New Podcast: ACLU National Prison Project Director David Fathi Discusses Death-Row Conditions, the Move Away from Solitary Confinement, and COVID-19 in U.S. Prisons

In the latest episode of Discussions With DPIC, David Fathi, the director of the ACLU’s National Prison Project, speaks with DPIC’s Managing Director Anne Holsinger about death-row conditions across the country. Fathi speaks about the “shattering” effects of long-term death-row solitary confinement, the movement away from automatic solitary confinement for death row prisoners, and the impact of COVID-19 in congregate-living circumstances, such as death-row.

Fathi and Holsinger discuss the false myth that death-row prisoners are housed in comfort with the benefits of free meals and cable TV at public expense. “Until very recently, and with very few exceptions, death-sentenced prisoners lived in an environment of extreme isolation and almost total sensory deprivation,” Fathi explains. “They would essentially live in a windowless concrete box for 23, on some days, 24 hours a day, alone in a cell maybe the size of a parking space. … They would go years without touching another human being unless it was in the course of being handcuffed or restrained by prison staff,” he says. The reality of death row, Fathi says, is that condemned prisoners endure “a level of isolation and deprivation that I think most people cannot even really imagine.”

Research has shown that “long-term isolation destroys people,” Fathi says. “We know that in a very large number of people it can actually induce mental illness, psychotic disorders, depression, suicide.” With death-row prisoners, “we’re talking about it going on for years and even decades. And the effect on most people subjected to those conditions is absolutely shattering.”

Fathi tells Holsinger that there is no penological justification for holding death-row prisoners in solitary confinement and even prison officials don’t defend the policy as necessary for prison management. Solitary confinement “was never about prison safety,” Fathi explains. “Every corrections expert, every person who’s actually worked in the prison, will tell you the death-sentenced prisoners are, as a class, much more compliant and well-behaved and less troublesome than prisoners of other classes.” The policy of automatic solitary confinement for death-row prisoners, he says, “was made by politicians,” not prison officials. “It was punitive, pure and simple.”

Those policies, however, are changing as the county “[turn[s] away from the death penalty” and as prison-conditions lawsuits document the unnecessary and inhumane conditions on death rows. Fathi has observed a “sea change in the way corrections professionals look at solitary confinement” across the country. “There’s now a widespread recognition among the people who run our prisons, that we have used solitary confinement far too much, for too long.” Arizona, California, Colorado, Louisiana, Oklahoma, Oregon, Pennsylvania, South Carolina, and Virginia all have adopted reforms ending automatic solitary confinement. Many of his clients, he says, have gone from “decades without touching another human being except a corrections officer” to being able to “shake hands with their lawyer, to be able to touch their mother, or their wife, or their child. … It’s moving. It’s beautiful. It’s also heartbreaking to think that we have as a society have done this to people in our custody.”

Fathi and Holsinger also discuss the impact of the COVID-19 pandemic on death-row conditions across the country. “COVID-19 is cutting a deadly swath through prisons and jails,” include the nation’s death rows, explains Fathi. By July 2020, almost 600 incarcerated people and close to 60 prison staff nationwide had died of COVID-19. And mass incarceration, he charges, has made the pandemic worse.

“[O]ne of the things that we learned very early on … about COVID-19 is that it spreads most rapidly and most efficiently in congregate settings where you have large numbers of people living together in fairly close quarters.” In prisons and jails, “even when they’re not overcrowded, … you have large numbers of people living in very close proximity,” he says. And as “the uniquely and brutally long sentences we have in this country” have created an increasingly older prison population, he charges, prisons have become “more medically vulnerable” than society as a whole.

But “prison health is public health … because the virus doesn’t respect the prison walls,” Fathi says. “If the prisoners have it today, the staff will have it tomorrow. And the staff’s family members and other people in the community will have it the day after that.”

Ultimately, the pandemic has put this country “at a historic turning point,” Fathi says. “There’s no question that this pandemic will change society in fundamental ways. The question is whether it will become a more compassionate society, a society with a greater sense of social solidarity, or whether it will become a more punitive and fearful society. And which of those forks in the road we take really depends on each and every one of us.”