dissenting:
The District Attorney of Philadelphia has sought to intervene to prevent the release of prisoners from Philadelphia’s jails and to prevent interference with his statutory duty to enforce the Commonwealth’s criminal laws. The district court denied his right to intervene, and the majority of this court now sustains that position by holding that the District Attorney “has not asserted a sufficient interest to intervene in this action as of right ... [because he has] demonstrated only a general interest in the litigation.” Maj.Op., at 602.
I dissent from the analysis and holding of the majority not only because I believe that the district court erred as matter of law1 in not recognizing the right of the District Attorney to intervene, but also because I believe that a district court cannot enter a judgment, by consent or otherwise, which requires release of state prisoners or prohibits their entry into prison without a threshold finding that the conditions of confinement are unconstitutional.2
I.
The District Attorney is entitled to intervene as of right if three conditions are satisfied: (1) he must have a sufficient interest in the subject matter of the litigation, an interest that may as a practical matter be affected by the court’s disposition of the case; (2) his interest must not be adequately represented by the existing parties; and (3) his application must have been timely. Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 *605(1976). Because the majority has chosen to decide this case on the first of the three intervention prongs, i.e. the sufficiency of the District Attorney’s interest, I will similarly concentrate my analysis on this aspect of the appeal. In doing so, however, I observe that the record reveals, and I therefore conclude, that the District Attorney has satisfied all three of the requirements for intervention of right.3
I agree with the majority’s statement that, if the District Attorney’s “rights and duties, as defined by Pennsylvania law, may be affected directly by the disposition of this litigation, the District Attorney has a sufficient interest to intervene as of right in this action.” Maj.Op., at 597. But the majority’s conclusion that the District Attorney lacks such an interest in this case is utterly at odds not only with this standard, but also with the intent of Federal Rule of Civil Procedure 24(a),4 to say nothing of its clear language.
Prior to the 1966 amendment of Rule 24 ... the pre-amendment Rule required that the applicant might be “bound” by the judgment in the pending action and the prevailing weight of authority interpreted this test to mean bound in the res judicata sense. See, e.g., Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). The changes wrought in Rule 24(a) have repudiated that narrow approach in general, and Sam Fox in particular. The Rule now specifies only that the “disposition of the action may as a practical matter impair or impede his ability to protect” the applicant’s interest. This alteration is obviously designed to liberalize the right to intervene in federal actions. Interestingly, an earlier draft would have required that the judgment “substantially” impair or impede the interest, but that higher barrier was deleted in the course of approving the amendment.
Nuesse v. Camp, 385 F.2d 694, 701 (D.C. Cir.1967). See also 7C C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, § 1908 at 301.5 I agree with the conclusions of the District of Columbia Circuit and the treatise authors, that “the ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Nuesse, 385 F.2d at 700.
*606Reason, common sense, and logic compel the conclusion that, under these liberal intervention standards and in a case of such exceptional public importance to the Philadelphia citizenry as the instant proceeding, the Philadelphia District Attorney, who is the single City official most directly responsible for the enforcement of the criminal laws, has a sufficient interest in this litigation to intervene by right. The District Attorney must be permitted to intervene not only to represent his interest and the public interest in the enforcement of the Commonwealth’s laws, but also to prevent interference with his legislatively assigned functions.
The interest of the District Attorney is far from the general interest attributed to him by the majority. See maj. op., at 601-603. Rather it is a particularized interest, delineated by state statute and case law, under which the Pennsylvania Legislature has assigned to the District Attorney specific functions relating to the prosecution of criminals and the defense of sentences lawfully imposed upon completion of successful prosecutions. There can be no doubt that the District Attorney’s ability to effectively carry out his prosecutorial duties and responsibilities is, as a practical matter, impaired and impeded by the Consent Decree entered in this lawsuit.
Under Pennsylvania statutes the District Attorney is given sole responsibility for enforcing the criminal laws in the county in which he serves.6 The District Attorney is responsible for prosecuting those charged with criminal violations, defending convictions in post-verdict proceedings, advocating the amount at which bail should be set, and defending the committing magistrate’s bail decisions.
Each of the two proposed Consent Decrees presented to the district court in this case, implicates these prosecutorial interests of the District Attorney. In addition to population ceilings, proposed Consent Decree I imposed specific time constraints and duties on the District Attorney. It required, for the first time, that criminal defendants receive their preliminary hearings within 21 days of incarceration, that a municipal court trial be held within 120 days of some unspecified point, that a Common Pleas trial be held within 180 days of the filing of the complaint, that a probation revocation hearing be held within 60 days of arrest, and that sentencing occur within 120 days of conviction.7
Because the District Attorney would have been the primary person responsible for meeting the deadlines imposed by proposed Consent Decree I, there can be little question but that the District Attorney’s ability to carry out his official duties was directly impaired by the proposed settlement. Moreover, because proposed Consent Decree I mandated the automatic release of prisoners whose hearings or trials were not held within the required time periods, the decree denied the District Attorney his statutory right to object to the release of dangerous prisoners. In re Miller, 209 Pa.Super. 47, 224 A.2d 89, 90 (1966) (16 Pa.S.A. § 1402 imposes upon the District Attorney the duty to represent the Commonwealth with respect to discharge of *607inmates from state correctional institutions).
The Consent Decree approved by the district court (proposed Consent Decree II) did not contain the restrictive time limits of proposed Consent Decree I, but it did not eliminate all of the proposals objected to by the District Attorney. Most importantly, the Consent Decree entered by the court retained the population ceilings and automatic release provisions from proposed Consent Decree I, the very provisions to which the District Attorney has continuously and strenuously objected since Consent Decree I was proposed.
These population caps and release provisions necessarily have a direct impact on the District Attorney’s ability to exercise his prosecutorial functions. Under the Consent Decree entered by the court, it is expected that the population caps will be effectuated first through bail reductions and early release of sentenced prisoners, and later, if necessary, through non-admission of new inmates. App. at 1096. There can be no reasonable doubt that the District Attorney’s ability to successfully and effectively prosecute criminals is directly impeded and intruded upon through an agreement of this type. The Consent Decree’s requirement of more extensive pretrial release of individuals facing prosecution can have no effect other than to insure that fewer individuals charged with a crime will actually appear for trial. Second, as discussed above, the proposal renders nugatory the District Attorney’s hitherto unquestioned responsibilities in making bail recommendations.
Finally, it strains common sense beyond all ascertainable bounds for the majority to fail to recognize that the District Attorney’s prosecutorial function is effectively destroyed by an agreement that can preclude incarceration for newly convicted felons. Under the Consent Decree, the City defendants will be seeking the release of approximately 550 additional inmates who are not eligible for release under any Commonwealth approved early release program. When the non-admission provisions of the Consent Decree are activated, although defendants charged with certain enumerated crimes will be excepted from these provisions, nevertheless the Commonwealth will be precluded from incarcerating defendants charged with or convicted of, among other crimes, attempted murder, attempted rape, kidnapping, involuntary deviate sexual intercourse, robbery, aggravated assault, or narcotics sales.
The Pennsylvania courts themselves have explicitly recognized the undeniable interests that the District Attorney has in prison litigation which implicates population ceilings and prisoner releases. In Jackson v. Hendrick, the complementary state action, the Pennsylvania Court of Common Pleas issued a remedial decree in the context of an earlier court determination that unconstitutional conditions of confinement prevailed. See note 2, supra. That decree established maximum capacity at the prisons, prohibited double ceiling, and established procedures for the release of inmates held on bail until the prison population was not in excess of capacity. Jackson v. Hendrick, 72 Pa.Cmwlth. 63, 456 A.2d 229, 230 (1983). The District Attorney sought to intervene in those proceedings, and his request to intervene was denied. However, it is clear that this denial was based solely on timeliness grounds, for the Commonwealth court recognized the important interest of the District Attorney in the subject matter of the dispute. “We recognize, of course, that the remedy ordered in this case affects the prosecutorial interests of the District Attorney. But while his involvement may have justified intervention had his application been timely, it does not fall within the purview of Pa.R.C.P. No. 2252 [governing joinder].” 456 A.2d at 233 (emphasis added).
Likewise, In re Miller, 209 Pa.Super. 47, 224 A.2d 89 (1966), recognized the District Attorney’s strong interest, and necessary party status, in cases involving the release of prisoners from state correctional institutions. In re Miller involved an appeal by the Commonwealth from an order of a Philadelphia County Court discharging Miller from a state correctional institution. Miller’s counsel had argued that the District Attorney was not a proper party to dispute *608the release. The court disagreed, relying on 16 Pa.S.A. § 1402, which sets forth the general duties of the District Attorney.8 The court held that one of the District Attorney’s duties was the duty to represent the Commonwealth generally in the administration of justice. More specifically, the court held that it was the District Attorney’s duty to represent the Commonwealth with respect to discharge of inmates from state correctional institutions. Miller, 224 A.2d at 90.
Finally, whether or not there are “other actors” who might have legal duties with respect to the system of criminal justice, see maj.op., at 601-602, cannot detract from the specific legal duties which the Pennsylvania Legislature has chosen to impose upon the District Attorney. I do not believe that the District Attorney here is seeking to “police the entire criminal justice system” of Philadelphia County, as the majority contends. Indeed, the District Attorney has conceded throughout this litigation that he has no interest in conditions of confinement, per se, and therefore he does not object to those portions of the Consent Decree concerned with, for example, prohibitions against double-celling, permissible housing areas, and the requirements for bedding materials.
In my view, the District Attorney is quite properly seeking to intervene for the purpose of contesting only those portions of the Consent Decree that directly affect his ability to carry out his prosecutorial functions. I am therefore satisfied that the district court erred as a matter of law in not recognizing the right of the District Attorney to intervene.
II.
The majority opinion does not reach the merits of the District Attorney's objections to the settlement. Because I would hold that the District Attorney was improperly denied the right to intervene, I find that he is a proper party to object to the settlement on appeal, and I therefore consider his substantive objections.
I conclude that the district court lacked the power to issue an order, by consent or otherwise, under which these defendants agreed to either release validly sentenced state prisoners or prohibit their entry into prison without a threshold finding that the conditions of confinement were unconstitutional. It is undisputed that no such finding has been made here. Indeed, on the record before this court, it is highly questionable whether the plaintiffs have even established a prima facie case in support of their allegation of unconstitutional conditions of confinement. See Jackson v. Hendrick, 509 Pa. 456, 503 A.2d 400 (1986) (remanding on the basis of Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). See also, Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 (1984). Therefore, I believe that the district court lacked the power to approve the Consent Decree.
A.
Absent a finding of unconstitutionality in the conditions of confinement, the federal courts have no business interfering in state penal matters. A federal court has no power to order release of validly sentenced state prisoners unless they are being held in violation of their constitutional rights. Indeed, I have discovered no case in which a district court has been permitted to order the release of lawfully incarcerated state prisoners absent a finding of unconstitutional conditions. Nor has the majority cited to any such authority.
The majority’s statement, that “the District Attorney has no legally protected interest in causing the constitutionally-imposed maximum to be exceeded,” maj. op., at 601 (emphasis added), quite simply puts the rabbit in the hat. As discussed above, all parties agree that the District Attorney has no interest in the conditions of confinement, per se. But there has been no finding that the conditions of confinement violate the federal Constitution. To the contrary, the most recent consideration of pris*609on conditions by the Supreme Court of Pennsylvania has, in effect, reversed the earlier determination of unconstitutionality and has remanded the issue to the lower court for application of the correct constitutional standards. See note 2, supra.
Of course, in the instant case, the district court has not itself directly ordered the release of prisoners. Instead the court has approved a Consent Decree by which the City defendants themselves agree to such a release. But the problem remains because nothing appears of record which demonstrates that the City defendants themselves have the power under law to agree to the release of validly sentenced prisoners or lawfully held pre-trial detainees.
It is elementary that a district court cannot approve a consent order, and thereby give a judicial imprimatur of approval to an agreement which goes beyond the power of the consenting parties to make. See, e.g., Overton v. City of Austin, 748 F.2d 941 (5th Cir.1984) (in suit alleging discriminatory at-large election system, absent a finding of illegality in present charter provisions, district court properly refused to approve consent agreement that was beyond power of parties to themselves achieve).
B.
It is beyond dispute that a federal court has the power to release state prisoners who are being improperly held under unconstitutional conditions of confinement. It is also true that the Philadelphia Department of Public Welfare has the power to consent to population ceilings for the prisons under its own supervision, see 351 Pa. Code § 5.5-700(c). Any such freely adopted City prison population ceilings can therefore cap the population at any particular City prison at a lower figure than what would be the “constitutionally permissible maximum” (assuming arguendo that such a concept has any meaning given that the constitutionality of conditions of confinement must be judged under “the totality of the circumstances” standard rather than a per se standard such as “one man-one cell”). But the fact that the City defendants are empowered to set population caps for each Philadelphia prison that they supervise, does not mean that the City defendants can release prisoners when those caps are exceeded. Indeed, I do not understand the District Attorney to challenge the function of the City defendants in determining the capacity of the City prisons so long as all prisoners are accommodated and are not prematurely released or refused admission. The District Attorney can have no interest in the management of the City prisons. But the power to manage the City prisons is not the same as the power to release or the power to refuse to admit validly sentenced prisoners. It is for that reason that the District Attorney centers his attack on the Consent Decree on only those provisions dealing with release and non-admission of prisoners.
In fact, it is unclear to me which actor or actors in Pennsylvania have the power to revoke the valid sentences of prisoners— for that is the practical effect of releasing prisoners prior to the service of the term to which they were sentenced. One possibility is that the judges of the Commonwealth are necessary parties in any suit seeking the release of validly sentenced prisoners. The District Attorney vigorously asserts that his statutory role in the bail and sentencing processes makes him a necessary party to any such agreement. Indeed, it is also possible that, absent a finding of unconstitutional conditions of confinement, no single actor or group of actors has the power to reduce or rescind validly imposed sentences.9 This, however, is not a question that I must reach. For my purposes, it is sufficient to note that the record dis*610closes no evidence to support the contention that the release of prisoners is within the power of any of the present defendants who, by the Consent Decree, seek to exercise that power.
Under my analysis, therefore, the City defendants are fully within their rights to agree to the population caps in the Consent Decree. And the district court had the authority to approve that portion of the Consent Decree embodying the population caps. But the City defendants could not arrogate to themselves a power that they did not possess, i.e. the power to release prisoners or refuse to admit prisoners to the City prisons if these self-imposed population limits were exceeded. This being so, the district court lacked the power to approve such an agreement.
Thus, had the district court approved a consent agreement that provided for population ceilings alone — without any provision for the release of prisoners or the non-admittance of defendants as a remedy in the event the ceilings were exceeded — such an order would have been appropriate. The cases cited by the majority, see maj. op., at 601, are not to the contrary.
Inmates of Allegheny County Jail v. Wecht, 754 F.2d 120 (3d Cir.1985), did affirm the imposition of population ceilings, but in that case, a violation of the federal Constitution had been found. Therefore, Inmates of Allegheny County has no relevance to the instant proceedings, where no such unconstitutional finding has been made.
Badgley v. Varelas, 729 F.2d 894 (2d Cir.1984), implicitly recognized the limitations on a federal court to provide release and non-admittance remedies where no finding of unconstitutionality had been made. In Badgley, the court rejected the remedy of prisoner release, and it accepted the remedy of a ban on new admissions only because it was satisfied that the responsible state officials would confine those who were arrested by the police and • sentenced by the courts, if not in one state prison, then in another. See 729 F.2d at 902 & n. 9. Thus, Badgley provides no support for the proposition that, absent a finding of unconstitutional conditions of confinement, a federal court has the power to enter an order that would undermine legitimate state sentences or pre-trial detention orders imposed by the state judiciary.
Duran v. Elrod, 713 F.2d 292 (7th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1615, 80 L.Ed.2d 143 (1984), as cited by the majority, ignores the subsequent developments that took place and which resulted in the later case of Duran v. Elrod, 760 F.2d 756 (7th Cir.1985) (Posner, J.), which reversed the district court’s failure to modify a consent decree allowing for the early release of pre-trial detainees. It is apparent that the later Duran case was uncomfortable with the earlier affirmance of the consent decree entered in that case because there had been no unconstitutional finding made by the court when the decree had been approved. See 760 F.2d, at 759, 763. Thus, whatever may have been deemed an appropriate remedy by the first Duran court was questioned and then rejected by Judge Posner in the second Duran case.
Thus, I conclude that no authority exists which will permit a federal court either to reduce valid sentences of state prisoners via a premature release mechanism or to prevent admission to prisons of persons lawfully held absent a finding of unconstitutional conditions of confinement in the state prison system. Other remedies obviously may be imposed, but those remedies cannot provide for the release of prisoners or the non-admission of defendants.
III.
Just as I dissented in Harris v. Pernsley I, 755 F.2d 338 (3d Cir.1985); 758 F.2d 83 (3d Cir.1985) (sur petition for rehearing), because I felt strongly then as I do now that the federal courts had no business running state prisons when the state was actively correcting conditions to meet constitutional standards,10 so too I dissent here *611where the majority has failed to acknowledge the overriding necessity of a federal court to find unconstitutional conditions before it enters judgments affecting state prison populations.
Moreover, the majority’s refusal to accord recognition to the legislative mandate with which the District Attorney was invested by the Commonwealth of Pennsylvania, to enforce and prosecute under the state’s criminal laws, can only disrupt further the comity which the Supreme Court has been assiduous in recognizing and promoting. The failure to permit intervention here does a disservice to the citizens of the Commonwealth and warrants the full court’s attention on this issue of “exceptional importance.”11
Before GIBBONS, Chief Judge, and SEITZ, WEIS, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN and GARTH, Circuit Judges.. The majority has purported to adopt an abuse of discretion standard for reviewing the denial of intervention of right. Maj.Op., at 597. However, this standard apparently was not utilized because the majority recognized that an applicant shall be permitted to intervene if the requirements of Fed.R.Civ.P. 24(a) are satisfied.
I read this court’s precedents as requiring plenary review over a district court’s denial of a motion to intervene as of right. See Olden v. Hagerstown Cash Register, Inc., 619 F.2d 271, 275 (3d Cir.1980) (denial of motion to intervene under Fed.R.Civ.P. 24(a) not an error; denial under Rule 24(b) not an abuse of discretion); Hoots v. Pennsylvania, 672 F.2d 1133, 1135 (3d Cir.1982). However, I recognize that the sub-issue of timeliness of the application is reviewed under an absue of discretion standard. Pennsylvania v. Rizzo, 530 F.2d 501, 502 (3d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976). The majority, in its opinion, does not address the issue of timeliness, which I discuss infra note 3.
. In Hendrick v. Jackson, 10 Pa.Cmwlth. 392, 309 A.2d 187 (1973), a three-judge state court panel held that the conditions of confinement in the Philadelphia prison system amounted to cruel and unusual punishment. However, in Jackson v. Hendrick, 509 Pa. 456, 503 A.2d 400 (1986), the Pennsylvania Supreme Court assumed extraordinary jurisdiction over the case and held that an Eighth Amendment violation must be judged under the "totality of the circumstances” test rather than the "one-man, one-cell” test that had been employed. The Pennsylvania Supreme Court remanded the proceeding to allow the Philadelphia Common Pleas Court to make factual findings employing the proper constitutional standards. Thus, at this point in time, and at the time of the district court’s approval of the consent judgment, no findings of unconstitutional conditions have been made.
. The second requirement for intervention, i.e. whether the interest of the intervenor is adequately represented by existing parties, is governed by the discussion found in Commonwealth ex rel. Specter v. Bauer, 437 Pa. 37, 261 A.2d 573 (1970). In Bauer the court held that the Philadelphia City Solicitor was not an adequate representative of the Philadelphia District Attorney "when the District Attorney is engaged, pursuant to his statutory power, in fulfilling his historical duty of representing the Commonwealth’s interest in the enforcement of its criminal laws." Id. at 576. To the extent therefore that the district court in this case based its denial of intervention on the ground that the District Attorneys interests were already adequately represented, I conclude that the court erred.
I also conclude that the third requirement for intervention was satisfied, i.e. that the application to intervene was timely. The motion to intervene came within three days of the submission of Proposed Consent Decree I, and was contemporaneous with the beginning of the new negotiations which ultimately led to the Consent Decree adopted by the parties and entered by the court. Moreover, when the District Attorney moved to intervene, there had been no discovery taken, no motions filed, no legal rulings entered, and no class certification approved. To the extent therefore that the district court based its denial of intervention on the grounds of untimeliness, I conclude that the court abused its discretion.
. Rule 24(a) provides in relevant part: “Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
. Wright, Miller, and Kane, interpreted the 1966 amendment as rejecting any res judicata rule: "The central purpose of the 1966 amendment was to allow intervention by those who might be practically disadvantaged by the disposition of the action and to repudiate the view, expressed in authoritative cases under the former rule, that intervention must be limited to those who would be legally bound as a matter of res judicata.” 7C C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, § 1908 at 301.
. 16 Pa.S.A. § 1402(a) provides: “The district attorney shall sign all bills of indictment and conduct in court all criminal and other prosecutions, in the name of the Commonwealth, or, when the Commonwealth is a party, which arise in the county for which he is elected, and perform all the duties which now by law are to be performed by deputy attorneys general, and receive the same fees or emoluments of office.”
. In deciding whether the District Attorney has sufficient interest to intervene in this suit, it is appropriate for this court to consider both proposed Consent Decree I and the subsequently approved Consent Decree II. A potential intervener’s interest must be judged in light of the full range of remedies that were being considered when he sought intervenor's status.
Moreover, it was apparently the District Attorney’s "limited intervention” in the parties’ original settlement discussions that led to the elimination from proposed Consent Decree I of the objectionable time constraints. It was obviously clear to the parties that the District Attorney had a vital interest in the proposed consent decree. Yet, when the District Attorney sought formal intervention to protect these same vital interests, the district court upheld the parties' opposition to his intervention, finding among other things, a lack of the necessary interest. I find this result totally lacking in reason and logic.
. See note 6, supra, for the relevant portions of 16 P.S. § 1402.
. I note that under the Federal Rules, judges are entitled to reduce sentences only within 120 days of the imposition of sentence. Fed.R. Crim.P. 35(b). Pennsylvania’s Rules appear to be even more restrictive. Under Pa.R.Crim.P. 1410, sentences may be modified by motion of defendants made within 10 days after imposition of sentence. While this rule does not limit the court’s inherent power to correct an illegal sentence at any time, see Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970), it is unclear whether the judiciary retains the power to reduce a validly entered sentence beyond the ten day period specified by the rules, absent a finding of unconstitutional or other illegal conditions of confinement.
. In Harris v. Pernsley I, 755 F.2d 338 (3d Cir.1985), fifty percent of the judges on this court (one short of the majority needed to order rehearing in banc) voted to reconsider a panel *611decision which ordered the federal courts to supervise the Commonwealth’s conduct of its own prison system, thereby reversing the district court’s decision to abstain in that proceeding. My dissent in that case identified the overriding principle that a state court in a state system should be the predominant actor in determining how to correct conditions of confinement in a state system. See Harris v. Pernsley I, 758 F.2d 83 (3d Cir.1985) (sur petition for rehearing).
Just as the petition for rehearing failed by only one vote, so too did the petition for certiorari. Pernsley v. Harris I, — U.S.-, 106 S.Ct. 331, 88 L.Ed.2d 314 (1985). Thus, the federal district court was forced to assume the position of overseer of the Commonwealth’s prison facilities. It did so even though no finding of unconstitutional conditions was made. Indeed to this very day, no court has ever made such a finding.
. Rehearing in banc is appropriate when "(1) consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceedings involves a question of exceptional importance.” Fed.R.App.P. 35(a); Third Circuit Internal Operating Procedures, Chapter 8(B).