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Prieto’s Promise: An End to Death Row?

In late 2013, a federal judge in Virginia issued a remarkable ruling in the case of Prieto v. Clark.

The civil suit, brought by Virginia death row prisoner Alfredo R. Prieto, challenged conditions on the state’s execution unit, including total cell confinement (except an hour out-of-cell in a cage in the 'yard'), denial of education, programming and religious activities – and even meals eaten in the cell

Prieto said such treatment amounted to a violation of the 8th Amendment’s prohibition against cruel and unusual punishment, and also a denial of his due process rights.

Prieto began his suit pro se (meaning he wrote and filed everything himself), and because he didn’t appeal the loss of 8th Amendment claims, it was deemed abandoned. He fared better on his due process attack which challenged Virginia’s automatic assignment of all those sentenced to death, to the Death House.

There they stayed unless they received a new trial, a sentence commutation or they were executed. These draconian conditions would last for the rest of their lives.

A federal judge from Virginia's eastern district court, Leonie M. Brinkema, examined the claims and defenses raised and determined that Prieto, at least on his due process argument, had stated a claim. The state's automatic assignment of death-sentenced prisoners to the eternal confinement of death row, with no hearing, no ability to argue against such assignments and no meaningful recourse, violated the liberty interest of Prieto and his peers.

Now, of course, Judge Brinkema's memorandum opinion didn’t abolish death row (Virginia's death row is tiny, housing only 7 prisoners as of July 2016).

But this may be the beginning of the end of long, torturous solitary confinement that is the essence of Death Row. For death row is isolation, loneness, for years, for decades. It is solitary, until death.

It is bone-aching loneliness. It is maddening. And according to the UN's Special Rapporteur, Juan Mèndes, solitary, for any period exceeding 14 days, constitutes torture under international law.

How about solitary for 14 years? Twenty?


And not just solitary, but solitary—whilst waiting for death.

This is torture of mind and body, simultaneously.

Prieto, if upheld, may open a door to the beginning of change on the horrors of Death Row. For, as federal law, it implicates the parameters of constitutional law all across the country.

For Virginia's practice, of 23 hours in-cell, 1 hour in an outside cage (5 days a week), and thus 24 hours a day on the weekends, all meals In cell, no opportunity for group activities, religious, cultural or educational, visits (if at all) behind glass (no-contact), and with no oppor¬tunity to engage in any programming that is available for all other Virginia prisoners—even (as Judge Brlnkema notes in his Opinion) lifers, is not surprisingly almost identical to death units across the country.

In Pennsylvania, this regime is virtually identical, except it Is 22 + 2; or 22 hours in cell, and 2 hours in an outdoor cage, 5 days a week. On visits, a plexi-glass barrier makes contact Im¬possible, and up until some 5 years ago, men were handcuffed for the full visit's duration, while In a locked room, separate from their visitor. And like Virginia, Pennsylvanians sentenced to death are automatically assigned to Death Row, based solely on one's sentence. There is no hearing, nor opportunity to challenge this summary assignment. You go to Death Row—period. And there you wait until death.

In the last decade, more men have died of suicide on Death Row than have been executed in Pennsylvania.

As noted, while this may not be the end of Death Row, it may prove the end of the horrific conditions that states have used on their Death Row units.

 Ultimately, Brinkema's ruling calls Into question a regime that has existed for decades, arguably since the 1976 U.S. Supreme Court case, Gregg v. Georgia,2 reinstating the death penalty nationwide. Gregg v. Georgia reversed the 1972 opinion, Furman v. Georgia, which declared the American death penalty unconstitutional.

And while Prieto calls into question the living conditions of those on Death Row, another case recently decided In California, has declared the state's death penalty statute and practice unconstitutional, citing the extraordinary periods spent between sentencing and execution.

On Wednesday, July 16, 2014, U.S. Southern District judge, Cormac Carey declared California's death penalty system was unconstitutional as it involved Inordinate and unpredictable delays which added arbitrariness to the process. Ruling In the case of Death Row prisoner Edwin Jones, who was sentenced to death In 1994, Judge Carey determined that such delays violated the 8th Amendment's prohibition against cruel and unusual punishments.

While both rulings will almost certainly be appealed to higher courts (the circuit courts of their respective districts, and the U.S. Supreme Court, potentially), new ground has undoubtedly been broken.

Sources: Prieto v. Clark, 2013 WL 6019215 (E.D. Va. 2013); Gregg v. Georgia, 428 U.S. 153 (1976); Furman v. Ga., 408 U.S. 238 (1972); "Judge Rules Against California Death Penalty", USA Today, (In Brief), Thurs., July 17, 2014, 2A.

[Ed. Note: Judge Brinkema’s ruling in Prieto’s lawsuit challenging his placement in solitary confinement on death row was reversed by the Fourth Circuit in March 2015. Prieto filed a petition for certiorari with the U.S. Supreme Court, which was dismissed as moot after he was executed on October 1, 2015. See: Prieto v. Clarke, 780 F.3d 245 (4th Cir. 2015), cert. denied. Meanwhile, perhaps as a result of Prieto’s suit, death row prisoners have reportedly been granted additional privileges, including the ability to watch TV, converse with other prisoners, engage in outdoor exercise and receive contact visits with family members].

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