HARSHBARGER, JUSTICE:

These petitions ask us to decide whether incarceration of male juvenile criminal offenders in the West Virginia Industrial School for Boys (known as "Pruntytown") violates their rights afforded by the federal constitution's Eighth and Fourteenth Amendments and by Article 3, Sections 5 and 10 of the West Virginia Constitution. No issue is presented about adjudicatory processes by which petitioners were committed to the institution. The cases are here on petitions for habeas corpus and mandamus addressed to our original jurisdiction and the record consists of the pleadings, depositions and exhibits submitted by the parties.

Thus we must examine the constitutional bounds within which government may act in dealing with juveniles convicted of delinquency for criminal activities. (We addressed treatment of those convicted of "status" offenses in our recent decision in State ex rel. Harris v. Calendine, ___ W. Va. ___, 233 S.E.2d 318.) We are asked to define according to the conditions of our society, the level of civility with which the state must deal with its youthful citizens, required by federal and state constitutional mandate.

It is well established in West Virginia that habeas corpus lies to test the constitutionality of the conditions of confinement. "Habeas corpus lies to secure relief from conditions of imprisonment which constitute cruel and unusual punishment in violation of the provisions of Article III, Section 5, of the Constitution of West Virginia and of the Eighth Amendment to the Constitution of the United States." Syllabus point 1, State ex rel. Pingley v. Coiner, 155 W. Va. 591, 186 S.E.2d 220 (1972).

K. W. is a fifteen-year-old young man from Lincoln County where he was adjudged delinquent for breaking and entering. C. W. is a fourteen-year-old boy from Logan County who was also found delinquent for breaking and entering.

In addition to testimony by petitioners and three other inmates, there were depositions by Edward Aman, Supervisor of Diagnostic Classification at the industrial school; Dr. Mary Bowman, educational evaluator; Dennis Bridgeman, Administrative Assistant to the Clinical Director of Weston State Hospital; Robert P. Hawkins, professor of psychology at West Virginia University; Samuel K. McDaniel, planner and former teacher and correctional officer at Pruntytown; Dr. Jerome G. Miller, Commissioner of Children and Youth for the Commonwealth of Pennsylvania; Richard Mohn, Deputy Director of Youth Services in the West Virginia Department of Corrections, and Chief Administrator of the industrial school; Francis W. Nestor, Director of Education at the school; Jean Berry Racine, consultant in early childhood education; Donald R. Swick, a practicing clinical psychologist; Joseph C. Taylor, a private practicing psychologist; and Stewart Werner, Commissioner of the Department of Corrections.

We gain these facts from the evidence, about the facility and treatment of inmates:

It is located about three miles from Grafton, in Taylor County. (It is within 35 miles of West Virginia University, Fairmont State College, Alderson-Broaddus College, Davis-Elkins College and West Virginia Wesleyan College.)

There are about 130 boys in the school, and some 100 staff members (both full and part-time). The inmates are housed in four "cottages" and a reception center. Their sleeping quarters are open dormitories in which each inmate has a cot, wall locker and drawer-like locker that is under his cot. The average duration of incarceration is nine months.

At the time the petitions were filed, certain inmate disciplinary practices were routinely employed at the institution:

1) Inmates thought guilty of serious disciplinary offenses, such as escape, were punished by confinement in small, windowless steel-walled cells (there are three cells) furnished with a combination toilet, wash basin and drinking fountain, a steel cot with flame-proof mattress, and a light. There is an aperture in the door about eight by eight inches through which food and other articles can be passed. The cells are about four feet wide, eight feet long and eight feet high. Youths placed in them were allowed to wear only their undershorts.

2) "Floor time" was a punishment whereby the inmate apparently was required to stand stiffly in one position for several hours each day without talking.

3) "Bench time" was a punishment that required the inmate to sit in a specified location with arms crossed for several hours each day and for several days without talking or moving.

4) Mace, a chemical irritant, was freely used by staff upon inmates whose behavior did not suit staff requirements.

It is uncontroverted that both petitioners have been confined in a security cell and both have had "bench time". K. W. has had "floor time" and has been physically assaulted by a staff member and threatened with Mace attack in a security cell. C. W. was "maced" in a security cell and was required to scrub floors with a toothbrush for many hours.

However, respondent Commissioner of Corrections Werner testified that use of security cells has been stopped except as a temporary restraining place for children who are out of control; that Mace is to be used only to quell riot-type disturbances; the "floor time" and "bench time" have been abolished, although there is "quiet time" during which an inmate must remain at one location and speak to no one, but is free to read or write and to change his body position. Respondent testified that physical assaults by staff or inmates are now strictly forbidden.

I.

Even though the physical brutalities practiced at the institution have been halted, we comment upon them, in case the government should be inclined sometime in the future to embrace them as attractive disciplinary devices.

We must test the acts according to present day concepts of morality and decency that mark the progress of a maturing society. Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 783 (1910); Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). State ex. rel. Pingley v. Coiner, 155 W. Va. 591, 186 S.E.2d 220 (1972). Let us suppose they were methods of discipline imposed upon a child by its father: would not this court sustain removal of the child from such a brutal environment, even if the parent should protest (as does the state) that he were merely attempting to maintain order in the home so he could educate the errant child, provide enlightenment, cultivation and culture?

Is the cruelty any less when its excuse is its supposed necessity to gain the child's undivided attention? Certainly not. And we cannot tolerate inhuman treatment by the state that we would not tolerate if practiced upon its victim by his or her own family. Morales v. Turman, 383 F. Supp. 53 (E.D. Tex. 1974), rev'd on other grounds, 535 F.2d 864 (5th Cir. 1976), rev'd per curiam, 430 U.S. 322 (1977), presents an exhaustive examination of the Texas postadjudicatory treatment of juvenile offenders and Judge Justice dealt with these very same acts:

"Practices found by this court to violate the Eighth Amendment were: the widespread practice of beating, slapping, kicking, and otherwise physically abusing juveniles in the absence of any exigent circumstances, see Ingraham v. Wright, 498 F.2d 248 (5th Cir. July 29, 1974); the use of tear gas and other chemical crowd-control devices in situations not posing an imminent threat to human life or an imminent and substantial threat to property; the placing of juveniles in solitary confinement or other secured facilities, in the absence of any legislative or administrative limitation on the duration and intensity of the confinement and subject only to the unfettered discretion of correctional officers; the requirement that inmates maintain silence during periods of the day merely for the purpose of punishment; and, the performance of repetitive, nonfunctional, degrading and unnecessary tasks. . . ."

Therefore, we hold that the enumerated practices, and any similar behavior by officers of the government is cruel and unusual punishment, forbidden, and every person subjected to any of them (except where riotous conditions endangering other persons may require measures to subdue those who may reasonably be expected to hurt themselves or others) shall be entitled to redress. See, Inmates of Boys' Training School v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972), and Morales v. Turman, supra.

We find these further observations in Morales: "Confinement under circumstances giving rise to a high probability of physical injury to inmates, whether because of insufficient custodial staff or otherwise, may constitute cruel and unusual punishment. E. g., New York State Association for Retarded Children v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973). Two practices fall in this category of Eighth Amendment violations. The first is the practice of housing up to forty boys in an open dormitory, with the only correctional officer on duty locked in a `cage' and prevented from assisting boys in an emergency. This `cageman' is confined to a small area, elevated above the dormitory and separated from the two areas of the dormitory by wire mesh. He must call by telephone to other correctional officers outside the dormitory for assistance in time of stress.

"The second such practice is the failure to administer proper psychological testing or other screening procedures to eliminate potential staff members unqualified to treat juvenile offenders."

The first of these practices does not exist at Pruntytown. The night dormitory staff activity was described by Richard Mohr, Chief Administrator:

"Q What does the staff do at night then for example? Do they just sit at the desk located in the dormitory?

A They are located in a dormitory yes, at a desk. Of course they are required to make a head count on the hour, maintain security of the premises.

We also have a shift supervisor that rotates between the cottages to make sure that the staff are awake and on the job. The shift officer or the cottage officer also calls into the switchboard on the hour.

Q This headcount that is done on the hour, is it possible for a boy to get up in that dormitory area and leave the room without being seen by a staff person?

A I wouldn't think so.

Q In fact aren't there glass, oblique (sic) glass panes even between the bathroom area and the dormitory area?

A Yeah.

Q So a staff person could even see a boy who needed to go in and use the lavatory?

A Right, sir."

. . .

We find that the personal staff supervision of night-time dormitory life calculated to prevent inmate abuse of other inmates, distinguishes Pruntytown from the open dormitory situation condemned in Morales wherein the staff was physically isolated, "caged" from the population and thereby incapable of quick action to prevent injury of one inmate by another.

The second practice condemend in Morales as fostering high probability of physical injuries to staff inmates concerns the psychological fitness of institutional staff members. We have no evidence before us about psychological testing of staff members at Pruntytown to detect guards who may predictably injure inmates. West Virginia Civil Service regulations prescribing qualifications of correctional officers in all grades have a physical examination requirement. None mention any psychological or psychiatric standards of testing. There is evidence of past staff brutality which, according to Commissioner Werner, justified immediate dismissal of offending staff members and will be cause for firing in the future.

We find that after-the-fact dismissal of psychologically unsuited staff persons who brutalize inmates is an inadequate way to cull unfit staff members. Reliance upon this method guarantees that a youngster will be harmed. The result is that the children are guinea pigs that test for brutal or sadistic staff members whose penchants surface when they hurt someone. We recommend pre-hiring and periodic psychological testing or other screening techniques of the keepers to identify those who may be unable to restrain violent impulses.

II.

Another, more difficult, problem is whether any institutionalization of juveniles is constitutionally permissible and hence, imprisonment at Pruntytown constitutionally prohibited.

Dr. Jerome Miller testified that institutionalization of youths is not the best way to treat any except those that require secure detention to protect themselves or the public from physical harm. He stated that, "It would be very unusual and perhaps almost a matter for a suit or for prosecution were a family to deal with their own juveniles the way institutions almost routinely deals (sic) with juveniles. You would not think, for instance, in a family if a youngster were to run away, of taking him home, taking all his clothes off and locking him in a closet for two weeks. It would be odd behavior, but that would be considered reasonable in an institution because if you don't, everyone else will run and it relates to the institutional needs. It has nothing to do with therapy or really even effective control."

"So that in all institutions there is an ultimate hammer somewhere that is used by staff to control. It is a balanced sort of thing whereby if you take away — for instance, if you take away the dungeon [security cell], you will have to anticipate other things, staff doing other things to control the youngsters over a period of time or making other threats about worse things, because those are almost necessary to the institutional needs of control." (Our Emphasis.)

Quere, do institutional controls require unconstitutional brutalities, and therefore must institutionalization of youths be abolished? Dr. Miller was a witness in Morales. Found by Judge Justice to be "of unquestionable expertise" (p. 122), he testified that staff improvement at one of the facilities that was ordered by the court to be closed "could not overcome the hostility to humane treatment that is a part of the institution's tradition."

He and other knowledgeable persons testifying in Morales, opined that institutionalization is useless, even harmful, for the great majority of juveniles because the measures needed to maintain control simply defeat treatment and rehabilitation.

Dr. Robert P. Hawkins, a West Virginia University professor of psychology, also testified to the counter-treatment effect produced by the disciplinary measures required by this institutional need to keep order:

It seems just a natural — the way it is run it seems like a natural outgrowth of the whole institution model. Once they collect that many human beings together who have not been historically extremely responsible, you inevitably get some cases of homosexual behavior, physical violence, and such. So the next step to the institution person's point of view is logically to reduce their privacy by making it possible to watch them all the time.

Q Would you say that privacy is important for any of the goals that you suggested are important; for example, developing social skills, responsibility, less disruptive behavior and that sort of thing?

. . .

A Yes, because I think that one of the first things that you have to do in conducting any kind of treatment is remember that whatever you do serves as a model in the youngster.

If you show little respect for his dignity, for his value as a human being, as a person, for his integrity, then that is what you are teaching him to show other people whether you intend to or not.

It seems to demonstrate — the impersonal way the boys are dealt with there seems to demonstrate that they are not highly valued, that they certainly are not trusted, and I'm afraid that the effect of that on their future behavior and on their willingness to trust you in any way is pretty negative.

Juveniles are constitutionally entitled to the least restrictive alternative treatment that is consistent with the purpose of their custody. See, Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974); Morgan v. Sproat, 432 F. Supp. 1130 (S.D.Miss. 1977); Pena v. New York State Division For Youth, 419 F. Supp. 203 (S.D.N.Y. 1976); Lavette v. Corporation Counsel, 35 N.Y.2d 136, 316 N.E.2d 314 (1974); State v. Frazier, 254 N.C. 226, 118 S.E.2d 556 (1961). Our statutory law has long expressed this state's policy requiring alternative methods of treatment of juvenile offenders. See, W. Va. Code, 49-5-11, 49-5-13.

We could say, following the precedent of Harris, supra, that certain types of juvenile offenders shall not be committed to state institutions but shall be treated by one or more of the alternatives statutorily authorized. But it seems to us to be oversimplification to mandate, for example, that no juveniles convicted of delinquency because of crimes against property shall be institutionalized, although clearly both the classification — recognized by separate categorization in our criminal code — and philosophy about crimes against property recommend that treatment of their perpetrators be less strident than treatment of people who personally assault other people.

But we hesitate to impose our judgment about proper correctional practices upon the legislative or executive branches of government when there is not a clear showing that the treatment to which the child is subjected is cruel and unusual or violates his rights to equal protection of the law.

The Morales court did not find institutionalization of juveniles unconstitutional per se. It simply held "that the institutions of the Texas Youth Council with their special qualities and attributes, were on the whole incapable of fulfilling the constitutional requirement that each institutionalized juvenile receive rehabilitative treatment." (p. 124.)

The court cited the geographic locations of Texas facilities that made 1) family involvement in the juvenile's life impossible for most inmates, 2) locally recruited staff necessarily provincial with no understanding of urban youth problems, 3) recruitment of highly skilled professional staff difficult, 4) use of community resources "such as universities, clinics, and specialized medical services" impossible, 5) furloughing and other transitional measures nearly impossible, and 6) vocational education programs, where there are few employers in the area to cooperate, ineffective.

The West Virginia Industrial School for Boys suffers from only two of the deficiencies listed by Judge Justice: 1) it is located in the northern segment of the state, making family visitation to children from southern West Virginia difficult and 2) also because of its geographic location furloughs might be impractical.

The other objections to the Texas physical facilities that prompted their closure do not apply to Pruntytown. In fact there are some very positive aspects to consider about the Pruntytown program, as now operated. We even note that the formal education program at Pruntytown received relatively good marks from all the petitioners' witnesses who testified about it. Dr. Miller said:

I saw the learning lab. I think they are making a very good, honest attempt to provide some educational services for the kids. I think some very well motivated teachers were clearly there, were very involved, and I wouldn't want to denigrate or put down those kinds of efforts. I think they are very good. It has just been my experience that over the long haul it is hard to keep them at a level of competence, that people become jaded in the institution setting. Despite all those efforts, that over the long haul it is somewhat in vain, and I think that is an informed opinion based on the history of these places. It is very difficult to sustain good programs.

Dr. Miller's one qualification to the compliment to the education program was his observation about the difficulty in keeping staff interested and fresh.

Dr. Mary Bowman, an education evaluator, testified:

A . . . They have a basic education program for all boys which includes math, science, language arts, spelling, reading, social studies, choir, and the phys. ed., I believe that is it, then plus a special educational remedial classes.

Q Were you able to reach an opinion as to the attitude of the residents toward the educational program?

A Yes, I was.

Q What was that opinion?

A The entire two days that I was there, anytime I had a chance to ask any of the boys what they liked about the place, Pruntytown in general, invariably they said the school. They liked the school. They felt that — consistently the boys said that they liked the teachers, that they liked school better here than they had on the outside.

They felt that they got more individualized attention, that the work was manageable. I took that to mean that it was suitable to their needs or their abilities. There was never a critical word from the boys about the school.

Q Did the program itself seem to deal individually with each resident rather than just lumping them all into one group and trying to teach?

A Very much so, very much so. The class that I observed, the two classes I observed every student appeared to be working on a different level or on a different activity, and the teacher would be talking with them at her desk or at his place of work, discussing an assignment, often it was a little package, something that she had xeroxed, planning notebooks were full of little individualized plans, and the kids would come in and check and see what they were supposed to be doing and then she would kind of float around to see that they were doing what they were supposed to, very individualized.

The boys were getting a tremendous amount of personal attention.

. . .

Q Did you see the library?

A I saw the library.

Q Did it seem to be adequate?

A Adequate. Probably more books there than any kid is ever going to use, and more books are on their way, working with the Library Commission here in Charleston, apparently there is an abundance of funds, and the librarian is building a professional library at this time, which is to augment the reading and training of staff.

We hold that there is not sufficient evidence of lack of rehabilitative programs at the industrial school or of institutional brutality to require us to find its use to be unconstitutional. But we recommend that incarceration of young people in the school should be limited to those who will clearly benefit from institutionalization or to those who are dangerous to themselves or others.

The expert testimony presented by petitioners in this case seems aimed at deinstitutionalization of all juveniles. We are not opposed to the concept, but believe the implementation must come from the legislature or the executive, but not from us. The real and meaningful prohibitions imposed upon us by the separation of powers doctrine makes us reluctant to prescribe, because we are not properly in the business of prison supervision or standards-making.

The lack of staff competency or vigor seems to be the main base for criticism of institutions that treat delinquent youth. We cannot refrain from suggesting that Pruntytown staff competency and vigor could very easily be maintained and refreshed by extensive use of carefully supervised college students in the education, psychological, psychiatric, medical and legal services provided to inmates. And with the largest state university and four other colleges nestling in the hills within thirty-five miles of Pruntytown, there would seem to be a readily usable pool of talent from which to choose. One might even suggest college programs offering credit in psychology, psychiatry, law, sociology and medicine, for work at Pruntytown

We abhor the use of such practices as "benching" and "floor time" described above and declare them to be cruel and unusual punishment. Solitary confinement is not to be used as a routine disciplinary procedure, but only in instances when physical restraint and isolation of a juvenile are absolutely necessary to enable him to gain personal control of himself. Mace may be used only to quell riots.

We urge the Department of Corrections to continue evident improvements in treatment of juvenile offenders, and to keep ever in mind that this state through its officers and employees owes to every struggling child the very same high level of behavior, that it expects of him or her.

Writ denied.

. . .