A recently released report of the advocacy group, the Legal Defense Fund (LDF), Death Row USA, Spring, 2022, brought some small bits of good news for death penalty opponents and further signs of the withering of capital punishment in this country. The LDF found that as of April 1, 2022 there were 2,414 people on death row. That is still a lot, but 833 of these people were in jurisdictions with active moratoria on executions. They include California, Pennsylvania, and Oregon, as well as the federal government.
The total April 2022 death row population represented a 3.6% decline from April of the previous year when there were 2,504 death row inmates and a 35% drop from 2001 when the death row population peaked at 3,717.
But for those who remain, life on death row is cruel and inhumane.
Recognizing this, some death penalty states have voluntarily taken steps to dismantle their death rows or radically alter the conditions of those who are confined there. Others have been forced to do so by a court order. It is now time for all remaining death penalty jurisdictions to follow suit and end the destructive practice of segregating and isolating people awaiting execution.
Let’s start with what we know about life on death row.
In the early American Republic, people condemned to death generally had a few weeks between sentencing and execution. The hope was that they would use that time to reflect on and repent for the crimes they committed and the suffering they imposed.
While they were awaiting execution, they were not kept in solitude. Religious figures were allowed easy access to counsel and console the condemned. And, as law professor Stuart Banner notes, “Practically anyone wishing to enter the cell of a condemned prisoner was allowed to do so, and many prisoners had constant company in the days leading up to their deaths.”
They were allowed visitors even though, as Banner observes, “Eighteenth century records are full of inmates escaping after being sentenced to death”
Times have certainly changed.
“Today,” Banner says, “one virtually never hears anyone cite the facilitation of penitence as the object of capital punishment” or of death row confinement. And escape from prison by someone awaiting execution is almost unheard of.
Across the country, time on death row is now counted in years or decades, not weeks.
According to the Bureau of Justice Statistics “Prisoners under sentence of death on December 31, 2020 had been on death row for an average of 19.4 years.” In 2000, the average death row stay was 11.4 years. People sentenced to death are more likely to have their sentences reversed on appeal or even to die of health problems or old age than to be executed.
As an American Civil Liberties Union (ACLU) study explains, “Death row prisoners spend years and years on death row for a number of reasons. The length of time is often needed for lawful appeals…; inadequate counsel for the poor; prosecutors’ suppression of evidence favorable to defendants; (and) ill-advised and illegal execution protocols. ”
Unlike America’s early years, today, as the ACLU notes, “Most death row prisoners in the United States are locked alone in small cells for 22 to 24 hours a day with little human contact or interaction; reduced or no natural light; and severe constraints on visitation, including the inability to ever touch friends or loved ones.”
Those awaiting execution, the ACLU continues, “suffer under conditions of extreme isolation that compromise their physical and mental health and needlessly inflict pain and suffering. Indeed, researchers have found that the clinical effects of extreme isolation can actually be similar to those of physical torture.”
Psychologists have labeled the devastating impact of such prolonged confinement in isolation “death row syndrome.” Among the psychological problems experienced by inmates on death row are severe perceptual distortions and hallucinations, increased anxiety and nervousness, lack of impulse control, and severe depression.
Death row inmates also display “incapacitated judgement, mental illness, or suicidal tendencies.”
The ACLU rightly refers to time spent on death row as a “death before dying.”
The damaging segregation and isolation of prisoners sentenced to death are not done because they are more difficult for prison officials to manage or because they pose a particular danger to others in prison. In fact, according to Colette Peters, Oregon’s Corrections Director, they have “far fewer” disciplinary issues than other prisoners.
As Robert Dunham, Executive Director of the Death Penalty Information Center, puts it, “Contrary to the popular myth, prisoners on death row as a whole do not represent the worst of the worst. They are no different in terms of their dangerousness in prison from other prisoners who were sentenced to life for murder.”
In the last several years a few states have begun to dismantle or repurpose their death row. They have done so for a variety of reasons.
Take Oregon. In 2020, the state announced that it was closing its death row and transferring the 27 people then housed there to the general population.
As one Oregon official explained, the state was closing its death row to foster “normalcy and humanity” for people sentenced to death.
In January of this year, California Governor Gavin Newsom announced that his state’s death row—the largest in the country—would be dismantled within two years.
This is the result of a referendum provision that passed in 2016. The provision was motivated by a desire to provide restitution for victim families, rather than to foster “normalcy or humanity” for condemned inmates.
It allows the state to transfer death-row prisoners to other facilities “that provide the necessary level of security” and are surrounded by lethal electrified fences.
Going forward, people sentenced to death in California, as The Guardian notes, can be “housed in solitary or disciplinary confinement if officials decide they cannot be safely housed with others, although they are supposed to be interspersed with others.”
The motivation for this change is reflected in the language of the referendum which required “those who are transferred to work prison jobs…designate 70% of their wages as restitution to victims’ families.”
To offer one other example of changes on death row, last May Florida agreed to end automatic permanent solitary confinement for prisoners sentenced to death as part of the settlement of a class action lawsuit. While it will not go as far as Oregon or California and completely close its death row, the settlement addressed many of its most debilitating aspects.
According to The Tampa Bay Times, the settlement says that “eligible prisoners will be able to spend at least 15 hours, and up to 20 hours a week, in a newly constructed day room at the end of a cell block.” They also may have a chance to work.
In a 2017 opinion, Supreme Court Justice Stephen Breyer raised a telling question about America’s death rows. “What legitimate purpose,” he asked, “does it serve to hold any human being in solitary confinement for 40 years awaiting execution?” His answer: none.
If this country insists on sentencing people to death, it must ensure that they are not damaged and demeaned while they await execution. It is time to close America’s death rows and treat even those condemned to death with dignity and humanity.