concurring in the judgment.
Despite the perhaps technically correct observation, ante, at 344 — 345, that the Court is “consider [ing] here for the first time the limitation that the Eighth Amendment . . . imposes upon the conditions in which a State may confine those convicted of crimes,” it obviously is not writing upon a clean slate. See Hutto v. Finney, 437 U. S. 678, 685-688 (1978); cf. Bell v. Wolfish, 441 U. S. 520 (1979). Already, concerns about prison conditions and their constitutional significance have been expressed by the Court.
Jackson v. Bishop, 404 F. 2d 571 (CA8 1968), cited by both Justice Brennan, and by Justice Marshall in dissent here, was, I believe, one of the first cases in which a federal court examined state penitentiary practices and held them to be violative of the Eighth Amendment’s proscription of “cruel and unusual punishments.” I sat on that appeal, and I was *369privileged to write the opinion for a unanimous panel of the court. My voting in at least one prison case since then further discloses my concern about the conditions that sometimes are imposed upon confined human beings. See, e. g., United States v. Bailey, 444 U. S. 394, 419, 424 (1980) (dissenting opinion).
I perceive, as Justice Brennan obviously does in view of his separate writing, a possibility that the Court’s opinion in this case today might be regarded, because of some of its language, as a signal to prison administrators that the federal courts now are to adopt a policy of general deference to such administrators and to state legislatures, deference not only for the purpose of determining contemporary standards of decency, ante, at 346, but for the purpose of determining whether conditions at a particular prison are cruel and unusual within the meaning of the Eighth Amendment, ante, at 349-352. That perhaps was the old attitude prevalent several decades ago. I join Justice Brennan’s opinion because I, too, feel that the federal courts must continue to be available to those state inmates who sincerely claim that the conditions to which they are subjected are violative of the Amendment. The Court properly points out in its opinion, ante, at 347, that incarceration necessarily, and constitutionally, entails restrictions, discomforts, and a loss of privileges that complete freedom affords. 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.