel — a very difficult task. The hope is that the Inmate Attorney can, now supplement the inmates’ own efforts. . . . (emphasis in the original).” > “. . . Due to the Attorney’s vast caseload, his access to each and every inmate will be limited .... . . . Because of the illiteracy problem, this book will solve no problems unless the inmate has an understanding of the contents of this handbook . . . . (emphasis added)” “However, you must realize the fact that there are over 13,000 inmates in the TDC, and that those of you in the southern units are geographically isolated from the attorney’s main office in Huntsville, (emphasis in original)” “If all of you expect to have personal interviews with the attorney, you will have to wait — probably for a very long time. . . . (emphasis in the original)” Moreover, and more importantly, I am compelled to dissent from the portion of the opinion dealing with solitary confinement. I would hold that solitary confinement as actually carried out by the TDC, not as described in regulations, clearly constitutes a violation of the Eighth Amendment. I am quite reluctant to disagree with my brothers of the majority on an issue which, I think, necessarily, involves the application of a moral code to one of society’s most difficult problems. However, there is no indication that the majority and I differ as to our concept of what the moral code should be. The difference lies in our concept of the extent to which judges can “risk” permitting their “own personal moral code” in such an area as this to be “impose [d] . . . on a perhaps unready society.” For myself, I do not hesitate to assert the proposition that the only way the law has progressed from the days of the rack, the screw and the wheel is the development of moral concepts, or, as stated by the Supreme Court in Trop v. Dulles, the application of “evolving standards of decency” 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1957). This, therefore, poses a further difference between the members of the court. If, as is stated by the majority, they “are deeply troubled by the lightless cell, the limited bedding, [a blanket, according to the findings of the trial court] and the minimal food provided prisoners in solitary confinement in Texas”, then I do not agree with them that we are limited by what has been done by other courts or by the “general practices of our society.” As to the limiting effect of the “extant law,” which I shall undertake to analyze below, we must remember that in each of the cases referred to in the opinion in which cruel and unusual punishment was found to exist, some court had to take at least a short step beyond what had previously been decided. This, in fact, is the genius of the common law. I think it is the duty of the court whose members are “deeply troubled” by these conditions to seek a means of removing them that may offer more promise than merely saying that “prison reform is primarily a task for legislators and administrators.” I feel that it is permissible for us to take judicial notice, as the majority apparently did, of the current spate of criticisms of our penal systems. It would be utterly unrealistic to ignore the fact that penal reform comes more slowly than progress in other activities of our society which seem to have much higher priorities. To leave the prisoners to the tender mercies of the legislatures and thereafter to the administrators who are denied the means to accomplish the reforms, seems to me to hold out slight, if any, hope that these “deeply troubling” conditions will be outlawed. For this court to tell the prisoner to look to the legislature and an administrator who has condoned, and still excuses them, would seem to me but an empty gesture, and calls to mind an answer right out of Aeschylus: “Hollow words, I deem are worst of ills”. Prometheus Bound. In sum, I think this is an area in which the court should move. Such action by us is not only justified, it is called for if the Anglo-Saxon system of justice is to remain living and vigorous. The Supreme Court, in Bartkus v. Illinois, 359 U.S. 121 at pg. 128, 79 S.Ct. 676, at pg. 680, 3 L.Ed.2d 684 speaking through Mr. Justice Frankfurter, stated: “The Anglo-American system of law is based not on transcendental revelation but upon the conscience of society ascertained as best it may be by a tribunal disciplined for the task and en-vironed by the best safeguards for disinterestedness and detachment.” (emphasis supplied) The duty of a court like ours to act in such a matter has, I think, been expressed with his usual great felicity by Judge Learned Hand: “[The common law] must be content to lag behind the best inspiration of its time until it feels behind it the weight of such general acceptance as will give sanction to its pretension to unquestioned dictation. Yet with this piety must go a taste for courageous experiment, by which alone the law has been built as we have it, an indubitable structure, organic and living. It is in this aspect that the profession of the law is in danger of failing in times like our own when deep changes are taking place in the convictions of men. It is not as the.priest of a completed revelation that the living successors of past law makers can most truly show their reverence or continue the traditions which they affect to regard. If they forget their pragmatic origin, they omit the most pregnant element of the faith they profess and of which they would henceforth become only the spurious and egregious descendants. Only as an articulate organ of the half-understood aspirations of living men, constantly recasting and adapting existing forms, bringing to the high light of expression the dumb impulses of the present, can they continue in the course of the ancestors whom they revere.” “The Art and Craft of Judging — The Decisions of Judge Learned Hand”, Hershel Shanks, page 17. Now, what are these “deeply moving” conditions of solitary confinement? A person sentenced to solitary is kept in a bare, pitch black cell on a bread and water diet. The cell has a barred iron gate backed up by a wooden door to keep out all light and prevent contact with those in the hall. He is fed only two slices of bread and water each day and one full meal every 72 hours. This treatment can continue for up to fifteen days, at which point he is kept in the same cell, but with the solid door open to let in the light and is fed regular meals for two days. This process may then be repeated again. As the record reveals, inmate Bobby Brown was kept in solitary for a period of about seven weeks. Another prisoner spent nine weeks in solitary within an eleven month period. In addition to the bread and water diet, the cell is barren of furnishings except for a combination toilet-washbasin and a steel bunk. The bunk, however, has no mattresses, sheets or pillow. Though the prisoner is provided with a blanket, the inmate has no clothes, no shoes, only a cloth gown and, except when taken to the shower, he spends all of his time in the cell. While there he has no access to hot water; he is not allowed to have a comb or eyeglasses and, upon release from solitary, the inmate’s head is shaved bald. The regulations of the TDC require that an inmate be weighed and that the weight be recorded upon admittance and upon release. A study of the individual records indicates that frequently no weights were entered on release. Moreover, while one might assume that solitary is usually reserved for the most recalcitrant of prisoners, it is apparent from this record that such confinement may be meted out at any time for any offense, regardless of its gravity, with no objective standards, and often summarily without a hearing. Except as noted these facts and conditions stand without dispute. And indeed, there is one fact which I feel must be emphasized. While no evidence was introduced to show the calorie content of two slices of bread, it is of such common knowledge that it need not be documented, it seems to me, that a slice of bread normally contains from 70 to 90 calories, and the very maximum for enriched bread would be 125 calories. This would mean a maximum of 250 calories a day. This is simply a starvation diet. Dr. Beto’s testimony that the prisoners in other kinds of segregation in T.D.C. were given a 2100 calorie diet because they were not engaged in active work rules out any justification for furnishing a diet of 250 calories a day to prisoners in solitary except as a matter of physical punishment. It must be noted at the outset that the T.D.C. does not challenge the jurisdiction of the Federal Court to pass judgment on these conditions if questioned as cruel and unusual. It does not argue that such prison matters should not be interfered with because the state now has a program gradually aimed at eliminating the excesses described above and is at least moving toward what various commentators have described as the “rehabilitative ideal.” It simply says these conditions should be acceptable as a part of the prison’s disciplinary scheme. It argues that, despite the fact, as the trial court found, “that certain aspects of the Texas approach are below the standards of some other states . . . especially with respect to food, lighting and recreation,” the conditions described above are not as bad as those in which courts have, in the past, found Eighth Amendment violations, and furthermore, such an ultimate sanction is absolutely necessary to preserve prison discipline. Along with the trial judge and the majority, I too have no doubt that this court has jurisdiction to pass on this issue. As the Supreme Court stated in Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1968): “Tennessee urges, however, that the contested regulation in this case is justified as part of the State’s disciplinary administration of the prisons. There is no doubt that discipline and administration of state detention facilities are state functions. They are subject to federal authority only where paramount federal constitutional or statutory rights supervene. It is clear, however, that in instances where state regulations applicable to inmates of prison facilities conflict with such rights, the regulations may be invalidated.” Since Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the prohibition against cruel and unusual punishment has been applicable to the states through the due process clause of the fourteenth amendment. Although we realize that federal courts have traditionally been reluctant to intervene in matters of prison discipline, they must, nonetheless, recognize their duty to adjudicate claims of cruel and unusual punishment when properly raised. Indeed, in the words of Mr. Justice Blackmun, writing as a circuit judge for the Eighth Circuit in Jackson v. Bishop, 404 F.2d 571, at 577, a class action brought under § 1983: “ . . . the courts, including this one, have not hesitated to entertain petitions asserting violations of fundamental rights and, where indicated to grant relief. In Glenn v. Ciccone, . . this court clearly indicated that ‘a factual showing of cruel and unusual punishment in violation of the Eighth Amendment’ would support interference by a federal court. 370 F.2d [361] at 363. We have made a like statement in many other cases. Carey v. Settle, 351 F.2d 483, 485 (8th Cir. 1965); Haynes v. Harris, 344 F.2d 463, 466 (8th Cir. 1965); Harris v. Settle, 322 F.2d 908, 910 (8 Cir. 1963), cert, denied, 377 U.S. 910, 84 S.Ct. 1171, 12 L.Ed.2d 179. Although the Eighth Circuit cases just cited concern a federal institution, the principle, of course, has equal application to a state penitentiary. Wright v. McMann; 387 F.2d [519] at 522 (2nd Cir. 1967); Howard v. Smyth, 365 F.2d 428 (4th Cir. 1966), cert, denied, 385 U.S. 988, 87 S.Ct. 599, 17 L.Ed.2d 449. (emphasis added) The court then went on to uphold the trial court’s injunction against the use of a strap for punishment in the Arkansas state prison system, relied on, of course, by the state as absolutely necessary to maintain discipline. I would conclude that the combination of circumstances in this case not only raises serious Eighth Amendment questions, but is sharply out of line with the “evolving standards of decency,” the standard set forth by the. Supreme Court in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1957). Further, I find such treatment to be a startling example of overkill, which, on the basis of this record, has a totally negative impact on any hope for rehabilitation. In short, I would find the solitary confinement as implemented by TDC to be a violation of the cruel and unusual punishment clause of the Eighth Amendment. A finding of cruel and unusual punishment does not depend upon the use of physical violence like the strap, the rack or the wheel of old. In Trop v. Dulles, supra, the Supreme Court held that deprivation of citizenship as a punishment for wartime desertion was cruel and unusual. In so doing the Court stated that denationalization was “a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development.” The “dignity of man” was said to be the overriding value to be preserved by the prohibition, and the court clearly recognized that the standard for determining whether a method of punishment was cruel and unusual must be based upon “evolving standards of decency that mark the progress of a maturing society.” The majority, however, though recognizing the recent tragic incidents in this Nation’s prisons, and “the lightless cell, the limited bedding, and the minimal food” provided the prisoners in this case, nevertheless states: “As judges, we must look to the extant law and the general practices of our society. Otherwise, we run the risk of imposing our own personal moral code on a perhaps unready society.” (emphasis added) Surely, our society has evolved to the point where a diet of two pieces of bread and a quantity of water, total darkness, scanty clothing, little or no exercise and the shaving of one’s head (a final act of humiliation) is beyond such “standards of decency” that can be tolerated, whatever the alleged benefit to prison discipline such treatment may yield. Not only do these conditions demean the human dignity of the inmate involved, but as they reflect the extent to which society will go in punishing its prisoners, they affect us all. For it is implicit in the Court’s opinion in Trop that imbedded in this society are certain standards of human decency that put a limit on the kind of punishment we will inflict on anyone, regardless of his offense. Though we may be dealing here with some of the most incorrigible members of our society (although not solely), how we treat these particular individuals determines, to a large extent, the moral fi-bre of our society as a whole and if we trespass beyond the bounds of decency, such excesses become an affront to the sensibility of each of us. The majority also implies that were we to find an Eighth Amendment violation in this case, we would be taking an unprecedented step. A look to the distant past as well as to a recent line of cases requires, I feel, a different conclusion. Indeed, the idea that certain kinds of solitary confinement constitute cruel and unusual punishment is not new. As long ago as 1890 the United States Supreme Court clearly saw and clearly articulated the vice of solitary confinement even for a relatively short period of time under conditions less onerous than those here under attack. In Medley, Petitioner, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835, an original application for habeas corpus in the Supreme Court, the Court considered whether the sentence of solitary confinement as a pz’elude to execution of the death sentence (to be accomplished within four weeks) violated the prohibition of Section 10 article 1 of the Constitution forbidding the passage of any ex post facto law. At the time of commission of the crime of first degree murder for which Medley was convicted and sentenced, there was no provision for solitary confinement in the state penitentiary while awaiting execution; the law formerly in force provided that such convicted murderer remain in the county jail until executed. In considering whether this change was “such invasion^) of his rights as to properly be called (an) ex post facto law(s)” the court said: “This matter of solitary confinement is not, as seems to be supposed by counsel, and as is suggested in an able opinion on this statute, furnished us by the brief of the counsel for the State, by Judge Hayt, (in the case of Henry Tyson,) a mere unimportant regulation as to the safe-keeping of the prisoner, and is not relieved of its objectionable features by the qualifying language, that no person shall be allowed access to said convict except his attendants, counsel, physician, a spiritual adviser of his own selection, and members of his family, and then only in accordance with prison regulations. Solitary confinement as a punishment for crime has a very interesting history of its own, in almost all countries where imprisonment is one of the means of punishment. In a very exhaustive article on this subject in the American Cyclopaedia, Volume XIII,. under the word “Prison” this history is given. In that article it is said that the first plan adopted when public attention was called to the evils of congregating persons in masses without employment, was the solitary prison connected with the Hospital San Michele at Rome, in 1703, but little known prior to the experiment in Walnut Street Penitentiary in Philadelphia in 1787. The peculiarities of this system were the complete isolation of the prisoner from all human society, and his confinement in a cell of considerable size, so arranged that he had no direct intercourse with or sight of any human being, and no employment or instruction. Other prisons on the same plan, which were less liberal in the size of their cells and the perfection of their appliances, were erected in Massachusetts, New Jersey, Maryland and some of the other States. But experience demonstrated that there were serious objections to it. A considerable number of the prisoners fell, after even a short confinement, into- a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system, and the separate system was originated by the Philadelphia Society for Ameliorating the Misc.ies of Public Prisons, founded in 1787. The brief of counsel for the prisoner furnishes us with the statutory history of solitary confinement in the English law. The act 25 George II, c. 37, entitled ‘An act for the better preventing the horrid crime of murder,’ is preceded by the following preamble: ‘Whereas, the horrid crime of murder has of late been more frequently perpetrated than formerly; and whereas it is thereby become necessary that some further terror and peculiar mark of infamy be added to the punishment of death now by law upon such as shall be guilty of the said offence’ — then follow certain enactments, the sixth section of which reads as follows: ‘Be it further enacted, That from and after such conviction and judgment given thereupon, the jailor or keeper to whom such criminal shall be delivered for safe custody shall confine such prisoner to some cell separate and apart from the other prisoners, and that no person or persons whatsoever, except the jailor or keeper, or his servants, shall have access to any such prisoner, without license being first obtained.’ This statute is very pertinent to the case before us, as showing, first, what was understood by solitary confinement at that day, and second, that it was considered as an additional punishment of such a severe kind that it is spoken of in the preamble as ‘a further terror and peculiar mark of infamy’ to be added to the punishment of death. In Great Britain, as in other countries, public sentiment revolted against this severity, and by the statute of 6 and 7 William IV, c. 30, the additional punishment of solitary confinement was repealed.” (emphasis added) The court concluded that this additional “infamous” punishment could not be meted out to the condemned murderer and since this was part of his sentence held to be void, and the law had repealed the old statute fixing punishment, the court was required to discharge the petitioner from his death sentence. We recognize that the solitary confinement in Medley’s case was while he was on death row, and this made more poignant, if not more punitive, the solitary confinement part of the sentence. However, we also note that there were not present several of the harshest features of solitary as it was suffered by the plaintiffs here. There was no bread and water diet; there was no total darkness, and for all that appears there was no complete lack of visitation. Moreover, in its discussion of the effect on the prisoners — “A considerable number of the prisoners fell, even after a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and, in most eases did not recover sufficient mental activity to be of any subsequent service to the community” (emphasis added) — the court spoke directly to the use of solitary confinement unrelated to the circumstances of an impending death sentence. The majority, however, notes that the recent cases which have held that certain conditions of solitary confinement have violated the cruel and unusual punishment clause have all involved unconscionably unsanitary conditions in the cells. Since the proof here is that the cells involved in this case are clean and the prisoners are provided with the basic implements of personal hygiene, no violation, they argue, has occurred. I reject such a narrow reading of these cases. Indeed, as one commentator has pointed out: “. . . the courts have not rested their decisions simply on that ground (sanitation). Rather, they have considered the totality of the dehumanizing circumstances and have condemned that totality as unconstitutional. Turner, 23 Stan.L.Rev. 473 at- (1971).” An examination of some of these cases reveals that unsanitary conditions were but one of many factors that led to the court’s decision. The fact they are lacking in the case at bar does not make this case unprecedented. It simply means that I rely on a different combination of dehumanizing factors that compel me to conclude that the Eighth Amendment has been violated. In Wright v. McMann, 387 F.2d 519 (2nd Cir. 1967), the solitary cell was encrusted with excrement. There was no soap, towels or toilet paper. Further, petitioner was placed in the cell entirely naked and, since there was only a toilet and a sink in the cell, he was forced to sleep on the concrete floor with the windows open, even during subfreezing weather. Petitioner also claimed that he received no advance notice from the prison authorities of the charges against him, was not permitted to call witnesses, confront his accusers or defend himself in any manner. As shocking as these facts are, it must be noted that Wright was not, as here, subject to complete sensory deprivation. His cell was lighted. Further, he was not placed on a starvation diet, but continued to receive the regular institution diet. Finally, it should be noted that as in Wright, there is considerable testimony to suggest that this punishment is often given out in a manner devoid of any procedural protections. In Hancock v. Avery, 301 F.Supp. 786 (M.D.Tenn.1969), the dry cell was unlighted, save for dim artificial light which was able to seep from the outside corridor through two small slit screens in the cell door, and the interior was devoid of furnishings except for a hole in the rear of the cell constructed to receive bodily wastes.