[Pnews] Lawsuits Challenge the Cruelty of Decades in Solitary Confinement on Death Row

[Prisoner News]

http://solitarywatch.com/2017/10/10/lawsuits-challenge-the-cruelty-of-decades-in-solitary-confinement-on-death-row/ 



  Lawsuits Challenge the Cruelty of Decades in Solitary Confinement on
  Death Row


    By Aleks Gilbert <http://solitarywatch.com/author/aleks-gilbert/> -
    October 10, 2017

------------------------------------------------------------------------

In a dissenting opinion 
<https://www.supremecourt.gov/opinions/16pdf/16a841_4ggm.pdf> written 
earlier this year, Supreme Court Justice Stephen Breyer wrote that “If 
extended solitary confinement alone raises serious constitutional 
questions, then 20 years of solitary confinement, all the while under 
threat of execution, must raise similar questions, and to a rare degree, 
and with particular intensity.” Yet in a majority of U.S. states where 
the death penalty is still in effect, it is standard practice to hold 
condemned men and women in extreme isolation for years or decades.

In the past six months, men held on Death Row in two southern states 
have filed class-action lawsuits, challenging what they say is the 
torturous policy which demands that all persons sentenced to death be 
held in solitary confinement until their execution — or until their 
eventual death by suicide, non-state homicide, or natural causes. The 
first lawsuit 
<https://cardozo.yu.edu/sites/default/files/Angola%20filed%5DNEW.pdf>, filed 
on March 29th on behalf of three men on Death Row at Louisiana State 
Penitentiary at Angola, appears to have pressured the state to make 
modest policy changes in the way it treats condemned persons. The second 
<https://www.venable.com/files/upload/Complaint-David-v-Jones.pdf> suit 
was filed on July 19th on behalf of nine men on Death Row in Florida, 
where conditions remain unchanged.

*Life on Death Row in Louisiana*

At Angola, some three-quarters of the 75 men condemned to death have 
been in solitary confinement for more than ten years, waiting for their 
appeals to be exhausted and the state to schedule their executions. 
(Surprisingly, unlike it’s neighbor Texas, Louisiana seems in no hurry 
on this front, and the last execution took place more than seven years 
ago. The remarkably high level of Death Row exonerations–eleven in 
all–may well be a factor.) The three named plaintiffs in the suit have 
been on Death Row for between 25 and 31 years.

The men are represented by Nicholas Trenticosta, a longtime death 
penalty lawyer in New Orleans, as well as private pro-bono attorneys and 
faculty and students from the Cardozo School of Law in New York. Their 
lawsuit, filed in Federal District Court in Baton Rouge against the 
Louisiana Department of Corrections and several wardens at Angola, 
asserts that the mental and physical anguish inflicted by indefinite 
isolation amounts to cruel and unusual punishment, in violation of 
Eighth Amendment of the Constitution. Additionally, the plaintiffs’ 
inability to challenge their placement in solitary violates the 
Fourteenth Amendment right to due process, the suit argues.

Angola as a whole is infamous for the harsh and often slave-like 
conditions 
<http://www.colorlines.com/articles/dispatch-angola-faith-based-slavery-louisiana-prison> 
under which its more than 5,000 prisoners live, with many forced to 
labor in the prison’s corn and cotton fields, watched over by armed 
guards on horseback. Yet the hardships of life in Angola’s main cell 
blocks and camps pale in comparison with conditions on Death Row, as 
described in the brief filed on the plaintiff’s’ behalf.

Men on death row can leave their cells, one at a time, for one hour each 
day. During this hour they can use the phone, take a shower, or walk 
along the tier. Three times a week, they can spend their hour outside, 
alone, “in a small outdoor cage resembling a dog pen.” Whenever they 
leave their tier, “prisoners are shackled at the ankles and their arms 
are restricted by a waist chain.” This is the only human contact they 
experience.

The suit’s named plaintiffs–Marcus Hamilton, Winthrop Eaton, and Michael 
Perry–were all convicted of murder decades ago. Eaton, 52, and Perry, 
63, who have been diagnosed with schizophrenia and schizoaffective 
disorder, respectively, have been deemed unfit for execution.

Neither of the two men, the suit claims, is capable of maintaining basic 
conversation. Eaton “rarely speaks, but when he does, he does so in two 
to three word sentences.” Perry’s speech “is mostly nonsensical,” and 
because he “cannot communicate his needs,” “he is ‘ignored’ by the 
prison guards” and is “unable to maintain basic hygiene,” the suit 
alleges. Perry was the plaintiff in /Perry v. Louisiana/ 
<https://supreme.justia.com/cases/federal/us/498/38/case.html>, wherein 
the Supreme Court considered the legality of forcibly medicating a 
mentally ill person on Death Row in order to render him competent to be 
executed. (The case was remanded to the Supreme Court of Louisiana, 
which stayed 
<http://law.justia.com/cases/louisiana/supreme-court/1992/91-kp-1324-2.html> 
Perry’s execution.)

The third plaintiff, Marcus Hamilton, 56, although competent to be 
executed, has been physically disabled for over 25 years, since a brain 
aneurysm rendered his left side paralyzed and his left arm “functionally 
unusable.” The brief details his struggle to keep his mind sharp through 
bible study and writing to pen pals, and the grief he felt “the day he 
learned via newspaper reports that his mother and younger sister were 
murdered”: “His feelings of powerlessness were intensified by not being 
able to properly process the tragedy or speak to close friends or 
confidants about it.”

Hamilton is housed in Tier A, “where prisoners who have not had any 
disciplinary problems are housed.” Tier A is host to occasional public 
tours, and Hamilton has expressed his frustration at being made to feel 
like a “zoo animal” stuck “in a cage.”

That sentiment has been repeated by others housed on death row at 
Angola, including Damon Thibodeaux, who spent 15 years there before he 
was exonerated in 2012. Thibodeaux, in testimony to the Senate Judiciary 
Committee 
<https://www.judiciary.senate.gov/imo/media/doc/02-25-14ThibodeauxTestimony.pdf>, 
said, “People would come to tour our cells as if we were in a zoo.” He 
“very seriously considered giving up my legal rights and letting the 
state execute me. I was at the point where I did not want to live like 
an animal in a cage for years on end.”

Thibodeaux also described the “unbearable” summers on Angola’s Death 
Row: “The prison actually blew hot air from the outside in the death row 
building, raising temperatures into the 100-130 degree range in each 
cell … We would sit in our cells with sweat dripping down our bodies…If 
you treated animals this way,” Thibodeaux said, “you would get arrested 
and prosecuted, but that is apparently not the case with humans.”

In 2015, three other men held on Death Row at Angola filed a lawsuit 
<http://www.nola.com/crime/index.ssf/2016/05/federal_judge_frustrated_with.html> 
claiming that the state’s refusal to provide air conditioning during the 
sweltering Louisiana summers amounted to cruel and unusual punishment. 
The suit earned national coverage when thejudge in the case pointed out 
<http://www.nola.com/crime/index.ssf/2016/05/federal_judge_frustrated_with.html> 
that the state had spent $1 million fighting the lawsuit—about four 
times more than the cost of installing air conditioning.

Although the battle for air conditioning has largely been lost, there 
are signs that the solitary confinement lawsuit is influencing prison 
policy in Louisiana. In May, officials announced 
<https://www.themarshallproject.org/2017/07/23/condemned-to-death-and-solitary-confinement> 
that the men on Angola’s Death Row would be let out of their cells for 
as many as four hours a day, and offered some opportunities for 
programming and group activities.

A spokesperson for the Louisiana Department of Corrections told the 
Marshall Project 
<https://www.themarshallproject.org/2017/07/23/condemned-to-death-and-solitary-confinement> 
that there had been only one fight since the changes were implemented, 
and proclaimed them a “great success”—calling into question why 
round-the-clock isolation had ever been necessary at all. The lawsuit 
will continue to ensure that the new policies are fully implemented and, 
preferably, expanded.

*Stepped-Up Court Challenges to Death Row Isolation*

The past several years have seen a growing concern regarding the housing 
of people on Death Row in solitary confinement.

In 2013, the ACLU published an oft-cited report 
<https://www.aclu.org/files/assets/deathbeforedying-report.pdf> that, in 
its words, was the “first critical overview … of death row conditions 
nationwide and the legal and human implications of the death row 
prisoners locked in solitary confinement for years and even 
decades.” Entitled /A Death Before Dying/, it reported that “The 
overwhelming majority of death-penalty states house death row prisoners 
in solitary confinement.” It found that “93 percent of states lock up 
their death row prisoners for 22 hours or more per day,” and “67 percent 
of states mandate no-contact visitation for death row prisoners.”

Other reports and investigative journalism on Death Row conditions have 
followed, including a report published 
<https://law.utexas.edu/wp-content/uploads/sites/11/2017/04/2017-HRC-DesignedToBreakYou-Report.pdf> 
earlier this year by the Human Rights Clinic at the University of Texas 
School of Law, which concluded that “the current conditions of 
confinement on Texas’ death row, including mandatory indefinite 
isolation, amount to a severe and relentless act of torture.”

At the same time, federal courts have begun to entertain the notion that 
it is unconstitutional to automatically and permanently house men and 
women on Death Row in solitary confinement.

In 2013, U.S. District Judge Leonie M. Brinkema of Virginia found the 
practice to be a violation of one’s right to due process, although a 
federal appeals court overturned 
<https://www.washingtonpost.com/local/crime/appeals-court-oks-automatic-solitary-confinement-for-va-death-row-inmates/2015/03/10/b08699b4-c740-11e4-b2a1-bed1aaea2816_story.html?utm_term=.547077b7e2be> 
the decision. In 2015, Virginia settled another lawsuit 
<https://www.washingtonpost.com/local/public-safety/virginia-made-conditions-on-death-row-better-the-state-is-still-being-sued/2017/03/24/05566842-10a1-11e7-ab07-07d9f521f6b5_story.html?utm_term=.d50a1f8e37e0> 
alleging the practice amounts to cruel and unusual punishment. The state 
allowed the condemned weekly contact visits and daily contact with up to 
three of their peers. It even spent almost $2 million on upgrades to the 
death row facility, which included a basketball court and a recreation room.

This past March, California settled a lawsuit 
<https://www.usnews.com/news/us/articles/2017-03-06/california-eases-conditions-at-death-row-disciplinary-unit> 
filed on behalf of people held on Death Row alleging violations of the 
Eighth and Fourteenth Amendments. California, home to the nation’s 
largest Death Row with 747 people awaiting execution, did not hold all 
of the condemned in its draconian “Adjustment Center” at San 
Quentin, but only those classified as gang members or otherwise deemed a 
threat. However, “Individuals can be held in the Adjustment Center on 
the flimsiest of evidence,” Solitary Watch reported at the time 
<http://solitarywatch.com/2016/04/13/in-californias-death-rows-adjustment-center-condemned-men-wait-in-solitary-confinement/>. 
“Some individuals are assumed to have gang allegiances simply because of 
their ethnicity or the region where they grew up.” The settlement placed 
a five-year limit on how long men could be held in solitary on Death 
Row, with more frequent reviews of their status.

The same month, Arizona settled a lawsuit 
<https://www.themarshallproject.org/2017/07/23/condemned-to-death-and-solitary-confinement#.dC3hp4N1w> 
similar to those filed in Louisiana and Florida. The Arizona Department 
of Corrections has yet to announce the specific changes that it will 
have to make in order to meet the requirements of the settlement. But, 
according to the Marshall Project, it is expected that “inmates with 
clear disciplinary records … will be moved to an area that allows for 
more out-of-cell time, visits in the same room with family and friends, 
outdoor group recreation and better job opportunities.”

The most notable judicial critique 
<http://solitarywatch.com/2015/06/23/supreme-court-justice-kennedy-denounces-human-toll-of-solitary-confinement-and-invites-constitutional-challenge/>—prior 
to Justice Breyer’s dissent earlier this year—came in 2015 from Supreme 
Court Justice Anthony Kennedy. In his concurring opinion 
<https://www.supremecourt.gov/opinions/14pdf/13-1428_1a7d.pdf> in /Davis 
V. Ayala/, in which the justices had reviewed a separate legal point, 
Justice Kennedy wrote, “This separate writing responds only to one 
factual circumstance, mentioned at oral argument but with no direct 
bearing on the precise legal questions presented by this case.”

Hector Ayala had been sentenced to death in 1989 for the murder of three 
people during a failed robbery. He had spent most of the subsequent 25 
years in solitary confinement. “If his solitary confinement follows the 
usual pattern,” Justice Kennedy wrote, “it is likely respondent has been 
held for all or most of the past twenty years or more in a windowless 
cell no larger than a typical parking spot for 23 hours a day; and in 
the one hours when he leaves it, he likely is allowed little or no 
opportunity for conversation or interaction with anyone.”

He concluded that, “In a case that presented the issue, the judiciary 
may be required, within its proper jurisdiction and authority, to 
determine whether workable alternative systems for long-term confinement 
exist, and, if so, whether a correctional system should be required to 
adopt them.”

Corrections officials in many states have long defended the practice of 
automatically and permanently placing death-sentenced individuals in 
isolation on the grounds that they pose a unique threat to corrections 
officers, other prisoners, and the public. Yet a study published last 
year 
<https://law.yale.edu/system/files/documents/pdf/Liman/deathrow_reportfinal.pdf> 
under the auspices of the Arthur Liman Public Interest Program at Yale 
Law School challenges those assumptions. The study analyzed the latitude 
corrections officials have in housing people facing the death penalty, 
and interviewed officials in North Carolina, Missouri, and 
Colorado, which do not automatically place such individuals in solitary.

The officials interviewed all noted that violent incidents either 
remained flat or decreased after integration of death-sentenced 
individuals with the general population. In Missouri, where they have 
been housed with the general prison population since 1989 following 
settlement of a lawsuit, researchers concluded that death-sentenced 
individuals had “equivalent or lower rates of violent misconduct” 
than people serving other sentences. They also found that “rates of 
violence among Missouri [death-sentenced] inmates were markedly lower 
after being mainstreamed than they had been under the prior era of 
heightened security conditions on ‘death row.’”

*In Florida, the Isolation Continues Until Death*

Despite such evidence, many states continue to automatically place 
condemned individuals in complete isolation until their executions. In 
the Florida suit challenging this practice, the named plaintiffs are two 
men on Death Row at Florida State Prison and seven at Union Correctional 
Institution, both in Raiford. They have been held in solitary 
confinement—which the Florida Department of Corrections calls 
“single-cell special housing”—for between four and 30 years. They, too, 
allege violations of the Eighth and Fourteenth Amendments, on the 
grounds that permanent isolation “violates contemporary standards of 
decency” and that their inability to challenge their placement violates 
their right to due process.

The suit notes that FDOC rules mandate an annual review of an inmate “to 
determine overall institutional adjustment based on the inmate’s 
disciplinary history, participation in programming, and cooperation with 
staff.” But “Defendants have never moved any death row inmate … to 
general population or any other form of less restrictive housing as a 
result of any annual review or otherwise.” As in other death penalty 
states, it is not unusual for people to remain on Florida’s Death Row 
for decades. Michael Lambrix, who was put to death by lethal injection 
last Thursday, had been held there in isolation for 34 years.

Conditions on Florida’s Death Row were detailed by William Van Poyck—who 
spent 26 years there prior to his execution—in a series of letters he 
wrote to his sister, which she published 
<http://solitarywatch.com/2013/06/12/voices-from-solitary-death-row-diary-of-florida-man-scheduled-to-die-tonight/> 
in a blog titled /Death Row Diary/.

On May 22nd, 2013, three weeks after Governor Rick Scott had signed his 
death warrant, Van Poyck reported in his diary that another man on Death 
Row had recently been found hanging in his cell. He wrote:

“The irony wasn’t lost on me that while 3 of us on death watch are 
fighting to live, this poor soul, living just 10 feet above us, stripped 
of all hope, had voluntarily surrendered his life rather than continue 
his dismal existence.

“When nothing but a lifetime of suffering lays ahead—with no hope, no 
promise, no opportunity to change your fate—the idea of utter 
annihilation can come to look appealing in contrast. When everything has 
been taken from you, the one thing you have left, that nobody can take 
away, is the decision to live or die. In that context choosing death can 
look like freedom…”

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 https://freedomarchives.org/
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