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.”