The Supreme Court has ruled that the death penalty itself does not constitute "cruel and unusual punishment." Yet the treatment of the condemned is nonetheless subject to Eighth Amendment protections, as well as Fourteenth Amendment guarantees of due process.

In the past few years, this ironic legal reality has been the subject of a renewed national debate centering on execution methods. The European drug companies that U.S. states have historically relied on to provide the materials for lethal injections have refused to replenish supplies. As a result, states have developed new drug protocols, often implementing them without testing or research. Last month, Dennis McGuire struggled and gasped for well over ten minutes before he finally died.

But at a recent Senate Judiciary Subcommittee hearing, exoneree Damon Thibodeaux called attention to a different, rarely-discussed aspect of death row that he believes also constitutes "torture, pure and simple" -- the conditions of confinement that people endure prior to execution:

"I spent my years at Angola, while my lawyers fought to prove my innocence, in a cell that measured about 8 feet by 10 feet. It had three solid walls all painted white, a cell door, a sink, a toilet, a desk and seat attached to a wall, and an iron bunk with a thin mattress. These 4 walls are your life. Being in that environment for 23 hours a day will slowly kill you. Mentally, you have to find some way to live as if you were not there. If you cannot do that, you will die a slow mental death and may actually wish for your physical death, so that you do not have to continue that existence. More than anything, solitary confinement is an existence without hope."

Thibodeaux was exonerated after spending fifteen years on death row at Angola State Penitentiary in Louisiana. While his story may be unusual, his experience of extreme isolation is standard for people facing execution.

A recent ruling, however, suggests that the federal courts may soon mandate higher due process protections for individuals sentenced to death. Last November, U.S. District Court Judge Leonie Brinkema found in Prieto v. Clark that the state of Virginia had violated the Constitution by automatically placing individuals on death row in indefinite isolation. In January, she rejected a request from state attorneys to delay the implementation of her ruling.

In her determination, Judge Brinkema describes what people on death row in Virginia must bear from the time of their sentencing to the time of their execution:

"Plaintiff's conditions of confinement on death row are undeniably extreme and atypical of conditions in the general population units at [the prison]. He must remain alone in his cell for nearly 23 hours per day... The lights never go out in his cell, although they are scaled back during the overnight hours... Plaintiff is allowed just 5 hours of outdoor recreation per week...and that time is spent in another cell at best slightly larger than his living quarters... He otherwise has no ability to catch a glimpse of the sky because the window in his cell is a window in name only... Nor can he pass the time in the company of other inmates; plaintiff is deprived of most forms of human contact... His only real break from the monotony owes to a television and compact disc player in his cell and limited interactions with prison officials..."

As the judge outlines, those on death row are automatically and permanently placed in solitary confinement - forced to withstand particularly severe conditions purely as a consequence of their sentence. This placement is functionally indefinite since it can take years, or even decades, before individuals exhaust their appeals and finally face execution. (According to the Bureau of Justice Statistics, those executed in 2010 had spent an average of 14.8 years on death row). By contrast, all others incarcerated in Virginia are assigned an initial security classification based on 8 factors, including several unrelated to their sentences: their history of institutional violence, escape history, current age, etc.

The Court's finding in Prieto v. Clark is that the automatic placement of death row prisoners in solitary confinement violates their Fourteenth Amendment rights, since they endure "uniquely severe" conditions without any kind of procedural protections or stopgap measures.

Judge Brinkeama concludes that the Virginia prison authorities have 2 options: either providing an individualized classification procedure for each person sentenced to execution, or altering conditions on death row "such that confinement there would no longer impose an atypical and significant hardship."

The court's ruling comes several months after the publication of an American Civil Liberties Union (ACLU) report that examined the conditions of confinement endured by those on death row. As the ACLU notes, this extreme isolation constitutes a "punishment on top of punishment":

--Cell size: Most common cell size is 8x10 feet (27% of prisoners), just a bit bigger than the size on an average bathroom.

--Basic comfort: Beds provide in death row cells are made out of: Steel 60%; Concrete 13%; Steel with mattress 9%; Concrete with pad 6%; Metal 6%.

--"Enforced idleness": States that allow death inmates to exercise for 1 hour or less: 81%.

--Social isolation: States with mandated no-contact visits for death row inmates: 67%.

--Religious services: States that fail to offer religious services to death row prisoners: 62%.

At the Senate hearing on solitary confinement last month, Thibodeaux told the Senate Judiciary Subcommittee that he had contemplated ending the appeals process - despite his innocence - in order to escape his extreme isolation:

"Fairly early during my confinement at Angola, I 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, only to lose my case and then have the State kill me anyway. I thought it would be better to end my life as soon as I could and avoid the agony of life in solitary. Fortunately, my lawyer and friend, Denise LeBoeuf, convinced me that I would be exonerated and released someday, and she gave me hope to keep fighting and living."

According to the NAACP's most recent quarterly report on the death penalty, published last week, since the death penalty was reinstated 140 individuals - about 10% of those placed on death row - were executed after giving up their appeals. (See the Death Penalty Information Center for a complete list of these individuals and more comprehensive information about "volunteers.")

Judge Brinkema's ruling is significant since it accords at least minimal due process protections to those placed in solitary confinement, even the so-called "worst of the worst." But calls to change the blanket use of isolation on death row have also emerged from outside the courts and the Senate subcommittee hearing. Last month, Texas's largest correctional officers' union called for low-risk individuals on death row to be housed with others, and recommended that state prison officials introduce privileges to those on death row, including work assignments and streaming television.

Source: Solitary Watch, March 16, 2014