ACLU Prison Project Director David Fathi Discusses Death-Row Conditions and COVID-19 in U.S. Prisons

Anne Holsinger 0:01

Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, Managing Director at the Death Penalty Information Center. In this episode, I’ll be speaking with David Fathi, Director of the American Civil Liberties Union National Prison Project. The National Prison Project challenges conditions of confinement in prisons, jails, and other detention facilities and works to end policies of mass incarceration. Mr. Fathi has been the Director of the Project since 2010 and was a staff lawyer at the Project for more than a decade prior to becoming Director. We’ll be discussing the harsh conditions on most US death rows that led to calls for change and the movement spurred by prison condition lawsuits in numerous states away from automatic solitary confinement for death row prisoners and towards more humane incarceration. We will also discuss how the COVID-19 pandemic has affected the public discourse on prison conditions, and what impact those changes may have in the future. David Fathi, thank you for joining us.

David Fati 0:58

Thank you for having me.

Anne Holsinger 1:00

When the general public talks about how death row prisoners are incarcerated, you used to hear vindictive complaints about prisoners receiving cable TV programming and free meals at public expense, but that myth has very little to do with the reality of death row. When a defendant was sentenced to death and put on death row over the last several decades, what did his or her imprisonment really look like?

David Fati 1:22

Until very recently, and with very few exceptions, death-sentenced prisoners lived in an environment of extreme isolation and almost total sensory deprivation. 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. A few days a week they would be let out for maybe an hour of so-called recreation, which typically took place not outdoors but in a slightly larger windowless concrete box. And throughout all of this time, their only social interaction would be with prison staff. They would go years without touching another human being unless it was in the course of being handcuffed or restrained by prison staff. Again, a level of isolation and deprivation that I think most people cannot even really imagine.

Anne Holsinger 2:24

A recent DPIC study showed that half of all prisoners sentenced to death in the US have been on death row for 20 years or more. And many of them are still confined in the types of conditions that you just described. Many people experience those conditions for decades as their appeals make their way through the court system. What kind of effects does that have on the prisoner?

David Fati 2:44

Well, what we’re talking about here is long-term solitary confinement and we have known for decades from research that it takes place in a whole different range of settings — from polar research stations to people who are isolated for medical reasons to prisons. And we know beyond question that long-term isolation destroys people. The psychologist Craig Haney calls it social death — you essentially lose the ability to interact with other people and you you cease to exist really as as a social being. And we know that in a very large number of people it can actually induce mental illness, psychotic disorders, depression, suicide. More than one-half of all suicides in US prisons and jails take place in solitary confinement units, even though those units house only a tiny percentage of the total prison population.So, what we’re talking about here is solitary confinement. A practice that the United Nations has acknowledged can amount to torture. A practice that the United Nations recommends should last in no event longer than 15 days. And 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. And many of them never recover any semblance of normal ability to interact with other people in any kind of way that we would recognize as normal.

Anne Holsinger 4:28

With negative effects that are so clear and well-documented, how did prison officials justify those conditions? Was there ever any evidence that death-row prisoners are more dangerous in prison than other prisoners convicted of murder or that holding death-row prisoners in long term solitary confinement made them or the prison staff safer?

David Fati 4:46

That’s what’s so ironic, is that 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 — prisoners convicted and sentenced for other crimes. So it’s not a prison management issue, and in many cases — perhaps most cases — the decision to hold death-sentenced prisoners in automatic and permanent solitary confinement was not one made by prison officials — it was made by politicians. So in many states, there’s actually a statute that requires that prisoners sentenced to death be automatically held in solitary confinement no matter how well-behaved they are, no matter how long they’ve been in prison with a spotless disciplinary record, and that they’d be held there permanently until they either die of natural causes, or executed, or their death sentence is overturned. So it was never about prison safety, it was never about prison management or security. It was punitive, pure and simple. It was an attempt to essentially torture people who have been convicted of aggravated murder and sentenced to death. You know in in previous times and previous centuries, people who were sentenced to death were physically tortured before their execution. They would be broken on the wheel, or branded or, or tortured in some other physical and horrific way. We don’t do that anymore. What we do instead is we torture them mentally with long-term solitary confinement. I believe there is a straight line from the practice of physically torturing people before their execution to the the current, albeit now changing, but still current practice of psychologically torturing people before they’re executed with solitary confinement.

Anne Holsinger 6:44

In the last several years, Arizona, Virginia, South Carolina, Oklahoma, Pennsylvania, California, and Oregon have all made significant changes to the conditions on their death rows. They’ve ended the use of automatic solitary confinement granted prisoners access to educational and occupational programs and allowed outdoor exercise, contact visits, and group religious services. Prison reform groups like yours have been litigating and pushing for those kinds of changes for years. What happened that led to this wave of reforms?

David Fati 7:15

Well, first, to the list you gave, you could add Colorado and Louisiana. Fortunately, the list is a growing one of states that are turning away from the automatic and permanent solitary confinement of death-sentenced prisoners. And I think there’s a number of related factors that account for that. First of all — and I think this is in large part due to the heroic work of DPIC and its allied organizations — this country is turning away from the death penalty. Many states are abolishing, other states have moratoria or have abolished in practice and not executed anyone for years. The death penalty in the United States is increasingly a highly localized phenomenon, not only in a handful of states, but even a handful of counties within those states. And it’s obviously a very positive development that at long last the United States, long such an egregious outlier in its use of the death penalty, is turning away from the death penalty. So, that is one factor. Second, is there’s really been a sea change in the way corrections professionals look at solitary confinement. We at the ACLU have, for the last 10 years, had our stop solitary campaign that’s devoted to ending the use of long-term solitary confinement. And along with other other organizations and other currents in the corrections profession, that’s really led to a fundamental change in the way the corrections profession views solitary confinement. 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, inappropriately. And so because the treatment of death-sentenced prisoners in many states amounted to automatic solitary confinement, I think the turn away from solitary confinement has had a positive effect. One sort of consequence of that has been it’s been easier to bring about reform of the way death-sentenced prisoners are housed. And then finally, there’s just a much more skeptical and critical public attitude about the way we run our prisons and the criminal legal system, much more generally. This is not, things are not the way they were in the mid-90s when I started doing this work when the climate was unbelievably punitive and politicians would fall all over each other to be tougher on crime than the next person. They proposed three strikes law. ‘Well, that’s too many. Let’s have a two strikes law,’ and so on. I mean, there’s now a widespread consensus that it’s not a good thing that we have the world’s largest prison population, the world’s highest rate of incarceration. And so there’s been a fundamental, I think, political and cultural change that makes reform in the criminal legal system, including reform of the treatment of death-sentenced prisoners, much more achievable than it was 20 or even 10 years ago.

Anne Holsinger 10:18

As those changes have been happening, what have you heard from your clients about what it’s like to experience them?

David Fati 10:25

Well, it’s unbelievably — there are so many adjectives I could use — it’s moving, but it’s also horrifying to hear what these people have gone through. People who have gone, as I said, literally years or decades without touching another human being except a corrections officer. And to hear from them what it’s like to be able to shake hands with their lawyer, to be able to touch their mother, or their wife, or their child. There was one man in Colorado who, for the first time, he got outdoor exercise — the first time he was able to go outdoors in years. He just — it was pouring rain as it happened on that day. But he just stood in the rain because it was such a beautiful experience for him just to be outside and feel the rain running down his face. And so it’s moving, it’s beautiful, but it’s also heartbreaking to think that we have as a society have done this to people in our custody.

Anne Holsinger 11:30

To shift gears a little bit, the National Prison Project has also been working to reduce the spread of COVID-19 during this pandemic. Testing of prison populations has found that the Coronavirus spreads rapidly among prisoners and corrections staff. In late April, Alfonso Salazar of Arizona became the first death row prisoner known to have died of COVID-19. At the same time, seven others on Arizona’s death row had also tested positive. What is it about prison conditions in general, and death row conditions in particular, that makes this disease spreads so easily?

David Fati 12:02

Well, one of the things that we learned very early on — and that is one of the most robust findings 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. So nursing homes — there’s been tremendous and horrific fatality rates in nursing homes — cruise ships, and prisons and jails. You have, again — even when they’re not overcrowded, and many of them are — you have large numbers of people living in very close proximity. Two or three, sometimes even four people in a cell, dormitories with scores, sometimes even hundreds of people — that is really the the ideal, the perfect environment for the spread of any sort of airborne disease, which COVID-19 of course is. Another variable is that in prisons, you have a much more vulnerable — medically vulnerable — population than you do in society as a whole. As a result of the uniquely and brutally long sentences we have in this country, you have a large and increasing number of older people in prisons and jails. And we know that older people are at much higher risk of serious illness or death if they contract the virus. Similarly, you have much higher rates of various chronic medical conditions that also put people at greatly elevated risk. So heart disease, liver disease, HIV, diabetes, kidney disease. These are all conditions that are much more common among the incarcerated population than the general population and put people at greatly elevated risk of serious illness or death if they contract the virus. So for all of these reasons, prisons and jails — certainly including but not limited to, units housing death-sentenced people — are unfortunately really the ideal environment for the the rapid spread of this deadly and highly contagious disease.

Anne Holsinger 14:05

So, what measures can be done to mitigate the spread of the disease in prisons? And have you seen any states that have successfully taken those kinds of precautions?

David Fati 14:13

The most important thing that can be done is to, release, reduce the density of the population, and there’s basically two ways to do that — you can stop people from coming in or you can let people out. And we’ve seen some limited steps taken by some jurisdictions either to reduce the number of people; for example, if they’re arrested, reduce the number of people who are booked into the jail. We’ve seen some states, like California release people a little bit early to bring down the numbers but these all fall short of what really needs to be done. And many states and counties have done nothing at all to reduce their prison and jail populations, thereby reducing the density and making it possible to engage in the kind of social distancing that we’re all told to engage in to protect ourselves and protect other people. And so unfortunately COVID-19 is cutting a deadly swath through prisons and jails. I believe there’s almost 600 incarcerated people who have died of COVID-19 nationwide and close to 60 staff as well, because staff are essentially the same risk as the incarcerated people. While I certainly hope I’m wrong, I’m very fearful that this is just the tip of the iceberg and we are going to see still more sickness and death in prisons and jails unless very dramatic and decisive action is taken.

Anne Holsinger 15:45

This pandemic has highlighted problems of prison overcrowding and mass incarceration and the types of conditions that you’ve described. Do you think that this increased awareness among the public will have any long term effect on policy?

David Fati 15:58

It’s difficult to say. I am enough of an optimist to think and certainly hope that it will, because there’s nothing like an outbreak of a deadly and highly contagious disease to remind us that we are really all in this together. Because the virus doesn’t respect the prison walls, 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. And so I think it may catalyze a greater understanding that prison health is public health. And that while prisons are behind literal walls, they are really not walled off from the rest of society, and that what happens there, and what happens to the people inside them, really affect us all.

Anne Holsinger 16:49

Is there anything else that you’d like to share with our listeners?

David Fati 16:52

I think that we are at a historic turning point. There’s no question that this pandemic will change society in fundamental ways and 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.

Anne Holsinger 17:20

Thank you so much, David, for joining us on Discussions with DPIC, and for sharing your insight on this important issue.

David Fati 17:26

It’s my pleasure. Thanks for having me.

Anne Holsinger 17:28

To learn more about the death penalty, visit the DPIC website at deathpenaltyinfo.org. And to learn more about the National Prison Project, visit aclu.org. To make sure you never miss an episode of the podcast, subscribe to Discussions with DPIC on your podcast app of choice.