dissenting.
I respectfully dissent.
First, the constitutional issue presented in this case may now be moot. Progress reports filed this year by the state indicate that conditions at the penitentiary have been significantly improved. The district court’s remedial order prohibiting doublecelling and adopting ACA rated capacity standards was expressly based upon the conditions existing at the time of the district court’s decision in 1984. If the state has in fact made substantial progress in improving the very conditions which warranted the district court’s remedial order, then the district court should be given the opportunity to assess the state’s improvements and, if conditions have significantly improved, perhaps modify its remedial order. The prohibition against double-celling and the requirement that prison officials follow ACA rated capacity standards may no longer be necessary. Accordingly, I would remand the case to the district court for the limited purpose of holding an evidentiary hearing.
On the merits, the state has not argued that the district court’s factual findings about the conditions at the penitentiary are clearly erroneous. Given the district court’s comprehensive and detailed findings about the many serious deficiencies in the conditions of confinement, including the physical plant, security, staffing, sanitation, safety and fire hazards, overcrowding, violence, food services, and medical and other prisoner services, I would hold that the district court did not err in holding that, under these conditions, considered as a whole, double-celling was unconstitution*924al. Accordingly, I would affirm the remedial order of the district court prohibiting double-celling and adopting the ACA rated capacity standards for the reasons discussed in the panel majority opinion. Cody v. Hillard, 799 F.2d 447, 449-51 (8th Cir.1986) (Heaney, J.), citing French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985), cert. denied, —U.S.-, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986), Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984), and Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). Cf. Rhodes v. Chapman, 452 U.S. 337, 347-50, 101 S.Ct. 2392, 2399-2401, 69 L.Ed.2d 59 (1981) (given otherwise relatively good conditions at prison, double-celling held not unconstitutional).
This case is not about prisoner discomfort; it is about the minimum standards of humane imprisonment required by the eighth amendment. “[Cjonditions [of confinement] that cannot 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.” Id. at 347, 101 S.Ct. at 2399. “But incarceration is not an open door for unconstitutional cruelty or neglect. Against that kind of penal condition, the Constitution and the federal courts, it is to be hoped, together remain as an available bastion.” Id. at 369, 101 S.Ct. at 2411 (Blackmun, J., concurring in the judgment).