U.S. Prisoners on Death Row Endure Permanent Solitary Confinement Before Execution

With Appeal staff reporter Elizabeth Weill-Greenberg

In addition to being unique among Western nations in executing people, the U.S. keeps many of its death row prisoners in prolonged solitary confinement, which is known to inflict physical and psychological harm. Today’s guest, Appeal staff reporter Elizabeth Weill-Greenberg, discusses advocates’ push to change that practice in Oklahoma, a state whose notorious H Unit has taken death row conditions to new lows.

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Transcript

Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on The Appeal magazine’s main Facebook and Twitter page and as always you can like and subscribe to us on Apple Podcasts.

In addition to being unique among Western nations and executing people, the United States is one of the harshest countries on earth when it comes to the use of solitary confinement. And within the United States many states commit the uniquely American practice of combining both, solitary and putting people to death. Isolating those on death row to solitary confinement for years as people await their execution. In what one activist calls the equivalent of being quote “buried alive.” Today’s guest, Appeal writer Elizabeth Weill-Greenberg, discusses one such state: Oklahoma, whose notorious H Unit has taken pre-execution torture to new punitive lows.

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Elizabeth Weill-Greenberg: There seems to be this sort of vague justification that people who are sentenced to death must be more violent, more likely to be violent once they’re in prison and there’s absolutely no research that backs that up at all. In fact, any research that has been done demonstrates the opposite.

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Adam: Thank you so much for joining us.

Elizabeth Weill-Greenberg: Thanks so much for having me.

Adam: So you wrote an excellent piece and titled “Oklahoma’s Death Row Prisoners Are Forced Into Permanent Solitary Confinement. They Are ‘Buried Alive,’ Advocates Say.” You wrote this piece on the H Unit in Oklahoma State Prison and the kind of broader problem of putting death row inmates in solitary confinement leading up to their execution, sort of add an element of gratuitous torture before the state kills people. We put them in solitary confinement, which most countries recognize as being a form of torture, before we kill them. Can you kind of lay out how widespread this practice is and what the nominal reasons for this policy are and what activists say about those nominal reasons?

Elizabeth Weill-Greenberg: So it seems to be a pretty widespread practice. My understanding is that solitary confinement, you know, at least since the early nineties has been the default for people who are sentenced to death. In terms of the justifications, that’s a really good question. Um, you know, I was doing some reading about it and there seems to be this sort of vague justification that people who are sentenced to death must be more violent, more likely to be violent once they’re in prison and there’s absolutely no research that backs that up at all. In fact, any research that has been done demonstrates the opposite: that people who are sentenced to death actually tend to be quite compliant in prison and tend to have fewer disciplinary infractions. That being said, of course, is that even if it were that people sentenced to death, we’re more likely to be violent, which again is 100 percent not true, but even if it were true, subjecting them to torture would still be a completely horrific and grotesque thing to do. But again, even the justification that’s sort of given, you know, like I reached out to Oklahoma Department of Corrections many times to ask them to explain their position, to ask if they had any plans to change this policy and they never got back to me. So I was looking around at other stories and I saw that that tended to be a bit of a pattern. Um, so the justification that we sort of know of, which is this idea of dangerousness, it really doesn’t hold up to any type of scrutiny.

Adam: Yeah. And to be clear, both of these practices, both executing people and solitary confinement are very, very rare, if not never seen anywhere in the quote unquote “West.” The US is two outliers in both of these things and certainly an outlier in combining them kind of parlaying are uniquely punitive instances. So both of these things are very rare and together they’re extremely rare. And so presumably the countries that don’t kill people and don’t torture them before they kill them are doing, you know, the society has not crumbled. Right? Cause presumably it is supposed to have some kind of threatening effect. Like it’s supposed to send a message or something or is it just supposed to be a protection for other inmates or the prisoners themselves?

Elizabeth Weill-Greenberg: I was speaking with someone from the Death Penalty Information Center, someone who made the point — and I hadn’t thought of it — that each unit was constructed in ‘91 and this is the same time when we see a lot of these supermax prisons being built. And so this is really, you know, part of a time when we see our country stripping people who are incarcerated of just every human right that they have and any type of dignity. I guess I see it more as part of that context of just there’s no punishment that’s ever enough — up to and including torture.

Adam: Right. You have to keep laying it on because the tougher you are, the more serious you take crime and so on.

Elizabeth Weill-Greenberg: Exactly. Yeah.

Adam: So when this prison was created in the early nineties and one Amnesty International observer, you write, described the Oklahoma H Unit as quote “the appearance of what amounts to a concrete tomb. These conditions amount to inhuman and degrading treatment.” Can you give our listeners a sense of what the kind of physical spaces for the solitary confinement, what the daily routine looks like? I know it’s difficult to sort of convey the sheer existential horror of solitary confinement, but can we try to sort of give a rough sketch so people really know the stakes about what we’re talking about?

Elizabeth Weill-Greenberg: I should say I haven’t visited each unit myself, so my description will come from the interviews that I conducted and what I’ve read about it, and I should also say that I was not able to speak with anyone who is currently in H Unit or who has survived it. But from what was described to me, I think it sounds like a tomb. The size is smaller than a parking space. In your typical cell it’s two concrete bunks, the sink, the toilet, and that’s it. There’s what’s called “the slot” at the bottom of the door and that’s where people are given their meals. That’s also where they’ll put their hands and feet through to be shackled before they leave their cell. And I should also note, I don’t think I put this in the story, but when I was speaking with Megan Lambert from the ACLU of Oklahoma, she made the point to me that for any person who’s on death row who has any type of mobility issues, that actually just the act of being shackled is extraordinarily difficult. Being able to get your hands through the slot and then your feet through the slot, just to be able to leave your cell. And there was absolutely no access to sunlight. There is no access to seeing the outdoors. So it really is as if you walked into your closet right now and you shut the door. It’s pretty much tantamount to that.

Adam: For 23 hours a day. You note that the only time they ever have any human contact is usually during religious services but even that was curtailed in Oklahoma, correct?

Elizabeth Weill-Greenberg: Yeah. That wasn’t a pretty heartbreaking piece of this was that up until 2009 people were allowed to participate in group religious services.

Adam: Just to be clear for the listeners, only twice a month.

Elizabeth Weill-Greenberg: Yeah, no, thank you. You’re absolutely right. That’s such an important point. And so they were allowed to have these group religious services, like you said, you know, only twice a month, they were still shackled during these services. And there was, the way it was described to me is, there was like a cage, some sort of barrier between the people on death row and the volunteers from the community who had come in. So we’re still talking about really horrific degrading circumstances, but they were able to speak to each other and to touch each other and hug each other, you know, with things that they were denied at all other times. And then in 2009 the then warden discontinued the program. As far as I can tell, there was no explanation given, at least his memo announcing it, his inner office memo announcing it, which we have a copy of, didn’t say why he had discontinued it. And that seems to be a pretty clear violation of federal law that pretty much says if you are going to impede with an incarcerated person’s right to exercise their religion, there has to be a compelling government interest to do so. And as far as I can tell, that has never been shared with the public.

Adam: So how common is this? How many States do this? Do we have a rough estimate?

Elizabeth Weill-Greenberg: It definitely seems that the majority of states that still have the death penalty, that people live in very similar conditions, that they are in solitary confinement. That being said, there are a handful of states that have moved away from the practice which in the letter to the Oklahoma Department of Corrections that was sent from the ACLU of Oklahoma, the National ACLU and the Prison Law Office, and they highlight these other states. Maybe the most interesting one actually is Missouri because Missouri does not have a death row at all. They just housed people sentenced to death with everybody else. And your, the, the type of housing that you’re provided is based on those individual assessments that they give everybody. And then they know that North Carolina has changed its practices so now they get some time out of their cell, they get some time with other people. They have access to work assignments, programs, group exercise, things like that. So it seems like there are some Department of Corrections that are beginning to move away from this practice.

Adam: Yeah. So the only time you break the monotony of solitary torture is to go do hard labor for 15 cents an hour. So it’s a, yeah, that’s very American story. So your article notes that some lawsuits have kind of moved the needle a little bit in terms of changing policy in response to these lawsuits. There was a 2014 case in particular, Virginia, that had the effect of changing the law in that state. Can you talk about the kind of legal mechanisms to push back against the use of pre-execution torture?

Elizabeth Weill-Greenberg: Sure. Absolutely. So in Virginia in 2014 several people on death row filed suit to challenge the policy that had them live in solitary confinement until either their sentence was overturned or until they were killed by the state or died by other reasons or other causes. And after that lawsuit was filed, the Department of Corrections instituted several changes or implemented several changes, I should say, where they can now use a common room for programs, religious services and work. They’re now given contact visits and more time outside for recreation. And, and before this, the conditions were pretty similar to Oklahoma’s H Unit in that they were in their cells for about 23 hours a day. I should note that they could’ve gone further. I mean, they could have disbanded the death row altogether and just assigned them housing the way they would assign housing to any other person incarcerated in the system. But yeah, so that’s what happened in Virginia. There’s also a lawsuit, which is still in litigation in Pennsylvania, over the same issue, permanent solitary confinement. And there’s also a lawsuit active in Louisiana now over, again, permanent solitary confinement for people who are sentenced to death.

Adam: Okay. This does seem to be movement. In the last like ten years or so this has gotten the less common, but it’s still common.

Elizabeth Weill-Greenberg: Yeah, I think that’s fair to say and I think it has, you know, it’s interesting, right? It’s the death penalty debate is always a really interesting one to me because it just shows, it just shows how extreme and punishing our culture is. Like, for so long I feel like the debate about the death penalty was execution or life without parole and then we weren’t even really like talking about the conditions and the torture of being on death row.

Adam: Or the fact that it’s even a debate when it’s a settled issue 50 years ago in every other country in the world.

Elizabeth Weill-Greenberg: Absolutely. Yeah. 100 percent yeah. Totally.

Adam: It’s like when they had the after Zero Dark 30 they’re like “the torture debate.” I’m like, wait a second, I thought we settled this. Why are we still debating this? You know, should we be punching people randomly on the street debate? I don’t know. It seems like that’s an obvious one, a little bit of a chip shot. So moving forward, what are activists in Oklahoma attempting to do? What are the sort of cases making their way through the civil courts, if any, in terms of lawsuits to end this practice and to kind of open up this cement tomb?

Elizabeth Weill-Greenberg: I mean I think what’s really exciting about what’s happening in Oklahoma is that the ACLU and others have made it very clear to the Department of Corrections that if you do not voluntarily make these changes then we are going to sue you in federal court. And I think that that’s really exciting to see. I think in large part, for me, because this sort of torture chamber has existed for so long and people have known about it for so long, I mean just the fact that it opened in ‘91 and weeks after it opened, you’ve got Amnesty International contacting DoC to say, ‘hey, this is really going to mess people up. This is really going to hurt people.’ You have the report coming out a few years later in ‘94 saying, ‘yeah, this amounts to,’ you know, I forget what language they use, but ‘cruel and degrading treatment’ or whatever it might be. You’re basically burying people alive, and we’re here in 2019 and nothing’s changed. So I think that that’s really exciting to see that there’s going to be this push to change what’s happening in Oklahoma on the H Unit.

Adam: Oh, well that’s good to hear. Thank you so much for coming on.

Elizabeth Weill-Greenberg: Thanks Adam. Thanks for talking with me about this stuff.

Adam: Thank you to our guest Elizabeth Weill-Greenberg. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and, as always, you can rate and subscribe to this podcast on Apple Podcast. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.