Novak v. Beto , 453 F.2d 661 ( 1971 )

THORNBERRY, Circuit Judge:

Appellants are inmates in custody of the Texas Department of Corrections. In this class action brought under 42 U.S.C.A. § 1983 they challenge the constitutionality of various aspects of the treatment accorded them by the Texas prison system. Specifically at issue is whether the Texas Department of Corrections (TDC) regulation banning all inmate assistance in the preparation of writs of habeas corpus and other legal work is, under the teaching of Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1968), unconstitutional even though what appellee contends to be reasonable alternatives are in existence; whether the loss of statutory good time by those who have violated this regulation is justified; and whether, in light of the special circumstances peculiar to Death Row inmates, the regulation, at least as applied to them, is unconstitutional. In addition, appellants attack the conditions of solitary confinement as administered in Texas as constituting “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments.

The district court, 320 F.Supp. 1206, found against appellants on all of these issues. We conclude, however, that in light of Johnson v. Avery, supra, and Beard v. Alabama Bd. of Corrections, 5th Cir. 1969, 413 F.2d 455, the legal assistance regulation in question cannot stand. We affirm the district court’s holding that solitary confinement as administered in Texas is not unconstitutional.

Inmate Assistance

In Johnson v. Avery the Supreme Court held that Tennessee could not constitutionally ban fellow-prisoner assistance in the preparation of habeas corpus petitions so long as the state provided prisoners with no alternative assistance, since such a regulation effectively denied indigent, illiterate prisoners any access to the courts. As the Court stated:

There can be no doubt that Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file ha-beas corpus petitions. Here Tennessee has adopted a rule which, in the absence of any other source of assistance for such prisoners, effectively does just that.

The Court went on to notice that many states had alternative programs to supply legal assistance to prison inmates although it did not express its judgment concerning these plans. The Court did note their existence and indicated that “techniques are available to provide alternatives if the State elects to prohibit mutual assistance among inmates.” Johnson v. Avery, 393 U.S. at 490, 89 S.Ct. at 751.

It is undisputed that Texas prison officials prohibit any form of legal assistance by one inmate to another. Appellees argue, however, that they have provided appellants with reasonable alternatives to inmate assistance and thus are in compliance with Johnson v. Avery. In examining these alternatives, the trial court noted:

The department provides at each of its units a “writ room,” available each week during specified hours and in which an inmate must perform all his legal work. A small “library” is available there, and respondents have recently directed that prisoners be allowed to utilize the law books of fellow inmates as well as those maintained by the State. An extensive legal manual, composed in layman’s language, will soon be available in the writ room and prison libraries to assist inmates in the preparation of petitions. In addition, prisoners may freely correspond with legal service organizations. ***** *

In September, 1969, the prison system employed an attorney, Mr. Harry Walsh, whose sole responsibility is the provision of legal assistance to inmates. Mr. Walsh testified that another full time attorney is now on the prison staff; that three senior law students were employed at the prison during the summer of 1970; and that law students may soon be available for inmate assistance throughout the year.

Clearly, the TDC has been making progress toward complying with the dictates of Johnson v. Avery and Beard v. Alabama Bd. of Corrections, supra, in which this Court said:

A regulation prohibiting the granting of assistance altogether might well be sustained if the state were to make available a sufficient number of qualified attorneys or other persons capable and willing to render voluntary assistance in the preparation of petitions for habeas corpus relief. Beard, 413 F.2d at 457.

Nevertheless, after studying the record carefully, we are unable to conclude, as the district court did, that the State carried the burden of proving that it provided at the time of trial a reasonable alternative to inmate legal assistance. The State has failed to convince us that its effort was sufficient.

Many questions were left unanswered by the State that would have been relevant to our inquiry into the adequacy of the State’s alternatives to inmate assistance. For instance, we would have been interested to know how many of the approximately 12,000 prisoners in the TDC expressed a need for legal assistance in seeking post conviction relief. There is vague testimony that only a small number of the total prison population actually are interested in seeking post conviction relief, but that testimony was insufficient to present any clear picture of the magnitude of the problem. Additionally, we would have been interested to know how much time is required to handle each prisoner’s file. It might be, for example, that many of the complaints concern rather routine matters that could be handled adequately in an hour’s time. If this were the case, the fact that a single attorney handled 1300 files his first year might be less striking. Moreover, the hiring of a second attorney and three summertime law students should have relieved the situation considerably, but we were given very little specific information as to what degree, if any, the situation was relieved. Finally, we were told nothing specific about what amount of outside legal assistance in the form of legal aid and public defender programs might be available to prisoners. Johnson v. Avery appears to invite states to utilize such outside help in providing alternatives to inmate legal assistance.

What we have concluded, in short, is that although we cannot be certain from this record that the TDC has not provided a reasonable alternative to inmate legal assistance, neither can we be certain that the TDC has provided the requisite alternative. And since we think Johnson v. Avery places the burden of justifying its regulation against inmate legal assistance on the State, we must conclude that the State so far has failed in carrying that burden.

Having found that the State has failed to prove that it has provided a reasonable alternative to inmate assistance, we feel we should offer some guidance for future State action. We would require the State to carry the burden of justifying its regulation against inmate assistance by producing evidence that establishes in specific terms what the need is for legal assistance on habeas corpus matters in the TDC, and by demonstrating that it is reasonably satisfying that need. In defining the need for assistance and in responding to the need, TDC should give special consideration to the high illiteracy rate of the inmates, to the fact that a substantial number are Mexi-ean-Amerieans who speak little English, and to the great geographical dispersion of the Texas correctional facilities. We would permit the state to draw upon any source of assistance available, whether it be voluntary or remunerated, and whether it be licensed or unlicensed to practice law, as long as that service could be systematically relied upon. We think the record in this case demonstrates that TDC has been making a substantial effort since Johnson v. Avery to provide a reasonable alternative to inmate legal assistance. The TDC could not, of course, develop a complete legal assistance program overnight. As soon, however, as the TDC has developed an alternative to inmate assistance that it feels would be acceptable to this Court, it will of course be free to return to court to seek approval of that alternative.

Because we are not convinced that Johnson v. Avery has been complied with in this case, we hold that the loss of good time suffered as a result of violating the regulation against inmate assistance must be restored to appellants.

Appellants also set forth the peculiar difficulties of Death Row prisoners in obtaining legal assistance. Some of the services performed by the “writ writers” included assisting Death Row prisoners obtain stays of execution. Because what we have decided regarding prisoners in general is applicable to those on Death Row, it is not necessary to examine their arguments separately.

Solitary Confinement

In view of recent tragic incidents in this Nation’s prisons and of the frequent assertions of the inadequacy of our penal systems, the burden of judging weighs upon us more than usual as we turn to appellants’ contention that solitary confinement as administered by the TDC is cruel and unusual punishment. Just as our dissenting brother, we are deeply troubled by the lightless cell, the limited bedding, and the minimal food provided prisoners in solitary confinement in Texas. Nevertheless, we do not find that the imposition of these conditions constitutes cruel and unusual punishment as forbidden by the Eighth Amendment. As judges, we must look to the extant law and the general practices of our society. Otherwise, we run the risk of imposing our own personal moral code on a perhaps unready society.¹

We begin by turning to the long line of cases, to which we have found no exception, holding that solitary confinement per se is not “cruel and unusual.” Sostre v. McGinnis, 2d Cir. 1971, 442 F.2d 178; Burns v. Swenson, 8th Cir. 1970, 430 F.2d 771; Courtney v. Bishop, 8th Cir., 409 F.2d 1185, cert, denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Graham v. Willingham, 10th Cir. 1967, 384 F.2d 367; United States ex. rel. Knight v. Ragen, 7th Cir. 1964, 337 F.2d 425, cert, denied, 380 U.S. 985, 85 S.Ct. 1355, 14 L.Ed.2d 277 (1965). Our inquiry does not, however, end here since appellants challenge solitary confinement as implemented by the TDC. We must, therefore, examine the particular conditions that existed in each system previously scrutinized by the courts. Holt v. Sarver, E.D.Ark.1969, 300 F.Supp. 825. On the question of particular conditions, there are several cases that have concluded that certain prison conditions were so “base, inhuman and barbaric” that they violate the Eighth Amendment. We have studied these cases and the conditions depicted therein rather carefully, and find in none of them support for condemnation of solitary confinement in this case. In the first place, there is a common thread that runs through all these cases and that is not present in our case. That thread is the deprivation of basic elements of hygiene. See, e. g., Wright v. McMann, 2d Cir. 1967, 387 F.2d 519 [complaint alleged cell encrusted with excrement, plaintiff entirely naked, forced to sleep on concrete floor, windows open throughout subfreezing weather, no soap, towel or toilet paper]; Hancock v. Avery, M.D.Tenn.1969, 301 F.Supp. 786 [hole for waste, flushed irregularly by guard, no soap, towel or toilet paper, prisoner slept naked on floor]; Holt v. Sarver, supra [isolation cells dirty and unsanitary, pervaded with bad odors, plain cotton mattress uncovered and dirty; conducive to spreading, and did spread, infectious diseases]; Jordan v. Fitzharris, N.D.Cal. 1966, 257 F.Supp. 674 [cells not cleaned regularly, prisoner had no means to clean himself, a hole for receiving bodily wastes, no flushing mechanism]. By contrast with these cases, the prisoners in the TDC solitary confinement cells are deprived of none of the basic elements of hygiene. It is uncontradicted that solitary cells are scrubbed by the guards each time the prisoner leaves to bathe, which occurs at least three times a week. The cells are identical to the regular cells of the TDC in size and facilities ; they contain flush toilets, a drinking fountain, and a bunk. The prisoner is supplied with toilet paper, a toothbrush and toothpaste. Although the bunk is stripped in the sense that it has no mattress or pillow, the prisoner is given two blankets and is clothed in a gown or other garb, so that there is nothing to compare with the reports of prisoners sleeping naked on concrete floors in the above-cited cases. In addition, solitary cells in the TDC have the same temperature controls that regular cells in the prison have. We think it is correct to say, therefore, that no case has found conditions comparable to those in the TDC unconstitutional.

More important, most of the conditions challenged by appellants have withstood scrutiny by other courts,² and are to be found in differing variations in almost every jurisdiction in the country. See Sostre v. McGinnis, supra, 442 F.2d at 193.

Finally, the TDC has been ranked second or third among the Nation’s prisons for its progressiveness in prison administration and reform. This, to us, should be a weighty fact in any evaluation of the TDC under the cruel and unusual punishment clause.³

We would not put so much stock in the TDC’s fine reputation if we did not find that reputation borne out by the record in this case. The impression we have of the TDC from this record is that it has progressed rapidly under Dr. Beto’s administration, and that it engages in constant efforts to reform and to police itself. We think this may be demonstrated by a description of the TDC’s policy with respect to solitary confinement. This policy is set out in a TDC memorandum of “Disciplinary Procedures” directed to all wardens from the TDC’s Assistant Director for Treatment. It appears in the Record as defendant’s exhibit D-14. As we understand the testimony in this case, this memorandum is modeled after, and complies substantially with, the American Correctional Association’s Manual on Correctional Standards. The most effective way to reveal the thrust of the memorandum, which is 23 pages long, is to quote certain passages from it:

“Preventive Discipline

The capable and experienced official resolves most problems before they occur. He constantly corrects conditions that cause bitterness and unrest. He ‘spots’ and segregates ringleaders and agitators who foment trouble.

Preventive discipline consists of effective initial orientation . . . and continuing group and individual instruction . . . with a view to preventing a repetition of deviation without the necessity of taking punitive action. These correction techniques should be employed when trivial deviation occurs due to ignorance or lack of understanding, or when resulting from carelessness or faulty habits. In many instances a word of caution or instruction, an expression of genuine interest in the conduct of an inmate may show the subject how to avoid future errors. * * * ”

The Memorandum then describes at great length the Disciplinary Procedures "utilized in the TDC. These procedures include an initial report containing not only the correction officer’s statement of the offense charged, but also the inmate’s version of the offense; a hearing before the Unit Disciplinary Committee, at which the inmate is read the charge against him, and is given an opportunity to state his case; and, finally, the procedures require that the Committee give a statement explaining what action it has taken and why. Once there has been a decision to discipline an inmate for a rule infraction, the Disciplinary Committee may choose from among several disciplinary measures. The Memorandum instructs those administering discipline “to use only as much punishment as will effect the necessary change in the individual’s conduct.” The list of disciplinary procedures include

“A. Counsel or Reprimand.

B. Loss of Privileges [deemed one of the most effective methods of controlling the prisoner’s behavior] — Includes such measures as loss of recreation time, commissary privileges, movies, T. V. and other leisure time activities. States the Memorandum, ‘It is usually not advisable to restrict the inmate’s letter writing privileges unless the offense is in violation of the regulations relating to these practices.’

C. Negative Points — Possession of points creates eligibility for promotion and ultimately for pardon and parole.

D. Suspended Sentence — -Imposition of Penalty is suspended contingent upon further good conduct.

E. Extra Duty — Inmate is assigned extra duty labor on Saturday and during leisure hours.

F. Demotion in Class — Involves loss of trusty status, etc.

G. Loss of Overtime or Good Time.

H. Segregation — This includes administrative and punitive segregation.”

Since Punitive Segregation is what concerns us here, we think it would be helpful to set out substantially the TDC’s entire procedure. The instructions begin with the following caveat:

“Punitive segregation is ordinarily used as punishment when reprimands, loss of privileges, suspended sentences, and similar measures have been tried without satisfactory results. Punitive segregation is a major disciplinary measure and should be used judiciously when all other forms of action prove inadequate, where the safety of others is concerned, or when the serious nature of the offense makes it necessary.”

Then, after describing the more lenient forms of Punitive Segregation (which include restriction to one’s cell with loss of privileges and a limited diet), the Memorandum sets out procedures to be followed in administering solitary confinement.

“Solitary Confinement:

Confined inmates in a punishment status, placed on a restricted diet, with loss of privileges and placed in special facilities for a comparatively brief period. Ordinarily no inmate should be retained in punishment segregation on restrictive diet more than 15 days, and normally a shorter period is sufficient. Punitive segregation is not for indefinite or permanent segregation.

A. Punitive segregation procedures

(1) Period of confinement:

Fifteen days should be the maximum time spent in solitary.

Recalcitrant inmates at the end of this period should be taken out of solitary, placed in a cell or if dormitory residents, left in cell with door open. After two or three days, depending upon physical condition, he may be returned to solitary and the procedure continued.

(2) Diet

A. Inmates in solitary are to be fed one slice of bread twice a day and are to be given unlimited drinking water.

B. Each 72 hours inmates are to be fed a full meal. The meal shall be identical to the meal on the steam table at that time for the working inmates, i. e., seasoned foods, salad, meat, dessert, drink.

C. If an inmate remains recalcitrant at the end of a 15-day period and is handled as defined above, he should be fed the regular full ration (three full meals) for a minimum of two days. The number of days he is fed full ration in his cell should be determined by physical condition and rapidity of strength renewal. When returned to solitary, restricted diet procedure will be in force.

(a) Written records should be made regarding date and time of feeding, and menu fed.

(3) Medical Care and Procedure

A. Inmates who are to be placed in solitary should be cheeked by a physician or medical officer prior to confinement. In the event neither is available, the medical classification should be carefully checked on the travel card, if medical classification is such that life will not be jeopardized, the inmate may be placed in solitary and checked by medical personnel at first available period. When there is doubt regarding health, the inmate should be placed in administrative segregation until evaluated by medical personnel. Diabetics, Epileptics, heart cases, cases of high blood pressure, ulcers, generally debilitated conditions should not be placed in solitary but all privileges may be denied to them and they may be confined in a hospital or clinic cell.

B. Inmates should be weighed at least once a week and more often if possible by medical personnel, written record reflecting weight should be kept either on solitary cell door, treatment card, or in a book reserved for this purpose.

C. All inmates in solitary must be checked by a physician or medical officer at least once a day. Written record of visit should be kept on treatment card or in a book reserved for this purpose.

D. Personal hygiene should be encouraged. Inmates should be given a bath at least three times a week. Inmates should be allowed to brush their teeth daily. Male inmates should be shaved twice a week.

(4) Clothing

Inmates in solitary confinement should be given coveralls, a gown or some other form of clothing, i. e., tee shirt and undershorts, tee shirt and regulation trousers. Changes of clothing shall be effected at least two times per week.

(5) Bedding

Inmates in punitive segregation, solitary, should be furnished with the necessary number of blankets to keep them warm.

(6) Visits to Segregation

Prisoners in punitive segregation will be visited, observed, or evaluated a minimum of:

A. Two times each shift by a correctional officer.

B. Daily by both the officer in charge of the day shift and the officer in charge of the night shift.

C. Daily by medical personnel.

D. As frequently as necessary by Disciplinary Committee members to assure inmate’s welfare is properly provided for and to determine time and method of release.

E. Daily by either warden or assistant warden.

(7) Release from Punitive Segregation

Disciplinary Committee members will frequently review the ease of each inmate in punitive segregation, determine the inmate’s attitude, and return the inmate to the regular inmate population when, in the Committee’s opinion, he may reasonably be expected to adequately adjust and conform to the rules and regulations. Segregation for punishment should always be for the. shortest period of time that will accomplish the desired results of favorable adjustment.

(8) Return to Work

After a man has been in solitary over an extended period, he will become weak and in no condition to do a hard day’s work. He should be treated as a ‘new inmate’ and given a light but productive work assignment until his strength returns, this will vary according to the individual and his work assignment.

EXERCISE CAUTION SO THAT HEALTH IS NOT JEOPARDIZED.

After studying this record in its entirety, we have found ample evidence to establish that the TDC complies with virtually all of these guidelines in its administration of solitary confinement. First, there are statistics in the record to show that the ratio of the average number of male inmates confined to solitary on a given day to the average total inmate population over a period of one year runs around 2.1%, indicating that solitary is indeed used sparingly. Secondly, there are computerized reports kept on all inmates who are confined to solitary. These reports record, among other things, the duration of the inmate’s stay in solitary. They reveal that of the 132 prisoners confined in solitary at the time the reports were compiled, one had been in for a 14-day period, and 35 had been in for 7 days or more. The remaining 96 had been in for 6 days or less. Of the 11 who were let out on the day this report was compiled, 2 had been in for a full fifteen-day period, one had been in for one day only, 4 had been in for 6 days or less, and the remaining 4 had been in for 8-14 days. In addition, another yearly report showing the history of solitary confinement in the TDC revealed that most of those who had been confined were confined only once (in other words, the treatment was not repeated), while no more than 10% were returned after a second treatment for further periods of confinement. These reports convince us that solitary confinement is used sparingly in the TDC, that the period of confinement seldom equals the maximum fifteen-day period and is frequently well under that period, and that comparatively few of the prisoners in the TDC who are confined to solitary once have the punishment repeated a second time, and many fewer have it repeated a third time.

We turn now to the named prisoners who instituted this suit and who testified to their complaints about solitary confinement in the TDC. We think it should first be pointed out that each of the prisoners who testified came from the Ellis Unit, which is the TDC’s maximum security unit where prisoners considered to be high security risks are housed. Each of them had compiled rather long records of non-conformity with prison rules. A brief sampling follows: The Appellant Brown had on his record two attempted escapes, two charges of possessing contraband [a knife in both instances], numerous charges of agitation, fighting, creating a disturbance, disobeying a direct order, not working properly, and stealing. Appellant Brassell had compiled an offense record which also included an attempt to escape, refusal to work and insolence. Appellant Cruz’ record contains such offenses as refusal to work, insubordination, threatening the life of another inmate, impudence, possession of a prohibited weapon and agitation.⁴

The confinement of each of these prisoners for violation of the prison regulation against inmate legal assistance should be viewed in the context of their entire records, and not as though this was the only offense they ever committed. It seems fair to say that the prison authorities might have concluded that these were prisoners upon whom all lesser forms of discipline had failed.

We have set out the above information in detail because it is important to view the use of solitary confinement in the TDC in the context of the whole prison system. We cannot view such conditions as a bread and water diet supplemented every 72 hours by a full meal in a vacuum. We must also take into account the fact that the prison authorities as a matter of policy are careful to limit use of the diet to avoid damage to the prisoner’s health. Thus, as we consider each of the conditions in solitary, we must keep in mind that solitary is imposed as a last resort to obtain obedience from recalcitrant prisoners, that it is imposed for a limited amount of time [indeed, as we understand the testimony in this case, a prisoner will be released from solitary any time he asks to be released and agrees that he will abide by the prison rules], and that precautionary measures are taken to protect the prisoner from an overdose of solitary.

Used in this manner, solitary confinement serves a legitimate purpose in the prison community as a deterrent and a punitive force. Both the testimony of the prisoners in this case and the statistics revealing the low rate of returns to solitary support the conclusion that solitary is an effective deterrent of nonconforming prison conduct. On this point, we differ with the dissent, which concludes that solitary “has a totally negative impact on any hope for rehabilitation.” First, we would point out that while there is testimony by one psychologist that solitary confinement has no rehabilitative value, this testimony was contradicted by a psychiatrist who stated that often belligerent prisoners need to be segregated temporarily for their own good, as well as for the protection of others. In fact, the experts testified that there is an ongoing debate in their field over the harmful vis-a-vis the helpful effects of solitary confinement. See Sostre v. McGinnis, supra, 442 F.2d at 193, n. 25. There is also, of course, a vigorous debate over the comparative roles of punishment and rehabilitation in the correctional stage of our criminal justice system. It is not our place, however to resolve that debate. We think it is enough simply to say that, as of now, deterrence and punishment still have an active place in our prisons. It is beyond dispute, of course, that order must be maintained in the prisons. And when a prisoner continues to break prison rules even after losing such privileges as going to the movies and being assigned extra work, the authorities must have some harsher measure to induce compliance with prison regulations.

Our role as judges is not to determine which of these treatments is more rehabilitative than another, or which is more effective than another.⁵ The Constitution does not answer such questions. The scope of our review is very limited under the cruel and unusual punishment clause. And there are good treasons for the limitations on the scope lof that review. In the first place we simply are not qualified to answer the . many difficult medical, psychological, sociological, and correctional questions when it comes to choosing between one form of treatment and another. It is for this reason, we think, that courts have traditionally confined their review of prison regulations to such standards as “barbarous” and “shocking to the conscience.” See Church v. Hegstrom, 2d Cir. 1969, 416 F.2d 449. See also Royal v. Clark, 5th Cir. 1971, 447 F.2d 501 (“Federal courts will not interfere in the administration of prisons absent an abuse of the wide discretion allowed prison officials in maintaining order and discipline, . . . ”). More important, however, we think it is apparent from our experience with this case, if it had not been apparent before, that courts simply are not equipped to police the prisons.⁶ There was testimony in this record, for example, that the prison medical officers did not always check on the prisoners in solitary. We cannot, however, condemn the whole system because the prison personnel deviate occasionally from the prison policy. Obviously, we cannot follow the medical officers on the rounds each day to see that they comply with their assigned duties. While we are not so naive as to believe that every prison employee obeys prison regulations to the letter, we believe that, absent a showing of bad faith on the part of prison officials, we must rely on the prison administrators to enforce the policies they adopt. We think it is clear from the record that Dr. Beto is doing a creditable job in this respect. He testified that he makes the rounds of all 14 units in the TDC weekly to see that prison policy is being followed by the wardens and guards. He interviews the prisoners to be sure they are treated fairly, and has instituted a rotation plan for his wardens, so that one authority does not remain in one unit over too long a period of time.

Viewing the record as a whole, therefore, we have concluded that solitary confinement as it is used in the Texas Department of Corrections does not violate the cruel and unusual punishment clause. In reaching this conclusion, we have compared the TDC’s practices with those of other prison systems. We have considered that solitary is used sparingly and only as a last resort to inducing compliance with prison regulation. We have considered the fact that the authorities as a matter of prison policy take many precautionary steps to see that the use of solitary does not result in harm to the prisoners. On this record we cannot conclude that the TDC’s system is cruel and unusual, much less barbarous or shocking to the conscience.

Affirmed in part, reversed in part.

1 . On tins point, we share the views of Judge Kaufman of the Second Circuit, writing for the majority of that Court en lane, in Sostre v. McGinnis, 2d Cir. 1971, 442 F.2d 178, at 191, who stated:

[e]ven a lifetime of study in prison administration and several advanced degrees in the field would not qualify us as a federal court to command state officials to shun a policy that they have decided is suitable because to us the choice may seem unsound or personally repugnant. As judges we are obliged to school ourselves in such objective sources as historical usage . . . , practices in other jurisdictions . . . and public opinion, . . . before we may responsibly exercise the power of judicial review to declare a punishment unconstitutional under the Eighth Amendment. (Emphasis in original)

2 . In Ford v. Board of Managers, 3d Cir. 1969, 407 F.2d 937, for example, a bread and water diet supplemented by a regular meal each third day withstood the scrutiny of a federal court. See also the conditions described in Krist v. Smith, S.D. Ga.1970, 309 F.Supp. 497, aff’d, 5th Cir. 1971, 439 F.2d 146. The dissent has cited conditions in federal solitary confinement as favorable by comparison. We would point out, however, that the federal practice is to leave prisoners in solitary confinement indefinitely. See Sostre v. McGinnis, 2d Cir. 1971, 442 F.2d at 193. Moreover, while federal prisoners in solitary have light in their cells and a mattress on their bunks at night, their cells are stripped during the day and they have only a floor toilet. Moreover, as we understand the testimony in this case (there is some confusion between administrative segregation and punitive confinement throughout the record), the federal prisoners in solitary received a “bland loaf.” Dr. Beto testified that the prisoners in the TDC had expressed a preference for bread and water as opposed to the federal loaf. In short, while it seems that no two systems are alike, they all use variations of the same theme.

In addition, there is testimony that the main reason for the differences between the federal and state facilities is that federal prisons contain fewer persons who are in on assault and murder charges. The state prisons have more need to adopt measures designed to cope with inmates prone to violence. This appears to be the reason inmates in the TDC are usually given a thin gown rather than a full prison uniform when they go to solitary. Apparently, there was reason to believe that the inmates in solitary would use the heavier clothing to attack the guards or to stuff the toilet, causing it to flood.

3 . We find this fact particularly persuasive in light of the Supreme Court's tendency to strike down a choice of punishments “only when the penalty is authorized in almost no other civilized jurisdiction.” See Sostre v. McGinnis, supra, at 193, note 22.

4 . Appellant Cruz is not a stranger to this Court. See, e. g., Cruz v. Beto, 5th Cir. 1971, 445 F.2d 801.

5 . See note 1 supra.

6 . The limits of our ability to police the prisons manifests itself in various ways. One, of course, is the fact that prison reform is primarily a task for legislators and administrators. We cannot express this point better than did Judge Kaufman in Sostre v. McGinnis, supra, 442 F.2d at 205:

We do not doubt the magnitude of the task ahead before our correctional systems become acceptable and effective from a correctional, social and humane viewpoint, but the proper tools for the job do not lie with a remote federal court. The sensitivity to local nuance, opportunity for daily perseverance, and the human and monetary resources required lie rather with the legislators, executives, and citizens in their communities.