Law Review: Most U.S. Death-Row Prisoners Have Been Housed in Prolonged Solitary Confinement that Violates International Human Rights Norms

More than half of all U.S. death-row pris­on­ers are or have recent­ly been incar­cer­at­ed in pro­longed con­di­tions of soli­tary con­fine­ment that are like­ly uncon­sti­tu­tion­al and that vio­late inter­na­tion­al human rights norms, a DPIC analy­sis of data in a recent law review arti­cle has found. 

In Cruel but not Unusual: The Automatic Use of Indefinite Solitary Confinement on Death Row, pub­lished in fall 2021 in the Texas Journal on Civil Liberties and Civil Rights, Merel Pontier (pic­tured) cat­a­logues the con­di­tions of con­fine­ment in each of the U.S. states that autho­rizes cap­i­tal pun­ish­ment. Pontier, who as legal direc­tor of the Clinton Young Foundation is work­ing to free a Texas death-row pris­on­er whose pros­e­cu­tor also secret­ly worked as a law clerk for the judge in his case, found that, as of late 2020 twelve U.S. states auto­mat­i­cal­ly housed death-sen­tenced pris­on­ers in indef­i­nite soli­tary con­fine­ment. She also found that, since 2017, anoth­er five states that had been sued for uncon­sti­tu­tion­al death-row con­di­tions had end­ed manda­to­ry solitary confinement. 

The Death Penalty Information Center com­pared the pop­u­la­tions of the death rows in those states to Bureau of Justice Statistics data on state death rows released December 10, 2021. It found that the twelve states that man­dat­ed pro­longed soli­tary con­fine­ment — Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Mississippi, Nevada, Oklahoma, South Dakota, Texas, and Wyoming — col­lec­tive­ly account­ed for 953 death-row pris­on­ers, or 38.6% of those on death rows nation­wide at the end of 2020. An addi­tion­al 338 pris­on­ers, or 13.7% of death row, were sen­tenced to death in five states that, in response to pris­on­er law­suits, had recent­ly end­ed auto­mat­ic pro­longed soli­tary con­fine­ment. Those states are Arizona, Louisiana, Pennsylvania, South Carolina, and Virginia.

Pontier’s arti­cle reviews inter­na­tion­al human rights treaties that col­lec­tive­ly estab­lish min­i­mum stan­dards for the treat­ment of pris­on­ers. These treaties, she writes, direct­ly apply the inter­na­tion­al pro­hi­bi­tion against ​“tor­ture or oth­er cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment” to the prison set­ting. In December 2015, Pontier says, the UN General Assembly adopt­ed a set of revised stan­dards for the treat­ment of pris­on­ers, known as the Mandela Rules, that explic­it­ly pro­hib­it the use of pro­longed or indef­i­nite soli­tary con­fine­ment. The con­di­tions death-row pris­on­ers face in the twelve states that ​“auto­mat­i­cal­ly con­fine death-sen­tenced pris­on­ers in iso­la­tion for twen­ty-two hours a day or more … [or] con­fine death-sen­tenced pris­on­ers in iso­la­tion for just under twen­ty-two hours a day with­out mean­ing­ful human con­tact” with­out pos­si­bil­i­ty of hav­ing their cus­tody sta­tus reviewed, and the five states that recent­ly moved away from those prac­tices, con­sti­tute pro­longed or indef­i­nite soli­tary con­fine­ment, Pontier says.

Pontier’s arti­cle also dis­cuss­es recent court chal­lenges in eight states to the auto­mat­ic place­ment of death-sen­tenced pris­on­ers in soli­tary con­fine­ment. These chal­lenges, she said, all includ­ed claims based on the Eighth Amendment pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment. Several oth­ers, she writes, also includ­ed Fourteenth Amendment due process and equal protection claims. 

To date, only one fed­er­al court has ruled on the mer­its of these claims: the U.S. Court of Appeals for the Fourth Circuit declared Virginia’s death-row con­di­tions of con­fine­ment uncon­sti­tu­tion­al. However, she says, set­tle­ments or con­ces­sions in six of the eight chal­lenges have led to sig­nif­i­cant changes in hous­ing pro­ce­dures for death-sentenced prisoners. 

International tri­bunals have found that extend­ed incar­cer­a­tion on death-row under the con­tin­u­ing threat of exe­cu­tion vio­lates U.S. human rights oblig­a­tions, sep­a­rate and apart from pro­longed deten­tion in soli­tary con­fine­ment. In 2018, the Inter-American Commission on Human Rights — the body of the Organization of American States that reviews poten­tial breach­es of human rights by mem­ber nations in the Western Hemisphere — declared in the case of Missouri death-row pris­on­er Russell Bucklew that “[t]he very fact of spend­ing 20 years on death row is … exces­sive and inhu­man” punishment. 

A DPIC analy­sis of death row in June 2020 found that at least 1,300 pris­on­ers had been impris­oned on U.S. death rows for more than two decades, in vio­la­tion of U.S. human rights oblig­a­tions. Data from the Bureau of Justice Statistics’ Capital Punishment, 2020 – Statistical Tables indi­cates that more than half of all cur­rent death-row pris­on­ers are incar­cer­at­ed pur­suant to death sen­tences that were imposed more than twen­ty years ago.