Pennsylvania’s 36-year-old policy of dumping all prisoners facing death sentences into permanent solitary confinement is cruel and unconstitutional, a federal lawsuit filed Thursday argues.
The five men suing to overturn the automatic solitary confinement policy hope a judge will expand the suit to represent all 156 people currently held by Pennsylvania on capital sentences. Each of the five has spent decades confined to an eight-foot by 12-foot concrete cell, on a block where the cages are staggered such that no man can see any other even by peering through the slot that guards use to deliver food.
They are isolated in these parking space-sized opaque cubes for 22 hours a day during the week, and for the entirety of every weekend. Plaintiff Anthony Reid, who was convicted in three killings in the 1980s, according to The Forgiveness Foundation, has been kept in these conditions for the past 27 years. Mark Newton Spotz, who was sentenced to die for killing three women in 1995 and has spent 21 years in solitary, calls it “psychological torture” and says his “mind is like a popcorn machine.” Spotz tried to kill himself last year, the suit says.
Half of all prison suicide attempts occur in solitary confinement, research cited in the complaint found. The research into the torturous impact of solitary confinement is extensive. Parts of the brain related to memory, cognition, and geographic orientation physically shrink in such circumstances, scientists have found. Thursday’s lawsuit alleges the Pennsylvania policy violates both the Constitution’s due process requirements and its prohibition on torture.
But human beings knew that solitary was damaging and punitive way before neurologists could use fancy machines to prove it. Back in 1890, Supreme Court justices observed that those subjected to it “fell … into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane.” Some killed themselves, “while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.” (While death row may not seem like the place to care about rehabilitation, 161 people have been exonerated and freed from wrongful death sentences since 1973.)
The Pennsylvania men receive at most 10 hours a week of time outdoors in a small exercise pen, and often less as inclement weather can cancel their weekday exercise time at the discretion of prison officials.
Even in that time, they are sent out alone rather than in groups. They are allowed at most one non-contact visit with family or clergy per week. Their only human contact comes from those “sporadic” visits, “occasional trips to the [prison] library,” and the guards who shackle them wrist, waist, and ankle each and every time they’re allowed out of their cells, the suit says. Incandescent lighting fills the block every hour of every day.
It wasn’t always this way, attorney Bret Grote told ThinkProgress. Forty years ago, Pennsylvania’s capital crimes inmates were held alongside the general population of state prisons. A 1998 Department of Corrections (DOC) document Grote provided indicates the current automatic solitary policy was adopted on November 22, 1982 — a time when solitary confinement shifted “from a short-term disciplinary measure to a long-term administrative strategy,” he said.
The change came from an abstract belief that those facing death sentences “are ipso-facto violent and aggressive, and have nothing left to lose because the state is taking their life,” said Grote, who serves as legal director with the Abolitionist Law Center. The group joins the American Civil Liberties Union’s National Prison Project and the organization’s Pennsylvania state chapter in bringing Thursday’s suit against the head of the state’s prison system, as well as the top administrators at the two prisons where people facing death sentences are housed.
“It is not an individualized consideration of somebody’s actual conduct record, their disciplinary history, or any security risk that they pose. It’s based upon speculation into the psyche of somebody who is under this sentence,” Grote said. “But we now know quite powerfully that this is not how those who are sentenced to death act. They don’t act as if they have nothing left to lose. In fact they have everything to lose, a life they are fighting to hold onto.”
Officials from the Pennsylvania Department of Corrections did not respond to questions about the suit and the policy. A spokesman for Gov. Tom Wolf (D), who halted all death penalty proceedings in 2015 pending a review of flaws in the state’s capital punishment system, said his office is still reviewing the complaint.
Some of the same lawyers now bringing suit tried to get DOC Secretary John Wetzel to see the light on perpetual isolation without going to court. DOC staff sat down with the advocates in the spring of 2017 to hear them out, only for the DOC counsel’s office to reject their reform requests two months later in writing. Wolf’s spokesman did not immediately respond to broader questions about whether or not the governor was aware of or involved in those discussions last year.
The DOC has claimed that the policy in question is confidential, according to the lawsuit. But Grote, who has reviewed the document extensively in helping to prepare the case, said it’s “perplexing” that they are so determined to keep the policy concealed — and that it does not contain any official rationale for why those facing death should be kept in such maddening isolation regardless of their behavior while incarcerated.
“It’s a really banal, bureaucratic document about how they warehouse people in these units,” he said. “I think part of it is they don’t want people subject to these conditions to have access to these procedures, because keeping them in the dark about how they will be treated is part of the regime of control.”
A number of states that used to maintain similar policies of throwing all capital crimes convicts into permanent isolation no matter how they behave have since abandoned the practice. Most recently, neighboring Delaware “mainstreamed” people facing the death penalty back into general population in 2016. Colorado did likewise in 2014, while Missouri has housed capital-case inmates alongside others since 1991.
These other states have dropped the practice because it is “a poor strategy for maintaining order,” Grote said. “It’s unnecessary, it’s excessive, and it produces more antagonism between the incarcerated and their keepers than it resolves.”