by the United States Court of Appeals for the Eighth Circuit

“ We need only repeat that inadequate resources cannot justify the imposition of constitutionally prohibited treatment. Even assuming qualified blacks cannot be found, we are not persuaded that an alternative such as establishing a program in which blacks could be trained until qualified is not viable.
On remand the district court should amend its decree to include an affirmative program directed toward the elimination of all forms of racial discrimination. In doing so it should consider the standards now employed in the hiring and promotion of prison personnel. ”

“ Lack 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. ”

“ Conduct prohibited by official prison rules is freely engaged in.
We have discussed previously the departmental obligation to protect inmates against both physical and mental abuse by the correctional staff and other inmates. The continued infliction of physical abuse, as well as mental distress, degradation, and humiliation by correctional authorities demonstrates that mere words are no solution. Such unlawful conduct by correctional personnel is of major significance leading to this court's finding that the present correctional system in Arkansas is still unconstitutional. ”

“ Beto, 405 U.S. 319 (1972) , the Supreme Court faced a case in which a prisoner's complaint had been dismissed without a hearing or findings. The Court said:
Federal courts sit not to supervise prisons but to enforce the constitutional rights of all "persons," including prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. ”

“ As recently as 1969, fully 90 percent of the security force of the Arkansas prison system consisted of such inmate guards. They virtually ran the prison. They sold desirable jobs to other prisoners and trafficked in food, liquor and drugs. There was no way to protect prisoners from assaults if the trusty guards permitted them. Several months after the district court ordered abolition of the trusty system in Holt II, Commissioner Hutto reported:
The Trusty System of armed guards has not in fact been dismantled at either Cummins or Tucker. ”

“ Living facilities, with the exception of the punitive segregation wing at Cummins, were integrated. Nonetheless, the court found that discrimination still pervaded other facets of prison life. Accordingly, the district court again enjoined racial discrimination in several particulars, including: (1) interference with Black Muslim religious practices; (2) segregation of prisoners in maximum security, and (3) discrimination in such areas as inmate classification, job assignments, privileges, personal appearance, disciplinary proceedings and punishments. ”

“ We think it incumbent upon the court to hold additional hearings and to delineate within specific terms and time limitations not only an overall long-range plan but an immediate plan to update all medical equipment at all facilities, ensuring that every inmate in need of medical attention will be seen by a qualified physician when necessary. ”

“ A compilation of disciplinary proceedings leads to an unmistakable inference of racial discrimination, be it intentional or not. In the area of job classification and admission to the few available rehabilitative programs, the same inference arises, for blacks occupy the menial positions while the more desirable programs are dominated by white inmates. Cf. Smith v. Board of Education of Morrilton, 365 F.2d 770 (8th Cir. 1966) .
Very little has been accomplished in the recruitment of black employees. ”

“ If prison officials have a valid interest in investigating potential visitors, obviously that interest may be protected by less intrusive means, such as the submission of a visitors' list. We are not persuaded that all correspondents need to be investigated on the chance that some may visit. It is equally unavailing to argue that some persons, because of their criminal reputation, have no business communicating with prisoners. ”

“ At Cummins the youths are housed either in solitary confinement for their own protection or placed in the general prison population. As Judge Henley observes, one could seriously question which is worse. Apparently, some such transfers have been completed quite summarily. The petitioners state that Tucker offers better conditions of confinement with greater possibilities for rehabilitation. They contend that any transfer to Cummins, since it amounts to a material change in their conditions of confinement, must be accompanied by procedures consistent with due process. ”

“ It appears to the Court that the answer, however unpalatable it may be, is to eliminate the positions of long line rider and inmate pusher and to put each long line under the immediate charge of one or more free world people. ”

“ This court fully realizes, as did the district court, that this is a difficult problem for the Board of Correction and prison officials. In the meantime, however, 1200 inmates are continuously denied proper medical and dental care, and individuals with contagious diseases, as well as some who are mentally and emotionally ill, are at large in the general prison population. There is not even basic emergency service, much less any assurance of more complete medical treatment when necessary. ”

“ The district court demonstrated a keen perception and understanding of how conflicts arise between prison personnel and inmates. The court points out that the overall working conditions and prison environment provide a fertile ground for continued abuses and violations of earlier decrees. Although the district court did not find the prison working conditions so harsh as to constitute cruel and unusual punishment in themselves, it observed that the inmates on the "hoe squads" are required to work long hours under constant prodding ”

“ Armed Trusties are being used on the towers at both Tucker and Cummins and are used to guard outside work forces. This is done, however, under the direct supervision of a civilian supervisor, who is present at all times with the work forces. Trusties have been removed completely from any responsibility or authority regarding inmate job assignments, promotions and demotions, and all disciplinary matters are handled by free world personnel. ”

“ But persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes "access of prisoners to the courts for the purpose of presenting their complaints." ”

“ It has been said many times that the courts possess no expertise in the conduct and management of correctional institutions. This court has long recognized that it is only in the exceptional case where the internal administration of prisons justifies judicial supervision. ”

“ It is not seriously defended as essential to security. It amounts therefore to an unnecessary infliction of pain. Furthermore, as a technique designed to break a man's spirit not just by denial of physical comforts but of necessities, to the end that his powers of resistance diminish, the bread and water diet is inconsistent with current minimum standards of respect for human dignity. ”

“ As will be discussed, we find major constitutional deficiencies particularly at Cummins in housing, lack of medical care, infliction of physical and mental brutality and torture upon individual prisoners, racial discrimination, abuses of solitary confinement, continuing use of trusty guards, abuse of mail regulations, arbitrary work classifications, arbitrary disciplinary procedures, inadequate distribution of food and clothing, and total lack of rehabilitative programs. ”

“ If overcrowding and its subhuman effects have been eliminated, [2 2] the respondents can easily demonstrate this by affidavit. If changes in the medical treatment and facilities have raised them to conformity with constitutional standards, this, too, can be demonstrated by documentary proof. Notwithstanding some diminution in the physical and mental brutality, revealed in the first Hutto cases, the district court concluded, based on the evidence of 21 months ago, that it was still necessary to further enjoin such abuse. ”

“ In fact, some patients appear to not be under the care of a physician, there is no professional nursing, required medical records are only partially maintained, basic laboratory and x-ray services are only partially available, no professional dietary service is provided, and a great many facility and environmental standards are not currently being met. ”

“ We find the problem to be much more complex and serious than this, and assuming the deficiencies are of a constitutional nature, we again cannot agree that lack of funds or facilities justify lack of competent medical care.
Subsequent to the decision in Holt II, Dr. T. H. Wortham, a member of the Board of Correction, requested the Arkansas Department of Health to evaluate the medical facilities of the Department of Correction. ”

“ Although there may be additional burdens on the Complex, if inmates may seek help from other inmates, or from the inmate adviser if he proves adequate, in both habeas and civil rights actions, this should not prove overwhelming. At present only one inmate serves as legal adviser and it may be expected that other qualified inmates could be found for assistance if the Complex insists on naming the inmates from whom help may be sought. ”

“ While these improvements were necessary to comply with the decree in Holt II, the record indicates that serious overcrowding has not been eliminated and that inmate assaults on other inmates still occur. [6] Moreover, relief will apparently be short-lived, for the testimony reveals that inmate population increases each year.
When a state confines a person by reason of a conviction of a crime, the state must assume an obligation for the safekeeping of that prisoner. One means of protecting inmates from each other is provision of adequate physical facilities. ”

“ Arbitrary power is thus placed in the hands of persons obviously lacking the discretion to exercise it wisely. Absent evidence of qualified supervisors for the work crews, a possible solution is to deprive the line guards of this power. The district court should review these conditions bearing in mind this court's concern for the lack of rehabilitation [*207] and treatment for the prison population and the resultant physical and mental abuse. ”

“ All members of the visiting team consider that all inmates have a basic right to medical, dental and psychological diagnosis, study and treatment. We also feel that it is basic that rehabilitation is the goal of prisons rather than punishment. We believe that a fact of basic wholeness of the person is an interest in his physical self and this interest should be stimulated. ↑ At the Tucker Intermediate Reformatory the report relates in part as follows:
Medications are obtained from the Cummins unit as needed. ”

“ It is in a position to do so when either of two factors are present: (1) the record itself sufficiently informs the court of the basis for the trial court's decision on the material issue, or (2) the contentions raised on appeal do not turn on findings of fact. See generally 9 Wright & Miller, Federal Practice and Procedure § 2577 at 699–700 (1971) . While this court may review a decision in the absence of factual findings, it may not make its own findings of fact. ”

“ By now state correctional authorities [*200] should have provided facilities and programs consistent with constitutional standards. As the respondents urge, there is no such thing as a "perfect" prison system, but this does not relieve respondents of their duty to make their system a constitutional one in which the human dignity of each individual inmate is respected. [5]
Substantive Review We turn now to a consideration of the district court's decree and its supporting memorandum opinion. ”

“ Even in institutions where there is a large number of experienced employees there is the constant danger that "trusted" inmates exercise subtle influences on staff in the area of job assignments and discipline. ”

“ Construction of adequate medical care facilities is justified on the basis of workload. [8] [*204] The record additionally shows that there are no dentists at Cummins or Tucker. When a dentist does visit, no restorative work is done. Although the evidence indicates that prisoners who need major dental work, such as extractions, are taken into the dentist at Pine Bluff, the record likewise shows that none of the 1200 inmates at Cummins had made such a visit for a period of at least eight months prior to the district court hearing. ”

“ For this reason, as well as those stated elsewhere, the district court shall retain jurisdiction and take, if it deems advisable, additional evidence on those conditions of confinement, hiring policies, working conditions and disciplinary measures which must be changed in order to provide a continuing prophylaxsis against such cruel and inhumane treatment. ”