concurring in part and dissenting in part.
I concur only in the Court’s holding concerning the cross-appeal by the protective custody inmates. The remainder of the Court’s decision, in my view, both “wrench[es] the Eighth Amendment from its language and history,” Rhodes v. Chapman, 452 U.S. 337, 348, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981), and engages in analysis directly foreclosed by Supreme Court precedent. I respectfully dissent.
Initially, I believe a more complete exposition of Eighth Amendment standards is necessary than the Court’s opinion provides. In Rhodes, the Supreme Court stated that “when the conditions of confinement compose the punishment at issue,” those conditions “must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” Id. at 347, 101 S.Ct. at 2399. The Court referred to conditions that are “totally without penological justification,” Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976), as the kind of conditions that violate the Eighth Amendment. 452 U.S. at 346, 101 S.Ct. at 2399. Recently, the Court elaborated further on this standard in Whitley v. Albers, — U.S. —, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Justice O’Connor, writing for the Court, observed that “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Id. at 1084.
The Eighth Amendment leaves very broad latitude to the states in the administration of their prisons. “[C]onditions that *452cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Moreover, the federal courts traditionally
have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.
Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). All of these observations aptly fit this case.
Even granting that the District Court’s factual findings are correct, I do not agree that double-celling at SDSP evidences the “obduracy and wantonness” necessary to constitute a violation of the Eighth Amendment. Double-celling at SDSP is not “totally without penological justification.” Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Gregg, 428 U.S. at 183, 96 S.Ct. at 2929). While double-celling may not be desirable, it allows the continued detention of persons convicted of serious crimes when they might otherwise have to be released at the peril of law-abiding members of our society. As the Court’s opinion notes, double-celling would be cruel and unusual punishment under Rhodes only if the double-celling “[led] to deprivations of essential food, medical care, or sanitation” or if it “increase[d] violence among inmates or create[d] other conditions intolerable for prison confinement.” 452 U.S. at 348, 101 S.Ct. at 2400. In my judgment, the record in this case falls far short of supporting the Court’s conclusion that the line drawn by Rhodes has been crossed by double-celling at SDSP. Accordingly, I believe there is no constitutional basis for the remedial order that the Court today affirms.
The District Court’s final order provides that
in the event that the daily population of the SDSP, other than Protective Custody inmates, shall exceed 95% of total American Corrections Association (ACA) rated capacities for 60 consecutive days, the defendants shall commence to develop programs to reduce that population; if such population shall exceed 110% of such ACA capacities for 60 consecutive days, the State within 180 days shall reduce said population to 95% of the total ACA capacities of these facilities; provided, however, that days during which populations may exceed these percentages as a consequence of riot, fire, acts of God, labor unrest, war, civil disturbance, or any other emergencies shall be excluded in applying the foregoing.
Cody v. Hillard, Civ. No. 80-4039, at 1-2 (D.S.D. July 8, 1985) (Final Order). This order could not conceivably be proper un*453less the ACA standards relied upon by the District Court represented the constitutional norm. But the Supreme Court explicitly has rejected this approach. In Bell v. Wolfish, the Court stated that “while the recommendations of these various groups [such as ACA] may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question.” 441 U.S. 520, 543-44 n. 27, 99 S.Ct. 1861, 1876 n. 27, 60 L.Ed.2d 447 (1979). In Rhodes, the Court quoted the foregoing statement from Wolfish and further observed in regard to Eighth Amendment claims that
generalized opinions of experts cannot weigh as heavily in determining contemporary standards of decency as “the public attitude toward a given sanction.” We could agree that double celling is not desirable, especially in view of the size of these cells. But there is no evidence in this case that double celling is viewed generally as violating decency.
452 U.S. at 348-49 n. 13, 101 S.Ct. at 2400 n. 13. Contrary to this clear instruction from the Supreme Court, the order of the District Court effectively transforms the ACA standards into Constitutional requisites under the Eighth Amendment, and it does so without a shred of evidence for the counter-intuitive proposition that double-celling is viewed generally as violating decency. Thus, it is apparent that neither the District Court nor our Court has properly applied the Constitutional standards to the facts of this case.
The District Court found that “[d]ouble-celling over time has a negative impact on all programs and services” and “has resulted in crisis management with respect to the maintenance of ancillary support facilities such as food services, laundry services, medical services, plumbing and electrical wiring.” Cody v. Hillard, 599 F.Supp. 1025, 1033 (D.S.D. 1984). The District Court detailed such problems in these areas as unsanitary practices in storing and preparing food, the use of untrained inmates to provide medical services to other inmates, inadequate ventilation and plumbing, and substandard electrical wiring and other fire hazards. Whatever the merit of these findings, there has been no showing, and the District Court has made no finding, that the elimination of double-celling will alleviate these problems to any perceptible degree. An appropriate remedy would relate to correction of the constitutionally deficient conditions that have been found to exist, if any there be, rather than to the elimination of double-celling.
The Court’s opinion quotes with approval the District Court’s finding that double-cell-ing “has resulted in an overloading of services such as the work, recreation and school programs,” id., but never tells us why this matters for purposes of Eighth Amendment scrutiny. In fact, the Supreme Court dismissed precisely this sort of contention as a basis for finding cruel and unusual punishment in Rhodes, stating that “limited work hours and delay before receiving education do not inflict pain, much less unnecessary and wanton pain; deprivations of this kind simply are not punishments.” 452 U.S. at 348, 101 S.Ct. at 2400.
The District Court found, as the Court’s opinion notes, that “[s]ince the advent of double-celling in approximately the first part of 1981, there has been one recorded instance of a riot involving approximately twenty persons ... and approximately sixty incidents ... of fighting or assaults between inmates and/or inmates and staff.” 599 F.Supp. at 1033. Prison violence is, of course, not a recent development and occurs with similar frequency in institutions that do not double-cell. There is nothing in the record to show the comparable number of incidents of violence at SDSP before and after double-celling. Accordingly, there is no evidentiary basis for a conclusion that double-celling has caused an increase in such incidents, and we note that the District Court did not make a finding on this question of fact.
The Court’s opinion also is notable for those portions of the District Court opinion that it does not mention. No mention is *454made of the District Court’s finding that “[t]here is a relatively low level of tension between inmates and staff at the SDSP.” Id. at 1033. Nor does the Court discuss the District Court’s findings that the level of sanitation at SDSP is adequate or that the prison administrators and staff have made sincere efforts to maintain a healthful environment. Id. at 1052. Similarly, the Court does not acknowledge the District Court’s finding that the prison
administration has attempted to reduce the negative impact of double-celling by expanding the amount of out-of-cell time afforded inmates, by making a reasonable effort to double-cell only those inmates who volunteer to live with another inmate in the same cell, and by increasing the placement of inmates: (1) into trustee status in a detached unit of SDSP ...; (2) into trustee status in a unit located at the Human Services Center in Yankton; (3) into a detached dormitory, outside the walls of the prison, known as the “West Farm”; (4) into public service restitution programs in various communities in South Dakota____ The SDSP has also attempted to place inmates in work release or school release programs throughout the state.
Id. at 1033. As the District Court recognized, the prison administration is striving within the limits of available resources to limit the amount of double-celling that must be done to accommodate the rising tide of convicted felons. This hardly reflects “obduracy and wantonness” on the part of those whose job it is to manage SDSP. See Whitley, 106 S.Ct. at 1084.
I fail to comprehend how the conditions described in this record can be said to inflict pain or amount to punishment and how prison administrators making “sincere efforts” can be said not to be acting in “good faith.” Id. at 1084. The present case is light years removed from the type of torture, deprivation, and sadistic punishment with which the Cruel and Unusual Punishments Clause is concerned. See Hutto v. Finney, 437 U.S. 678, 681-84 & nn. 3-6, 98 S.Ct. 2565, 2568-70 & nn. 3-6, 57 L.Ed.2d 522 (1978) (conditions included use of a five-foot long leather strap to whip inmates for minor offenses, use of a device to administer “electrical shocks to various sensitive parts of an inmate’s body,” and use of inmate guards authorized to use deadly force against “escapees” and who therefore could “murder another inmate with practical impunity”). The lack of anything in this record even remotely approaching these conditions, or even remotely showing any conditions of confinement that fall below the Constitutional standards elucidated in cases such as Rhodes and Whitley, reveals the impropriety of the Court’s action today.
Further, it seems to me that the incongruity of the order prohibiting double-cell-ing of inmates who voluntarily have chosen to live together in the same cell should cause the Court to pause. The necessary implication from this feature of the order— that voluntary “double-bunking” constitutes “wanton and unnecessary infliction of pain” amounting to cruel and unusual punishment — is insupportable. What is worse, it trivializes the Constitution and mocks the purposes of the Eighth Amendment.
Finally, the District Court also enjoined the State from double-celling in the protective custody area of the prison. The court found that 22 out of 45 protective custody inmates were double-celled and concluded that this was “inappropriate and without correctional justification.” 599 F.Supp. at 1034. The court further noted that “[t]hese inmates need protection not only from other inmates in the general population but also from other protective custody inmates” and concluded that the negative impact of double-celling was exacerbated for these inmates “due to the inordinately limited out-of-cell time available to these inmates.” Id. I believe that the District Court here merely has substituted its “judgment for that of officials who have made a considered choice.” Whitley, 106 S.Ct. at 1085. Whether an inmate in protective custody needs protection from someone with whom he is assigned to share a cell is a matter more appropriately left to the prison officials who are charged with making decisions of this nature. Courts *455should be mindful that our authority in such questions “spring[s] from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874 (citations omitted). I have found nothing in the record or the District Court’s findings of fact to persuade me that my views concerning double-celling generally should be different in regard to the protective custody area of the prison.
The record before us at most demonstrates that SDSP is not always comfortable. As the Supreme Court noted in Rhodes, however, “the Constitution does not mandate comfortable prisons, and prisons of [SDSP’s] type, which house persons convicted of serious crimes, cannot be free of discomfort. Thus, these considerations properly are weighed by the legislature and prison administration rather than a court.” 452 U.S. at 349,101 S.Ct. at 2400. Because I do not believe that double-celling in the circumstances presented by this record is violative of the Eighth Amendment, I would reverse the District Court’s order with respect to double-celling.