Texas Prisoners File Lawsuit Over Death-Row Conditions During Pandemic

Alleging that the Texas prison system is “failing to undertake take basic measures to protect [them] from the risk of disease and death” presented by the coronavirus pandemic, prisoners on the state’s death row have filed a class-action motion to join a federal prison-conditions lawsuit against the Texas Department of Criminal Justice (TDCJ).

The motion and an accompanying class-action complaint, filed May 1, 2020 by the Texas Innocence Network in the U.S. District Court for the Southern District of Texas, say that the death-row prisoners have been denied soap, clean towels, hand sanitizer, and masks, and that TDCJ has arbitrarily restricted their communications with counsel. These actions, the prisoners assert, violate their rights under the First, Eighth and Fourteenth Amendments, as well as the Americans with Disabilities Act and the Rehabilitation Act of 1973.

“Conditions at the Polunsky Unit pose a grave threat to the health and safety of prisoners, many of whom are especially vulnerable because of underlying medical conditions and disabilities,” said veteran capital defense lawyer David R. Dow, the Director of the Texas Innocence Network. “Prisoners who become infected will also infect prison staff, who will, in turn, infect individuals in the surrounding communities. Immediate action to improve conditions will be in everyone’s best interests.”

The lawsuit emphasizes that prisoners are unable to take the same precautions as the general public, like practicing social distancing or sanitizing frequently used surfaces. “At a time when the entire world is working to prevent the spread of the novel coronavirus, Plaintiffs are essentially at the mercy of corrections personnel to protect them from COVID-19,” the complaint states. Yet, it says, prison staff at the Polunsky Unit are not consistently using masks or clean gloves and are not ensuring that common-use areas are frequently cleaned.

Death-row prisoners are particularly at risk for severe health impacts if they contract COVID-19. About 35% of Texas death-row prisoners are over age 50. The conditions on death row have caused or exacerbated a wide variety of health problems among prisoners, including asthma, diabetes, and high blood pressure. “Moreover,” the lawsuit explains, “there are a significant number of severely mentally ill and intellectually disabled prisoners, who are at particular risk because of their inability to understand signage, directions, or to maintain even the most basic self-care.”

The lawsuit also takes issue with actions taken by the prison in response to the pandemic that interfere with the death-row prisoners’ legal representation. “With the outbreak of COVID-19, it has become impossible for Plaintiffs to meet with their counsel,” the filing says. “Rather than accommodating this problem, Defendants have systematically restricted access to counsel for Plaintiffs by limiting the only current means of attorney-client communication (telephone calls) to ‘critical’ circumstances, and then only to specific individuals on the legal team. The effect of Defendants’ policies and their arbitrary implementation has been to impede Plaintiffs’ access to counsel and counsel’s access to their clients.” These new restrictions, the prisoners charge, violate their constitutional right to counsel.

The lawsuit asks the court to require TDCJ to lift its restrictions on prisoners’ phone communications with counsel and require prison staff to disinfect frequently touched surfaces throughout the prison, practice social distancing whenever possible, and provide the prisoners with basic hygiene items such as soap, hand sanitizer, masks, and gloves.