337

BRENNAN, J., concurring in judgment

ern Ohio Correctional Facility is in violation of the Eighth Amendment. I write separately, however, to emphasize that today's decision should in no way be construed as a retreat from careful judicial scrutiny of prison conditions, and to discuss the factors courts should consider in undertaking such scrutiny.

I

Although this Court has never before considered what prison conditions constitute "cruel and unusual punishment" within the meaning of the Eighth Amendment, see ante, at 344-345, such questions have been addressed repeatedly by the lower courts. In fact, individual prisons or entire prison systems in at least 24 States have been declared unconstitutional under the Eighth and Fourteenth Amendments,' with litiga

1 Among the States in which prisons or prison systems have been placed under court order because of conditions of confinement challenged under the Eighth and Fourteenth Amendments are: Alabama, see Pugh v. Locke, 406 F. Supp. 318 (MD Ala. 1976), aff'd as modified, 559 F. 2d 283 (CA5 1977), rev'd in part on other grounds, 438 U. S. 781 (1978) (per curiam); Arizona, see Harris v. Cardwell, No. CIV-75-185-PHX-CAM (DC Ariz., Oct. 14, 1980) (consent decree); Arkansas, see Finney v. Mabry, 458 F. Supp. 720 (ED Ark. 1978) (consent decree); Colorado, see Ramos v. Lamm, 639 F. 2d 559 (CA10 1980), cert. denied, 450 U. S. 1041 (1981); Delaware, see Anderson v. Redman, 429 F. Supp. 1105 (Del. 1977); Florida, see Costello v. Wainwright, 397 F. Supp. 20 (MD Fla. 1975), aff'd, 525 F.2d 1239 (CA5), vacated on rehearing on other grounds, 539 F. 2d 547 (CA5 1976) (en banc), rev'd, 430 U. S. 325, aff'd on remand, 553 F. 2d 506 (CA5 1977) (en banc) (per curiam); Georgia, see Guthrie v. Caldwell, No. 3068 (SD Ga., Dec. 1, 1978) (consent decree); Illinois, see Lightfoot v. Walker, 486 F. Supp. 504 (SD Ill. 1980); Iowa, see Watson v. Ray, 90 F. R. D. 143 (SD Iowa 1981); Kentucky, see Kendrick v. Bland, No. 760079-P (WD Ky., Oct. 24, 1980) (consent decree); Louisiana, see Williams v. Edwards, 547 F. 2d 1206 (CA5 1977); Maryland, see Johnson v. Levine, 450 F. Supp. 648 (Md.), aff'd in part, 588 F. 2d 1378 (CA4 1978), and Nelson v. Collins, 455 F. Supp. 727 (Md.), aff'd in part, 588 F. 2d 1378 (CA4 1978); Mississippi, see Gates v. Collier, 501 F. 2d 1291 (CA5 1974); Missouri, see Burks v. Teasdale, 603 F. 2d 59 (CA8 1979); New Hampshire, see Laaman v. Helgemoe, 437 F. Supp. 269 (NH 1977);

BRENNAN, J., concurring in judgment

2

452 U.S. tion underway in many others. Thus, the lower courts have learned from repeated investigation and bitter experience that judicial intervention is indispensable if constitutional dictates—not to mention considerations of basic humanity-are to be observed in the prisons.

No one familiar with litigation in this area could suggest that the courts have been overeager to usurp the task of running prisons, which, as the Court today properly notes, is entrusted in the first instance to the "legislature and prison administration rather than a court." Ante, at 349. And certainly, no one could suppose that the courts have ordered creation of "comfortable prisons," ibid., on the model of country clubs. To the contrary, "the soul-chilling inhumanity of conditions in American prisons has been thrust upon the judicial conscience." Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 684 (Mass. 1973).

Judicial opinions in this area do not make pleasant reading. For example, in Pugh v. Locke, 406 F. Supp. 318 (MD

New Mexico, see Duran v. Apodaca, No. Civil 77-721-C (DC NM, July 17, 1980) (consent decree); New York, see Todaro v. Ward, 565 F. 2d 48 (CA2 1977); Ohio, see (in addition to this case) Stewart v. Rhodes, 473 F. Supp. 1185 (ED Ohio 1979); Oklahoma, see Battle v. Anderson, 564 F. 2d 388 (CA10 1977); Oregon, see Capps v. Atiyeh, 495 F. Supp. 802 (Ore. 1980); Pennsylvania, see Hendrick v. Jackson, 10 Pa. Commw. 392, 309 A. 2d 187 (1973); Rhode Island, see Palmigiano v. Garrahy, 443 F. Supp. 956 (RI 1977), remanded, 599 F. 2d 17 (CA1 1979); Tennessee, see Trigg v. Blanton, No. A-6047 (Ch. Ct., Davidson Cty., Aug. 23, 1978), vacated (Tenn. App., May 1, 1980) (for consideration of changes in conditions), appeal pending (Tenn. Sup. Ct.); Texas, see Ruiz v. Estelle, 503 F. Supp. 1265 (SD Tex. 1980). See also Feliciano v. Barcelo, 497 F. Supp. 14 (PR 1979); Barnes v. Government of Virgin Islands, 415 F. Supp. 1218 (V. I. 1976).

2 There are over 8,000 pending cases filed by inmates challenging prison conditions. 3 National Institute of Justice, American Prisons and Jails 34 (1980) (hereafter American Prisons and Jails).

3 It behooves us to remember that

"it is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within [un

337

BRENNAN, J., Concurring in judgment

Ala. 1976), aff'd as modified, 559 F. 2d 283 (CA5 1977), rev'd in part on other grounds, 438 U. S. 781 (1978) (per curiam), Chief Judge Frank Johnson described in gruesome detail the conditions then prevailing in the Alabama penal system. The institutions were "horrendously overcrowded," 406 F. Supp., at 322, to the point where some inmates were forced to sleep on mattresses spread on floors in hallways and next to urinals. Id., at 323. The physical facilities were "dilapidat[ed]" and "filthy," the cells infested with roaches, flies, mosquitoes, and other vermin. Ibid. Sanitation facilities were limited and in ill repair, emitting an "overpowering odor"; in one instance over 200 men were forced to share one toilet. Ibid. Inmates were not provided with toothpaste, toothbrush, shampoo, shaving cream, razors, combs, or other such necessities. Ibid. Food was "unappetizing and unwholesome," poorly prepared and often infested with insects, and served without reasonable utensils. Ibid. There were no meaningful vocational, educational, recreational, or work programs. Id., at 326. A United States health officer described the prisons as "wholly unfit for human habitation according to virtually every criterion used for evaluation by public health inspectors." Id., at 323-324. Perhaps the worst of all was the "rampant violence" within the prison. Id., at 325. Weaker inmates were "repeatedly victimized" by the stronger; robbery, rape, extortion, theft, and assault were "everyday occurrences among the general inmate population." Id., at 324. constitutionally operated prisons]-the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain medical care

"For those who are incarcerated within [such prisons], these conditions and experiences form the content and essence of daily existence." Ruiz v. Estelle, supra, at 1391.

BRENNAN, J., concurring in judgment

452 U.S.

Faced with this record, the court-not surprisingly-found that the conditions of confinement constituted cruel and unusual punishment, and issued a comprehensive remedial order affecting virtually every aspect of prison administration.*

Unfortunately, the Alabama example is neither abberational nor anachronistic. Last year, in Ramos v. Lamm, 639 F. 2d 559 (1980), cert. denied, 450 U. S. 1041 (1981), for example, the Tenth Circuit declared conditions in the maximum-security unit of the Colorado State Penitentiary at Canon City unconstitutional. The living areas of the prison were "unfit for human habitation," 639 F. 2d, at 567; the food unsanitary and "grossly inadequate," id., at 570; the institution "fraught with tension and violence," often leading to injury and death, id., at 572; the health care "blatant [ly] inadequat [e]" and "appalling," id., at 574; and there were various restrictions of prisoners' rights to visitation, mail, and access to courts in violation of basic constitutional rights, id., at 578-585. Similar tales of horror are recounted in dozens of other cases. e. g., cases cited in n. 1, supra.

See,

Overcrowding and cramped living conditions are particularly pressing problems in many prisons. Out of 82 court orders in effect concerning conditions of confinement in federal and state correctional facilities as of March 31, 1978, 26 involved the issue of overcrowding. 3 American Prisons and Jails 32. Two-thirds of all inmates in federal, state, and local correctional facilities were confined in cells or dormitories providing less than 60 square feet per person-the minimal standard deemed acceptable by the American Public Health Association, the Justice Department, and other authorities."

This Court has upheld the exercise of wide discretion by trial courts to correct conditions of confinement found to be unconstitutional. Hutto v. Finney, 437 U. S. 678, 687-688 (1978).

5 See American Public Health Assn., Standards for Health Services in Correctional Institutions 62 (1976); U. S. Dept. of Justice Federal Standards for Prisons and Jails, Standard No. 2.04, p. 17 (1980); see generally 3 American Prisons and Jails 39-50, 85, n. 6.

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BRENNAN, J., concurring in judgment

The problems of administering prisons within constitutional standards are indeed "complex and intractable,'" ante, at 351, n. 16, quoting Procunier v. Martinez, 416 U. S. 396, 404 (1974), but at their core is a lack of resources allocated to prisons. Confinement of prisoners is unquestionably an expensive proposition: the average direct current expenditure at adult institutions in 1977 was $5,461 per inmate, 3 American Prisons and Jails 115; the average cost of constructing space for an additional prisoner is estimated at $25,000 to $50,000: Id., at 119. Oftentimes, funding for prisons has been dramatically below that required to comply with basic constitutional standards. For example, to bring the Louisiana prison system into compliance required a supplemental appropriation of $18,431,622 for a single year's operating expenditures, and of $105,605,000 for capital outlays. Williams v. Edwards, 547 F. 2d 1206, 1219-1221 (CA5 1977) (Exhibit A).

Over the last decade, correctional resources, never ample, have lagged behind burgeoning prison populations. In Ruiz v. Estelle, 503 F. Supp. 1265 (SD Tex. 1980), for example, the court stated that an "unprecedented surge" in the number of inmates has "undercut any realistic expectation" of eliminating double and triple celling, despite construction of a new $43 million unit. Id., at 1280-1281. The number of inmates in federal and state correctional facilities has risen 42% since 1975, and last year grew at its fastest rate in three years. Krajick, The Boom Resumes, 7 Corrections Magazine 16-17 (Apr. 1981) (report of annual survey of prison populations). A major infusion of money would be required merely to keep pace with prison populations.

Among the causes of the rising number of prison inmates are increasing population, increasing crime rates, stiffer sentencing provisions, and more restrictive parole practices. See Krajick, The Boom Resumes, 7 Corrections Magazine 16-17 (Apr. 1981); 3 National Institute of Law Enforcement and Criminal Justice, The National Manpower Survey of the Criminal Justice System 13-14 (1978).