Full opinion text
TUTTLE, Circuit Judge: This appeal by the Superintendent of the Mississippi State Penitentiary, members of the Mississippi Penitentiary Board, and the Governor of the State of Mississippi, challenges the nature and extent of the equitable relief granted by the district court which required major physical facility renovations and administrative reforms at the Mississippi State Penitentiary, at Parchman, Mississippi (hereinafter Parchman). The district court made extensive findings of fact and conclusions of law, reported in Gates v. Collier, 349 F.Supp. 881 (N.D. Miss.1972). The decision held that the conditions and practices in the maintenance, operation and administration of Parchman deprived inmates of rights secured by the First, Eighth, Thirteenth and Fourteenth Amendments and by 42 U.S.C.A. §§ 1981, 1983, 1985 and 1994, and granted injunctive and declaratory relief for the plaintiffs. The decision of this Court has been withheld pending a decision by the Supreme Court in the case of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, 1974, a case which dealt with some of the issues here on appeal. The inadequateness of the Parchman prison facilities and its “trusty” personnel system as practiced are well established by the fact that the Governor of Mississippi forthrightly conceded the existence of constitutional violations in the Parchman operations: “We are, in effect, Your Honor, admitting that the constitutional provisions have been violated.” The Governor asked the court: “Isn’t there enough of the incriminating facts in these depositions and interrogatories to give the Court adequate grounds to find a conclusion of fact that the First Amendment and all other constitutional provisions have been violated . ?” A consultant committee engaged by the Mississippi State Planning Agency, the Law Enforcement Assistance Administration (LEAA) and the American Correctional Association concluded that present conditions at Parch-man are “philosophically, psychologically, physically, racially and morally intolerable.” The district court’s abstract of the findings of fact about the conditions and practices at Parchman paints a shocking picture. We proceed to summarize the structure of the decision, to examine whether any issues in this case must be initially considered by a statutory three-judge court, to review the court’s determination of the merits, and to discuss why we reject the appellants’ contention that the relief was too “sweeping.” I. SYNOPSIS OF DISTRICT COURT’S ORDER This action was commenced on February 8, 1971, by two overlapping classes of plaintiffs. The first class consisted of all inmates confined at Parchman, while the second class was comprised of black inmates whose grievances included racial discrimination and segregation, as well as deprivation of the broad range of rights claimed by the first class. A motion by the United States to intervene in this suit pursuant to 42 U.S.C.A. § 2000h-2 was granted on August 23, 1971. Thereafter, the parties conducted protracted pre-trial discovery proceedings. On May 11, 1972, four days before trial, counsel for all parties agreed to waive presentation of evidence in open court and to submit the case on the record including pleadings, stipulations, depositions, interrogatories and answers, offers of proof, factual summaries, proposed trial plans, evidentiary synopses, photographs, exhibits, reports and other documentary evidence assembled by the parties. All of these items were admitted into evidence, defendants stipulating that they would not contest the facts set forth therein. Findings of fact and conclusions of law were issued by the district court on September 12, 1972, but judgment was reserved pending a hearing on the proper form and measure of relief to be granted. Beginning on October 16, 1972, the district court held a two day hearing to solicit testimony from all interested parties and tehnical experts in order to assist its fashioning an appropriate judgment. Representatives of the LEAA advised the court that federal funds were available to aid the improvement of the conditions at Parchman. In the decision rendered on October 20, 1972, the district court divided its injunctive relief into two parts: (A) immediate and intermediate and (B) long-range. The (A) immediate and intermediate relief was directed towards (1) the elimination of unconstitutional censorship of prisoner mail; (2) the establishment of definite and constitutionally permissive rules and regulations regarding inmate discipline; (3) the prohibition of any form of corporal punishment of such severity as to offend present day concepts of human dignity; (4) the ban against use of disciplinary segregation or isolation at the Maximum Security Unit except under conditions which would satisfy the requirements of the cruel and unusual punishment clause; (5) the improvement of medical facilities and staff; (6) the institution of reasonable procedures to protect inmates from assault by fellow inmates; (7) the abolition of the trusty system insofar as it utilizes trusties in custodial positions; (8) and certain renovations in the physical facilities involving health hazards at Parchman. Regarding the (B) long-range relief, the court ordered the defendants to submit “a comprehensive plan for the elimination of all unconstitutional conditions in inmate housing, inadequate inmate housing, inadequate water, sewer and utilities, inadequate fire fighting equipment, inadequate hospital and other structures condemned by this court.” II. NECESSITY OF A THREE-JUDGE COURT At the outset, we ' must determine whether any questions in this case should have been presented initially to a statutory three-judge court. This task is imperative in light of the recent decision of this Court sitting en banc in Sands v. Wainwright et al., 491 F.2d 417 (5th Cir. 1974), which consolidated for opinion purposes four cases concerning inmates’ rights in state prisons. Sands et al. held that 28 U.S.C. § 2281 requires the empanelling of a three-judge court if the action to be enjoined is authorized by statewide prison regulations. However, having examined the issues in the en banc litigation we conclude that this law suit although similarly involving statewide prison regulations is presented in a significantly different posture, so as to preclude the necessity of a three-judge court. As we have already noted, the Governor of the State of Mississippi conceded the unconstitutionality of the practices and conditions at Parchman. For the following reasons this factor in the case at bar substantially distinguishes its framework from Sands et al. and precludes a finding that a substantial constitutional question is in controversy in this case, a prerequisite to empanelling a three-judge court. In Sands et al. this Court thoroughly reviewed the decisions having either an expansive or limiting impact on the application of the three-judge court statute, 28 U.S.C. § 2281. As outlined in the en banc opinion, one limiting doctrine is “the rule that a three-judge court need not be convened when either the constitutional attack on the State statute or regulation is insubstantial, Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, or the constitutional defense is frivolous, Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512.” Sands et al., supra, 491 F.2d at 422. Ex parte Poresky also teaches us that: “the question may be plainly insubstantial, either because it is ‘obviously without merit’ or because ‘its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ ” 290 U.S. at 32, 54 S.Ct. at 4. The only problem is that the test for determining the substantiality of the constitutional question elucidated in Ex Parte Poresky, supra, does not afford a formula which can be applied to a particular case with mathematical precision. See Green v. Board of Elections of City of New York, 380 F.2d 445, 448 (2d Cir. 1967). Fortunately, another Supreme Court decision, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), further clarified this test. In Bailey plaintiffs sought to enforce their rights to non-segregated transportation, allegedly refused them under color of state statutes. On appeal from an abstention order of a three-judge court, the Supreme Court held that the case was one for a single judge. Stressing that prior decisions had settled beyond argument that statutes requiring segregation of transportation were unconstitutional, the Court held: “Section 2281 does not require' a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Bell v. Waterfront Comm’n, 2 Cir., 279 F.2d 853, 857-858. We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional. Willis v. Walker, D.C., 136 F.Supp. 181; Bush v. Orleans Parish School Board, D.C., 138 F.Supp. 336; Kelley v. Board of Education, D.C., 139 F.Supp. 578. We denied leave to file petitions for mandamus in Bush, 351 U.S. 948, 76 S.Ct. 854, 100 L.Ed. 1472, and from a similar ruling in Booker v. Tennessee Board of Education, 351 U.S. 948, 76 S.Ct. 856, 100 L.Ed. 1472. The reasons for convening an extraordinary court are inapplicable in such cases, for the policy behind the three-judge requirement — that a single judge ought not to be empowered to invalidate a state statute under a federal claim — does not apply. The three-judge requirement is a technical one to be narrowly construed, Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800.” Id. at S3, 82 S.Ct. at 551. (Emphasis supplied). The import of the Bailey decision was to make it clear that a substantial constitutional question was not in controversy, not only when the claim was simply a frivolous attack on the constitutionality of a statute, but also when the unconstitutionality of a statute was obvious. It is further significant that Professor Currie in his often cited article “The Three Judge District Court in Constitutional Litigation,” 32 Chi.L.Rev. 1, 64-65 (1964), surmised that: “[t]his somewhat startling decision [Bailey v. Patterson, supra] had been foreshadowed by several opinions from the Fifth Circuit where confronted with great numbers of segregation cases all presenting the same, already decided question, the courts were understandably eager to avoid the burden of so many extraordinary benches. E. g., Board of Supervisors v. Tur-eaud, 225 F.2d 434, 446 (5th Cir. 1966) (Rives, J., concurring).” Continuing his exposition on the impact of Bailey, Professor Currie also stated: “Perhaps as when the invalidity of the statute is conceded there is no plausible claim of authorization by a ‘statute.’ ” Id. at 65. At another juncture in the article, footnote 222, the principle is reiterated in this manner: “Again, three judges are not required if the defendants concede the unconstitutionality of the statutes, for in substance this too is to disclaim reliance on a statute. Gibson v. Board of Pub. Instruction, 170 F.Supp. 454, 457 (D.Fla.1958) ; McKissick v. Durham Bd. of Educ., 176 F.Supp. 3, 12 (M.D.N.C.1959).” In addition in Gibson v. Board of Pub. Instruction, 170 F.Supp. 454 (S.D.Fla. 1958), the court held that the Florida statute in question obviously violated the constitution under the Brown decision, pointing out that all parties conceded this fact. No discussion was necessary; the court simply stated: “All parties concede this fact. A three-judge court, in this case, is not required,” citing Bush v. Orleans Parish School Board, 138 F.Supp. 337 (E.D.La.1956); Carson v. Warlick 238 F.2d 724 (4th Cir. 1956); Kelley v. Board of Education of Nashville, 139 F.Supp. 578 (M.D.Tenn.1956), aff’d., 270 F.2d 209 (6th Cir. 1959). Two other decisions referred to in Bailey are noteworthy: Willis v. Walker, 136 F.Supp. 181 (W.D.Ky.1955) and Kelley v. Board of Educ., 139 F.Supp. 578 (M.D.Tenn.1956). The plaintiffs in Willis v. Walker, supra, challenged the constitutionality of a state statute and constitutional provision authorizing segregation ; the defendants “freely conceded” that such constitutional and statutory provisions were invalid by reasons of the Supreme Court’s decision in Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Similarly, in Kelley v. Board of Educ., supra, a desegregation case controlled by Brown, the court held that there was no necessity for a three-judge court, since the unenforcibility of the constitution and statutes has been “conceded” by the defendants. Therefore, it has become settled that to justify convening a three-judge court it must appear that the constitutional question is a reasonably debatable one, and if the point raised in support of the allegation of unconstitutionality is one already determined by the Supreme Court, this precludes constitutional questions from being regarded as substantial. Another corollary of this principle is that if the parties concede the unconstitutionality of a statute or regulation or practice, there is no room for inference that the constitutional question raised is to be the subject of the controversy. Therefore, the question of the constitutionality of a given act may be insubstantial because previous decisions have either upheld or outlawed, the act, or, as we hold here, because the parties have conceded the unconstitutionality of all of the alleged acts whether authorized by statute or regulation or merely practiced. Just as the law became well-defined in the school desegregation suits, so progress the prisoner rights cases based on the conditions of inmate habitation and practices of prison administration. Apparently, the Governor of Mississippi, in recognition that Parehman was operated in such an unacceptable manner, chose to concede the unconstitutionality of the conditions and practices. The defendants on appeal to this Court only challenged the extent of the relief granted, and disputed neither the questions of fact nor conclusions of law made by the district court. Neither did the defendants urge the empanelling of a three-judge court. Of course, such a failure could not confer jurisdiction; but here there was simply no substantial constitutional issue in controversy. All agreed on the unconstitutionality. In conclusion, based on these decisions interpreting section 2281, we hold that, since the Governor of the State of Mississippi conceded the unconstitutionality of the practices and conditions at Parchman, no substantial constitutional question is in controversy in this case. III. MERITS OF THE PRISONERS’ COMPLAINTS Having resolved that none of the issues in this case must initially be heard by a three-judge court, we proceed to review the district court’s adjudication on the merits. The sole argument on appeal is that the state lacks the financial ability to implement the district court’s order within the time schedule designated, and that therefore, the court exceeded its jurisdiction in ordering the total elimination of the armed trusty system, the improvement of the physical facilities, the classification of inmates, the implementation of inmate protection procedures, and emendation of medical facilities. More specifically, the appellants’ argument is that after the entry of the judgment they immediately promulgated conforming rules and regulations concerning the censorship of mail, use of corporal punishment, the discipline of inmates, and disciplinary confinement, but lacked the funds to effectuate the other portions of the judgment in accordance with the time guidelines specified. It is important to note that the appellants do not challenge, for example, the court’s holding that equal protection requires reclassification of the inmates on a basis other than race or that the Eighth Amendment requires improvements in the physical and medical facilities at Parchman and the elimination of the trusty system. The appellants did not deny the unconstitutionality of their previous operation and administration of Parchman and do not now controvert the constitutional mandate for the reforms ordered. Rather their sole argument is that they do not have the financial capacity to effectuate these reforms. To reiterate, appellants do not challenge a single finding of fact or conclusion of law by the trial court. However, in order to evaluate the issues here it is necessary to consider the threshold question of whether the district court, given the concession of the unconstitutionality of the current practices at Parchman, correctly determined to what extent changes in Parchman’s facilities and administrative practices must be effectuated in order to meet constitutional standards, and, then, secondly, to determine whether fund shortage may require a modification of the district court’s judgment regarding these matters. Each component of the district court’s judgment regarding these matters will be individually examined. It should be repeated that none of the district court’s findings of fact is disputed by the appellants. We simply adopt those findings throughout our discussion. The severest criticisms that follow are in the words of the trial court. A. Elimination of Racial Segregation and Discrimination: The practice at Parchman has been and is to maintain a system of prison facilities segregated by race through which black inmates are subjected to disparate and unequal treatment. Blacks are housed in more crowded quarters than whites, are assigned to different work details, are denied the same vocational training opportunities and are punished and disciplined more severely than whites for the same offense. Undoubtedly the appellants’ policy of segregating inmates in housing facilities, unrelated to prison security and discipline, is in violation of the equal protection clause of the Fourteenth Amendment. We need not labor the point that a State may not constitutionally require segregation of public facilities, Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963), and the principle is as applicable to jails as to other public facilities. Lee v. Washington, 263 F.Supp. 327 (M.D.Ala.1966), aff’d., 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); United States v. Wyandotte County, Kansas, 480 F.2d 969 (10th Cir. 1973). As reiterated by the Supreme Court in Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1971) ; “ . . . racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for ‘the necessities of prison security and discipline.’ Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L. Ed.2d 1212.” For other cases in which this principle has been applied to the administration of correctional institutions, see, e. g., Owens v. Brierley, 452 F.2d 640 (3rd Cir. 1971); McClelland v. Sigler, 327 F. Supp. 829 (D.Neb.1971), aff’d., 456 F.2d 1266 (8th Cir. 1972); Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff’d., 442 F.2d 304 (8th Cir. 1971); Wilson v. Kelley, 294 F.Supp. 1005 (N.D.Ga. 1968), aff’d., 393 U.S. 266, 89 S.Ct. 477, 21 L.Ed.2d 425 (1968); Tilden v. Pate, 390 F.2d 614 (7th Cir. 1968); Rivers v. Royster, 360 F.2d 592 (2d Cir. 1966); Rentfrow v. Carter, 296 F.Supp. 301 (N.D.Ga.1968). Therefore, as part of the intermediate relief the district court’s judgment enjoined the defendants from engaging in racial discriminatory practices of any nature in the operation or administration of the penitentiary. Recognizing that immediate desegregation in housing facilities could not feasibly be accomplished, the district court allowed the prison authorities until April 20, 1973, six months from the date of the judgment on October 20, 1972, to devise and implement a plan desegregating the housing facilities. Such relief was well considered, was within the jurisdiction of the district court and necessary for the prison operation to comport with the equal protection clause. B. Physical Facilities and Medical Treatment The district court findings of fact, unchallenged here by appellants, described the living conditions at Parch-man as follows. The housing units are unfit for human habitation under any modern concepts of decency. Facilities for the disposal of human waste at all camps present an immediate health hazard; contamination of the prison water supply caused by inadequate sewage has led to the spread of infectious diseases. The entire waste disposal system has been condemned by state health and pollution agencies. The electric wiring is frayed and exposed, representing a safety hazard. At most camps there is a lack of adequate fire fighting equipment making it, as stated by the Penitentiary Superintendent, “almost impossible to put out a fire at Parchman with the present water system and the present fire-fighting equipment.” The bathroom, kitchen, heating, and housing facilities are inadequate. Broken windows are stuffed with rags to keep out the cold and rain. The bathroom facilities lack the number and quality of operable commodes, showers and other hygienic necessities. For example, at Camp B., for 80 men, there are three wash basins which consist of oil drums cut in half. The building facilities at most camps, “are in a deplorable state of maintenance and repair,” as reported by the Mississippi Joint Legislative Committee, January 4, 1971, and result in sub-human conditions. The medical staff and available facilities fail to provide adequate medical care for the inmate population. As a result many inmates have not received prompt or efficient medical examination, treatment, or medication. Unsanitary conditions are rampant. Some inmates with serious contagious diseases are allowed to mingle with the general prison population; other inmates have developed complications from lack of medical treatment. Inmates are often discouraged from seeking medical attention by the prison practice of punishing those who on examination appear to be healthy. The prohibition against cruel and unusual punishment contained in the Eighth Amendment, applicable to the State of Mississippi through the Due Process Clause of the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), is not limited to specific acts directed at selected individuals, but is equally pertinent to general conditions of confinement that may prevail at a prison. Our decisions have recognized the right of prisoners to seek judicial review of their conditions of confinement and have provided relief from unconscionable methods of incarceration. See, e. g., Hutchens v. State of Alabama, 466 F.2d 507 (5th Cir. 1972); Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972); Novak v. Beto, 453 F.2d 661 (5th Cir. 1971); Rocha v. Sowers, 454 F.2d 1155 (5th Cir. 1972) ; Woolsey v. Beto, 450 F.2d 321 (5th Cir. 1971); Sinclair v. Henderson, 435 F.2d 125 (5th Cir. 1970). Although the prison officials possess broad discretion in the area of conditions of confinement, this Court has repeatedly stated that there may be cases in which the deprivation of medical care or hygienic facilities will warrant judicial action. See, e. g., Haskew v. Wainwright, 429 F.2d 525 (5th Cir. 1972); Roy v. Wainwright, 418 F.2d 231 (5th Cir. 1969) ; Granville v. Hunt, 411 F.2d 9 (5th Cir. 1969). Thompson v. Blackwell, 374 F.2d 945 (5th Cir. 1967); Schack v. Florida, 391 F.2d 593 (5th Cir. 1968); Bowman v. Hale, 464 F.2d 1032 (5th Cir. 1972). Burroughs v. Wainwright, 464 F.2d 1027 (5th Cir. 1972). It is pertinent to review this Court’s discussion in Novak v. Beto, 453 F.2d 661 (5th Cir. 1971), rehearing denied en banc, 456 F.2d 1303 (5th Cir. 1972), of the common thread in cruel and unusual punishment cases. In Novak, this Court held, one judge dissenting, that the lightless cell, the limited bedding and the minimal food provided prisoners in solitary confinement in Texas did not constitute cruel and unusual punishment. A noteworthy portion of the decision is the court’s lengthy discussion emphasizing that the factual situation there did not involve a deprivation of basic elements of hygiene nor any threat to the prisoners’ health: “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 herein 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 sub-freezing 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.” (Emphasis added) 453 F.2d at 665. In addition, one segment of the Novak decision, labelled “Exercise Caution So That Health Is Not Jeopardized,” states: “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.” 453 F.2d at 670. Moreover, this Court in Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972) has recently reaffirmed this discussion in Novak as follows: “ . . . it is apparent that the courts cannot close their judicial eyes to prison conditions which present a grave and immediate threat to health or physical well being. Haines v. Kerner, supra, [1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652] ; Woolsey v. Beto, 5 Cir. 1971, 450 F.2d 321; Rocha v. Sowers, 5 Cir. 1972, 454 F.2d 1155; Jackson v. Bishop, 8 Cir., 1968, 404 F.2d 571; Novak v. Beto, 5 Cir., 1971, 453 F.2d 661, 665, rehearing en banc denied, 1972, 456 F.2d 1303. If the ‘deprivation of basic elements of hygiene’ has consistently been held violative of constitutional guarantees (see Novak, supra, 453 F.2d at 665), then certainly practices which result in the deprivation of basic elements of adequate medical treatment, particularly such deprivation as immediately threatens life and limb, would be equally vulnerable.” (Emphasis supplied). Thus the adequacy of conditions of confinement of prisons — such as medical treatment, hygienic materials, and physical facilities — is clearly subject to Eighth Amendment scrutiny. In contrast to the factual situation in Novak, this case involves conditions and practices that clearly threaten the health and well being of the prison community and substantially deprive inmates of basic elements of hygiene and adequate medical treatment. The district court found that the plaintiffs in this case had shown by substantial evidence that the prison authorities had clearly abused their discretion in providing physical facilities and medical treatment to inmates. In addition, these conditions deny inmates proper care, treatment, and feeding as required by State law, Miss.Code Ann. § 7930, wholesome food prepared under sanitary' conditions as required in Miss.Code Ann. § 7942, and efficient hospital and medical services as provided in Miss.Code Ann. § 7959. Although constitutional questions do not arise merely because a state prisoner has been treated at variance with state law, it is still significant that the current conditions at Parchman even fail to comply with the state standards, much less constitutional norms. Therefore, we agree with the district court's conclusion that the prison authorities have abused their discretion and that the confinement of inmates at Parchman, in barracks unfit for human habitation and in conditions that threaten their physical health and safety and deprive them of basic hygiene and medical treatment by reason of gross deficiencies in plant, equipment and medical staff, not only departs from state law, but constitutes cruel and unusual punishment. To reiterate, the defendants admitted the unconstitutionality of these conditions, the district court so found, and our review of the law compels us to agree. The challenged issue is whether the district court’s judgment here ordered relief beyond what was minimally required to comport with the Constitution’s prohibition against cruel and unusual punishment. As immediate relief regarding medical care, the district court required the defendant prison authorities (1) to employ such additional medical personnel as necessary so that the prison’s medical staff shall consist of at least three full-time physicians, two full-time dentists, two full-time trained physician assistants, six full-time nurses certified as RN or LPN, one medical records librarian, and two medical clerical personnel, and to obtain the consultant services of a radiologist and a pharmacist; (2) to comply with the general standards of the American Correctional Association relating to medical services for prisoners; (3) to have the prison hospital and equipment brought into compliance with state licensing requirements for a hospital and infirmary, including adequate treatment for the chronically ill; (4) to refrain from punishment unless the superintendent makes an express finding that the inmate seeks medical care unnecessarily and for malingering purposes; and (5) to refrain from the use of inmates to fill any of the above described civilian medical staff, but to encourage utilization of trained and competent inmate personnel to supplement the above minimal civilian medical staff. As immediate relief concerning the physical facilities, the court ordered the defendant prison officials to make all improvements and expenditures which were specified in the Interim Committee’s Report on Mississippi State Penitentiary (subject to recommendations of State pollution authority.) These improvements, which include the installation of facilities, renovation of living quarters, employment of additional personnel, and purchase of other equipment and supplies, were ordered to be completed by December 20, 1972. In addition, the court instructed the defendants to file by December 20, 1971 a report with the court which details all facilities and equipment purchased, installed, and/or improved, the location of such installation or improvement, and the date of the installation or improvement. As long range relief, the district court instructed the prison officials to submit by December 20, 1972, a comprehensive plan for the elimination of all unconstitutional conditions in inmate housing, inadequate inmate housing, inadequate water, sewer and utilities, inadequate fire fighting equipment, inadequate hospital and other structures. The court then suggested areas of study that should be included in this plan, “without undertaking to dictate or limit the nature or content of long-range plans.” The court’s order regarding immediate relief reflects a tenor of restraint and use of independent sources’ studies, in determining to what extent the conditions at Parchman must be changed in order to meet minimal constitutional standards. The appellants’ brief does not challenge specific elements in the order, but generally complains of insufficient funds to implement these ingredients. The district court found that the record showed that the medical facilities were grossly understaffed and the physical facilities totally inadequate. The more difficult task is discerning the exact remedy to eleviate these conditions to minimal constitutional standards. At this juncture, approximately two years after the entry of the district court’s initial judgment, we are concerned over unnecessarily and uninformedly adjudicating this complex question. In view of the recognition by the prison officials themselves of the unconstitutionality of the practices and the extensive studies, compiled by the Mississippi Legislature and other professional consultants, recommending renovations in these two areas, we must assume at least initial improvements have been accomplished. Furthermore, the district court ordered the defendants to submit a long range plan for improving medical and physical facilities. This court does not know the content of this plan, and to what extent, if any, the prison officials have already remedied the conditions at Parchman. In short, we clearly have affirmed that part of the district court order recognizing the unconstitutionality of the conditions generated by the inadequate medical care and insufficient physical facilities. In addition, we recognize the district court’s power to prescribe a remedy. However, any decision dissecting what precise degree of improvements in these two areas is necessary to meet constitutionally minimal standards is premature at this stage. We uphold the present injunctive relief for the time being, but recognize that the district court has retained jurisdiction to update the present conditions at Parchman. Given the avowed interest of various entities, including the Mississippi Legislature, the LEAA and other consultant professionals in this project, it is anticipated that cooperation will prevail and will result in implementing the necessary constitutional innovations. C. Solitary Confinement: The penitentiary superintendent’s statutory authority to prescribe rules regarding solitary confinement of prisoners is limited by Miss.Code Ann. § 7968 in the following manner: “The superintendent may set up rules regarding the discipline of prisoners. No prisoner may be placed in solitary confinement except under orders of the superintendent. Any prisoner held in solitary confinement shall be fed at least once every day and shall be examined by a physician at least once every two (2) days. No prisoner shall be placed in the ‘dark hole’ of the maximum security unit for a longer period than twenty-four (24) hours. . . . ” Although solitary confinement, as a mode of punishment, is not per se cruel and unusual, there are constitutional boundaries to its use. There is a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment. Once again, a prerequisite in resolving whether the solitary confinement as practiced at Parchman, constitutes cruel and unusual punishment, is to examine the solitary confinement conditions in Novak, supra, which this Court held not violative of the Eighth Amendment. Solitary confinement in Novak, was described as follows: “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.” 453 F.2d at 665. These conditions of solitary confinement in Novak are completely dissimilar to those in the case at bar. At Parchman, each wing of the Maximum Security Unit (MSU) contains thirteen cells, each of which is approximately 8' x 10' in size. The individual cells are equipped for use by two men, with double metal bunks, lavatory and commode. In addition, each side has one 6' x 6' cell, known as the dark hole, with no lights, commode, sink or other furnishings. A hole in the concrete floor is located in the middle of the cell and is approximately 6" in diameter that will flush to dispose of body wastes. A heavy metal door without a window closes the cell. For solitary confinement at Parchman the inmates are placed in the dark hole, naked, without any hygienic material, without any bedding, and often without adequate food. It is customary to cut the hair of an inmate confined in the dark hold by means of heavy-duty clippers. Inmates have frequently remained in the dark hold for forty-eight hours and may be confined there for up to seventy-two hours. While an inmate occupies the dark hole, the cell is not cleaned, nor is the inmate permitted to wash himself. Even under the restrictive standards for determining cruel and unusual punishment enunciated in Novak, this solitary confinement in the dark hole at Parchman undoubtedly meets the test as found by the district court. It is unassailable that the solitary confinement of naked persons in MSU’s dark hole, without any hygienic materials, any bedding, adequate food or heat, without opportunity for cleaning either themselves or the cell, and for longer than twenty-four hours continuously, is constitutionally forbidden under the Eighth Amendment. The district court refused to enjoin use of the dark hole under all circumstances, but permitted its use only under the following conditions: (1) inmates be fed the daily prison ration, or at least 2000 calories per day; (2) inmates be permitted to wear regular institutional clothing; (3) inmates be supplied with soap, towels, toothbrush and shaving utensils; (4) all cells be adequately heated, ventilated and maintained in a sanitary condition; (5) no inmate shall be confined in any isolation cell, referred to as the dark hole, for a period in excess of twenty-four hours. The time limitation and food provision were already required by the state law, Miss. Code Ann. § 7968. The clothing, heating, sanitation stipulations merely conform to the conditions of solitary confinement existing in Novak. It is clear that these changes ordered by the district court only alleviate the conditions of solitary confinement to minimal constitutional standards and do not exceed the court’s remedial jurisdiction. D. Corporal Punishment: In addition to prescribing the length of solitary confinement, Miss.Code Ann. § 7968 also expressly discourages corporal punishment of any kind, and forbids it except upon express written order of the superintendent. Section 7968 makes it illegal for any prison official other than the superintendent to order corporal punishment; and where corporal punishment is expressly authorized by the superintendent, it is limited to the whip or lash, which is not to be used for more than seven licks. While the evidence indicated that the lash had not been used at Parchman since 1965, the record was replete with innumerable instances of physical brutality and abuse in disciplining inmates who are sent to MSU. These include administering milk of magnesia as a form of punishment, stripping inmates of their clothes, turning the fan on inmates while naked and wet, depriving inmates of mattresses, hygienic materials, and adequate food, handcuffing inmates to the fence and to cells for long periods of time, shooting at and around inmates to keep them standing or moving, and forcing inmates to stand, sit or lie on crates, stumps, or otherwise maintain awkward positions for prolonged periods. Indeed, the district court found the superintendent and other prison officials acquiesced in these practices. Unquestionably, the district court correctly enjoined prison authorities from punishing inmates by these methods of corporal punishment. We have no difficulty in reaching the conclusion that these forms of corporal punishment run afoul of the Eighth Amendment, offend contemporary concepts of decency, human dignity, and precepts of civilization which we profess to possess. See, e. g., Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (J. Black-mun) (use of strap for whipping). E. Trusty System: A system of inmate trusties is authorized by Miss.Code Ann. § 7965 until July 1, 1974: “From and after July 1, 1974, no inmate at the penitentiary shall serve as a trusty and perform any duties of guarding other inmates to prevent their escape. Prior to the date aforesaid, the superintendent may select a reasonable number of deserving and trustworthy inmates to be used to guard inmates and to supervise their prison work details. The superintendent shall, within the monies appropriated by the Legislature, employ a reasonable number of civilian guards to prevent inmates from escaping and in supervising inmates’ work details. The Board is authorized to eliminate the trusty system at a faster and earlier date if deemed feasible and consistent with consolidation procedures and operations as outlined in Section 11 [§ 7926.5] of this act.” (Emphasis supplied). The inefficacy of the Parchman trusty system stemmed from the prison authorities’ failure to select as trusties “deserving and trustworthy inmates” as required by state law. The district court found that the trusties at Parchman were selected by the sergeants without the use of objective criteria or uniform standards and in a process infected with payoffs, favoritism and extortion. The responsibility of guarding other inmates was primarily performed by these trusties. Some of the trusties were armed, referred to as “trusty shooters” and numbering approximately 150. Armed trusties guarded each of the prison camps, oversaw inmates while working in the fields, and on occasions were left in sole charge of the fields. Penitentiary records indicated that some of the armed trusties had been convicted of violent crimes, and, that of the armed trusties serving as of April 1, 1971, thirty-five percent had not been psychologically tested, forty percent of those tested were found to be retarded, and seventy-one percent of those tested were found to have personality disorders. There was no formal program for training trusties. Trusties were instructed to maintain discipline by shooting at inmates who got out of gun line; in many cases trusties had received little training in the handling of firearms. In addition to abusing their authority and engaging in loansharking, extortion and other illegal conduct, the trusties shot, maimed or otherwise physically maltreated scores of inmates subject to their control. For example, during Superintendent Cook’s administration, thirty inmates received gunshot wounds, an additional twenty-nine inmates were shot at, and fifty-two inmates were physically beaten. On October 20, 1972, the district court ordered the prison officials (1) to eliminate all trusties at MSU and replace them with civilian guards; and (2) to replace all armed shooters in the fields with civilian guards by December 20, 1972. On that.date the prison authorities were to submit a plan for the total elimination of the use of trusties for armed guard duty and for other custodial responsibility no later than June 20, 1973. In the interim period, i. e. from October 20, 1972 to June 20, 1973, custodial trusties could be used if selected after a careful review of inmate personnel records and psychological tests assuring that the inmates were mentally and emotionally fit to perform their assigned tasks. In section 7965 the Mississippi Legislature has called for the complete elimination of this trusty system by July 1, 1974. That statute encourages this eradication at a “faster and earlier date if deemed feasible.” Furthermore, the Parchman trusty system has been the subject of investigation and critical comment in past years by committees of the Mississippi Legislature, by public officials and by a study team from the University of Georgia. Comprehensive reports of such findings were last submitted to the Mississippi Legislature in 1971. As a result, section 7965 calling for the removal of the trusty system was approved April 29, 1971. More recently, a consultant committee engaged by the Mississippi State Planning Agency, the LEAA, and the American Correctional Association reviewed conditions at Parchman and found that the prison was operated in accordance with the following three principles which must be eliminated to correct gross deficiencies in the prison administration, to wit: (1) The prison system must operate at a profit at any cost; (2) Armed inmate guards are acceptable and capable of insuring safety and security within the system; and (3) Security and control of inmates are insured through maintaining a high degree of fear within the inmate population. One basis for the district court’s order was that the trusty system, as presently constituted and practiced, was a method of cruel and unusual punishment. After placing in the hands of some inmates weapons or other forms of control over the other inmate population, the prison officials either could not or had failed to prevent the arbitrary infliction by the trusties of physical and economic injury upon their fellow inmates. A second underpinning of the district court order was deviation from state law: “Indeed, the Mississippi statutes do not contemplate for guard duty the use of trusties who are corrupt, venal, incompetent, or dangerous.” Moreover, the Mississippi Legislature had even called for its elimination. We have no difficulty in reaching the conclusion that this trusty system, which utilizes unscreened inmates violates state law, and which allows inmates to exercise unchecked authority over other inmates, constitutes cruel and unusual punishment in violation of the Eighth Amendment, warranting the district court’s prohibition of certain portions of the trusty system prior to the legislative cut off date of July 1, 1974. We do not discuss at length the intricacies of the procedure for eliminating the trusty system as proposed by the district court’s order, for due to the lateness of the hour even the cut off date proscribed by Mississippi’s Legislature has passed. The district court’s abolition of the trusty system can easily be justified at this juncture as simply in conformance with the state law. F. Inadequate Protection of Inmates: Inmates, except those who are in MSU, are housed in buildings which have two separate wings and contain barracks known as “cages”; one for regular inmates called “gunmen” and the other for trusties. On the gunmen side the inmates are placed in one large room where they are assigned to bunks. The district court found that the risk of personal injury inherent in this cage confinement was increased by the following practices. The inmates are not classified according to the severity of their offense, resulting in the intermingling of inmates convicted of aggravated violent crimes with those who are first offenders or convicted of nonviolent crimes. In addition, the custodial responsibility of inmates has been assigned to other inmates who serve as hallboys, floorwalkers and cage bosses. Hallboys perform administrative duties; floorwalkers are non-trusties who perform custodial duties and on whose recommendation inmates may be punished. Cage bosses are charged with enforcing discipline in the barracks. The evidence is replete with instances of inhumanities, illegal conduct and other indignities visited by these inmates who exercise authority over their fellow prisoners. Although many inmates possess weapons, there is no established procedure for discovering and confiscating weapons, nor is possession of weapons reported or punished. The record revealed at least eighty-five instances where inmates had physically assaulted other inmates; twenty-seven of these assaults involved armed attacks in which an inmate was either stabbed, cut or shot. Only one civilian guard is assigned to each camp. The one civilian guard is prohibited from entering the cages. As stated by Superintendent Cook, penitentiary employees have no control over inmates after the lights are turned out and “there is no way that anyone can guard the safety of an inmate in the Parchman situation,” because of the dormitory style system and the lack of civilian guards. The district court found that in some cases, supervisory personnel have allowed inmates to fight, gamble and acquire liquor and drugs in violation of prison rules and state law. The operation of the trusty system, as previously outlined, further compounds the dilemma of the protection of inmates. The district court determined that the Parchman administration had subjected its inmate population to cruel and unusual punishment by failing to provide adequate protection against physical assaults and abuses by other inmates, by placing excessive numbers of inmates in barracks without adequate classification or supervision, and by assigning custodial responsibility to incompetent and untrained inmates. While prison officials may take all reasonable steps to insure proper prison discipline, security and order without threatened intervention by a federal court, the actions and practices here go far beyond any concept of reasonableness. It is the obligation of penitentiary officials to insure that inmates are not subjected to any punishment beyond that which is necessary for the orderly administration of Parchman. Although the limits of the Eighth Amendment’s proscription are not easily or exactly defined, certainly one facet of cruel and unusual punishment would be caging inmates in one barrack room and giving incompetent inmates weapons, the authorization to use them and the power to recommend disciplinary action, unsupervised by any prison authorities, which results in assaults on other inmates. The infliction of these physical injuries is no less tolerable because accomplished by the inmates with the assistance and acquiescence of the prison authorities, then if perpetrated by the prison superintendent alone. Each factor separately, i. e., overcrowding dormitory barracks, lack of classification according to severity of offense, untrained inmates with weapons, lack of supervision by civilian guards, absence of a procedure for confiscation of weapons, may not rise to constitutional dimensions; however, the effect of the totality of these circumstances is the infliction of punishment on inmates violative of the Eighth Amendment, as determined by the trial court. Therefore, the district court ordered the prison authorities to implement (1) a system of assigning inmates to barracks according to the severity of their offense, (2) a system of reporting inmate assaults to the County Prosecuting Officer, maintaining a record of assaults on other inmates, and making reasonable efforts to isolate inmates who have a history of violence on other inmates, (3) a procedure for controlling the possession of weapons by inmates, (4) a rule prohibiting gambling and fighting, (5) a plan requiring three civilian guards to be assigned to each barracks during night hours and the inmate cage bosses, hallboys, and floorwalkers to be relieved of all custodial responsibilities, and (6) the temporary measure of placing wire or other dividers in appropriate places to ameliorate the risk of personal injury by overcrowding of inmates in a single room. These were regarded as interim measures to be carried out by December 20, 1972, within two months of the judgment. The modification of the physical facilities generally and the eradication of the entire trusty system, two elements of relief in other areas, were conceived to provide the necessary greater long term improvements in inmate protection. Not only do. we agree that the totality of the present practices fosters cruel and unusual punishment, but we also conclude that none of the above measures ordered' require burdensome implementation or is beyond the remedial jurisdiction of the district court. Rather they merely construct the minimal foundation for assuring that the confinement in the present dormitory style facilities at Parchman does not run afoul of the Eighth Amendment. Constantly mindful that the federal courts should not undertake to run the prison and completely aware as we are that this part of the judgment does set forth tasks involved in the administration of a penal institution, we nonetheless determine that the remedy ordered simply sets forth the parameters for administration and leaves for the prison officials wide latitude in which to devise the manner in which these concepts may be implemented. G. Mail Censorship: Prior to trial, the practice at Parch-man was to censor all incoming and outgoing mail of inmates. On May 5, 1972, Superintendent Collier issued a memorandum on correspondence advising that there would be no censorship of incoming or outgoing mail, that there would be no limit to letters an inmate may write except where limitation may be imposed as a matter of discipline, and that only incoming mail would be opened in the presence of the inmate to determine whether money is contained therein. The October 20, 1972 judgment of the district court ordered the following regarding correspondence: “(1) Said defendants, and all persons in privity with them, shall not open or otherwise interfere with any outgoing mail of inmates addressed to: (a) Officials of the federal, state and local courts; (b) All federal officials including the President of the United States, any senator or congressman, and officials of any United States agency or department; all state officials including the Governor, members of the state Senate and House of Representatives and officials of any state agency or department; (c) All members and employees of the State Probation and Parole Board; (d) The attorney of record of an inmate in any pending action, civil or criminal, in any duly constituted local, state or federal court. (2) Said defendants, and all persons in privity with them, are prohibited from interfering with outgoing mail of inmates to any other addressee except to open and inspect, in the presence of the inmate, any letter where prison officials have reasonable ground to suspect such communication is an attempt to formulate, devise or otherwise effectuate a plan to escape from the penitentiary, or to violate the laws of the State of Mississippi or of the United States. (3) The defendants, and all persons in privity with them, are prohibited from interfering with incoming mail from any source except to open and inspect such mail, in the presence of the inmate addressee, whenever the prison officials have reasonable grounds to suspect escape attempts or to discover drugs, weapons or other material expressly prohibited by state or federal law or by prison rules. (4) There shall be no restriction placed on the number of letters that an inmate may write to the addressees listed in (1) above. Reasonable limitations may be imposed upon all other classes of mail as an appropriate disciplinary measure pursuant to published prison rules.” (Emphasis supplied) . In the February, 1973 handbook, the Mississippi Penitentiary Board promulgated new regulations regarding correspondence which fully incorporated each requirement of the district court’s prescription. Although the appellants challenge the district court’s order in its entirety on appeal, the mail issue was not focused upon as beyond the remedial jurisdiction of the district court. Moreover, two recent Supreme Court cases have made it clear that revision in Parchman’s mail rules was constitutionally compelled. In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L. Ed.2d 224 (1974), the Supreme Court held that First Amendment liberties of the correspondents with inmates were implicated in censorship of inmate mail. Noting that the federal courts have traditionally adopted a broad hands-off attitude toward problems of prison administration, the Supreme Court, nonetheless, determined that prison officials did not have unbridled discretion in establishing inmate mail regulations. The majority opinion emphasized that it was not adjudicating to what extent an inmate’s right to free speech survives incarceration, but grounded its holding on the narrower basis that the inmate correspondent’s rights were being violated by the censorship. The Court stressed that whatever the status of an inmate’s claim to uncensored mail, the censorship of prisoner mail concomitantly imposes a restriction on the First and Fourteenth Amendment rights of those who are not prisoners, and therefore may be curbed. The Court then formulated the proper standard for deciding whether a particular regulation or practice relating to inmate correspondence constitutes an impermissible restraint of the First Amendment liberties of the inmate’s correspondent. The Court held that the censorship of inmate mail was justified (1) if the regulation or practice in question furthered an important or substantial governmental interest unrelated to the suppression of expression and (2) if the limitation of First Amendment freedoms was no greater than is necessary or essential to the protection of the particular governmental interest involved. Utilizing that standard, the Supreme Court upheld the district court’s invalidation of regulations that authorized, inter alia, censorship of statements that “unduly complain” or “magnify grievances,” expressions of “inflammatory political, racial, or religious or other views,” and matter deemed “defamatory” or “otherwise inappropriate.” In addition, the Procunier Court agreed with the district court that the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards. The Court approved the district court’s requirement that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence. Soon thereafter, the Supreme Court again considered inmate correspondence in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), where the narrow issue presented was whether incoming letters from attorneys could be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques failed to indicate contraband. The prison regulation under challenge in that case provided that “all incoming and outgoing mail will be read and inspected.” The state conceded that it could not open and read incoming mail from attorneys, but contended, that it could open all incoming letters from attorneys in the presence of the inmates. Ultimately, the Wolff Court did not adjudicate the constitutional requirements pertinent to the opening of inmate-attorney mail, for the Court concluded that “the State [in that case], by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, has done all, and perhaps even more, than the Constitution requires.” 418 U.S. 539, 577, 94 S.Ct. 2963, 2985, 41 L.Ed.2d 935. Therefore, the issue whether the inspection of incoming mail from attorney must be accompanied by the presence of the inmate in order to satisfy const