Full opinion text
ALVIN B. RUBIN, Circuit Judge: “There is no iron curtain drawn between the Constitution and the prisons of this country.” When the remedial powers of a federal court are invoked to protect the constitutional rights of inmates, the court may not take a “hands-off” approach. The duty to protect inmates’ constitutional rights, however, does not confer the power to manage prisons, for which courts are ill-equipped, or the capacity to second-guess prison administrators. Federal courts should not, “in the name of the Constitution, become ... enmeshed in the minutiae of prison operations.” Our task is limited to enforcing constitutional standards and does not embrace superintending prison administration. This class action on behalf of more than 33,000 inmates confined in the various institutions operated by the Texas Department of Corrections (“TDC”) challenges the conditions of their confinement as cruel and unusual punishment and a denial of due process of law in violation of the eighth and fourteenth amendments to the Constitution. We are required to determine whether the district court correctly found that the conditions of confinement in TDC violate the Constitution and, if so, whether the remedy imposed went beyond the correction of constitutional deficiencies and intruded unduly on the state’s management of its prison system or enmeshed the court in the details of prison management. We affirm the district court’s finding that TDC imposes cruel and unusual punishment on inmates in its custody as a result of the totality of conditions in its prisons. We also affirm the district court’s finding that some of TDC’s practices deny inmates due process of law. We affirm its conclusion that remedial measures are necessary. Concluding, however, that the district court inappropriately considered state law claims not raised by the parties, we reverse its order that TDC conform its practices to state statutory requirements. We also conclude that some of the remedial measures ordered are not demonstrably required to protect constitutional rights and intrude unduly on matters of state concern and we, therefore, narrow the scope of the relief ordered. An outline of our lengthy opinion is set forth in the margin. I. INTRODUCTORY FACTS The Texas state prison system, operated by TDC, is the largest in the United States. Its inmates, now numbering more than 33,-000, are confined in cells or dormitories located in twenty-two separate units, almost all of which have maximum security. Most of the approximately 10,000 cells measure nine feet by five feet, but some are as large as sixty-six square feet. Most of the dormitories house large numbers of inmates and are crowded. After the consolidation of eight separate actions by individual inmates against W. J. Estelle, the Director of TDC, challenging the conditions of their confinement, the district court certified the case as a class action and permitted the United States to intervene as a plaintiff. The trial began in Houston on October 2, 1978, and, after 159 days of trial, bridging a three-month recess, was completed on September 20, 1979. Three hundred forty-nine witnesses testified and 1,565 exhibits were received into evidence. The district court issued a 118-page memorandum opinion on December 12, 1980, indicating generally the relief it proposed to grant, and gave the parties an opportunity to agree on a proposed judgment. The parties later filed a proposed consent decree disposing of many of the issues. The district court approved this consent decree, entered a decree granting equitable relief and a declaratory judgment on the issues not disposed of by the consent decree, appointed a special master to monitor implementation of the relief ordered, and denied TDC’s motion for a stay. TDC then applied to this court for a stay, which we granted in part and denied in part. TDC later sought a supplemental stay, which, again, we granted in part and denied in part. The parties then agreed to a second consent decree that modified parts of the district court’s decree, and we remanded the case to enable the district court to hold a class action hearing on the proposed modifications. After that hearing, the district court approved the second consent decree and, in accordance with its terms, TDC moved under Fed.R.App.P. 42(b) for voluntary dismissal of its appeal of the provisions of the district court’s decree that were superseded by the second consent decree. The case has also been before us on interlocutory appeals; this marks its seventh appearance in our court. We turn first to the pervasive issues still contested: TDC’s attack on the fairness of the trial, the sufficiency of the district court’s findings of fact, the intervention by the United States, and the joinder of the Texas Board of Corrections and individual members of the Board as parties defendant. II. FAIRNESS OF THE TRIAL TDC contends that the district judge made many errors in his rulings concerning the conduct of the trial and the admissibility of evidence, the cumulative effect of which was so prejudicial as to deny TDC its right to a fair trial. The impugnment is more than a challenge to specific rulings, however, for it includes assertions that “the entire record is permeated with favoritism” toward the plaintiffs and “unrelenting unfairness” toward TDC and is infected both by “evident prejudgment” of the case in the plaintiffs’ favor and by judicial bias. The constitutional guarantee of due process of law ordains a fair trial. The trial judge must not become “personally embroiled” in the proceedings. He must not assume the role of prosecutor or defender. He must avoid even the appearance of favoring one side. However, “[o]nly when the judge’s conduct strays from neutrality is a defendant thereby denied a fair trial as required by the Constitution.” Moreover, even if the trial judge does commit error, it is presumed harmless until shown to be prejudicial. The complaining party must prove that the error was substantial and that it prejudiced his case. Though the trial judge must be neutral, he should not be a passive spectator. “He is a common law judge having that authority historically exercised by judges in the common law process,” and not simply come but to say, “sustained,” or “overruled.” He may, when in his sound discretion he deems it advisable, comment on the evidence, question witnesses, elicit facts not yet adduced or clarify those previously presented, and maintain the pace of the trial by interrupting or setting time limits on counsel. He must not usurp the role of counsel, but he may manage the trial’s course to achieve a “just, speedy, and inexpensive determination” of the action. Fed.R.Civ.P. I. Obviously he has greater latitude in conducting a bench trial, for then it is his duty to determine the facts, and his conduct cannot influence jurors. In complex and protracted trials like this one, the trial judge must assume even greater responsibility for the direction of the trial than he undertakes in short and simple ones. Pretrial discovery in this case was exhaustive, the district judge required complete pretrial disclosure of expected testimony, and he limited to some degree the length of cross-examination of a number of witnesses. The trial nevertheless lasted almost a full year. After the plaintiffs had presented all of their witnesses and the United States, as plaintiff-intervenor, had presented most of its witnesses, there was a three-month recess, ample time for TDC to prepare refutation and rebuttal. All of these factors, together with the fact that the judge was the factfinder, must be considered in evaluating TDC’s contentions. The conduct of the district judge is attacked with a barrage of charges. TDC contends that his pretrial orders were more exacting of TDC than of the other parties, and that during pretrial proceedings he was partial to the plaintiffs in many respects. TDC also contends that he excluded much of TDC’s evidence, treated TDC’s witnesses unfairly in comparison with the treatment accorded the plaintiffs’ witnesses, and improperly limited TDC’s cross-examinations and rebuttals. TDC contends generally that the record is “permeated with favoritism.” Considering the full record of the lengthy trial, we find little probative value in the excluded evidence, and no prejudice in the district judge’s rulings. TDC has not pointed to a single instance of the exclusion of defense testimony that was not either repetitive or insignificant in probative value. Error cannot be predicated on an evidentiary ruling unless a substantial right of the objecting party is affected. Fed.R. Evid. 103(a). The district judge was required to make literally thousands of decisions on evidentiary issues, usually without advance notice, memoranda from counsel, or opportunity for independent research. In deciding such matters, trial judges are not expected to be either infallible or clairvoyant. The rules of evidence exact only the attainable, the avoidance of error that is prejudicial and affects a substantial right. This standard was fully met. One time the district judge showed plaintiffs’ counsel how to lay a foundation for testimony and four times he relieved a plaintiff-intervenor’s counsel how to lay a foundation for testimony and four times he relieved a plaintiff-intervenor’s lawyer who was having difficulty laying a predicate by asking the necessary questions himself. Doubtless the floundering lawyer eventually could have satisfied the formalities of each objection. Doubtless the need to conform to proper procedure gave the lawyer good, albeit embarrassing, experience. We see no reason, however, why the district judge should have further protracted the trial by requiring the lawyer eventually to master each difficulty alone, for there was no jury to be affected, and the judge himself could deftly cut what was only a technical knot and expedite the trial. The district judge did credit the testimony of the plaintiffs’ witnesses more frequently than that of TDC’s witnesses, but in a bench trial the assessment of witness credibility is inherently his province. We are especially reluctant to set aside findings that are based upon a trial judge’s determination of the credibility of witnesses giving contradictory accounts. Neither any one episode pointed out in the briefs nor the weight of all of them cumulatively demonstrates that the trial was unfair. At the outset, the trial judge granted TDC’s motion for a six-month postponement of the trial date. At TDC’s motion, and for TDC’s convenience, he changed the venue of the trial. After the plaintiffs and the United States had rested, he gave TDC three months to prepare its defense. He struck the testimony of the plaintiffs’ witness who was shown to have violated the nondiscussion rule. It is beyond either human capacity or the demands of justice that the trial judge decide correctly every issue arising in the trial. What is required is not a perfect score, but fairness, probity, and the avoidance of substantial prejudice. The first and second consent decrees settled many of the controverted issues, to which much of the trial testimony was devoted. On the matters covered by the consent decrees, their provisions were substantially the same as the remedies outlined by the district judge in his opinion. In addition, TDC does not contest many of the provisions of the district court’s decree. Although this acquiescence is in no sense fatal to TDC’s claims, it does indicate that TDC in effect concedes the correctness of many provisions in the district court’s judgment. The district judge’s rulings appear to have been based only on what he learned from his seat on the bench and his perception of the evidence. Any adverse attitudes that he evinced were based on his performance of his judicial duties. The remarks of some lawyers during the trial carry notes of testiness and personal involvement that go beyond mere diligent representation of a client’s interests, but the district judge never became personally embroiled in the proceedings and he presided over them patiently and fairly. We find neither abuse of discretion nor prejudicial error in his conduct of the trial. III. SUFFICIENCY OF THE FINDINGS Relying upon the first sentence of Fed.R. Civ.P. 52(a), which requires the district court after a bench trial to “find the facts specially and state separately its conclusions of law thereon,” TDC contends that the district court failed to make findings of fact sufficiently specific for appellate review. The district judge should set forth preliminary and basic facts rather than “[statements conclusory in nature.” Ultimate findings must be specifically supported. The opinion in this case, as we have already noted, occupies 118 printed pages. More than half of it is devoted to findings of fact. Some of the factual recitals are specific. In deciding other factual issues, the district judge drew inferences concerning general conditions from specific instances. His findings are not apodictic conclusions of the kind we have found insufficient as a basis for review. They are sufficient to give us a “clear understanding of the analytical process by which ultimate findings were reached and to assure us that the trial court took care in ascertaining the facts.” However convenient it might be for counsel and the appellate court to have “specific citations to the record,” the absence of which TDC criticizes, such citations are not required. Although the findings are sufficient, they were, as our comments suggest, not all made with the same specificity; indeed, the very nature of some of the issues rendered particularity impossible. The district judge could and did find whether or not a record was made of disciplinary proceedings. He could and did find whether or not on particular occasions one inmate assaulted another. From these data he could and did deduce whether or not it had been shown that inmate assaults were so frequent as to create an atmosphere of violence. That kind of finding, reached by inference from specific data, is both proper and requisite. Whether the data observed are sufficient to warrant a general conclusion must be determined by logic and judgment. The human events of the past cannot be sampled so perfectly as to permit a statistically valid analysis. This kind of conclusion is not a mixed question of fact and law or one of legal inferences from the facts. It is instead one of the sufficiency of an evidentiary basis for a factual conclusion. Although that type of conclusion does not rest on the credibility of witnesses or the advantage of firsthand observation, it is equally a question of fact, to be accepted by us unless clearly erroneous. With regard to both kinds of factual conclusions, we find the district judge’s opinion sufficient to give us a clear understanding of the views he took of the evidence, the analytical process by which he reached his conclusions, and the basis by which he applied legal principles to these facts. No more is required. IV. INTERVENTION BY THE UNITED STATES The district court, acting sua sponte, on April 12, 1974, “determined that the public interest will be served by the participation of the United States” and ordered the United States to appear as amicus curiae and to participate in this case “with the full rights of a party.” W. J. Estelle, the Director of TDC, was then the only defendant. After appearing as amicus curiae, the United States moved in December 1974 to intervene as a party plaintiff under Fed.R.Civ.P. 24(b)(2), and also sought leave to file a complaint in intervention adding new causes of action, and adding the Texas Board of Corrections and its individual members as additional defendants. The United States relied upon “the inherent authority of the United States, through its Attorney General, to sue to remedy severe and widespread deprivations of constitutional rights.” The motion was granted ex parte and TDC’s later motion to dismiss the United States both as plaintiff-intervenor and as amicus curiae was denied. Whether or not the United States had inherent or implied authority to sue or to intervene in suits to protect the constitutional rights of individual citizens at the time the intervention was filed, Congress has since enacted the Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. §§ 1997-1997] (West 1981) (“the Act”), which became law on May 23, 1980. The Act authorizes the Attorney General to initiate, id. §§ 1997a-1997b, or intervene in, id. § 1997c, civil actions on behalf of persons confined in specified state institutions, including jails, prisons, and other correctional facilities. An appellate court must apply the law in effect at the time it renders its decision unless there is statutory language or legislative history to the contrary, or unless doing so would cause manifest injustice. It must apply that law “even where [the statute] does not explicitly recite that it is to be applied to pending cases.” The “law” at issue in this case is the Act, particularly § 1997c, which deals with intervention by the United States. That section of the Act comprises two elements; a substantive provision authorizing the Attorney General to intervene in lawsuits, and procedural provisions with which the United States must comply before it may intervene. Nothing in the Act or its legislative history suggests that we should not apply the substantive provision of § 1997c to this case. If anything, the legislative history reinforces the presumption that we should apply it. The Senate Report notes that the Justice Department has intervened in many suits and expresses approval of such intervention. Moreover, the Senate Report, the dissent from the Senate Report, and the House Conference Report all express the view that the United States already had the authority to intervene in such cases, and that the Act merely gave it explicit statutory sanction. We cannot read this legislative history as expressing hostility to pre-Act intervention by the United States. To do so would achieve a result at odds with the understanding of both the supporters and the opponents of the Act. We conclude, therefore, that the substantive provision of § 1997c applies in this case. The legislative history of the Act does, however, lead us to conclude that we should not apply the procedural provisions of § 1997c in this case. The Senate Report explicitly states that the Act aims to preclude, inter alia, the possibility that “suits in which the United States is currently participating as amicus or plaintiff-intervenor will be disrupted by defendants’] motions to dismiss the United States as a party.” Moreover, in discussing other sections of the Act, the legislative history notes other goals of the Act: making Justice Department resources available in lawsuits challenging the conditions of confinement in state institutions, improving the lives of persons confined in state institutions, encouraging state officials to take action to safeguard the rights of these persons achieving effident use of Justice Department resources, and ensuring “conservation of judicial resources.” To dismiss the United States at this state in the litigation, when it could simply initiate a new lawsuit, and thereby duplicate its previous, massive efforts, would do violence to all of these goals. We decline to “cause great disruption by forcing the parties ... to begin anew a case that all parties agree could eventually be decided under the new law. Congress did not intend the enactment of the new law to cause such tribulation.” Furthermore, considering the identity of the parties in this case, the nature of their rights, and the impact of the change in law upon those rights, we find that no “manifest injustice” results from our application of the Act to this case. For these reasons, we affirm the district court’s order permitting intervention. V. JOINDER OF THE BOARD OF CORRECTIONS AND ITS INDIVIDUAL MEMBERS In the original suits filed by individual inmates, only W. J. Estelle, the Director of TDC, was named as defendant. In its complaint in intervention, however, the United States also named as defendants the Texas Board of Corrections and its individual members. Texas law charges the Board of Corrections “with the exclusive management and control of” TDC. This action was initiated under 42 U.S.C. § 1983, which provides that “[e]very person” who, under color of law, subjects a citizen to deprivation of his federal rights shall be liable to that citizen. The states’ eleventh amendment sovereign immunity bars an action in federal court against a state or a state agency unless the state has consented to suit. Congress, in enacting § 1983, did not intend “to override the traditional sovereign immunity of the states.” Thus neither states nor state agencies are “persons” within the meaning of § 1983. The Board of Corrections is merely an agency of the state. It is, therefore, neither a “person” nor, consequently, a proper party defendant. As the United States now concedes, the district court’s judgment must be reversed insofar as it casts the Board as a defendant, and the Board, as an entity, must be dismissed from this case The individual members of the Board, however, are of course persons. Although the Texas statute vests management of the prison system in the Board, the Board members are responsible as individuals, in the same manner as the Director of TDC, for any violation of constitutional rights caused by their management. TDC contends that the Board members are superfluous defendants because the Director of TDC is also a defendant and can respond to any court orders. The mere fact that one defendant can pay a judgment or effectuate a court order has never been deemed reason to dismiss other persons who are legally responsible to the plaintiff, and TDC cites no authority for the proposition that one amenable defendant suffices. Accordingly, the joinder of the individual members of the Board was proper. VI. EIGHTH AMENDMENT ISSUES 6.1 Cruel and Unusual Punishment: The Constitutional Standard Before reviewing the findings of fact relative to the charge of cruel and unusual punishment, we set out the legal precepts that we must follow. In Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), which was decided after the district court had rendered its opinion and its orders in this case, the Supreme Court considered for the first time the limitation that the eighth amendment, which is applicable to the states through the fourteenth amendment, “imposes upon the conditions in which a State may confine those convicted of crimes.” After reviewing “the Eighth Amendment precedents for the general principles that are relevant to a State’s authority to impose punishment for criminal conduct,” the Court noted that the amendment “prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain.’ ” Thus the eighth amendment prohibits inflictions of pain that are “ ‘totally without penological justification.’ ” “No static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” These “ ‘judgments should not be, or appear to be, merely the subjective views of individual [judges].’ ” The judgments instead “ ‘should be informed by objective factors to the maximum possible extent.’ ” The same “principles apply when the conditions of confinement compose the punishment at issue.” “[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Applying these precepts, the Rhodes Court held that confining two inmates to one cell, called double-celling, at an Ohio maximum security prison was not cruel and unusual punishment. Double-celling was made necessary by an unanticipated increase in prison population. It did not lead to deprivations of essential food, medical care, or sanitation. It did not “increase violence among inmates or create other conditions intolerable for prison confinement.” It diminished job and educational opportunities only “marginally.” The Court had previously noted other facts. The cells measured sixty-three square feet. Each had a cabinet-type night stand and other furnishings. Double-celling had not reduced significantly the availability of space in the day rooms or visitation rooms, nor had it rendered the library or school facilities inadequate. There had been no increase in the rate of violence. The ratio of guards to inmates “satisfied the standard of acceptability” offered by the inmates’ expert witness. This review of the opinion makes it evident that Rhodes v. Chapman does not reject the “totality of conditions” test that we applied in Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir. 1981) (en banc). Like Justice Brennan in his concurring opinion, we read the majority opinion in Rhodes v. Chapman as adopting that test, just as another panel of this court recently did in Stewart v. Winter, 669 F.2d 328, 335-36 & n.17 (5th Cir. 1982). This interpretation is based not only on the opinion’s precise and carefully chosen words but on its factual recitals. Were it necessary to decide only that confining two inmates in a single cell is not cruel and unusual punishment, there would have been no need to describe the general conditions in the prison. Rhodes holds that the confinement of two persons in one cell is not per se cruel and unusual when, all prison conditions having been considered “alone or in combination,” inmates are not deprived of the “minimal civilized measure of life’s necessities.” This is also the reading that other courts have given to Rhodes. Rhodes does, however, hold that the totality of the conditions of confinement does not offend the Constitution unless prison conditions are cruel and unusual, and not merely harsh or restrictive. These precepts provide the illumination by which we examine those provisions of the district court’s decree based on the eighth amendment. 6.2 Findings by the District Court 6.21 Overcrowding At the time of trial, TDC confined over 26,000 inmates. (The inmate population has since increased to over 33,000.) About 1,000 were sleeping on floors. (None are now on floors but many are confined in tents.) In cells measuring forty-five square feet, originally designed for one occupant, TDC confined two to four inmates. The district court found that assault or molestation by fellow inmates was a continual threat. It found that the population density of inmates confined in dormitories was “shocking.” This overcrowding “exercises a malignant effect on all aspects of inmate life.” Day rooms designed for recreational purposes must serve double and even triple the number of inmates for which they were planned. Access to gymnasiums, outdoor playing fields, craft shops, and libraries is even more limited. Dining rooms are nearly always crowded. Although TDC contends that, because of TDC’s “work ethic,” inmates spend little of their time in cells or dormitory sleeping areas, in fact inmates spend much of their time in their living quarters. Because of a shortage of civilian guards who can be assigned to supervise inmates working in agricultural programs, the full complement of inmates assigned to work on TDC’s farms cannot safely be employed on any given day. “Therefore, at many units, the inmates work on a rotating basis. As many as one-half to three-fourths of the inmate agricultural force will remain idle in the living quarters on a specific day.” In view of the “unprecedented surge” in prison population, new facilities being constructed will not eliminate the overcrowding. The district judge emphasized the threat to the inmates’ safety, the lack of privacy for inmates, the increase in stress and tension, and the possible spread of disease, all caused by overcrowding. 6.22 Security and Supervision TDC’s prisons are severely understaffed. During the summer of 1979, TDC employed one guard for every 12.45 inmates, one of the worst guard-inmate ratios in the nation; the average nationally is one guard for every five inmates. TDC’s argument that its system requires fewer guards than others was rejected by the district court after a detailed analysis of staffing patterns. Overcrowding, combined with the relatively small number of security guards, results in a “constant threat to the inmates’ personal safety.” Escapes are virtually unheard of and homicides are uncommon, but there is excessive nonhomicidal violence. “[Virtually all inmates are exposed to, and many are victimized by, the concomitants of unguarded, overcrowded cells and dormitories — the ever-present risk of assaults, rapes and other violence — for every day of their incarceration at TDC.” “TDC inmates are routinely subjected to brutality, extortion, and rape” by their cellmates. “Inmates who live in dormitories are exposed to the same threats of violence endemic to the cells.” The threat to inmates in dormitories may be even greater because “[potentially assaultive inmates are present in great numbers in every dormitory” and the dormitories are “practically unsupervised.” “Numerous examples of the inability of TDC staff to protect inmates’ personal safety were graphically presented by credible testimony at the trial.” These conditions result from having too few civilian guards to supervise inmate activities adequately, from inadequate training for new guards, and from a high turnover rate that “results in virtually perpetual vacancies in low-level guard positions.” 6.23 Failure To Ameliorate Overcrowding TDC officials have the power, the district judge found, to reduce TDC’s inmate population quickly by increasing “good time” credit, and restoring forfeited good time. Inmates receive incentive (“PIP”) points for good performance in work, education, and personal improvement programs. The Board of Pardons and Paroles declines to interview any inmate who has less than a specified number of PIP points, who has suffered a forfeiture of good time that has not been restored, or who is in Class III status. By awarding more PIP points, restoring lost good time, classifying more inmates in Class I status, and preparing favorable “institutional adjustment” reports, TDC officials could increase the number of inmates likely to receive parole. Moreover, TDC has failed to implement in more than a “half-hearted and unimaginative” fashion the work release program authorized by Texas law. 6.3 Challenges to the Findings The web of conditions is not seamless. The findings of fact concerning various conditions at TDC are discrete. Moreover, the injunctive relief ordered by the district court includes provisions patently and properly directed at specific conditions. We now consider TDC’s challenges to those findings that determine the totality of conditions caused by overcrowding in the presence of the other conditions discussed, particularly the size of the security staff. The district judge’s conclusion that TDC’s prisons are seriously overcrowded is virtually conceded. TDC questions only whether this overcrowding constitutes cruel and unusual punishment, whether the remedies ordered are appropriate, and whether specific provisions of the decree are “ill-considered and unwise.” TDC challenges the findings concerning the inadequacy of prison security and the existence of staff brutality as being clearly erroneous. The district judge’s findings concerning the specific episodes mentioned in his opinion turn entirely on the credibility of witnesses. On this, as on virtually every other aspect of the case, there was conflicting testimony. There was substantial evidence on the record to support the district judge’s findings, and we have been given no reason to overturn them, save the inadequate reason that the testimony of others conflicts. We do not sit to reassess that testimony. This is neither our function as appellate judges nor within our power. Based on these specific findings, the district judge made other, more general factual findings. He found that the life of the typical inmate within TDC is characterized by a constant threat of violence and that TDC staff members engage in “widespread” brutality to inmates. These findings necessarily are partly conclusory; their accuracy depends on inferences from the specific facts established. Considering that TDC houses more than 33,000 inmates, it is proper to ask the question that this court put to counsel before oral argument: how many episodes of inmate assault must be shown to warrant the conclusion that there is a constant threat of violence? Patently the trial should not and cannot consist of a review either of every assault over a five-year period or of a day in the life of each of the inmates. The statistics presented are inconclusive. The homicide rate at TDC is less than in many cities. The assault rate is less than the rate reported in other prison cases, but this means only that other prisons are worse. The guard-inmate ratio is among the lowest in the nation. Considering the record as a whole, we are not left with that impression requisite to rejecting the district judge’s findings, “the definite and firm conviction” that he was mistaken. 6.4 Relief Ordered by the District Court This relief is set forth in full in the Appendix to our opinion in Ruiz VI, 666 F.2d at 862-73, and summarized in Ruiz V, 650 F.2d at 559-64. However, we here again outline its principal features, as they relate to overcrowding and security. 6.41 Overcrowding a. Maximum Population: Effective November 1, 1981. By November 1,1981, TDC had to reduce its overall inmate population to a figure equal to twice the number of general population cells, plus the number of inmates who could be housed in dormitories that afford forty square feet (excluding bathing, toilet, and activity areas) per inmate. TDC may not thereafter, until further order of the court, accept any inmate whose confinement would cause the inmate population to exceed that figure. b. Maximum Population: Effective November 1, 1982. By November 1, 1982, TDC must reduce its overall inmate population to a figure equal to 1.5 times the number of general population cells, plus the number of inmates who can be housed in dormitories that afford sixty square feet (excluding bathing, toilet, and activity areas) per inmate. TDC may not thereafter, until further order of the court, accept any inmate whose confinement would cause the inmate population to exceed that figure. c. Maximum Population: Effective November 1, 1983. By November 1, 1983, TDC must reduce its overall inmate population to a number equal to the number of general population cells, plus the number of inmates who can be housed in dormitories that afford sixty square feet (excluding bathing, toilet, and activity areas) per inmate; TDC may not thereafter, until further order of the court, accept any inmate whose confinement would cause the inmate population to exceed that figure. d. Double-Celling. By August 1, 1982, no more than 50% of TDC’s inmate population housed in cells may be assigned to cells of sixty square feet or less holding two inmates. By August 1, 1983, no inmate may be assigned with another inmate to a cell containing sixty square feet or less. e. Dormitories. Beginning November 1, 1981, TDC could not confine any inmate to a dormitory providing less than forty square feet (excluding bathing, toilet, and activity areas) per inmate. By November 1, 1982, TDC may not confine any inmate to a dormitory providing less than sixty square feet (excluding bathing, toilet, and activity areas) per inmate. f. Work Furlough. To alleviate overcrowding, TDC is required to make maximum use of its authority to house inmates outside of TDC units on the work furlough program as authorized by Tex.Rev.Civ.Stat.Ann. art. 6166x-3 (Vernon 1970 & Cum.Supp.1982). By November 1, 1981, TDC was to have at least 300 inmates on work furlough; by May 1, 1982, TDC was to have at least 1,200 inmates on work furlough; and by November 1, 1982, and thereafter until further order of the court, TDC must at all times have at least 2,500 inmates on work furlough. g. Temporary Furlough. TDC must expand its temporary inmate furlough program as authorized by Tex. Rev.Civ.Stat.Ann. art. 6184n(2) (Vernon Cum.Supp.1982). By November 1, 1981, TDC was to have at least 300 inmates on this furlough program; by May 1, 1982, TDC was to have at least 600 inmates on furlough; and by November 1, 1982, and thereafter until further order of the court, TDC must at all times have at least 1,000 inmates on furlough. h. Expanding Community Corrections. TDC must expand its role in community corrections and establish minimum security institutions, honor farms, halfway houses, urban work or educational release centers, community treatment centers, and the like. These facilities must be located in areas near population centers of sufficient size to provide the services needed by inmates at the facilities. By November 1, 1981, TDC was to have filed with the court a plan for the establishment of such facilities with or without the participation of other state or local agencies. 6.42 New Facilities a. Construction of New Units. TDC must not make a final selection of a site for, or undertake the construction of, any new units for housing inmates unless it has filed a report with the court demonstrating that specified conditions are met. These conditions require, inter alia, that the population of each new TDC unit or subunit not exceed 500 inmates, and each new TDC unit must be located within fifty miles of a Standard Metropolitan Statistical Area with a population exceeding 200,000 people. b. New Facilities at Existing Units. TDC is prohibited from undertaking construction of any new facilities for the housing of inmates at existing correctional units unless it has filed a report with the court demonstrating, inter alia, that the space requirements in Part I of the decree will be met, and that it will be able to recruit and maintain adequate numbers of the employees needed to run the facilities. 6.43 Reorganization of TDC TDC must submit a plan providing for the reorganization and decentralization of the management of each TDC unit housing more than 500 inmates, and ensuring that the affected units will be subdivided into units of no more than 500 inmates each. 6.44 Security and Safety a. Staff Training. By August 1, 1981, TDC was required to file with the court a plan and timetable for the training of new security officers and the retraining of existing security officers. b. Classification of Inmates. So long as TDC confines more than one inmate to a cell of sixty square feet or less, or to a dormitory, TDC must maintain a classification system that ensures that abuses of inmates by those with whom they live will be minimized. TDC was required, by August 1,1981, to file with the court a plan setting forth an adequate classification system and a timetable for its implementation. 6.5 Application of the Constitutional Standard to the Relief Ordered by the District Court Although a district court has wide discretion in tailoring a remedial injunction, that discretion is not unconfined. As we have pointed out, the constitutional mandate against cruel and unusual punishment is not a warranty of pleasant prison conditions. Reparative injunctive relief must be targeted at elimination of the unconstitutional conditions. “[T]he nature of the violation determines the scope of the remedy.” Therefore, a court can order only relief sufficient to correct the violation found. We have neither commission nor competence to prescribe the purposes of confinement. As a matter of respect for the state’s role and for the allocation of functions in our federal system, as well as comity toward the state, the relief ordered by federal courts must be “consistent with the policy of minimum intrusion into the affairs of state prison administration that the Supreme Court has articulated for the federal courts.” Ruiz V, 650 F.2d at 571. “[T]he principles of federalism which play such an important part in governing the relationship between federal courts and state governments” are applicable “where injunctive relief is sought ... against those in charge of an executive branch of an agency of state” government. We should, therefore, fashion “the least intrusive remedy that will still be effective.” In shaping that remedy, we must also, as a matter of judicial administration, regard the essential nature of federal courts in an adversary system. Our remedial powers are inherently judicial, not administrative. The experienced district judge gave lengthy and careful attention both to the trial of this case and to the fashioning of the reparative injunction. In many respects the decree he shaped is focused directly on steps to remedy the aspects of confinement that together make it cruel and unusual. In other respects the decree is, as the district court’s order of reference to the special master recites, “infinitely broader than that encountered in any other example of correctional litigation.” Considering both the constitutional violations to be excised and the scope of the therapy directed, we are left with the conviction that, without the guidance now provided by Rhodes v. Chapman, the district court adopted some remedies that are not essential for the elimination of unconstitutional prison conditions. Taken as a whole, the district court’s decree administers a massive curative dose when it is not yet demonstrable that a lesser therapeutic measure would not suffice. Conservative treatment is essential because it is more readily administered, less costly to the state, and not irreversible. Therefore, the remedy should begin with what is absolutely necessary. If these measures later prove ineffective, more stringent ones should be considered. We turn now to the specifics. 6.51 Overcrowding: Space Requirements Neither the number of inmates in one cell nor the amount of space provided for an inmate in a dormitory alone determines whether confinement is cruel and unusual. See Ruiz VI, 666 F.2d at 858. If an inmate uses his living quarters only for sleeping, and is not threatened with violence, a single bunk space, eighteen or twenty square feet, may be adequate. The district judge found that the crowding of persons, the consequent effect on prison services and facilities, and the lack of security are specific conditions that combine to make confinement at TDC uncivilized and inhumane. However, we cannot know whether the provision of additional guards and the consequent increase both in inmate security and in work opportunities, the diminished role of building tenders, and the various other remedial measures either incorporated in the consent decrees or approved by us elsewhere in this opinion will sufficiently relieve the conditions that combined to make double-celling cruel and unusual, with the result that confinement of two inmates to one forty-five-foot cell will be only the harshness sanctioned by Rhodes, or whether it will still be cruel and unusual. Current estimates for maximum security prison cells suggest that their cost ranges from $30,000 to $60,000 apiece. Approximately 10,000 additional cells would be required to house in a single cell every person now in a double cell less than sixty square feet in area. These additional cells, therefore, could cost at least $300,000,000 and require three to four years or more to build. Prisons once built cannot be readily adapted to other governmental uses. Constitutional rights are not, of course, confined to those available at modest cost. The very concept of federalism, the division of powers among the branches of the federal government, and the nature of the safeguards imposed by the Bill of Rights and the fourteenth amendment levy costs impossible for an accountant to calculate, but esteemed by us because they are literally priceless. Yet in considering remedies for unconstitutional deprivation, the cost of one proposed remedy in comparison with the cost of others and the demonstrable need for the remedy should both be considered. A remedy imposing great cost on a state should not be ordered unless its constitutional need has been demonstrated. Although we recognize the great discretion accorded a trial judge in fashioning remedies, the district judge here lacked the guidance of Rhodes v. Chapman and failed to consider the cost of the remedial measures ordered as well as the possibility of achieving constitutional conditions without requiring single-celling. We turn to the dormitory space limitation. Neither sixty square feet, nor forty square feet, nor any other measure is constitutionally ordained. Yet the facts found serve as adequate basis to require more space for inmates confined in dormitories, not only to ameliorate living conditions but, more important, to enhance security and reduce violence. An inmate in a cell with one other person is exposed to assault only by that person; an inmate in an overcrowded dormitory having an inadequate security staff may be victimized by many. Moreover, a forty-square-feet-per-inmate dormitory space requirement will not occasion vast expense. At present, TDC is, by use of tents, providing forty square feet for most dormitory inmates. Only 128 inmates are confined in dormitories that house more than they would if there were forty square feet per inmate. The requirement of sixty square feet per inmate, however, would necessitate the construction of facilities for 2,831 additional inmates. If it costs only $10,000 per inmate to construct a dormitory instead of the $30,-000 amount used to estimate the cost of constructing cells, the construction of dormitories for these additional inmates would cost almost $30,000,000. It has not been demonstrated that provision of additional security guards and the other measures required by the district court’s decree and the two consent decrees will not remedy the constitutional deficiency. It appears desirable, therefore, first to undertake measures that will not be both costly and irreversible. If these measures do not work, then additional ones may be necessary. This “wait and see” approach ensures that the intrusion into state processes will be no greater than that required to achieve compliance with the Constitution. Accordingly, we affirm the provisions of the district court’s decree that restrict TDC’s acceptance of inmates to be housed in dormitories to those inmates who can be accommodated with a space of at least forty square feet. We vacate the provisions of the decree that require (1) single-celling and (2) sixty square feet per inmate in dormitories. This is without prejudice to the right of plaintiffs and plaintiff-intervenor to move for a further hearing, to be held one year after our order becomes effective, to determine whether, despite changes in prison conditions wrought as a result of it, compliance with constitutional requirements requires additional restrictions on inmate capacity. This is also without prejudice to the correlative right of TDC to seek a relaxation of the decree if TDC can demonstrate that the Constitution does not compel continuance of the decree. 6.52 Other Measures To Relieve Overcrowding The mandate that TDC must use good time, parole, and furlough programs to relieve overcrowding unnecessarily invades the management responsibility of state officials. Moreover, it requires detailed supervision of programs that relate only indirectly to the conditions of confinement. Directing state officials to achieve specific results should suffice; how they will achieve those results must be left to them unless and until it can be demonstrated judicial intervention is necessary. They may elect to balance prison population and physical facilities by parole, furloughs, pardons, confinement in county institutions, use of minimum security institutions for some inmates, changes in sentencing policies, or in other ways. However inefficient the management of large prisons may be when compared with the administration of smaller ones, and however desirable it may be to locate prisons near large communities, the failure to do either does not cause confinement to be cruel and unusual. Palaces may be erected in the wilderness. Large prisons may be impersonal but they are not necessarily inhumane. There is of course some relationship between the new-facilities provisions of the district court’s decree and the amelioration of prison conditions, but the measure of therapeutic effect is patently small. The effect of these remedial measures does not appear to us sufficient to warrant their economic cost, their intrusion on state decisionmaking, or the supervisory burden that their administration would impose on a federal court. Therefore, we vacate Parts 1(A)(1), I(A)(3)-(6), VII, and VIII of the district court’s decree. 6.53 Staff Training The decree specifies how correctional officers will be schooled. If correctional officers are hired and trained, we must assume, until the contrary is shown, that they will be both trained and utilized with some minimal degree of wisdom. If, after they are employed, it is demonstrated that TDC officials are still violating inmates’ constitutional rights, additional steps can then be taken. Here again, we deem the “wait and see” policy, rather than radical surgery, more in keeping with the constitutionally reparative function of the injunction. Accordingly, we vacate Part 11(B) of the district court’s decree. This is without prejudice to the right of plaintiffs and plaintiffintervenor to move for a further hearing, to be held one year from the date our order becomes effective, seeking further relief, or the correlative right of TDC to seek relaxation of the decree. 6.54 Classification of Inmates The decree requires only the filing of a plan. We affirm this provision of the decree without prejudice to the right of any party to object to the plan or to any court order adopted after the plan is submitted. 6.6 The Constitutional Standard for Medical Care: Huntsville Unit Hospital The first consent decree disposes of all issues pertaining to medical care except the provision in the district court’s decree restricting the use of Huntsville Unit Hospital (“HUH”) to infirmary purposes, prohibiting treatment at HUH of inmates from any unit other than Huntsville, and requiring TDC to provide inmates with adequate hospital facilities meeting the Standards of the Texas Hospital Association (“THA”) or the Joint Commission on Accreditation of Hospitals (“JCAH”). We, therefore, consider only conditions at HUH. The state has an “obligation to provide medical care for those whom it is punishing by incarceration.” “[A]cts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” of inmates constitute cruel and unusual punishment. Neither inadvertent failure to provide adequate medical care, nor carelessness, nor even deliberate failure to conform to the standards suggested by experts is cruel and unusual punishment. The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves, nor the therapy that Medicare and Medicaid provide for the aged or the needy. It prohibits only “deliberate indifference to serious medical needs”. HUH is not an accredited hospital. It is outmoded and inadequate. There was testimony that the effects of inadequate physical facilities are aggravated by deficiencies in sanitation and infection control; the number of physicians is inadequate; and TDC improperly relies on inmate medical assistants, who lack adequate training, for medical care. Inmate assistants have amputated fingers, set bones, applied casts, sutured wounds, repaired Achilles’ tendons, given injections, administered medications, and kept records. Inmates, in many instances lacking adequate training, also serve as laboratory technicians, X-ray technicians, physical therapists, respiratory therapists, first aid attendants, and medical records clerks. Many of the inmates assigned to these tasks are uneducated and some are illiterate. The district court found “numerous” instances of “[gjrievous neglect of the personal care of patients at the HUH,” but nothing in the findings indicates either that these are imminent in the hospital or that they are not remediable by a larger and better-trained staff. JCAH standards are applied to hospitals in Texas by THA. Although HUH does not meet these standards, the record establishes that no prison hospital in any other state does. Some Federal Bureau of Prisons hospitals meet them but others do not. Of the 7.000 private hospitals in the United States, only 3,000 meet JCAH standards adequately for full accreditation and an additional 1.000 are on probation or one-year accreditation; the other 3,000 are not accredited because they do not meet the standards. Literally millions of persons receiving private medical care are being treated in hospitals that do not meet the requirements imposed by the district court’s decree. Expert standards are a useful guide but they are not a constitutional measure. Restricting use of HUH to Huntsville inmates and permitting it to render only infirmary care do not solve the medical care problem. Moreover, there have been additional developments since the district court issued its decree. By orders dated October 19, 1981, and November 5, 1981, the district court stayed the provision of its decree pertaining to HUH. In its October 19 order, the district court directed TDC to file a formal response to particular suggestions made by the plaintiffs concerning HUH. TDC filed this response. In the court’s November 5 order, TDC’s response is described as exhibiting “a commendable air of conciliation.” That order further directs the parties to meet and discuss possible agreement on continued operation of HUH. Accordingly, we vacate the provision of the district court’s decree pertaining to the HUH and remand that issue to the district court for further proceedings consistent with this opinion after the district court has received a report concerning the results of the discussion it has ordered. Should the district court consider injunctive relief still necessary, its order shall not command the closing of HUH or restrict its use solely to Huntsville inmates. The order should instead be limited to requiring that TDC provide the minimum level of hospital care required by the Constitution. 6.7 Double-Celling and Exercise for Inmates in Administrative Segregation Some inmates are confined to cells in a separate part of each unit for a variety of nonpunitive reasons. Some are confined pending investigation of potential disciplinary charges; others are confined awaiting a hearing after charges are filed; still others are confined because they need protective custody, because they are security risks, or because, after being punished, they cannot safely be returned to the regular prison population. In the past, inmates sometimes were confined in administrative segregation for lengthy periods without any evaluation by prison officials of the reasons for the confinement; however, TDC policy now requires periodic review of the reasons for this confinement after the inmate has been in administrative segregation thirty to forty-five days. The review is repeated every ninety days thereafter. In addition, the first consent decree requires TDC to file with the district court a plan setting forth (1) the circumstances under which inmates may be confined in administrative segregation; (2) confinement procedures conforming to the requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) and Wright v. Enomoto, 462 F.Supp. 397 (N.D.Cal.1976) (three-judge court), aff’d mem., 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978); and (3) procedures for regular and frequent review of the status of each inmate so confined as well as the standards for such review. Aside from matters disposed of by the first consent decree, the district court’s decree requires two special relief measures for inmates in administrative segregation: not more than one inmate may be confined in a cell containing sixty square feet or less, Part IV(C)(3), and each inmate must be afforded the opportunity for at least one hour of exercise a day if he is in administrative segregation for more than three consecutive days, Part IV(C)(1). In Rhodes v. Chapman, the Court declined to find cruel and unusual punishment in the practice of confining two inmates on “restrictive classification” to a cell. The inmates so confined in Rhodes had been found guilty of rule infractions after a hearing or were “ ‘there by “choice” at least to some degree.’ ” Although most of the TDC inmates in administrative segregation have not yet been found responsible for rule violations, we are unable to perceive that punishment that is not cruel and unusual for an established rule infraction is so harsh as to be condemned if imposed only after compliance with the procedures now in force or soon to be in force at TDC. Accordingly, we vacate Part IV(C)(3) of the district court’s decree. Whether the failure to afford inmates the opportunity to exercise is cruel and unusual punishment was considered by us in Jones v. Diamond, supra, in which, equally divided, we affirmed the district judge’s denial of relief. That case, however, involved a county jail in which most of the inmates were confined for relatively brief periods. We deal here with a maximum security prison in which, under our disposition of this case, two persons could be confined in a forty-five-square-foot cell too small to permit any real exercise, for almost twenty-four hours a day. This confinement is continual, unbroken by work assignment, school, or other outside activity. Moreover, although a confined inmate’s status is subject to regular review to determine whether the necessity for administrative segregation still exists, this review is no guarantee that the inmate will be released from segregation at an early date. Other courts have held that inmates need regular exercise to maintain reasonably good physical and psychological health. Although deprivation of exercise is not per se cruel and unusual punishment, in particular circumstances “a deprivation may constitute an impairment of health forbidden under the eighth amendment.” Courts have frequently stated that confinement of inmates for long periods of time without opportunity for regular physical exercise constitutes cruel and unusual punishment. Of particular importance in determining an inmate’s need for regular exercise are the size of his cell, the amount of time the inmate spends locked in his cell each day, and the overall duration of his confinement. These together with the inmate’s physical and other needs must be determined on the facts of each case and the evidence in each case should support the existence of any health hazard under the specific circumstances involved. Such specific testimony was lacking in this case. Examining the decree, however, in the light of the facts we have summarized, we conclude that the district court acted within its discretion in prescribing the exercise requirement. In doing so, we do not intimate that, upon a proper evidentiary showing, the decree may not be modified in such details as the amount of time daily or the number of days each week that inmates must have the opportunity to exercise.