Death row in­mates file suit for equal prison treat­ment

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

Flor­ida prison in­mates are mount­ing a chal­lenge to their state’s death row poli­cies, say­ing it’s un­con­sti­tu­tional to keep them in soli­tary con­fine­ment for more time than other pris­on­ers.

They are the lat­est in a na­tion­wide move­ment aimed at try­ing to equal­ize con­di­tions for pris­on­ers, ar­gu­ing that just be­cause some­one is slated to die doesn’t mean he or she should have worse treat­ment in the mean­time.

Nine death row in­mates sued the Flor­ida De­part­ment of Corrections in July, say­ing a pol­icy au­to­mat­i­cally putting them in soli­tary con­fine­ment no mat­ter what their be­hav­ioral records is cruel and un­usual pun­ish­ment pro­hib­ited un­der the Eighth Amend­ment, and also vi­o­lates the equal pro­tec­tion clause be­cause

in­mates not on death row don’t re­ceive the same treat­ment.

Law­suits also have been filed in re­cent years in Vir­ginia, Ari­zona and Louisiana, and pris­on­ers in some cases have won pol­icy changes.

Those changes came from pris­ons, though. In­mates are still look­ing to score a dra­matic and wide-rang­ing rul­ing from the courts putting of­fi­cial con­sti­tu­tional bounds on the type of treat­ment death row pris­on­ers can ex­pect.

“There’s been a bunch of law­suits, but so far what is hap­pen­ing [is] each state to get sued looks at their sit­u­a­tion and says, ‘Why are we do­ing this?’ So un­der the threat of the law­suit, they change what they do, so the cases haven’t been go­ing to trial,” said Margo Sch­langer, a law pro­fes­sor at the Univer­sity of Michi­gan.

In­mates say they are stuck in iso­la­tion in cells roughly the size of a car park­ing space 21 to 24 hours a day. They say it leads to sui­ci­dal ten­den­cies, de­pres­sion, psy­chosis and de­gen­er­a­tion of their bod­ies.

They said they are al­lowed only three show­ers each week and have lim­ited use of the ex­er­cise yard for a few hours each week, which at times can be in­ter­rupted.

“What struck me was the psy­cho­log­i­cal ef­fects on peo­ple, and even if they didn’t have any sort of men­tal ill­ness al­ready on death row, it’s in­evitable,” said Claire Wheeler, a lawyer rep­re­sent­ing the Flor­ida in­mates. “It’s an in­cred­i­bly des­per­ate and hope­less ex­is­tence.”

A study by The Mar­shall Project re­vealed that 61 per­cent of pris­on­ers in the U.S. who are sen­tenced to death are kept in iso­la­tion for more than 20 hours a day. It re­ports roughly 20 states out of the 31 that im­pose the death penalty give death row in­mates less than four hours a day out of their cells.

In­mates be­lieve they have a ba­sis for their chal­lenge in a dis­sent writ­ten by Supreme Court Jus­tice Stephen G. Breyer in March in a case in­volv­ing a Texas pris­oner who said be­ing in soli­tary con­fine­ment for 22 years on death row con­sti­tuted cruel and un­usual pun­ish­ment.

“This Court long ago, speak­ing of a pe­riod of only four weeks of im­pris­on­ment prior to ex­e­cu­tion, said that a pris­oner’s un­cer­tainty be­fore ex­e­cu­tion is ‘one of the most hor­ri­ble feel­ings to which he can be sub­jected,’ ” Jus­tice Breyer wrote.

Ms. Sch­langer said there is no good rea­son to in­sist on soli­tary con­fine­ment and there is no ev­i­dence that it leads to safer pris­ons.

“Peo­ple think that you need to have soli­tary con­fine­ment on the death row be­cause peo­ple think you have noth­ing else to lose, but that’s kind of a mythol­ogy,” said Ms. Sch­langer.

Brian Stull, an at­tor­ney with the Amer­i­can Civil Lib­er­ties Union, said Vir­ginia scrapped its soli­tary pol­icy af­ter a 2014 chal­lenge. The state agreed to in­crease fam­ily vis­i­ta­tion, give more ac­cess to re­cre­ation time and al­low daily show­ers and time with other in­mates.

“In short, based on what hap­pened in Vir­ginia, I would say the Flor­ida suit has legs. Strong ones,” Mr. Stull said.

Be­cause of Vir­ginia of­fi­cials’ changes, the courts have not reached a de­ci­sion on the in­mates’ claims that long soli­tary con­fine­ment poli­cies vi­o­late the Eighth Amend­ment.

Robert Blecker, a pro­fes­sor at New York Law School and au­thor of “The Death of Pun­ish­ment: Search­ing for Jus­tice Among the Worst of the Worst,” said there are rea­sons to treat death row in­mates dif­fer­ently. He said pris­ons that al­low death row in­mates to do arts and crafts, play vol­ley­ball and par­tic­i­pate in bas­ket­ball leagues min­i­mize the point of harsh sen­tenc­ing.

“This move­ment, which mas­quer­ades it­self as hu­mane, is in fact, in my view, un­bal­anced [and] un­just,” said Mr. Blecker. “If the pun­ish­ment fits the crime, then the daily life­style … for those who com­mit the worst killings should be the worst, most un­pleas­ant ex­pe­ri­ence.”

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