concurring and dissenting:
I concur in the portion of Judge Mansfield’s opinion that relates to pre-trial detainees; his careful and balanced consideration is in sharp contrast to the inflexible population cap imposed by the district judge, which reminds me of the old saw, “If the ship is leaking, sink it.” I also join in so much of his opinion as holds that with respect to convicted prisoners “the specific practices of confining inmates in the fish-tank, forcing men to sleep on mattresses on the floors and placing healthy or nondisrup-tive inmates in the medical or isolation cells (sometimes double-bunked with ill cellmates and confined for 23 hours a day)”1 constitute cruel and unusual punishment prohibited by the Eighth Amendment as made ap*112plicable to Connecticut by the Fourteenth. While I have some doubt that the Eighth Amendment requires medical screening of convicted prisoners, I agree that detainees must be medically screened, and if prisoners are to come in frequent contact with detainees, through double-bunking or otherwise, as a practical matter they must also be examined. Moreover, I do not understand the State to have any real objection to a carefully framed requirement that inmates be examined, such as that embodied in the. majority opinion, as distinguished from the vague and open-ended direction in the district court’s order, which could leave it open to charges of contempt for action taken in complete good faith. My dissent is thus confined to so much of the opinion as limits double-celling of convicted prisoners for more than 30 days.
I find no warrant for this in principle, or in our own decisions, those of the Supreme Court, or those of other courts. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), is the only case in which the Supreme Court has thus far held that general prison conditions imposed cruel and unusual punishment. Mere reading of the opinion, id. at 681-85, 98 S.Ct. at 2568-70, not to speak of the more detailed opinions of the district court in Holt v. Sarver, 300 F.Supp. 825 (E.D.Ark.1969); 309 F.Supp. 362 (E.D.Ark.1970), and Holt v. Hutto, 363 F.Supp. 194 (E.D.Ark.1973), suffices to show that the HCCC bears no conceivable resemblance to the Arkansas prison system there condemned. Neither is the double-bunking at the Hartford jail in any way similar to the conditions this court condemned in Wright v. McMann, 387 F.2d 519 (2 Cir. 1967), and 460 F.2d 126 (2 Cir.), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972). In Wolfish v. Levi, 573 F.2d 118, 125 (2 Cir. 1978), rev’d on other grounds 2 sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), we said:
The parameters of judicial intervention into the conditions of incarceration for sentenced prisoners are more restrictive than in the case of pretrial detainees. An institution’s obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety. The Constitution does not require that sentenced prisoners be provided with every amenity which one might find desirable.
No claim is made here that the HCCC has failed to provide adequate food, clothing, or sanitation. With respect to medical care the only fault has been the failure to screen inmates for contagious diseases,3 and this will be corrected by the examination procedure we today direct the defendants to implement.
My colleagues conclude that the state has failed to fulfill its duty to provide adequate protection for personal safety, relying on the district judge’s finding that “[t]he overcrowded condition of the dayrooms ... has increased the incidence of fights among inmates”4 and emphasizing that they are *113“unwilling to wait until these increases mature into one of the tragic eruptions which have occurred in overcrowded institutions elsewhere before acting to condemn the conditions which breed them.” The facts established in this case do not justify such a dire assessment. While the district judge found that the crowding of the dayrooms had led to an increase in the incidence of fights, he made no finding whatsoever with respect to how frequently fights have occurred and whether serious injuries have resulted. Nothing in his findings contradicts the magistrate’s explicit finding that “it is not clear whether this atmosphere [the crowded condition of the dayrooms] has caused any significant increase in the numbers or severity of fights among inmates.” The judge’s vague statement that “[t]he overcrowded condition of the dayrooms . . . has increased the incidence of fights” falls far short of what is required before the defendants can be held to have violated their duty to supply reasonable protection for personal safety. Although prisoners at the HCCC undoubtedly face some risk of personal injury, it must be remembered that “probably no prison is a ‘safe’ place to live and that incidents of violence, including homosexual attacks, are going to occur in the best run prisons.” Chapman v. Rhodes, 434 F.Supp. 1007, 1019 (S.D.Ohio 1977) (footnote omitted), aff’d mem., 624 F.2d 1099 (6 Cir.), cert. granted, 449 U.S. 951, 101 S.Ct. 353, 66 L.Ed.2d 214 (1980). In recognition of this, previous decisions have required more than occasional injuries to establish a breach of the duty to provide protection for personal safety. See, e. g., Pugh v. Locke, 406 F.Supp. 318, 319 (M.D. Ala.1976), aff’d as modified on other grounds and remanded sub nom. Newman v. State of Alabama, 559 F.2d 283 (5 Cir. 1977); Hite v. Leeke, 564 F.2d 670, 673 (4 Cir. 1977). In the case before us the findings by the magistrate and the district judge themselves indicate that no such showing has been made. Contrast Holt v. Sarver, 300 F.Supp. 825, 830-31 (E.D.Ark. 1969); West v. Lamb, 497 F.Supp. 989, 992 (D.Nev.1980).
Of the duties identified in Wolfish v. Levi, supra, 573 F.2d at 125, it thus remains only to consider the duty to provide adequate housing. I might agree that under some circumstances overcrowded housing, even standing alone, could impose such hardship as to constitute cruel and unusual punishment. I cannot agree, however, that double-bunking prisoners at the HCCC for more than 30 days, even when coupled with the inadequacy of the day rooms, is inconsistent with “the evolving standards of decency”, Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958) (plurality opinion), prevailing in our society. The various correctional guidelines and standards cited by the majority and by the district judge do not demonstrate the contrary. For example, the American Correctional Association’s Manual of Standards for Adult Correctional Institutions (1977), which is cited by the majority, is clearly aspirational; the Manual expressly states that “[t]he standards reflect new heights to reach, new programs to achieve, and a higher sense of humanity and decency.” (P. vii.) While it is salutary that organizations that devote their time to the study of prisons often conclude their efforts by proposing standards designed to improve them, it does not follow that such standards can be relied upon to determine the constitutional requirements to which every state in the nation must immediately conform even though the conditions actually prevailing in most of the nation’s prisons do not come near to meeting them.5 Hence the magistrate recognized that “the conditions at the Hártford facility are no worse than jail conditions elsewhere and indeed, are better *114than those at many correctional institutions”, and the judge made no finding to the contrary. Appellees must carry a heavy burden to show that double-bunking at the HCCC nevertheless violates the Eighth Amendment.
Despite the prevalence of conditions of the sort challenged here, appellees would be entitled to prevail if they could show that the hardship imposed by overcrowding at the HCCC does not “comport[] with the basic concept of human dignity at the core of the [Eighth] Amendment”, Gregg v. Georgia, 428 U.S. 153, 182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell & Stevens, JJ.), for the Amendment clearly prohibits some practices even if they are widely followed. Thus it is well settled that “punishment must not involve the unnecessary and wanton infliction of pain.” Id. at 173, 96 S.Ct. at 2925. See Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1879) (Eighth Amendment prohibits “punishments of ... unnecessary cruelty”). The double-bunking of prisoners at the HCCC does not run afoul of this prohibition. The overcrowding at the facility has been attributable not to the callousness of the defendants but rather to the unexpected delay in the completion of the prison at Cheshire. Moreover, the reduced living space, the loss of privacy, and the stress caused by the overcrowding cannot be considered comparable to other hardships that courts have found to be cruel and unusual modes of punishment. Contrast, e. g., Estelle v. Gamble, 429 U.S. 97, 104, 97 5. Ct. 285, 291, 50 L.Ed.2d 251 (1976) (“deliberate indifference to serious medical needs”); Jackson v. Bishop, 404 F.2d 571 (8 Cir. 1968) (Blackmun, J.) (use of strap). Although the cells are small, there are a desk and a chair that can be used by one of the prisoners at a time, a double-bunk bed,6 and space sufficient for the prisoners to stand up and move about though not sufficient for them to partake in active exercise. It is true that the double-bunking has led to crowding of the dayrooms. However, while I agree that subjecting pretrial detainees to the combination of double-bunking and crowded dayrooms for a substantial period of time imposes punishment in violation of the due process clause, I cannot agree that this combination is so onerous as to impose cruel and unusual punishment on the sentenced prisoners in the HCCC. In my judgment the difference between the constitutional status of a person accused of a crime and that of a person convicted of a crime has more significance than the 15-day distinction my colleagues draw. Even if the overcrowding complained of would constitute cruel and unusual punishment were a prisoner subjected to it for a long time, the record indicates that prisoners at the HCCC are confined for relatively short periods.7
The cases relied upon by the district judge are plainly distinguishable either because living conditions were unsanitary and food was prepared in unclean facilities or was nutritionally inadequate, Adams v. Mathis, 458 F.Supp. 302 (M.D.Ala.1978), aff’d, 614 F.2d 42 (5 Cir. 1980); Ramos v. Lamm, 485 F.Supp. 122 (D.Colo.1979), aff’d *115in part and rev’d in part, 639 F.2d 559 (10 Cir. 1980), cert. denied,-U.S.-, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); West v. Lamb, 497 F.Supp. 989 (D.Nev.1980); Hoptowit v. Ray, No. 79-359 (E.D.Wash., June 25, 1980), because the prisoners had even less living space, Campbell v. Cauthron, 623 F.2d 503 (8 Cir. 1980), because of “the extremely small amount of time that inmates spend outside their cells”, Hutchings v. Corum, 501 F.Supp. 1276 (W.D.Mo.1980), because of the presence of a fire hazard and the failure to provide adequate medical care, Nicholson v. Choctaw County, Ala., 498 F.Supp. 295 (S.D.Ala.1980), or because of the length of confinement, Chapman v. Rhodes, 434 F.Supp. 1007 (S.D.Ohio 1977), aff’d mem., 624 F.2d 1099 (6 Cir. 1980), cert. granted, 449 U.S. 951, 101 S.Ct. 353, 66 L.Ed.2d 214 (1980), discussed infra; Capps v. Atiyeh, 495 F.Supp. 802 (D.Ore.1980) (average length of confinement two years), injunction stayed pending decision on appeal or decision in Chapman v. Rhodes, supra, 449 U.S. 1312, 101 S.Ct. 829, 66 L.Ed.2d 785 (1981) (Rehnquist, J., in Chambers).8
Much more closely analogous are three well-considered decisions rejecting Eighth Amendment challenges to housing similar to that provided here. See M. C. I. Concord Advisory Board v. Hall, 447 F.Supp. 398 (D.Mass.1978) (sustaining Eighth Amendment objection to double-bunking in unit lacking adequate fresh air, plumbing, and ventilation, but rejecting attack against double-bunking in 66 square-foot cells); Burks v. Walsh, 461 F.Supp. 454 (W.D.Mo. 1978) (double-bunking in cells of 47 square feet is cruel and unusual punishment but double-bunking in 59-square-foot and 65-square-foot cells is not); Crowe v. Leeke, 540 F.2d 740 (4 Cir. 1976) (per curiam) (not cruel and unusual punishment to confine three prisoners in 63-square-foot cell).9 While I agree that one must look at the totality of the circumstances and that the conditions held not to constitute cruel and unusual punishment in the first two of these cases may have been superior in some respects to the conditions challenged here, the double-bunking of prisoners at the HCCC, particularly with the changes which we all agree the defendants must implement, is far more similar to the conditions upheld in those cases than to the conditions that courts have condemned as cruel and unusual punishment.
For these reasons I must respectfully disagree with the majority’s conclusion that double-bunking of convicted prisoners at the HCCC for more than 30 days constitutes cruel and unusual punishment. I should have considered it preferable to withhold decision on this aspect of the case or at least to stay the issuance of this portion of our mandate until we have the benefit of the Supreme Court’s disposition of Chapman v. Rhodes, supra, 434 F.Supp. 1007 (S.D.Ohio 1977), aff’d mem., 624 F.2d 1099 (6 Cir.), cert. granted, 449 U.S. 951, 101 S.Ct. 353, 66 L.Ed.2d 214 (1980), now sub judice, which involves double-bunking of sentenced prisoners in cells of roughly 63 square feet, and in which a decision would normally be expected within the next several weeks. To be sure, a decision in favor of the inmates in Chapman would not necessarily be controlling here, since in that case “[s]ixty-seven percent of the inmates were serving either life or first-degree felony sentences”, 434 F.Supp. at 1011, whereas practically none of the prisoners at the HCCC are confined for longer than six or seven months and most are confined for substantially shorter periods. See Hutto v. Finney, supra, 437 U.S. at 686, 98 S.Ct. at *1162571 (“the length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards”). While it may be that in other respects the conditions in Chapman were somewhat better than at the HCCC, the decision seems certain to cast a good deal of light on the issue with respect to which I am at odds with the majority, and I see no virtue in our having to entertain motions for recall of the mandate, reconsideration, etc. which a Supreme Court decision favorable to the state in Chapman would necessarily provoke.10 Since my colleagues nevertheless choose to decide this aspect of the case without waiting a few weeks to consider the Court’s decision, I must dissent from a conclusion that extends the cruel and unusual punishment clause into new ground, without the support of principle or the authorities now available to us.
. The defendants have represented that the “fishtank” is no longer used in the manner established at trial and that the cells in the medical unit are no longer used to house healthy inmates.
. The Supreme Court’s decision in Bell v. Wolfish did not concern the portion of this court’s decision concerning the claim that overcrowding in the MCC imposed cruel and unusual punishment on the sentenced inmates confined in the facility. See 441 U.S. at 529 n.11, 99 S.Ct. at 1869 n. 11.
. Even this was not shown to have had any untoward result.
. Although the district court also found that the levels of tension and anxiety had been increased by the overcrowding, I do not understand my colleagues to maintain that the Eighth Amendment requires a state to provide prisoners with an environment free of such stress. Any suggestion to the contrary in the passage from the district court’s opinion in Capps v. Atiyeh, 495 F.Supp. 802, 811 (D.Ore. 1980), quoted by the majority is more than counterbalanced by what Justice Rehnquist said in staying the injunction there issued pending review by the Court of Appeals or the Supreme Court’s decision in Chapman v. Rhodes, supra, 449 U.S. 1312, 1313-1316, 101 S.Ct. 829, 830-31, 66 L.Ed. 785, 788-89 (1981):
1 know of nothing in the Eighth Amendment which requires that they [sentenced prisoners] be housed in a manner most pleasing to them, or considered even by most knowledgeable penal authorities to be likely to avoid confrontations, psychological depression, and the like. They have been convicted of crime, and there is nothing in the Constitu*113tion which forbids their being penalized as a result of that conviction.
The Eighth Amendment did not enact the views of penological experts with- respect to housing practices, however desirable they may be.
. Reliance on goals of this sort to condemn Connecticut’s practices is particularly objectionable because the State has been making a determined effort to improve conditions and the overcrowding at HCCC has been due to the unexpected delay in completing the Cheshire facility.
. The district judge noted that “[o]n occasion, the defendants have assigned two inmates to one cell in which there is no double-bunk bed”, 507 F.Supp. at 1179, but this problem will be remedied by the portion of our decision, with which I agree, forbidding this practice.
. My conclusion is buttressed by the fact that not all the inmates in a cell-block need occupy the dayrooms at the same time. In addition to the alternative provided by the cells, which cannot be considered unacceptable for part of the day, especially if a prisoner’s cellmate is in the dayroom or elsewhere, the jail includes a 30' X 60' classroom accommodating 50 inmates and a 4,000 volume library. Although the district judge discounted the educational program, which at the time of trial had room for 23 additional inmates, because “[mjany inmates have failed at, or dropped out of, school earlier in their lives; they are reluctant to return to school at the HCCC,” this reaction has little if any relevance to the constitutional question. We are attempting to determine whether the conditions the State forces prisoners to endure are cruel and unusual. For purposes of this inquiry it is significant that prisoners participating in the educational program can escape the housing unit for about five hours a day; the State should hardly be branded as having engaged in cruel and unusual punishment because relatively few prisoners have chosen to use these facilities.
. Many of these cases are distinguishable on grounds in addition to those listed. See, e. g., West v. Lamb, 497 F.Supp. 989 (D.Nev.1980) (jail violated fire standards; exposed electrical wiring posed danger to inmates; and numerous rapes, homosexual attacks, inmates fights, and riots had caused many serious injuries and even deaths); Ramos v. Lamm, 485 F.Supp. 122 (D.Colo.1979) (inadequate medical care had caused serious injuries); Hutchings v. Corum, 501 F.Supp. 1276 (W.D.Mo. 1976) (numerous attempted suicides, absence of fire safety precautions, and lack of adequate ventilation).
. In Crowe v. Leeke the Fourth Circuit noted that there was no claim of unsanitary conditions or inadequate medical care and that a new facility was under construction.
. I am completely at a loss to understand the portion of fn. 15 to Judge Mansfield’s opinion which characterizes my proposal as being one to withhold our decision or to stay the mandate on the entire case until the Chapman decision is rendered or the end of the Supreme Court’s current term. My proposal to defer action has always been limited to the issue of double-bunking of convicted prisoners. Even if the majority cannot resist expressing its views on a constitutional issue on which the Supreme Court is about to speak, at minimum it should direct the district court to withhold implementation of the decision on this subject until it has had an opportunity to consider the Supreme Court’s forthcoming opinion.