dissenting in part and concurring in Judgment.
Appellants are pre-trial detainees housed at Delaware’s Multipurpose Criminal Justice Facility, known as “Gander Hill,” who appeal the order of the District Court granting summary judgment in favor of prison officials (“prison officials” or “Appellees,” collectively) based on qualified immunity. The detainees claim that certain conditions of confinement, specifically the practice at Gander Hill of housing three detainees in cells designed for one person (“triple-celling”), violate then-rights under the Fourteenth Amendment. When this case was initially before this court, we held that the District Court erred in applying the Eighth Amendment cruel and unusual punishment standard applicable to convicted prisoners. Hubbard v. Taylor, 399 F.3d 150 (3d Cir.2005) (Hubbard I). We explained that because the prisoners were pre-trial detainees, their claim must be evaluated under the standards applicable under the Fourteenth Amendment. We stated that under the controlling authority of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), pre-trial detainees “are not yet at a stage of the criminal process where they can be punished because they have not as yet been convicted of anything.” Hubbard I, 399 F.3d at 166. We remanded to the District Court for a proper analysis of the detainees’ claim. We also noted that the District Court had not reached defendants’ entitlement to qualified immunity, and directed the District Court to resolve that issue first.
On remand, the prison officials renewed their motion for summary judgment on the basis of qualified immunity. Hubbard v. Taylor, 452 F.Supp.2d 533, 535 (D.Del.2006). The District Court found that triple-celling could not be considered punishment, as it was initiated in response to overcrowding at Gander Hill. Id. at 541. Deferring to the prison officials’ determination that triple-celling of pre-trial detainees is one way of dealing with overcrowded facilities, the Court found this action was not arbitrary or purposeless so as to constitute punishment.
*239The majority proceeds to follow the two-step analysis required to determine whether the prison officials are entitled to qualified immunity and holds that the triple-bunking to which the detainees were subjected did not constitute a violation of their due process rights. I respectfully disagree.
The conditions at Gander Hill were fully described in Hubbard I. I reiterate them because they form the basis for my conclusion contrary to that of my colleagues.
Plaintiffs claim that triple-celling requires someone to sleep on a mattress that must be placed on the cell floor adjacent to a toilet....
The defendants concede that an inmate must sleep on a floor mattress when three are housed in a given cell. When that happens, the newest arrival is required to sleep on a mattress on the floor until one of his cellmates is released or moved. That frees a bunk for the inmate who had been on the floor mattress, and any new arrival in that cell would then take his place on the floor mattress.
The cells range in size from 69 to 76 square feet, and the net unencumbered space in the cell (gross footage of 69-76 square feet less space required for a bed, mattress, desk and toilet) is less than 50 square feet or 16 square feet per occupant of each tripled cell. Plaintiffs claim that the bunk bed and floor mattress leave extremely limited space for three adult men to move about in the cell....
Plaintiffs claim that the deprivations are exacerbated because sleeping on the floor forces detainees to sleep very near the open toilet. This has purportedly resulted in urine and feces regularly splashing on whomever is relegated to the floor mattress.
399 F.3d at 154-55.
Appellants claim that the conditions caused serious injuries, including a broken leg and an infected shin, as well as discomfort and disease associated with sleeping on a concrete floor. These conditions have repeatedly been brought to the attention of the district court judges of the District of Delaware but no judge has characterized them as unconstitutional. In contrast to those district court judges, the District Judge whose order is the subject of this appeal, and my colleagues in the majority, I can reach no conclusion other than the conditions alleged meet the standard of the Fourteenth Amendment — that the conditions “shoek[ ] the conscience.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952). They shock my conscience, particularly because the conditions apply to pre-trial detainees who have not been convicted, some of whom are imprisoned because they cannot afford bail. Admittedly, judges have varying consciences and I would not and do not comment on the consciences of other judges. I merely state that when the status of Appellants as pre-trial detainees is combined with the unchallenged fact that at least some of the detainees are subject to these horrific conditions noted by this court in Hubbard I for as long as two to seven months, my conscience is shocked. Thus, I believe that Appellants have adequately alleged a violation of their constitutional right to due process.
Once the courts determine that a constitutional violation exists, it is no answer that the state or local government has insufficient funds to remedy the unconstitutional situation. This excuse was tried and rejected in the aftermath of the decision in Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). *240For example, in Griffin v. County Sch. Bd., 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), a case involving a county which unconstitutionally closed its public schools and supported private segregated white schools to avoid complying with desegregation, the Supreme Court mentioned as part of the remedy that “the District Court may, if necessary to prevent further racial discrimination, require the [Board of] Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system” in the county. Id. at 233, 84 S.Ct. 1226.
The issue has also arisen in connection with overcrowding of prisons. In Rhodes v. Chapman, 452 U.S. 337, 339-41, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the prisoners argued that “double celling” inmates, i.e., housing two inmates in a one-person cell, with bunk beds, violated their Eighth Amendment rights. The Court held that the conditions in that case did not constitute cruel and unusual punishment. Justice Brennan’s concurrence noted that the Court had “upheld the exercise of wide discretion by trial courts to correct conditions of confinement found to be unconstitutional.” Id. at 356 n. 4, 101 S.Ct. 2392 (Brennan, J., concurring). His language is particularly applicable here:
Public apathy and the political powerlessness of inmates have contributed to the pervasive neglect of the prisons.... Prison inmates are “voteless, politically unpopular, and socially threatening.” Morris, The Snail’s Pace of Prison Reform, in Proceedings of the 100th Annual Congress of Corrections of the American Correctional Assn. 36, 42 (1970). Thus, the suffering of prisoners, even if known, generally “moves the community in only the most severe and exceptional cases.” Ibid. As a result even conscientious prison officials are “[c]aught in the middle,” as state legislatures refuse “to spend sufficient tax dollars to bring conditions in outdated prisons up to minimally acceptable standards.” Johnson v. Levine, 450 F.Supp. 648, 654 (D.Md.), aff'd in part, 588 F.2d 1378 (4th Cir.1978)....
Under these circumstances, the courts have emerged as a critical force behind efforts to ameliorate inhumane conditions. Insulated as they are from political pressures, and charged with the duty of enforcing the Constitution, courts are in the strongest position to insist that unconstitutional conditions be remedied, even at significant financial cost. Justice Blackmun, then serving on the Court of Appeals, set the tone in Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir.1968): “Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations.... ”
Id. at 358-59, 101 S.Ct. 2392 (Brennan, J., concurring).
In Finney v. Ark. Bd. of Corr., 505 F.2d 194 (8th Cir.1974), the court held that “some compliance” with a previous remedial court decree to correct prison conditions was “not good enough.” Id. at 201. The court stated that:
[l]ack of funds is not an acceptable excuse for unconstitutional conditions of incarceration. An immediate answer, if the state cannot otherwise resolve the problem of overcrowding, will be to transfer or release some inmates. The district court shall also satisfy itself that no additional prisoners will be confined at the Cummins Prison Farm if their confinement will result in continued overcrowding and perpetuation of conditions which fail to provide optimum safety and sanitation for every inmate.
Id.
I am satisfied that the first requirement for consideration of qualified immunity has *241been met, i.e., that the conditions applicable to pre-trial detainees violate their due process rights. On the other hand, I cannot disagree with the majority’s determination that the constitutional right was not clearly established, and indeed has not been clearly established to this day. The Supreme Court’s leading case on prison overcrowding, Bell v. Wolfish, 441 U.S. at 541, 99 S.Ct. 1861, merely held that double-bunking of pre-trial detainees was not unconstitutional under the conditions found there. The Court has not since been presented with a record such as that in this case where the pretrial detainees are triple-bunked, with the third detainee obliged to lie on the floor with a thin mattress. Because of the absence of any controlling authority, the prison officials are entitled to qualified immunity.
It is my hope that this court will hold that triple-bunking under conditions such as those present here violate the due process rights of the pre-trial detainees. Once we render such an opinion, future prison officials would no longer be entitled to qualified immunity and the state would be obliged to exercise its power to raise the funds necessary to correct the prison conditions. Data recently published by the International Centre for Prison Studies at King’s College London reported that the United States has almost 2.3 million individuals behind bars, more than any other nation. See Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations’, N.Y. Times, Apr. 23, 2008, at Al. Surely it is the responsibility of the courts to ensure that prisoners are housed in facilities that meet constitutional standards.