February 14, 2017 (Fault Lines) — Whatever your particular view of the death penalty, either as an abstract concept or as enacted, it’s worth remembering what life on death row is like.
On death row, inmates are invariably stuck in permanent solitary confinement. There they are subjected to the most “secure” conditions available. We should, perhaps, read that to mean the most extreme and inhumane conditions allowed by law. It is not uncommon for people on death row to spend 23 hours a day alone in their cells, with one hour of “recreation” in a cage adjacent to their cell. For example, “other than when being placed in restraints and escorted by guards, prisoners may spend years without touching another human being.”
This has led Ninth Circuit Court of Appeals Judge Alex Kozinski to conclude, “Solitary confinement [whether on death row or not] is just as bad as the death penalty, if not worse.”
That’s not to say, however, that indefinite solitary confinement on death row is unlawful. So long as the soul-crushing psychological horrors attendant to solitary confinement on death row are not the intended result but merely an incidental consequence, the Eighth Amendment doesn’t stand in the way. Due process, meanwhile, guarantees only some sort of minimal “periodic review” of placement in solitary confinement, but also most likely allows a presumption that prisoners on death row must remain in such confinement.
Against this bleak reality, the Third Circuit’s recent decision in Williams v. Sec. PA Dep’t of Corr. appears, at first blush, to be an important development in how prisoners can challenge their conditions of confinement.
Shawn Walker and Craig Williams were two men sentenced to death in Pennsylvania for unrelated crimes. Both men, however, successfully demonstrated that the sentencing phases of their trials were unlawful, and both had their death sentences vacated and modified to sentences of life without parole.
But, as is often the case with the “justice” system, there was a significant lag time between the moment that the death sentences were “vacated” by a trial judge and the time that they were officially re-sentenced. For both men, this period lasted years – Walker spent eight years in solitary confinement after his death sentence was vacated, and Williams spent six.
During that period, the Pennsylvania Department of Corrections was obligated by statute to keep both men in solitary confinement.
During that time, Walker was confined to a windowless cell and was forbidden to have any physical contact with another person. As far as leaving his cell:
Walker was permitted to leave his cell only five times a week for two-hour intervals of exercise in the open air, in a restricted area known as the “dog cage.” However, to enter the “dog cage,” Walker first had to undergo an invasive strip search. To avoid the psychological and physical intrusion of these “full” body searches, Walker did not leave his cell for open air exercise for nearly seven years.
William’s conditions were nearly the same. He also was denied human contact, and spent 22 hours a day in his cell. Per the Court:
During the short intervals that Williams was not in his cell, but in the prison yard, law library, or shower, he was held inside a small locked cage that continued to restrict his movement and freedom of association.
This, the Third Circuit held, was too much. Because both men spent years in solitary confinement by automatic operation of statute and without the hope of any review of that placement, the Court decided concluded that their due process rights were violated. It’s one thing to put someone in solitary confinement, maybe even for an extended period, but it’s a whole other thing to put him in such conditions for an indeterminate, perhaps endless, period, with no hope of review.
The Court concluded with a rhetorical flourish:
As we have explained, scientific research and the evolving jurisprudence has made the harms of solitary confinement clear: Mental well-being and one’s sense of self are at risk. We can think of few values more worthy of constitutional protection than these core facets of human dignity.
But then, despite all this lofty talk, the Court did essentially nothing for either man. Neither man was actually in solitary confinement when the Court ruled. Both had eventually been resentenced and allowed to go to general population. They were suing for money damages for having to endure 6 and 8 years of extra solitary confinement for no good reason. And the Court held that neither man had any right to any relief for what had happened to them.
Once again, the bastard doctrine of qualified immunity denied all relief. How were reasonable corrections officers to know that prior to February 9, 2017, they weren’t supposed to lock people in solitary confinement forever if they used to be on death row? We can’t hold prisons responsible for that. It would be chaos!
Aside from the qualified immunity nonsense, the relief the Court says was owed is also extremely limited. The Court never said the prison wasn’t allowed to keep either man in years of solitary confinement. First, the Court went out of its way to “take no position” on the validity of mandatory and unreviewable solitary confinement for those with viable death sentences. Second, even though the Court decided that both men’s due process rights were violated because they had no possible opportunity to get out of solitary confinement before re-sentencing, it did not decide whether or not they should have been sent to general population after a hearing. The only thing either man was entitled to was a periodic hearing with a possibility that they could be released. If they got the hearing and it was denied, then there would not have been any constitutional violation.
What this means, then, is that despite the lip-service to the terrors of solitary confinement, the Court is either unwilling or, more likely, unable to do anything about it. The only people even potentially served are similarly situated inmates who have had death sentences vacated and spend time in solitary after February 9, 2017 without the benefit of periodic hearings. It can safely be assume that the prisons in the Third Circuit will simply grant hearings forthwith to any such inmates, and avoid any constitutional problems. I assume also that not a single one of these inmates will be released from solitary confinement after such a hearing, because that’s the way prisons work.
While we can perhaps appreciate the sentiments expressed by the judges, as this opinion demonstrates, the fight against the inhumane and terrible use of solitary confinement in our prisons will probably not be won in the courts. And if not in the courts, then where?
 For more about why qualified immunity is such utter horseshit, see, e.g. past Fault Lines coverage, here, or maybe here, or perhaps here.
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Slavery is more humane than this.