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Texas Death Row Prisoners Challenge Blanket Policy of Automatic Solitary Confinement

by Douglas Ankney

On January 26, 2023, Texas death-row prisoners Mark Robertson, George Curry, Tony Egbuna Ford and Rickey Cummings filed suit in federal court for the Southern District of Texas on behalf of themselves and a putative class of similarly situated prisoners against officials with the state Department of Criminal Justice (TDCJ), including Executive Director Bryan Collier; Director of the Correction Institutions Division Bobby Lumpkin; and Warden Daniel Dickerson of the Allan B. Polunsky Unit. Proceeding under 42 U.S.C. § 1983, they allege their civil rights are violated by TDCJ’s blanket policy of automatically placing all male prisoners sentenced to death in solitary confinement.

Plaintiffs allege that automatic placement in solitary confinement serves no penological purpose yet harms them in numerous ways. Confinement in cells measuring 8 by 12 feet for 22 to 24 hours per day restricts their access to medical care and mental health care. Medical personnel come to death row sparingly, and when they do, the interviews are conducted through cell doors, making privacy impossible; death row is designed so that other prisoners and security staff can hear conversations, hindering Plaintiffs from speaking candidly about their health problems. “With little opportunity to interact with guards or medical providers,” the complaint states, “prisoners at the Polunsky Death Row Unit who are experiencing physical traumas or illnesses often must wait hours – or days or weeks – to receive medical care.”

 “Likewise,” the complaint continues, and unlike general population prisoners who can “approach a guard for assistance” or “help other prisoners in need,” the plaintiffs “are completely isolated and helplessly alone in the event of a medical crisis.”

Plaintiffs allege that restricted medical access has already impacted their health, noting problems they have developed ranging from PTSD to hypertension to obesity, along with mental health problems. Legal visits are also “few and far between.” They must be scheduled in advance and are conducted via outdated telephones, with visitor and client separated by glass. Clients sit shoulder-to-shoulder in open booths with other prisoners in the general visiting room. Since other prisoners and guards can hear what is said, there is no privacy and no respect for attorney-client privilege.

The complaint documents the many cases that have acknowledged the harm caused by prolonged solitary confinement. Robertson has himself spent 21 years in solitary confinement on the Unit’s death row; Curry has been there seven years; Ford has been there 22 years; and Cummings has been in solitary confinement on the Unit’s death row for nine years.

“There is a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment,” the complaint declares, citing Gates v. Collier, 502 F.2d 1291 (5th Cir. 1974).

It must be reiterated that Plaintiffs and putative Class Members are not in solitary confinement for disciplinary reasons but simply because it’s a blanket policy of TDCJ to place all male prisoners sentenced to death in solitary confinement on the Unit.

The U.S. Court of Appeals for the Fifth Circuit acknowledged in Hope v. Harris, 861 F.Appx. 571 (5th Cir. 2021), that it is “more than plausible” that decades of solitary confinement can cause serious psychological and physical deterioration “sufficiently serious to invoke Eighth Amendment concerns.” In that it is only slightly behind the Fourth Circuit, which ruled in Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019), that prolonged solitary confinement creates a substantial risk of serious physiological and emotional harm that violates the Eighth Amendment.

The Third Circuit also held that it is “well established in both case law and scientific and medical research that prolonged solitary confinement ... poses a substantial risk of serious psychological and physical harm,” in deciding Porter v. Pa. Dep’t of Corr., 974 F.3d 431 (3d Cir. 2020). These harms include “a degree of stupor, difficulties with thinking and concentration, obsessional thinking, agitation, irritability, difficulty tolerating external stimuli, anxiety, panic, depression, post-traumatic stress disorder, psychosis, hallucinations, paranoia, claustrophobia, and suicidal ideation.”

The Texas prisoners’ lawsuit also documents many scientific and medical studies that have found harm caused by prolonged solitary confinement. Plaintiffs seek class-action status, along with declaratory relief that TDCJ’s policy violates the Sixth, Eighth, and Fourteenth Amendments, as well as injunctive relief preventing Defendants from maintaining their blanket policy in violation of those amendments. The suit also seeks compensatory, nominal and punitive damages and costs.

Plaintiffs are represented by attorneys with Hogan and Lovells LLP in Houston, Los Angeles and New York City, as well as the Ferguson Law Firm in Beaumont. The case was transferred to the Eastern District of Texas, where it remains open, and PLN will update developments as they are available. See: Robertson v. Collier, USDC (E.D. Tex.), Case No. 9:23-cv-00023.

At the time of the suit’s filing, there were 185 men on Texas’ death row. Prior to its move to the Polunsky Unit in November 1993, TDCJ housed condemned prisoners at O.B. Ellis Unit. They were not automatically placed in solitary confinement there. Texas is now one of 12 states automatically placing death row prisoners in solitary confinement.   

Additional source: Reason Magazine

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