- The Washington Times - Wednesday, August 9, 2017

Florida prison inmates are mounting a challenge to their state’s death row policies, saying it’s unconstitutional to keep them in solitary confinement for more time than other prisoners.

They are the latest in a nationwide movement aimed at trying to equalize conditions for prisoners, arguing that just because someone is slated to die doesn’t mean he or she should have worse treatment in the meantime.

Nine death row inmates sued the Florida Department of Corrections in July saying a policy automatically putting them in solitary confinement no matter what their behavioral records is cruel and unusual punishment prohibited under the Eighth Amendment, and also violates the equal protection clause because inmates not on death row don’t receive the same treatment.

Lawsuits also have been filed in recent years in Virginia, Arizona and Louisiana, and prisoners in some cases have won policy changes.

Those changes came from prisons, though. Inmates are still looking to score a dramatic and wide-ranging ruling from the courts putting official constitutional bounds on the type of treatment death row prisoners can expect.

“There’s been a bunch of lawsuits, but so far what is happening [is] each state to get sued looks at their situation and says, ‘Why are we doing this?’ So under the threat of the lawsuit, they change what they do, so the cases haven’t been going to trial,” said Margo Schlanger, a law professor at the University of Michigan.

Inmates say they are stuck in isolation in cells roughly the size of a car parking space 21 to 24 hours a day. They say it leads to suicidal tendencies, depression, psychosis and degeneration of their bodies.

They said they are allowed only three showers each week and have limited use of the exercise yard for a few hours each week, which at times can be interrupted.

“What struck me was the psychological effects on people, and even if they didn’t have any sort of mental illness already on death row, it’s inevitable,” said Claire Wheeler, a lawyer at Venable LLP representing the Florida inmates. “It’s an incredibly desperate and hopeless existence.”

A study by The Marshall Project revealed that 61 percent of prisoners in the U.S. who are sentenced to death are kept in isolation for more than 20 hours a day. It reports roughly 20 states out of the 31 that impose the death penalty give death row inmates less than four hours a day out of their cells.

Inmates believe they have a basis for their challenge in a dissent written by Supreme Court Justice Stephen G. Breyer in March in a case involving a Texas prisoner who said being in solitary confinement for 22 years on death row constituted cruel and unusual punishment.

“This Court long ago, speaking of a period of only four weeks of imprisonment prior to execution, said that a prisoner’s uncertainty before execution is ‘one of the most horrible feelings to which he can be subjected,’” Justice Breyer wrote.

Ms. Schlanger said there is no good reason to insist on solitary confinement and there is no evidence that it leads to safer prisons.

“People think that you need to have solitary confinement on the death row because people think you have nothing else to lose, but that’s kind of a mythology,” said Ms. Schlanger.

Brian Stull, an attorney with the American Civil Liberties Union, said Virginia scrapped its solitary policy after a 2014 challenge. The state agreed to increase family visitation, give more access to recreation time and allow daily showers and time with other inmates.

“In short, based on what happened in Virginia, I would say the Florida suit has legs. Strong ones,” Mr. Stull said.

Because of Virginia officials’ changes, the courts have not reached a decision on the inmates’ claims that long solitary confinement policies violate the Eighth Amendment.

Robert Blecker, a professor at New York Law School and author of “The Death of Punishment: Searching for Justice Among the Worst of the Worst,” said there are reasons to treat death row inmates differently. He said prisons that allow death row inmates to do arts and crafts, play volleyball and participate in basketball leagues minimize the point of harsh sentencing.

“This movement, which masquerades itself as humane, is in fact, in my view, unbalanced [and] unjust,” said Mr. Blecker. “If the punishment fits the crime, then the daily lifestyle for those who commit the worst killings should be the worst, most unpleasant experience.”

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