concurring in part and dissenting in part.
The effort invested in this inquiry by the district judge, as well as the obvious concern underlying much of Justice Huntley’s majority opinion, should be well received by the citizens of Idaho. Much of that which Justice Huntley has written will serve a beneficial purpose. However, there is also much in both the style and substance of the opinion with which I cannot agree, and therefore I feel compelled to state my views separately.
A beginning point is to consider the response proffered by both the majority and the trial court to the specific allegations raised by petitioners. Both the district court and the majority found that the overcrowding in the Canyon County jail was excessive. There was evidence to the fact, as the majority notes, that the grossly overcrowded conditions resulted in increased violence and sexual harassment. The cells were so overcrowded that, at times, the inmates were limited to three to four square feet of living space per person. Moreover, prisoners were made to stay in these cells for at least twenty-three hours a day and more than seventy-two hours at one time. By any standards, constitutional or otherwise, these conditions are despicable and must be remedied. We are not dealing with the keeping of animals, nor are we dealing with persons convicted. Our concern is whether the people of this state can pen like livestock other people of this state who have been charged with running afoul of the law, affording them less of humanity than those who have been tried and convicted. For those who are found innocent there is no redress for their having for long periods of time been cooped like chickens and afforded the same right to cleanliness as pigs in a pen.
The majority seems in part to have depended upon the district court’s finding that the overcrowding of the smaller cells was not designedly punitive in nature, and thus, on that slim reed, not unconstitutional as to pre-trial detainees under Bell v. Wolfish. However, as petitioner points out in his brief:
“The court misconstrued the legal standards for reviewing unconstitutional jail conditions. The actual intentions or motives of jail officials [are] irrelevant to the court’s inquiry in cases merely challenging conditions as opposed to money damages. The court may infer unconstitutional punishment without a finding of intent strictly by the punitive nature of the confinement in the jail if the ‘restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or *235purposeless.’ Bell v. Wolfish, supra, [441 U.S.] at 539 [99 S.Ct. at 1874].”
However, even in refusing to find a constitutional violation because the overcrowding was not “designedly punitive” in nature — a fact mistakenly believed by the district court to be dispositive — the court nevertheless published its disapproval of the overcrowded conditions:
“[T]he Court does feel compelled to draw the respondents’ attention to the possible future necessity of utilizing the largest of the bull-pen cells to its fullest design capacity, consistent with security, health, and safety consideration. This would relieve the closeness caused by multiple bunking in the smaller cells. When, and if, it should become necessary to house more than two inmates in one of the small bull-pen cells, respondent might be well-advised to permit those inmates to leave their cells for longer periods of time each day, and up to six days a week in order to avoid constitutional problems. Moreover, any necessary multiple (more than two) bunking in those smaller cells should be kept to the very minimum of time possible. And, in the interests of being able to justify their management decisions respondents might be well advised to document in writing the necessity, if it ever exists, of multiple bunking in the small cells.”
Trial Court Memorandum Decision, p. 7 (emphasis added).
This is the so-called “remedial action” said to have been “ordered” by the district court which the majority opinion today affirms in language as equally precatory as that used by the district court. The general tenor of the majority opinion is that of a parishioner’s review of a Sunday sermon. I am unable to approve of the extremely tentative and reluctant fashion in which both the district court and majority have addressed the very serious question at issue here.
Everyone seems to agree that the conditions at Canyon County jail are unacceptable and repugnant to the United States Constitution, yet no one appears willing or able to fashion an effective remedy. The following excerpt from petitioner’s brief is especially germane in this regard, successfully homing in on the unwillingness of the courts to assume any real responsibility in this instance:
“Throughout the district court’s Memorandum Decision there are references to various deficiencies in the Canyon County Jail. The court was convinced that housing ‘more than two pretrial’ detainees in cells B, C, E, and P was ‘insufficient’ for non-sleeping purposes. Memorandum Decision, p. 12. Yet, the court refused to grant an order relieving the severely overcrowded conditions. Instead it ‘advised’ the Respondents ‘to permit those inmates to leave their cells for longer periods of time each day and up to six days a week in order to avoid constitutional problems.’ Memorandum Decision, R., p. 63. The court further advised the Respondents to minimize the ‘multiple bunking in the small cells’ and ‘to justify their management decisions ... in writing.’ Memorandum Decision, R. p. 63. These remarks present interesting questions that should be answered. To whom do the Respondents have to justify the overcrowded conditions when the court, which is sworn to uphold the Constitutions and laws of the State of Idaho and the United States, finds constitutionally questionable conditions and practice, but chooses to ignore them since the court could not say ‘that the Respondents have not acted. in good faith.’ Unless the arrest and confinement of pretrial detainees was halved, the overcrowding at the Canyon County Jail would have to continue. The possibility exists that the conditions are even worse today and will worsen in the future because the jail facility is underfunded, inadequately staffed and obsolete.”
This assessment, that the actions of the district court are wholly inadequate, is both accurate and prophetic. Such precatory words as “might” and “should,” as mentioned in the excerpt, and also the overworked phrase “would be well advised to,” *236provide neither affirmative direction nor remedy to a concededly dismal situation.
Nevertheless, it is clear that the district judge did give much time, effort, and consideration to the situation as it presently exists at Canyon County jail. But that is not the end of it. Nor should it be. The cause which the district judge has thus far so nobly advanced ought not go for naught. There should be some profit derived from a considerable expenditure of time, rather than the mildly chiding rebuke which has been administered by the Idaho judiciary. Because it seems to be generally well-known that this Court has in recent years committed itself to a policy of abstinence in penal affairs, i.e., review of sentences and any kind of supervision of jails and prisons, most practitioners and other aware citizens may well surmise that the district judge went as far as he did go with a jaundiced eye cast upward. Given any encouragement from this Court, I submit that the district judge would indeed have ordered corrective action, and would have retained jurisdiction of the controversy to insure that his orders were carried out — maintaining a vigilant watch over the progress made at alleviating the conditions at the jail. Perhaps this is what the majority contemplates in directing “the district court to periodically monitor the subject practice to insure that the remedial action it ordered is being continued in effect.” Supra, p. 23. Unfortunately, it is to be noted that there were in fact no orders made, and no retention of jurisdiction. (Perhaps it was thought that the district judge would visit the jail from time to time.). The district judge should outright order the changes necessary to bring the conditions at the jail up to constitutional standards and should further provide a mechanism for enforcing such order, and the district court should be told forthrightly that to do so is within its authority. Thus, this Court does not this day do, notwithstanding that the trial court made clear the reasons for its reluctance in ordering that the necessary changes be made. Memorandum Decision, R., pp. 5, 7. In addition to concerns of judicial restraint, which are indeed proper in a proper case, the court pointed to lack of funds provided by the legislature to the counties:
“Once again this Court is faced with a thorny constitutional issue because of, or partially so, the practice of the Idaho legislature in mandating procedures to the Counties and local governments without providing funding assistance. The Court has considered the issue with regard to forced participation in the health district programs, forced compliance with practices to aid the handicapped, forced medical indigency payments, and forced juvenile detention requirements. Again, as before, the Court voices no great concern with the merits of the statutory programs, but with the practice of requiring participation in them without advancing financial assistance to the levels of government charged with implementation. The issue seems to intensify its impact upon the property tax-payers in the Counties when we learn that the state retains a fund surplus of 1.7 million dollars, yet continues its practice of forcing local compliance without extending complementary funding.”
Memorandum Decision, p. 7, n. 1.
No one can say that the district court’s appraisal of the problem is inaccurate. But, is this a proper justification for judicial abdication? I would hope not. Though it is no doubt true that a court does not have the “authority to require all expenditures which would make a jail a model prison,” it nonetheless has the constitutional power and responsibility to insure that those correctional facilities which do exist meet constitutional mínimums. As Circuit Court of Appeals Judge Blackmun wrote: “Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar consideration.” Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir.1968).
While it is the province of the legislature to appropriate monies for the public weal, it is just as clearly the place of the courts to insure that the mandates of the state and federal constitutions are not allowed to go unheeded. Where the legislature is *237brought to the realization that its priorities must include the maintenance of constitutionally acceptable jails, and yet fails to act, then it must come to grips with the consequences of its indecision. It may perhaps look to its recently enacted bailjumping statute, I.C. § 18-7401, making it an offense to fail to appear at the appointed time after having been set at liberty by the court. Since, by hypothesis, the pretrial detainees bringing this action are only in the Canyon County jail by reason of their inability to make their appointed bail and to thereby insure their presence at trial, I.C. § 18-7401 may in most cases provide an acceptable alternative to detention — especially where such detention subjects the detainees to unconstitutional conditions. And, of course, as a last resort the court can order the jail closed if the proper officials balk at allocating funds. Dimarzo v. Cahill, 575 F.2d 15, 19-20 (1st Cir.1978). Regardless, the court must carry out its responsibilities irrespective of the way in which the legislature deems it proper to carry out its own responsibilities.
In addition to the problems seen in the approach taken by the majority, some of its conclusions also are not readily acceptable. First, it must be noted that the majority simply declines to address the total lack of outdoor recreation afforded at the Canyon County jail. The evidence was uncontroverted that the jail does not provide any outdoor exercise, Respondents’ Answers to Interrogatories Nos. 15 and 17 and Anderson, Tr., p. 194, 11. 5012, and that there was no exercise equipment for use by pretrial detainees. Respondents’ Answers to Interrogatories No. 9. Although there was testimony that an area for the purpose of exercise was under construction, no work was being done at the time of trial nor was there a completion date set for it. Anderson, Tr., p. 193, 1. 8 — p. 194, 1. 4. The trial court contented itself with noting that “petitioners presented no evidence that lack of outdoor exercise is detrimental to their health,” Memorandum Decision, p. 12, and by quoting passages from Jones v. Diamond, 594 F.2d 997 (5th Cir.1979).1 The petitioners apparently deemed this response both extremely cavalier and woefully inadequate.
It is true that there was no evidence presented by petitioners that lack of outdoor exercise was detrimental to their health. I would have thought that such a widely recognized fact, if not capable of being judicially noticed, was at least not needful of being proved. Moreover, “There is substantial agreement among the cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical well-being of the inmates.” Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.1979). In that case, despite the fact that the prisoner-plaintiffs in question were convicted felons in a maximum-security institution — “some of the most dangerous men in the prison population,” Id. at 192 — the Ninth Circuit ruled that outdoor exercise could not be denied, even as a disciplinary measure for violent offenses in prison. Id. at 199-200.
Lack of physical exercise endangers the inmates’ physical and mental health. It can be considered either as a denial of adequate medical care or as a condition of confinement contributing to a cumulative impact which subjects inmates to cruel and unusual punishment. See, e.g., Rhodes v. Chapman, 452 U.S. 337,101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Concededly there have been cases where evidence was adduced to prove that which everyone knows — the deprivation of outdoor exercise is detrimental. Martino v. Carey, 563 F.Supp. 984 (D.Or. 1983). In that United States District case, Judge Redden stated the following:
“In the present case expert witnesses testified that the denial of all outdoor exercise endangered the physical and mental health of prisoners and led to physical and mental deteriorization. I *238agree with this testimony and find that the denial of exercise violated the Eighth Amendment as to convicted prisoners and imposed a clearly ‘punitive’ condition upon pre-trial detainees. The cases so holding are legion____ Denial of exercise destroys the bodies and minds of inmates, ‘without penological justification.’ See Rhodes v. Chapman, supra.” Martino v. Carey, 563 F.Supp. at 1001 (emphasis added).
Doubting that any member of this Court would express himself otherwise, I surmise that the lack of any majority opinion comment on this issue will not be surprising.
I also disagree with both the standard employed and the conclusion reached by the majority on the issue of mail censorship. Clearly, the first amendment governs the permissible extent of such restrictions upon inmates’ mail privileges. Though the applicable test for such restrictions on the rights of convicted prisoners was indeed stated by the Supreme Court in Procunier v. Martinez, supra, and restated by the Ninth Circuit in Pepperling v. Crist, 678 F.2d 787 (9th Cir.1982), a different analysis is required for pre-trial detainees. In Inmates of San Diego County Jail v. Duffy, 528 F.2d 954 (9th Cir. 1975), the Ninth Circuit held that such a test developed for convicted prisoners is inapplicable to the rights of pre-trial detainees, who are presumed to be innocent of crime and whose detention is based solely upon inability to make bail. In dealing with just this situation, Judge Redden, in Martino v. Carey, supra, stated the following:
“I find that the appropriate test for restrictions upon the First Amendment rights of pretrial detainees is a test which is more sensitive to First Amendment rights than even the highly-protective Procunier-Pepperling standard. I apply the standard enunciated by Judge Zirpoli in Brenneman v. Madigan, 343 F.Supp. 128, 141-142 (N.D.Cal.1972). Under this standard, pre-trial detainees are not subject to any regulation which is not ‘absolutely necessary to ensure their presence at trial.’ Id. at 142. Correctional officials seeking to achieve this goal must use ‘the least restrictive’ method of doing so. Id. Under this standard, ‘it is difficult to justify any restrictions at all on the amount or content of a pre-trial detainee’s outgoing correspondence.’ Id. at 142.”
Martino v. Carey, 563 F.Supp. at 1005.
It seems clear that under this standard there is no justification for precluding the detainee’s receipt of magazines such as Playboy or Penthouse.
In conclusion, then, it cannot be said that the conditions to which the pre-trial detainees are subject at Canyon County jail are not unconstitutional. The district court should be directed to order done that which it wishes done, and should be directed to retain jurisdiction to the end that the Canyon County jail shall not continue receiving inmates beyond its capacity to accommodate them within constitutional bounds.
Indeed, foreseeable is the day when by the abdication of responsibility exhibited this date by the Idaho judiciary, the federal judiciary will necessarily have to fill the void. For suggested reading, I recommend to my colleagues both the majority and minority opinions in State v. Coutts, 101 Idaho 110, 609 P.2d 642 (1980), for an insight into jail conditions in the Boundary County jail, pp. 111 and 119, 609 P.2d 642, and also a view of the conditions in the Kootenai County jail as set forth at p. 119, n. 12, 609 P.2d 642, which are certainly worth the reprinting in connection with evaluating today’s inaction by this Court.2 For an update on the Kootenai County jail, and likely federal activity here, see Leeds v. Watson, 630 F.2d 674 (9th Cir.1980).3
Although I concur in the majority’s opinion on the issue of standing, for the reasons stated above I am unable to join the majority’s disposition of the merits, and respectfully dissent therefrom.
*239“OVERCROWDING
“The trial judge recognized the fact that the jail was operating at an overcapacity and he enjoined the confining of more than 14 prisoners at once or for more than 48 hours, subject to a list of exceptions. There is nothing in the plan to assure that the 5 exceptions to the 48-hour rule in the court’s Order are not being used in a manner that will permit a total disregard of the meaning and intent of the 48-hour limitation rule. Moreover, the record before us does not reflect whether any of the promised improvements to health and sanitation problems have been implemented.
“ACCESS TO THE COURTS
... Appellees further point to the availability of Public Defenders as satisfaction of the Bounds alternative requirement. However, the parties stipulated (Tr. 417) that Idaho Legal Aid Services does not have the staff to provide legal representation to inmates at the Kootenai jail in all the cases in which they are requested to do so, but have represented inmates three times in the past four years. ‘Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid.’ Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974).
“We reverse the finding that there was no violation of the prisoners’ constitutional right of access to the courts. On remand, a determination of the adequacy of legal representation to inmates, or in the alternative, the provision of an adequate law library and notice of its availability should be explored.”
630 F.2d at 676.
APPENDIX B
“Recently an order issued out of the U.S. District Court for the District of Idaho condemning the conditions at the Kootenai County Jail, and giving the commissioners of that county directions that prisoners not be kept therein longer than 48 hours. Among the findings and conclusions of that court were the following:
“ ‘The toilets, showers, and general conditions of the cells of the Kootenai County Jail are unsanitary and inadequate for the confinement of prisoners for other than very short periods of time.
“ ‘The conditions of confinement for pretrial detainees in the Kootenai County Jail are substantially worse than conditions of confinement for convicted felons confined in the Idaho State Penitentiary.
“ ‘The totality of conditions in the Kootenai County Jail render the facilities constitutionally unacceptable for confinement. Such confinement constitutes cruel and unusual punishment in violation of prisoners’ rights protected by the Eighth and Fourteenth Amendments to the United States Constitution.
“ ‘Confining pretrial detainees in the Kootenai County Jail in conditions substantially worse than the conditions of confinement for convicted felons in the Idaho State Penitentiary, and in the conditions found by the Court, violates pretrial detainees’ rights to due process of law and equal protection which are guaranteed by the Fourteenth Amendment to the United States constitution.’ ”
101 Idaho at 119, n. 12, 609 P.2d at 651, n. 12.
ON DENIAL OF PETITION FOR REHEARING
HUNTLEY, Justice.In our decision of October 24, 1983 we noted that the minimum floor space per inmate approved by the standards of the American Correctional Association is sixty square feet of cell space for a prisoner spending no more than ten hours per day in his cell. Eighty (80) square feet is required if the confinement is more than ten hours per day.
*240We further noted that the practice in Canyon County prior to the district court order was to house five or six detainees in a cell, resulting in only nineteen or sixteen square feet per person, and that when the space occupied by bunks was deducted there remained only four or three square feet per person.
In our October decision we declined to order habeas corpus or other affirmative action on the basis that it was represented to us that the district court’s order alleviating the situation, both as to overcrowding, lack of opportunity for showers, and lack of adequate exercise was being complied with.
On petition for rehearing we have been presented with affidavits which, if true in their allegations, demonstrate that not only is the district court’s order not being complied with, but rather that the conditions have worsened.
The affidavits are summarized:
(1) Ronald Carter:
(a) Detained more than three months in Cell A.
(b) Minimum of five and usually six detainees in cell
(c) Six bunks have been added to Cell D.
(d) Total confinement in cells from Friday morning to Monday morning, and one additional day more confinement on holiday weekends.
(2) Ken Budell:
(a) Detained two and one-half months in Cells D, E and F.
(b) Minimum of five and usually six in his cell. (The district court ordered that no more than two be detained in the cell except during sleeping hours.)
(c) Neither enough time nor enough hot water for adequate showers.
(d) Total confinement over for periods stated in Carter affidavit.
(3) Wayne A. Byerly:
(a)Detained approximately seven months.
(b) During entire period five or six persons in the cells where the court ordered maximum of two.
(c) Inadequate shower opportunity.
(d) Inmate Rick Garcia stated he attempted suicide several times while Byerly there.
(e) 111 with high fever and no medical attention for eight days.
(4)Bert Miyoshi:
(a) Detained seventeen days in Cell F.
(b) Always five to six persons in cell (where court ordered two).
(c) Only exercise was walking in day-room.
(d) During the seventeen-day period saw two detainees in Cell C and one in Cell B being forced to sleep on mattress on floor because the six bunks were occupied.
(e) Notified by jailer that letter from wife being withheld — no opportunity to challenge the withholding and did not receive the letter until the day discharged.
These matters, if true, indicate both a violation of the mandates of the trial court and a constitutionally impermissible manner of housing pretrial detainees.
Since there may well be an explanation for or refutation of these allegations, it would be improper for this court to act on the basis of incomplete information, especially when these matters have never been presented to the trial court.
The proper procedure would require initiation of new action if in fact the standards enunciated in our original decision are not being complied with.
Petition for rehearing denied. No costs awarded.
DONALDSON, C.J., and BAKES and BISTLINE, JJ., concur. SHEPARD, J., concurs only in the denial of thé Petition for Rehearing.. Jones v. Diamond was substantially reversed by the Fifth Circuit on rehearing en banc. Jones v. Diamond, 636 F.2d 1364 (5th Cir.1981) (en banc). The relative closeness of dates suggests that the district court was not made aware of the en banc decision, which went unmentioned.
. See Appendix A attached.
. See Appendix B attached.