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. 3d 628 , 493 P.2d 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.2d 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 20th 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.