Oklahoma Agrees to Move Death-Row Prisoners Out of Underground Solitary Confinement

Change is com­ing to Oklahoma​’s row. In July, a coali­tion of pris­on­ers’ rights orga­ni­za­tions called the state’s pol­i­cy of hous­ing its death-row pris­on­ers in soli­tary con­fine­ment in an under­ground facil­i­ty ​“inhu­mane and oppres­sive” and threat­ened legal action if reforms were not forth­com­ing. On September 26, 2019, the Oklahoma Department of Corrections announced that with­in 30 days it would be relo­cat­ing ​“all qual­i­fy­ing death row inmates” to a different facility.

Led by the American Civil Liberties Union of Oklahoma, the pris­on­ers’ rights groups had spent two years inves­ti­gat­ing Oklahoma’s hous­ing of death-sen­tenced pris­on­ers. Their let­ter to the state described ​“dan­ger­ous and inju­ri­ous” con­di­tions on death row, includ­ing ​“per­ma­nent soli­tary con­fine­ment.” ​“The con­demned men,” the groups wrote, ​“are locked in their cells 22 to 24 hours a day. By pol­i­cy they are offered a 15-minute show­er three times a week and one hour of soli­tary exer­cise five times a week in an enclosed con­crete room of 20 feet by 20 feet that has an opaque sky­light-ceil­ing that obstructs any view of the sky or sun. People with approved fam­i­ly vis­i­tors may have non­con­tact vis­its on Fridays and week­ends, behind plex­i­glass and over a phone. The facil­i­ty offers no form of con­gre­gate activ­i­ty or time out­side of cells, with no pro­grams, edu­ca­tion­al ser­vices, or work oppor­tu­ni­ties.” One pris­on­er com­pared the con­di­tions to being ​“buried alive.”

The response from Scott Crow, inter­im direc­tor for the Oklahoma Department of Corrections, says that the move from the H Unit of the Oklahoma State Penitentiary in McAlester (pic­tured), where death-row pris­on­ers are cur­rent­ly housed, to the prison’s A Unit will ​“sig­nif­i­cant­ly change their access to nat­ur­al light and view of the out­doors.” Instead of hav­ing recre­ation time in an enclosed room with no nat­ur­al light, pris­on­ers will use a fenced recre­ation area with nat­ur­al light and fresh air. The change will also allow for con­tact vis­its. Currently, pris­on­ers on Oklahoma’s death row can only talk to vis­i­tors while sep­a­rat­ed by plexiglass. 

Crow’s let­ter did not spec­i­fy how the state will deter­mine which pris­on­ers qual­i­fy for the move to A Unit. ​“The let­ter doesn’t explain what ​‘qual­i­fy­ing’ means, so we will need to get more infor­ma­tion about what the cri­te­ria will be,” said Corene Kendrick, a staff attor­ney at the Prison Law Office, one of the orga­ni­za­tions that raised con­cerns about Oklahoma’s death-row con­di­tions. ​“All of the con­demned men should have an oppor­tu­ni­ty to show that they can be safe­ly housed in more humane con­di­tions where they can sit in a room with oth­er peo­ple, or go out­side to breathe fresh air, feel the sun’s warmth, and see the sky.”

Crow’s response also leaves the sta­tus of con­gre­gate reli­gious ser­vices uncer­tain. The com­plaint let­ter argued that the prison was vio­lat­ing fed­er­al law by deny­ing death-row pris­on­ers the oppor­tu­ni­ty to wor­ship in group set­tings. Under the Religious Land Use and Institutionalized Persons Act, the gov­ern­ment may not impose a ​“sub­stan­tial bur­den” on the reli­gious exer­cise of pris­on­ers with­out a com­pelling gov­ern­ment inter­est. Oklahoma allowed com­mu­nal wor­ship ser­vices on death row pri­or to 2009, with­out inci­dent, but the state said that “[i]f the inmates adjust well to the A Unit envi­ron­ment, we will assess their suit­abil­i­ty for jobs and con­gre­gate religious services.” 

“We hope to engage in fur­ther dis­cus­sion with state offi­cials about the cri­te­ria they plan to use for hous­ing the men in A Unit, and the issue of the reli­gious ser­vices, with the goal that we can avoid lit­i­ga­tion,” said Kendrick. ​“The most prob­lem­at­ic part of the response is that ODC [Oklahoma Department of Corrections] still con­sid­ers con­gre­gate reli­gious ser­vices to be a ​‘priv­i­lege’ and not the fun­da­men­tal right that it is.”