Human Rights and Confinement on U.S. Death Rows

International human rights norms gov­ern more than whether and in what cir­cum­stances the death penal­ty is per­mis­si­ble. They also impose oblig­a­tions on the length of time a per­son may be sub­ject to the prospect of exe­cu­tion and the con­di­tions under which a per­son may be con­fined on death row. The cir­cum­stances in which pris­on­ers are incar­cer­at­ed on most state and fed­er­al death rows across the United States clear­ly vio­late U.S. inter­na­tion­al human rights obligations.

Article 6 of the International Covenant on Civil and Political Rights lim­its the impo­si­tion of the death penal­ty in coun­tries that have not yet abol­ished it to only ​“the most seri­ous crimes.” But that is only the start of the inter­na­tion­al human rights reg­i­men that applies to cap­i­tal pun­ish­ment and the treat­ment of death row pris­on­ers. Article 7 pro­hibits sub­ject­ing indi­vid­u­als to con­di­tions that amount ​“to tor­ture or to cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment.” In addi­tion, the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) pro­hibits spe­cif­ic prac­tices that vio­late the human rights of pris­on­ers, pre-tri­al detainees, and oth­ers in gov­ern­ment custody.All of these human rights norms are rou­tine­ly vio­lat­ed on U.S. death rows.

The Mandela Rules start with a reaf­fir­ma­tion of the basic prin­ci­ple of human rights law that ​“No pris­on­er shall be sub­ject­ed to, and all pris­on­ers shall be pro­tect­ed from, tor­ture and oth­er cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment, for which no cir­cum­stances what­so­ev­er may be invoked as a jus­ti­fi­ca­tion” (Mandela Rules, Rule 1). Of par­tic­u­lar impor­tance to the treat­ment of pris­on­ers on U.S. death rows, the rules strict­ly lim­it the use of solitary confinement.

Rule 43 states that:

In no cir­cum­stances may restric­tions or dis­ci­pli­nary sanc­tions amount to tor­ture or oth­er cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment. The fol­low­ing prac­tices, in par­tic­u­lar, shall be prohibited:

(a) Indefinite solitary confinement;

(b) Prolonged solitary confinement;

(c) Placement of a pris­on­er in a dark or con­stant­ly lit cell ….

By ​“soli­tary con­fine­ment,” the rules mean ​“the con­fine­ment of pris­on­ers for 22 hours or more a day with­out mean­ing­ful human con­tact.” Solitary con­fine­ment is con­sid­ered ​“pro­longed” if it is employed ​“for a time peri­od in excess of 15 con­sec­u­tive days.” (Mandela Rules, Rule 44.) Rule 55 pro­vides that ​“Solitary con­fine­ment shall not be imposed by virtue of a prisoner’s sen­tence … [and] should be pro­hib­it­ed in the case of pris­on­ers with men­tal or phys­i­cal dis­abil­i­ties when their con­di­tions would be exac­er­bat­ed by such measures.”

The ​“Death-Row Phenomenon” and Time on Death Row 

In 1890, in the case of In re Medley, 134 U.S. 160, 172 (1890), the U.S. Supreme Court observed that ​“when a pris­on­er sen­tenced by a court to death is con­fined in the pen­i­ten­tiary await­ing the exe­cu­tion of the sen­tence, one of the most hor­ri­ble feel­ings to which he can be sub­ject­ed dur­ing that time is the uncer­tain­ty dur­ing the whole of it.” The time frame of which the Court spoke was a mat­ter of four weeks, not the mul­ti­ple decades that are typ­i­cal of the death penal­ty in the United States in the 2020s.

In February 1972, while the con­sti­tu­tion­al chal­lenge to exist­ing U.S. death penal­ty statutes was pend­ing before the U.S. Supreme Court in Furman v. Georgia, the California Supreme Court ruled in People v. Anderson, 6 Cal. 3^d 628 , 493 P.2^d 880, 894 (1972), that its death penal­ty statute vio­lat­ed California’s con­sti­tu­tion­al pro­hi­bi­tion against cru­el pun­ish­ment. ​“The cru­el­ty of cap­i­tal pun­ish­ment, the Court wrote, ​“lies not only in the exe­cu­tion itself and the pain inci­dent there­to, but also in the dehu­man­iz­ing effects of the lengthy impris­on­ment pri­or to exe­cu­tion dur­ing which the judi­cial and admin­is­tra­tive pro­ce­dures essen­tial to due process of law are car­ried out. Penologists and med­ical experts agree that the process of car­ry­ing out a ver­dict of death is often so degrad­ing and bru­tal­iz­ing to the human spir­it as to con­sti­tute psychological torture.”

Citing Anderson, the Massachusetts Supreme Court struck down that commonwealth’s death penal­ty statute in Suffolk County District Attorney v. Watson, 381 Mass. 648, 411 N.E.2^d 1274 (1980) under arti­cle 26 of its state con­sti­tu­tion. The court found the death penalty’s ​“unique and inher­ent capac­i­ty to inflict pain” the ​“per­haps most con­clu­sive” fac­tor in deter­min­ing that cap­i­tal pun­ish­ment was uncon­sti­tu­tion­al­ly cru­el. ​“The men­tal agony,” the court wrote, ​“is, sim­ply and beyond ques­tion, a horror.”

In Soering v. United Kingdom, Eur. Court H.R., judg­ment of 7 July 1989, Series A No. 161, the European Court of Human Rights described the psy­cho­log­i­cal­ly bru­tal­iz­ing effect of lengthy pre-exe­cu­tion impris­on­ment under sen­tence of death as the ​“death-row phe­nom­e­non,” and ruled that exces­sive pre-exe­cu­tion deten­tion vio­lat­ed the European Convention on Human Rights’ pro­scrip­tion against ​“tor­ture or … inhu­man or degrad­ing treat­ment or pun­ish­ment.” The Soering deci­sion arose out of U.S. attempts to extra­dite Jens Soering, a teenage German nation­al who com­mit­ted mur­der in Virginia and then fled to England. The United Kingdom agreed to extra­dite Soering, despite Virginia’s refusal to assure it that the death penal­ty would not be imposed. He appealed the U.K.’s deci­sion and the case ulti­mate­ly reached the European human rights court.

Noting that in 1989 a ​“con­demned pris­on­er ha[d] to endure … the anguish and mount­ing ten­sion of liv­ing in the ever-present shad­ow of death” for an aver­age of six-to-eight years in Virginia, and giv­en Soering’s age and con­di­tions of death-row con­fine­ment in Virginia, the Court unan­i­mous­ly ruled that Soering’s extra­di­tion would vio­late the human rights pro­hi­bi­tion against inhu­man or degrading treatment.

Four years lat­er, the Privy Council — the British court that serves as the high­est appeals court for Caribbean Commonwealth coun­tries — issued a land­mark rul­ing on the death-row phe­nom­e­non in Pratt and Morgan v. Attorney General for Jamaica, [1994] 2 A.C. 1, 4 All E. R. 769 (P. C. 1993). Earl Pratt and Ivan Morgan had been on death row in Jamaica for 14 years and had each faced three exe­cu­tion dates. Twenty-three oth­er Jamaican pris­on­ers had been on death row for more than a decade and anoth­er 82 for more than five years. The Lords of the coun­cil found that ​“the inor­di­nate delay” in their cas­es ​“was like­ly to cause such acute suf­fer­ing that the inflic­tion of the death penal­ty would be … inhu­mane and degrading.”

The coun­cil direct­ed that Pratt and Morgan be resen­tenced to life in prison, find­ing that ​“in any case in which exe­cu­tion is to take place more than five years after sen­tence there will be strong, grounds for believ­ing that the delay is such as to con­sti­tute ​‘inhu­man or degrad­ing pun­ish­ment or oth­er treat­ment’.” The deci­sion result­ed in the resen­tenc­ing of hun­dreds of death-row pris­on­ers in the Commonwealth coun­tries with­in the juris­dic­tion of the Privy Council.

The Supreme Court of Canada fol­lowed suit in 2001 in United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, refus­ing to per­mit the extra­di­tion of Glen Burns and Atif Rafay to the United States to face triple mur­der charges in Washington state with­out assur­ances that pros­e­cu­tors would not pur­sue the death penal­ty. The Court ruled that the ​“hor­rors” of the ​“death row phe­nom­e­non” were ​“a rel­e­vant con­sid­er­a­tion” that weighed against extra­di­tion. ​“The final­i­ty of the death penal­ty,” it wrote, ​“com­bined with the deter­mi­na­tion of the crim­i­nal jus­tice sys­tem to try to sat­is­fy itself that the con­vic­tion is not wrong­ful, inevitably pro­duces lengthy delays, and the asso­ci­at­ed psy­cho­log­i­cal trau­ma to death row inhabitants.”

In August 2012, Juan E. Méndez, the United Nations Special Rapporteur on tor­ture and oth­er cru­el, inhu­man or degrad­ing treat­ment of pun­ish­ment issued a report explain­ing that the con­di­tions that make the death row phe­nom­e­non a human rights vio­la­tion involve more than just the pas­sage of time between con­vic­tion and final res­o­lu­tion of a case. Interim report of the Special Rapporteur on tor­ture and oth­er cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment, 9 August 2012. A/​67/​279. para 42.

It con­sists of a com­bi­na­tion of cir­cum­stances that pro­duce severe men­tal trau­ma and phys­i­cal dete­ri­o­ra­tion in pris­on­ers under sen­tence of death.21 Those cir­cum­stances include the lengthy and anx­i­ety-rid­den wait for uncer­tain out­comes, iso­la­tion, dras­ti­cal­ly reduced human con­tact and even the phys­i­cal con­di­tions in which some inmates are held. Death row con­di­tions are often worse than those for the rest of the prison pop­u­la­tion, and pris­on­ers on death row are denied many basic human neces­si­ties. Examples of cur­rent death row con­di­tions around the world include soli­tary con­fine­ment for up to 23 hours a day in small, cramped, air­less cells, often under extreme tem­per­a­tures; inad­e­quate nutri­tion and san­i­ta­tion arrange­ments; lim­it­ed or non-exis­tent con­tact with fam­i­ly mem­bers and/​or lawyers; exces­sive use of hand­cuffs or oth­er types of shack­les or restraints; phys­i­cal or ver­bal abuse; lack of appro­pri­ate health care (phys­i­cal and men­tal); and denial of access to books, news­pa­pers, exer­cise, edu­ca­tion, employ­ment, or oth­er types of prison activity.

The most exten­sive treat­ment of the issue was in the IACHR’s 2018 rul­ing in the case of Missouri death-row pris­on­er Russell Bucklew in which it deter­mined that the United States had vio­lat­ed Bucklew’s rights under the American Declaration of the Rights and Duties of Man. The Commission wrote:

Russell Bucklew has been deprived of his lib­er­ty on death row from 1997 to the date of the present report, i.e., for more than 20 years. The Commission notes that the time spent by Russell Bucklew on death row great­ly exceeds the length of time that oth­er inter­na­tion­al and domes­tic courts have char­ac­ter­ized as cru­el, inhu­man, and degrad­ing treat­ment. The very fact of spend­ing 20 years on death row is, by any account, exces­sive and inhu­man. Consequently, the United States is respon­si­ble for vio­lat­ing, to the detri­ment of Russell Bucklew, the right to humane treat­ment, and not to receive cru­el, infa­mous, or unusu­al pun­ish­ment estab­lished in Article XXVI of the American Declaration.

U.N. spe­cial rap­por­teurs con­tin­ue to call atten­tion to human rights vio­la­tions aris­ing out of the dura­tion and con­di­tions of death-row con­fine­ment. In a joint state­ment released on October 10, 2022, the 20^th World Day Against the Death Penalty, Alice Edwards, the UN Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and Morris Tidball-Binz, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions reit­er­at­ed, ​“The death row phe­nom­e­non has long been char­ac­terised as a form of inhu­man treat­ment, as has the near total iso­la­tion of those con­vict­ed of cap­i­tal crimes and often held in unlaw­ful solitary confinement.”

“Although the death penal­ty is per­mit­ted in very lim­it­ed cir­cum­stances under inter­na­tion­al law,” they wrote, ​“the real­i­ty remains that in prac­tice it is almost impos­si­ble for States to impose cap­i­tal pun­ish­ment while meet­ing their oblig­a­tions to respect the human rights of those convicted.”

Several for­mer jus­tices of the U.S. Supreme Court have raised ques­tions con­cern­ing whether impris­on­ment for mul­ti­ple decades fac­ing the prospect of exe­cu­tion con­sti­tutes ​“cru­el and unusu­al pun­ish­ment” pro­hib­it­ed by the Eighth Amendment to the United States Constitution. However, the Court has repeat­ed­ly declined to review that issue.

The United States’ Persistent Violations of the Prohibition Against Cruel, Inhuman or Degrading Treatment or Punishment

A Death Penalty Information Center report in June 2020 reviewed U.S. death row to assess the scope of domes­tic human rights abus­es under the Bucklew stan­dard. DPIC found that 1,344 pris­on­ers on 26 state, fed­er­al gov­ern­ment, or U.S. mil­i­tary death rows or still in jeop­ardy of death on retri­al or resen­tenc­ing on January 1, 2020 had been incar­cer­at­ed fac­ing exe­cu­tion for more than 20 years. With 2,620 pris­on­ers then on death row in the United States or in jeop­ardy of cap­i­tal resen­tenc­ing, that meant more than half (51.3%) of those fac­ing exe­cu­tion in the United States were on death row in vio­la­tion of their human rights.

The DPIC report found that an addi­tion­al 191 pris­on­ers had been exe­cut­ed by 20 states 20 or more years after hav­ing been first sen­tenced to death, also in vio­la­tion of U.S. human rights oblig­a­tions. Since then, that total has climbed by 21 more. Eighteen of the 190 men and women exon­er­at­ed from wrong­ful cap­i­tal mur­der con­vic­tions since 1973 also had spent two decades or more on death row.

Including the exe­cu­tions since June 2020 and the death-row exon­er­a­tions, these three cat­e­gories of cap­i­tal cas­es account for at least 1,574 death-penal­ty-relat­ed human rights vio­la­tions by 26 U.S. states, the fed­er­al gov­ern­ment, and the U.S. military.

U.S. Violations of the Mandela Human Rights Norms

A DPIC analy­sis of data on death-row con­di­tions in the United States also found that more than half of all U.S. death-row pris­on­ers are or have recent­ly been incar­cer­at­ed in pro­longed con­di­tions of soli­tary con­fine­ment that clear­ly vio­late the inter­na­tion­al human rights norms set forth in the Mandela Rules. 

In a Fall 2021 law review arti­cle, Cruel but not Unusual: The Automatic Use of Indefinite Solitary Confinement on Death Row, pub­lished in the Texas Journal on Civil Liberties and Civil Rights, Merel Pontier cat­a­logued the con­di­tions of con­fine­ment in each of the U.S. states that autho­rize cap­i­tal pun­ish­ment. 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.

DPIC 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 — Arizona, Louisiana, Pennsylvania, South Carolina, and Virginia. 

Even before con­sid­er­ing the pro­longed soli­tary con­fine­ment of an addi­tion 40 fed­er­al death-row pris­on­ers and the con­di­tions faced by indi­vid­ual pris­on­ers in the death-penal­ty juris­dic­tions that did not man­date auto­mat­ic soli­tary con­fine­ment, 52.3% of those on death rows across the coun­tries were con­fined in con­di­tions that abused their human rights.