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.