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Death Row Prisoners Entitled to Limited Contact Attorney Visits

This case involves a class action suit filed by Oklahoma death row prisoners and prisoners in the control unit of the Oklahoma State Penitentiary. The case provides a revealing look at the mentality driving the construction of control units.

The OSP control unit is called H Unit. It was opened in November of 1991, planned and designed by an informal DOC committee. The court states: "The philosophy and design of the new unit were modeled on the federal penitentiary at Marion, Illinois, the highest security facility in the federal prison system. There is no direct proof or reasonable inference that this non-contact philosophy was in response to any specific act or situation that existed in H block. Rather, it appears to be a general philosophy that the less the contact the less the danger."

When H Unit opened prison officials had made no provision for confidential attorney visitation. The current attorney-client visitation provisions are what is being challenged in this suit. The accommodations have the attorney separated from his client by grated plexiglass and a barred window. There is a pass-through space 16 inches wide and 4 inches high. All the attorneys and clients who have used the cubicle testified that after 15 minutes of looking through the grate at someone they experienced dizziness, headaches, and a lack of focus. Prison officials had agreed to place a clear plexiglass section in the grate at eye level for unimpeded vision.

Also challenged was the lack of provisions for confidential attorney calls. No provisions were made for this when H Unit was opened. Since then prison officials have tried to accommodate this need with a rolling telephone cart that is taken directly to the prisoner's cell. The problem is that virtually all of the 125 prisoners on death row are double celled and thus denied confidentiality in their attorney phone calls.

The court made extensive and detailed findings of fact in this case. It found that despite being a "non-contact" unit, there were a multitude of instances where prisoners had contact with others, including the general public.

For the purposes of this case it is interesting to note that there are no recorded cases, anywhere in the nation, of attorneys being attacked or assaulted by their death row or control unit clients. At least nine states and all Oklahoma counties and the Oklahoma Women's Prison allow death row/control unit prisoners full contact visits with counsel. The court noted: "Together these facts compel a finding that OSP maintains an institutionally sanctioned attitude of hostility and opposition to attorneys who attempt to represent death row inmates. It appears that discretion, reasonableness, and fair evaluation by prison administrators regarding attorney requests and judgements on behalf of their clients is seriously lacking. The blanket adversarial position taken against attorneys represent-ing death row inmates is apparent on this record and [is] unjustified." The court thereupon decided to rule in favor of prison officials.

The court noted that most courts who have considered this question to date have found that prisoners' right of meaningful access to the courts includes contact visits with their attorney. The court discussed the Turner v. Safely standard and said that if that were used the plaintiffs would win. To avoid that outcome, however, the court went on to hold that the present system, with the 16 by 9 inch slot and installation of a clear barrier at eye level, were sufficient for prison officials to discharge the duty to provide contact attorney visits to death row prisoners "so long as meaningful contact is not impeded."

The court said that the arrangement may be unconstitutional in some circumstances, i.e. with mentally retarded or hearing impaired prisoners. Thus, "while the present setting, with the replacement window, is not constitutionally impermissible, it may well be under certain circumstances. The court will not allow prison officials the ability to refuse full contact visits without consideration of special circumstances and inmates with special needs."

Regarding the lack of confidential lawyer calls, the court rejected the defendants' contention that confidential attorney calls were not required because confidential visiting is. Noting that most attorneys representing death row prisoners are at least three hours away by car from OSP, the court held that meaningful access to the courts require confidential attorney calls. The solution ordered by the court was that prison officials provide a longer phone cord on the telephone cart to permit the prisoner to take the phone to the back of his cell and "achieve privacy from his cellmate."

This case illustrates the prison's complicity in speeding up the death penalty pro-cess by denying the condemned their right to full access to counsel. See: Mann v. Reynolds , 823 F.Supp. 894 (WD OK 1993).

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Related legal case

Mann v. Reynolds

MANN v. REYNOLDS, 828 F. Supp. 894 (W.D.Okla. 08/24/1993)


[2] 92-893-C

[3] 828 F. Supp. 894

[4] August 24, 1993

[5] ANTHONY MANN, ALVIN JAMES HALE, JOHN DUVALL and SCOTTY LEE MOORE, on their own behalf, and on behalf of a class of all current and future Oklahoma inmates sentenced to death and housed on Death Row at the McAlester State Penitentiary, Plaintiffs
DAN M. REYNOLDS, individually, and in his official capacity as Warden of the Oklahoma State Penitentiary; RITA ANDREWS, individually, and in her official capacity as Deputy Warden of Oklahoma State Penitentiary; FRED COOK, individually, and in his official capacity as Unit Manager of H-Unit (Death Row Unit) of the Oklahoma State Penitentiary; LARRY FIELDS, individually and in his official capacity as Director of the Oklahoma Department of Corrections; DAVID WALTERS, in his official capacity only as Governor of the State of Oklahoma; and ROBERT SANDERS, individually and in his official capacity as Coordinator, Substance Abuse/Mental Health Services, Defendants


[7] The opinion of the court was delivered by: ROBIN J. CAUTHRON


[9] Plaintiff class has filed an Alternative Motion for New Trial or to Alter or Amend the Judgment in which it once again argues evidence outside the record and previously presented legal argument. A supplement has been read and considered. The motion for new trial is denied. Insofar as the motion presents a request for alteration of the judgment, the Court is in agreement that the language in the Order Staying Execution, filed July 21, 1993, indicated that each of the named inmates had an execution date set "more than sixty days" from the date relief under the Court's order would be completed. This language constitutes a clerical error, as the execution dates were "less than sixty days" from the date of compliance with the Court's prospective injunctive relief. To this extent, plaintiff class's motion to alter or amend [order staying execution] is granted.

[10] In all other respects, the motion of the plaintiff class is denied. The Court construes 22 Okla. Stat. § 1001.1 (1993 Supp.) to require the Court of Criminal Appeals to set an execution date no sooner than sixty days from the dissolution of the Order Staying Execution, entered contemporaneously herewith. See 22 Okla. Stat. § 1001.1(D). Thus, it has been the Court's assumption with which counsel have apparently concurred, that, upon dissolution of the Order Staying Execution, the Court of Criminal Appeals is prohibited by statute from setting execution dates within sixty days of that order. This statute has been the source of this Court's allowance of an additional sixty days beyond compliance with the order granting relief. The argument of the plaintiff class to the contrary is not persuasive. The other considerations urged by plaintiff class are outside the scope of the issues in this suit and are more appropriately argued in other courts.

[11] In accordance with the foregoing, plaintiff class's Alternative Motion for New Trial or to Alter or Amend the Judgment is denied in all respects except the Court's Order Staying Execution is amended so that the erroneous description of the execution dates as "more than sixty days" from the date from which relief could be completed is corrected to read "less than sixty days." In all other respects, the motion is denied.

[12] IT IS SO ORDERED this 24 day of August, 1993.



[15] ORDER

[16] In compliance with the Court's order and judgment entered July 21, 1993, defendants filed their "Notice to the Court," in which they allege compliance with the prospective injunctive relief granted. Plaintiffs have objected to the statement of compliance and, pursuant to the Court's order, defendants have replied regarding certain issues.

[17] The Court's findings and conclusions indicated that the telephone system presently in use, whether replaced by an outside line or not, was in compliance with constitutional requirements. OSP voluntarily removed security from those lines so that they are not monitored and/or limited in length. The prison is presently negotiating for the addition of telephone lines so that regular prison phones may be placed back on the security system and attorney/client lines will bypass the system. Of course, this method is far more beneficial to prison security and administration than for the plaintiff class; however, the Court's finding that either system satisfies confidentiality (with the addition of a lengthened telephone cord) will not be modified. Thus, defendants are in full compliance with the Court's judgment.

[18] Next, plaintiff class agrees that a hard plastic window has been inserted into the grate which greatly increases visual perception. This is what the Court's judgment ordered. Now, the plaintiff class complains that acoustics are impinged by the hard plastic window and they seek the addition of soundproofing material. Again, there was no evidence presented at trial and installation of soundproofing was not part of this Court's judgment. Defendants in their response indicate a willingness to and plan for inserting soundproofing material.

[19] In objecting to defendants' compliance with the Court's order, plaintiff class goes outside the Court's order to request relief that was not sought and upon which evidence was not heard. The objection is overruled; the Court considers defendants to be in full compliance with its order and judgment; and, as reflected in a separate order, all stays of execution previously entered are vacated.

[20] In accordance with the foregoing, the Court finds defendants in compliance with the Court's judgment and the objection of plaintiff class is overruled.

[21] IT IS SO ORDERED this 24 day of August, 1993.




[25] Having ruled on relevant post-trial motions and having approved the modifications made at OSP in compliance with the Court's opinion and judgment of July 21, 1993, the Court hereby vacates and dissolves all stays of execution previously entered in this case.

[26] IT IS SO ORDERED this 24 day of August, 1993.