concurring:
While I concur in the judgment of the Court, I have some different views that are not contained in the opinion. My concurring opinion covers three principal points. First, I believe that procedurally this Court is not equipped to handle this type of case in an original habe-as corpus proceeding. My second point covers the constitutional guidelines for juvenile detention facilities. Finally, I address the question of why immediate release of the relators is not required.
I
This case has undergone a rather substantial metamorphosis. Initially, the thrust of the petitions of both K. W. and C. W. was a claim that they were subjected to cruel and unusual treatment at Pruntytown, primarily because of the practices surrounding solitary confinement in the “hole.”1
Upon the filing of the petitions, this Court acted promptly by issuing a preliminary order that relator K. W. be released from solitary confinement pending final resolution of the case.2 A return day for the writs was scheduled for October 11, 1977. Both parties sought and obtained continuances in order to take evidentiary depositions, and the case was scheduled for oral argument on November 22, 1977.
When the case was argued there was a decided shift in the position advanced by relators. From the initial claim of cruel and unusual punishment arising out of the soli*211tary confinement policy, we were urged to consider the question of closing Pruntytown on the ground that it was anti-rehabilitative, and we were asked to apply law that has developed in a number of federal district court cases where judicially fashioned guidelines were imposed on state juvenile detention facilities. Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss. 1977); Harris v. Bell, 402 F. Supp. 469 (W.D. Mo. 1975); Morales v. Turman, 383 F. Supp. 53 (E.D. Tex. 1974), rev’d on other grounds, 535 F.2d 864 (5th Cir. 1976), rev’d per curiam, 430 U.S. 322, 51 L. Ed. 2d 372, 97 S. Ct. 1189 (1977); Martarella v. Kelley, 359 F. Supp. 478 (S.D.N.Y. 1973); Inmates of the Boys’ Training School v. Affleck, 346 F. Supp. 1354 (D. R.I. 1972).
There are, however, marked differences between these cases and the record which we have before us. In the first place, the federal cases demonstrate the courts did not set guidelines until they had before them an extensive initial record which demonstrated in detail the abuses and inadequacies that existed.
Moreover, those courts had the benefit of testimony of a number of specialists, including the testimony of psychiatrists, physicians, educators, penologists and sociologists, who uniformly testified that conditions were far below acceptable standards. These experts furnished the courts with specific recommendations and standards which could be applied to begin corrective action.
Morales is perhaps the leading case in the field. The court’s holding in that case embraced the entire Texas juvenile detention system. But the district court, before making its final decision, had the case under consideration for more than three years. Expert “monitors” were appointed at the initial stage of the case to examine the facilities and to provide the court with some independent basis on which to weigh the testimony of the parties.
As an appellate court we are not equipped to engage in direct fact-finding or to take live testimony. Where facts must be developed, normally depositions are taken *212outside the Court. As a consequence, we do not have the benefit of observing the witness or making inquiry into relevant areas, all of which are available to the trial judge. Moreover, a single trial judge who hears the testimony is in a much better position to make factual findings than five appellate judges who are reviewing a “cold” record. There can be little doubt that we are not able procedurally to handle adequately a Morales- type case on an original application in habeas corpus.3
Because of the limited record before us, in my judgment it is not possible to make any comprehensive evaluation of the conditions at Pruntytown. None of the experts either for the petitioners or for the State were able to provide a detailed analysis of the system in operation at Pruntytown, or to determine which practices were below commonly acceptable standards in the juvenile detention field.4
The record discloses that Pruntytown has a psychological, scholastic and general aptitude testing program and that each youth is tested upon his arrival at the school. This appears to form a basis for attempting some individualized treatment.
The institution has a behavioral modification program called the Peer Group Pressure Program where, under the leadership of a counselor, the youths are encouraged to discuss frankly their behavioral attitudes with the other members of the group. The program is apparently a recognized method of encouraging rehabilitative efforts through group therapy.
As the majority opinion points out {ante, at 16), all experts who testified approved of the existing education*213al program. In addition to its scholastic program, the school offers a regular vocational program and a formal sports-recreational program, including a limited competitive sports program with area schools. These programs certainly cannot be characterized as anti-rehabilitative.
Based on the record in this case, there is not sufficient evidence to warrant a discussion of whether the institutionalization of criminal juveniles is per se unconstitutional. I recognize that Dr. Miller, one of relators’ experts, is of the view that in the majority of cases institutionalization may not help a juvenile, and indeed may harm him if there are no rehabilitative programs available. However, no court has adopted this view.
Moreover, the record does not demonstrate sufficient facts to warrant the conclusion that Pruntytown’s system is anti-rehabilitative. In certain extraordinary circumstances a court can, under the cruel and unusual treatment prohibition of the State and Federal Constitutions, intervene to force modification of conditions in detention facilities. Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974); Morgan v. Sproat, supra; Morales v. Turman, supra. We in effect have done this by holding that confinement in the “hole,” “bench time”, “floor time”, and general “macing” as practiced at Pruntytown are constitutionally impermissible.
II
My divergence with the majority is that we have failed to enunciate specific constitutional guidelines to govern juvenile detention facilities, since relators have raised a number of these constitutional issues in their petitions and briefs. The thrust of relators’ argument is that the statutory standards imposed by W.Va. Code, 49-5-16, for confinement of juveniles, are already constitutionally mandated.
The majority states in note 3 that these standards are “consistent with our conceptions of constitutionally mandated care.” Taking the statutory standards as a whole, I believe they represent, in the main, what courts have already mandated under various constitutional *214guarantees, although I do not believe the failure to observe each individual standard would give rise to a constitutional violation.
As specific illustrations, W.Va. Code, 49-5-16 (b) (1), prohibits the use of physical force or solitary confinement to punish juveniles. The use of physical force on juveniles presents a difficult and delicate problem. In an adult context, the whipping of a prisoner with a strap has been condemned as cruel and unusual punishment. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).
In Nelson v. Heyne, supra, the court found that beating juveniles on the buttocks with wooden paddles was cruel and unusual punishment. The beatings were used to discipline juveniles who had escaped from confinement or who had been accused of assualting other students or staff members. They were administered after a decision by two staff members, and staff personnel were also required to serve as witnesses.
Nelson recognized that in proper instances the administration of corporal punishment by school personnel would be appropriate, thus anticipating the United States Supreme Court decision in Ingraham v. Wright, _U.S_, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). The majority in Ingraham concluded that corporal punishment of school children is not a “punishment” within the meaning of the cruel and unusual clause of the Eighth Amendment. The majority, however, did seem to recognize that there was a distinction between the use of corporal punishment on school children and on inmates of a penal institution._U.S. at_, 51 L. Ed. 2d at 729, 97 S. Ct. at 1411. The majority opinion placed a great deal of emphasis on the fact that an abused school child could vindicate his rights in a tort action. _ U.S. at _, 51 L. Ed. 2d at 733-734, 97 S. Ct. at 1415.5
*215The four dissenting Justices did not urge that corporal punishment was per se unconstitutional, but recognized that it was a “punishment” covered by the Eighth Amendment and, therefore, if applied immoderately, could constitute cruel and unusual punishment. The dissent also recognized that where physical punishment is inflicted, a “liberty” interest is at stake and due process requires at least notice of the charge and a hearing before the punishment can be inflicted.__ U.S._, 51 L. Ed. 2d at 748, 749, 97 S. Ct. at 1422, 1423.
While I do not view Ingraham as entirely controlling on the question of whether corporal punishment of juvenile inmates violates the cruel and unusual punishment prohibition, I do not see how it can be completely ignored.
Even the dissent in Ingraham accepted as a societal norm the spanking of a juvenile for disciplinary purposes: “... it can hardly be said that the use of moderate paddling in the discipline of children is inconsistent with the country’s evolving standards of decency.” ___ U.S-, n. 1, 51 L. Ed. 2d at 739, 97 S. Ct. at 1419. It is the concept of evolving standards of decency and morality of a maturing society that has become the test for cruel and unusual punishment. Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 642, 78 S. Ct. 590, 598 (1958). Certainly we must also acknowledge that confinement and disciplinary practices that may be acceptable for adult prisoners would be unacceptable for juvenile inmates.
The majority appears to condemn any physical punishment of juveniles as violative of the cruel and unusual punishment prohibition.6 I do agree that “bench” and *216“floor” time, as well as “macing”, as practiced at Prun-tytown violate our cruel and unusual constitutional standard. West Virginia Constitution, Article III, Section 5.7
The reason the standard is violated by these practices is that the physical punishment was excessive. No juvenile should be required to maintain rigid poses, either standing or sitting, for prolonged periods of time. On the other hand, the concept of “quiet time” noted by the majority on page 5, which involves a form of physical restraint, does not impinge on the cruel and unusual standard, since there is a minimal level of physical discomfort involved.
As I have noted earlier, Ingraham cannot be ignored as viable authority which would sanction the practice of moderate spanking for juvenile disciplinary purposes. Indeed, it would be anomalous to allow corporal punishment in public schools but to deny its use at Prunty-town, or, to make the matter even more paradoxical, to permit corporal punishment within the school setting at Pruntytown but nowhere else.
I would adopt the approach taken by the minority in Ingraham, and hold that before physical punishment can *217be administered certain due process procedural safeguards must be followed. I would expand the procedural safeguards since Pruntytown is, unlike our public schools, a closed institution and is not exposed to public scrutiny.8
This approach is consistent with those cases that hold the Due Process Clause does apply to prison disciplinary procedures. Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Baxter v. Palmigiano, 425 U.S. 308, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976). We have adopted this position in Tasker v. Griffith, _W. Va. -, 238 S.E.2d 229 (1977), under our Due Process Clause. West Virginia Constitution, Article III, Section 10.
Implicit in any system of discipline is the fact that there are rules or regulations which govern the conduct of juvenile inmates so that it is known in advance what breach of conduct may result in disciplinary action. Both Wolff and Tasker required advanced written notice of the claimed violation and a brief period of time to prepare to answer it. The right to call witnesses and to present evidence in defense of the charge was recognized. Finally, some lay assistance should be made available if the charge is complex or the juvenile is not able to comprehend the matter.
In regard to the administration of corporal punishment, I would hold that this could only be administered by supervisory personnel and must not be administered so as to inflict injury. Moreover, there must be at least one witness present.9 Certainly, corporal punishment *218which is disproportionate to the disciplinary infraction or which inflicts injury is not acceptable. Nelson v. Heyne, supra.
Solitary confinement of juveniles under degrading circumstances constitutes cruel and unusual punishment. Morgan v. Sproat, supra; Pena v. New York State Division for Youth, 419 F. Supp. 203 (S.D. N.Y. 1976). On the other hand, courts recognize that the cruel and unusual punishment standard does not preclude the physical isolation of a juvenile who poses either a danger to himself or to others, to property, or to the orderly administration of the institution.
Such confinement should be in a habitable setting where the juvenile is provided an adequate diet, recreation, and physical exercise. Moreover, such confinement should be monitored and extend only long enough to allow the inmate to regain control of himself. Morgan v. Sproat, 432 F. Supp. at 1140; Pena v. New York State Division for Youth, 419 F. Supp. at 210; Morales v. Turman, 383 F. Supp. at 3-84.
Our statute gives implicit recognition to this rule when it provides: “Except for sleeping hours a child in a state facility shall not be locked alone in a room unless such child is out of control.” W.Va. Code, 49-5-16(b) (3). In my view, solitary confinement of a juvenile is not per se prohibited. It is only when the confinement serves no rational purpose and occurs under conditions which are abusive and excessive that it becomes impermissible.
There are other modes of disciplining a juvenile offender. For example, a system within which privileges can be earned by good behavior and forfeited by miscon*219duct would be acceptable. I am not aware of any court which has condemned such a system.
Another statutory standard allows the juvenile immediate access to medical care as needed.10 The United States Supreme Court has indicated in Estelle v. Gamble, _U.S-, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), that in certain circumstances the denial of medical care can amount to cruel and unusual punishment. The statute sets a broader right to medical care than is mandated under the constitutional standard.11 Upon the record in this case, there is not sufficient evidence to find that the quality of the medical care was such that the constitutional standard was violated.
Several of the statutory standards such as access to writing materials, mail and limitation on censorship,12 and the reasonable access to an attorney13 are rights that arise out of other constitutional guarantees. In Procunier v. Martinez, 416 U.S. 296, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974), the United States Supreme Court recognized that the right of a prisoner to use the mails and to receive mail without undue censorship is protected under the First Amendment to the United States Constitution. Procunier also recognized that accessability to legal assistance is a due process right. See also Bounds v. Smith, _U.S. _, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). Relators seemed to concede at the final argument that their rights in these respects have not been violated.
The right to access to education, including instruction, educational materials and books,14 is a part of the right to rehabilitative programs which the courts have found to be constitutionally required. Nelson v. Heyne, supra; *220Morgan v. Sproat, supra; Harris v. Bell, supra; Morales v. Turman, supra; Martarella v. Kelley, supra; Inmates of the Boys’ Training School v. Affleck, supra. As noted in the earlier portion of this opinion, I do not find from the record that the right to rehabilitative programs has been violated.
The remaining statutory standards of the right to daily physical exercise,15 clothing and daily access to showers,16 and the right to make phone calls and visitations17 would not constitute cruel and unusual punishment if denied. A systematic denial of all these rights might reach the constitutional level, particularly where accompanied with other abuses.18
Another right not protected by the statute, but which is fundamental, is access to religious worship. Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). No claim is made that this right is violated.
It appears, then, that the statutory standards are to a substantial degree grounded on constitutional rights, but may, in several instances, be broader than those rights currently constitutionally mandated.
Ill
My final comments are addressed to note 7 of the Court’s opinion. Two members of the Court would require the immediate release of the relators.
There is little question that courts are now more inclined to consider the rights of prisoners and the conditions under which they are incarcerated.19 Despite this *221trend, however, courts have been reluctant, after finding prison conditions and practices repugnant to the Eighth Amendment, to order release as a remedy. Wiltsie v. California Dept. of Corrections, 407 F.2d 515 (9th Cir. 1968) (Release not available under Civil Rights Act § 1983); Darsey v. United States, 318 F. Supp. 1346 (D.C. Mo. 1970) (practices prohibited but no release); Konigsberg v. Ciccone, 285 F. Supp. 585 (W. D. Mo. 1968), aff'd, 417 F.2d 161 (8th cir. 1969), cert. denied, 397 U.S. 963 (1970) (equitable restraint to preclude continuation or resumption of illegal acts accorded, petitioner not released); Commonwealth ex rel. Bryant v. Hendrick, 280 A.2d 110 (Pa. 1971) (Transfer to another prison but no release).
Moreover, most commentators summarily reject or deprecate release as a remedy. See Note, Penal Institutions and the Eighth Amendment — A Broadened Conception of Cruel and Unusual Punishment, 31 La. L. Rev. 395, 403 (1971); Comment, Cumulative Impact of Deplorable Conditions of Confinement in State Prisons Constitute Cruel and Unusual Punishment, Even Though Inmates Were Subjected Incidentally Rather than in Deliberate Retribution for Criminal Conduct, 23 Ala. L. Rev. 143, 155 n. 62 (1970); Note, Arkansas State Penitentiary System Violates the Eighth Amendment, 84 Harv. L. Rev. 456, 459 n. 20 (1970); Note, Cruel and Unusual Punishment, 48 Texas L. Rev. 1198, 1203 n. 35 (1970). At least one court, however, has used the threat of release as a means of controlling prison abuses. Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), aff'd. 442 F.2d 304 (8th Cir. 1971); Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969).
*222The question of whether and under what circumstances the actual release of a petitioner in habeas corpus is appropriate has not been ignored by this Court. See Rhodes v. Leverette,_W. Va._, 239 S.E.2d 136 (1977), and cases cited therein. In Rhodes, we stated: “[R]elief will be given so as to cure the underlying constitutional error.” _W. Va. -, 239 S.E.2d at 142.
Rhodes dealt with the concept of extraordinary dereliction on the part of the State in denying a clear constitutional right, which in that instance was the right to have counsel appointed to prosecute a criminal appeal. It made the distinction between those constitutional violations which affect the integrity of the trial itself, and which will normally warrant unconditional release,20 and those constitutional violations that arise after the trial, such as the denial of a transcript or appointment of counsel for appeal. 239 S.E.2d at 142.
Prison conditions which violate the cruel and unusual standard concern matters which do not affect the integrity of the trial, and therefore do not fall into that class of habeas corpus cases in which the relief is normally unconditional release. The rule of extraordinary dereliction would therefore be applicable.
There was no attempt in Rhodes to define a rule of extraordinary dereliction which would be applicable to all possible constitutional violations. The standards set in Rhodes were specifically directed to violations of the right of an indigent criminal defendant to a trial transcript and the appointment of counsel.
Here the question is: What standard of extraordinary dereliction must be shown in order to entitle juvenile offenders to unconditional release from confinement where it has been found that they have been subject to cruel and unusual punishment?
*223It is my view that the State cannot ordinarily be charged with extraordinary dereliction in this area until the practices have been judicially condemned as cruel and unusual. Additionally, it must be established that the State, after being given a reasonable time to correct the practices, has utterly failed to do so.21 Finally, the State should have the right to develop fully all ameliorating circumstances surrounding its conduct and to present viable alternatives to unconditional release. I would also recognize, as we did in Rhodes, that there may be individual cases where the abuses are so shocking and extreme and without justification on the part of the State, that an immediate discharge would be warranted. 239 S.E.2d at 144.
Application of the foregoing principles to the facts of this case does not warrant the immediate release of relators. This Court moved promptly to release K.W. from his initial confinement in the “hole” and the condemned practices have been identified and prohibited such that the State proceeds at its peril by continuing the practices. Finally, the abuses were not so extreme or shocking to come within the exception that requires immediate release.
I am authorized to state that Justice Caplan joins with me in this concurring opinion.
Both K. W. and C. W. filed substantially identical petitions for habeas corpus and mandamus, although C. W.’s petition was not filed until approximately one month after that of K. W. The Court considered habeas corpus the appropriate remedy. Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).
At the time C. W.’s petition was filed no claim was made that he was in solitary confinement. K. W. so asserted in his petition, and our Order, dated September 14, 1977, granting his writ, stated: “It is further ordered that the relator, K. W. be released from confinement in the ‘hole’ as described in III (a) of the petition, pending final disposition of this proceeding.”
Most of the cases in this field were civil actions for declaratory judgment and injunctive relief, which enabled the parties and the court to operate under a panoply of discovery rules. These rules are not available in a habeas corpus proceeding.
This is not intended as a criticism of the experts, as it is clear that they had only a limited amount of time in which to study the facility. The time spent by any expert who visited the facility did not exceed two days.
A note on this subject predating Ingraham entitled Schools— Corporal Punishment Without Civil or Criminal Liability is found in 72 W.Va. L. Rev. 399 (1970). There are no West Virginia cases in this field.
One of the problems I have with the majority opinion is that it does not clearly state or analyze the concept of physical punishment. Physical punishment can take a variety of forms, from obvious beatings and “macings”, to more subtle forms such as “bench” and “floor” time. The record does not disclose that juveniles were beaten by employees at Pruntytown, although the majority would so suggest by its quotation from Morales (ante, at 7). Moreover, the *216language used in Syllabus point 3 [“beatings, slapping, kicking, or otherwise physically abusing”] is not derived from facts contained in the record. It does appear that some of the inmates had been struck by staff members, but this action was not pursuant to any policy sanctioned by the institution. I do not believe that isolated acts of physical abuse by members of the staff of a penal institution constitute cruel and unusual punishment, absent a showing that they are officially condoned, are widespread, or are so repetitious that official acquiescence can be presumed. Holt v. Sarver, 309 P. Supp. 362 (E.D. Ark. 1970), aff'd 442 F.2d 304 (8th Cir. 1971); Jackson v. Bishop, supra. This does not mean that the guilty party cannot be held civilly liable in damages. Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S.Ct. 1683 (1974); Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S.Ct. 407 (1971).
My preference would have been to rest the point solely on the cruel and unusual punishment clause of our Constitution for reasons more fully stated in my concurring opinion in Gooden v. Board of Appeals of West Virginia Department of Public Safety, _W. Va_, 234 S.E.2d 893 (1977).
This was one of the factors that led the Court in Ingraham to conclude that Eighth Amendment protection was not needed for school children._U.S. at_, 51 L. Ed. 2d at 730, 97 S. Ct. at 1412.
The West Virginia Board of Education has approved, on July 11, 1975, a handbook for students in the public schools entitled Rights and Responsibilities of Public School Students in West Virginia, which contains in Section X the following provision in regard to corporal punishment:
*218“The use of excessive physical force by school officials on students is illegal. Moderate, corporal punishment used to enforce discipline is permitted by law. However, such punishment must not be wanton or malicious and must not be in excess of the offense.
“Corporal punishment must be administered by the principal or assistant principal, or by a teacher with the permission of the principal. In all cases, corporal punishment must be administered in the presence of a witness.”
W.Va. Code, 49-5-16(b) (7).
The statutory standards do not become effective until January 1, 1979, and I have purposely refrained from commenting on their scope except as they relate to constitutionally mandated standards.
W.Va. Code, 49-5-16(b) (5).
W.Va. Code, 49-5-16(b) (9).
W.Va. Code, 49-5-16(b) (8).
W.Va. Code, 49-5-16(b) (2).
W.Va. Code, 49-5-16(b) (4).
W.Va. Code, 49-5-16(b) (6).
It appears that after these suits were instituted the respondent began implementation of these standards as well as some of the other standards. As a result, relators did not contend at final argument that they are now denied these items.
For various commentaries on this subject, see the following:
See, e.g., Turner, Establishing the Rule of law in Prisons: A Manual for Prisoners’ Rights Litigation, 23 Stan. L. Rev. 473 (1971); Note, Equitable Remedies Available to a Federal Court After De-*221daring an Entire Prison System Violates the Eighth Amendment, 1 Cap. L. Rev. 101 (1972); Note, Decency and Fairness: An emerging Judicial Bole in Prison Reform, 57 Va. L. Rev. 841 (1971); Comment, Confronting the Conditions of Confinement: An Expanded Role for Courts in Prison Reform, 12 Harv. Civil Rights-Civil Liberties L. Rev. 367 (1977); Comment, Cruel But Not So Unusual Punishment: The Role of the Federal Judiciary in State Prison Reform, 7 Cumb. L. Rev. 31 (1976).
As Rhodes emphasized, while release in these instances is unconditional, the double jeopardy clause would not prohibit a retrial of the defendant. 239 S.E.2d at 141, 142.
What constitutes a reasonable time to correct the practices depends on the nature of the condemned practices. Certainly practices which directly involve cruel and unusual physical abuse of prisoners can be cured immediately and the State’s persistence in such practices for any appreciable time would constitute extraordinary dereliction. Those practices which relate to the living conditions of confinement which require the physical renovation of facilities would, of necessity, require more time to effect improvement. See Detainees of the Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392 (2nd Cir. 1975); Nelson v. Heyne, supra.