Automatic Oregon Death Row Confinement Pending Resentencing Enjoined
by Mark Wilson
On October 10, 2014, an Oregon federal judge enjoined prison officials from automatically segregating death sentenced prisoners who have had their sentences vacated and are awaiting resentencing.
Oregon Department of Corrections (ODOC) prisoners are assigned custody levels pursuant to a five-level classification system. Level 5 is the highest classification level.
Under OAR 291-104-0111(7)(a), ODOC’s “automatic placement rule” (APR), all prisoners convicted of aggravated murder and sentenced to death are automatically assigned to Level 5 and housed on death row, where conditions of confinement are much more restrictive than in general population. Prisoners convicted of aggravated murder and sentenced to life with or without parole are placed in general population.
In 1999, Jesse Stuart Fanus was convicted of aggravated murder and sentenced to death. He was automatically assigned a Level 5 custody classification pursuant to the APR and confined on death row.
In October 2012, Fanus’ death sentence was vacated and he remained in ODOC custody awaiting resentencing. He requested that prison officials move him from death row to general population; when his request was denied, he filed a grievance seeking reclassification and a transfer from death row.
ODOC responded by amending the APR to include prisoners who “are pending retrial in a case in which a death sentence may be re-imposed.” Prison officials also amended an Intensive Management Unit rule to authorize segregation of prisoners “who are pending retrial in a case in which a death sentence may be re-imposed.”
Fanus filed suit in federal court, alleging that ODOC’s classification policies violated his due process rights. He sought damages and an injunction enjoining enforcement of the APR.
Chief U.S. District Court Judge Ann Aiken granted Fanus’ motion for a preliminary injunction, first criticizing ODOC’s amendment of the APR after Fanus “became no longer technically subject to its provision.” She found that “this ex post facto manipulation altered the ‘status quo’ in a way that was apparently intended to render the judicial process futile.”
Fanus raised “serious questions of entitlement to due process protections and the constitutionality” of the APR, Judge Aiken held. Specifically, she found Fanus “has been confined on Death Row for over 5,000 days, during which he has never received an opportunity to be heard, his status has never been reviewed, and he has never been evaluated to determine whether the conditions of his confinement are appropriate or necessary.” Accordingly, the court concluded that he had “established a reasonable likelihood of success on the merits.”
Fanus also argued that he was being irreparably harmed because his forced confinement on death row prevented him from developing mitigating evidence that would militate against resentencing him to death under ORS 163.150(1)(b)(B). Judge Aiken agreed, finding that “being confined in the restrictive conditions on Death Row prevents plaintiff from establishing a history of good behavior and peaceful existence in the less restrictive general population.”
She noted that “the balance of hardships (equities) tips sharply in plaintiff’s favor.” Specifically, “the restrictive conditions of confinement on Death Row include relative isolation, limited exercise and ‘yard time,’ limited and non-contact only visitation, no access to group religious worship or club activities, few educational programs and no drug and alcohol treatment programs.” On the other hand, evaluating Fanus under the classification system that ODOC applies to all other prisoners “does not seem to be a very onerous task and it would not constitute a significant ‘hardship’” for prison officials.
Ultimately, Judge Aiken ordered ODOC to “forthwith apply the same classification procedures used to classify all inmates ... and to house plaintiff based upon the classification determination” within 14 days of her order. See: Fanus v. Premo, U.S.D.C. (D. Ore.), Case No. 6:14-cv-00935-AA; 2014 U.S. Dist. LEXIS 147796.
According to an April 24, 2015 status report filed with the district court, Fanus was scheduled to be resentenced in May; he will “accept a sentence of life without the possibility of parole, and ... the State of Oregon will not seek to reimpose the Death Penalty.” His lawsuit challenging the APR, including his damages claim, remains pending.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Fanus v. Premo
|Cite||U.S.D.C. (D. Ore.), Case No. 6:14-cv-00935-AA; 2014 U.S. Dist. LEXIS 147796|