The national prison strike that swept headlines formally ended Sept. 9. Yet in many ways, advocates say, the work has just begun. Some prisoners are still engaging in protests, while others will face retaliation and need support. And the groups that helped organize the strike hope to use its momentum to push for lasting change.
Supporters say facilities in 16 states took part in the national action through work stoppages, hunger strikes, and boycotting commissaries and other prison facilities, although it’s hard to verify. Officials in Indiana, Nevada, and North Carolina confirmed to Mother Jones that protests and strikes had occurred in their facilities, while those in Alabama, California, Florida, Oregon, Michigan, Mississippi, South Carolina, Texas, and Washington denied any activity. Reports from participating prisoners and facilities tend to trickle in, so the number of participants could climb in coming months, said Brooke Terpstra, a member of the Oakland, California, chapter of the Incarcerated Workers Organizing Committee (IWOC).
While organizers had officially planned to end the strike on the anniversary of the 1971 Attica prison uprising, they said actions are still continuing in some facilities. “September 9th has passed, but it is up to the people in each prison who are participating in boycotts, hunger strikes, work strikes or sit-ins to determine the right day and time to close out their actions,” the groups organizing the strike, IWOC and Jailhouse Lawyers Speak, said in a press release on Sept. 11. They reported a series of continuing hunger strikes, including in California, Missouri, and Texas,, and a boycott of paying to use the phones in Michigan.
Karen Smith, a member of the Gainesville, Florida, chapter of IWOC, spoke to prisoners in Ohio who were still boycotting after Sept. 9. “People who are making progress or are feeling empowered are taking the strike beyond that,” she said.
But now that the national attention is waning, activists are gearing up for the next steps, knowing the work will now get even harder.
‘A much freer hand’
Organizers say retaliation by prison officials hindered participation in the strike. Smith said people reported being transferred, put in solitary confinement-like or other restrictive conditions that cut them off from communicating with fellow prisoners. Others said their phone privileges were taken away or the phones shut down.
In one instance, one of the prominent leaders of the strike, Imam Siddique Abdullah Hasan, was placed in solitary confinement in Ohio State Penitentiary for receiving mail about and speaking about the strike, keeping him from participating or communicating. He engaged in a hunger strike to protest and has filed an appeal of the disciplinary action, saying there is “no tangible evidence” he was involved in “rioting, or encouraging others to riot” and calling them “fabricated charges.”
Another leader, Ronald Brooks, was transferred from the Louisiana State Penitentiary, known as Angola, to David Wade Correctional Center after 20 years at Angola. His family told The Appeal that the warden told them one reason for his transfer was punishment for his organizing work, although the Louisiana Department of Public Safety and Corrections said transfers are not disciplinary.
Either way, it had the same effect. Rev. Raymond Brown, who leads the New Orleans-based civil rights group National Action Now, had been communicating with Brooks and coordinating a rally outside Angola at the start of the strike to support the actions inside. “March, April, May, June, July we were going back and forth talking about what we should do,” he said. “Then out of nowhere Ronald disappeared. … Ronald got isolated, that choked off everything.” Brown said neither the strike nor the rally took place after that.
Brown is now trying to visit Brooks and highlight his situation. “Ronald can become a rallying cry,” he said. “Ronald right now is a political prisoner.”
Yet another leader, Kevin Rashid Johnson, who wrote an op-ed for The Guardian about the strike, was brought before the authorities in Sussex state prison in Virginia and faced being transferred to a different facility, although Terpstra said his group had heard from Johnson’s lawyer that his transfer has been stalled after protests.
But organizers are concerned that retaliation is about to get worse. “This is the most dangerous period with any prisoner action,” Terpstra said. “This is when attention wanes.” After prisoners in Florida staged a strike and boycott on Martin Luther King Jr. Day this year, prison officials put people in solitary confinement, shut down the phones, and threatened them with “Security Threat Group” status, which would label them as gang members for the rest of their sentences and limit their privileges. The last national prison strike in 2016 was also followed by reports of retaliation. In Alabama, after prisoners refused to work, they said prison administrators brought prisoners from other facilities to replace them and transferred those who had been leading the organizing. And at the Kinross Correctional Facility in Michigan, prisoners reported a severe crackdown after the strike, where they were left in restraints on the ground for long periods of time, being forced to soil themselves because there was no access to a bathroom. Days later, according to the National Lawyers Guild, 250 prisoners were transferred out of the facility, many to maximum security prisons.
As the strike recedes from headlines and public attention, “prison officials know they have a much freer hand,” Terpstra said. So his group and others will be focused on assisting and protecting the victims of retaliation where they can. “Our primary duty right now is to keep people engaged and do anti-repression work,” he said, maintaining the attention and pressure. “We have to protect right now those who stood up first and foremost.”
Exposing ‘modern day slavery’
One of the top demands of the national strike was to end “prison slavery,” putting a spotlight on underpaid prison labor. But much of prison labor remains invisible and difficult to eradicate.
An estimated 900,000 of the 2.4 million prisoners in the U.S. work, often for hourly wages of just a few cents, or sometimes nothing at all. This cheap labor is used to support prison operations or is farmed out to governments or private businesses, such as staffing call centers, building furniture and office supplies, or farming. In federal prisons, about 17,000 prisoners work at more than 50 call centers, factories, and farms that sell goods and services to government agencies and private businesses. Prisoners have also been dispatched to fight fires and clean up after blizzards.
In Florida, prison labor is used not just to maintain the prisons themselves but also by local governments in public works like road and park maintenance and the upkeep of city buildings. They also make products used by the state government, such as furniture, uniforms, and license plates. “That’s what prison slave labor looks like around here,” Smith said.
Striking prisoners aren’t just demanding better pay for their work, but also better conditions. Prisoners in Angola have complained of being made to work long hours doing manual labor in the heat without enough water to keep them hydrated. Lawyers also contend that disabled prisoners are made to work without accommodations, putting them in dangerous conditions in fields and factories. Two prisoners died fighting fires in California this year. Because courts have ruled that incarcerated workers are not technically employees, prisoners are not covered by worker protections like minimum wage, overtime, or health and safety standards.
As the strikes and boycotts wind down in many facilities, attention will turn to pushing for concrete change. “The next step for Jailhouse Lawyers Speak is the endorsement of a campaign to pressure politicians to enact legislative change,” the Sept. 11 press release said. “Both JLS and IWOC will be taking stock of the strike with their members over the coming weeks to consider what other future actions will be necessary to build a movement strong enough to push for the rights of incarcerated peoples.” Past prison strikes have had some limited impacts: The Attica uprising and other protests in the ’60s and ’70s led to small pay raises, the creation of prisoner-led unions, and safety improvements in some places, while a 2011 hunger strike in California’s supermax prison sparked small changes in solitary confinement policies and a lawsuit that prompted bigger reforms.
One particular area of focus will be a push to restore the right to vote for people who have lost it because of past convictions. “Organizing across states for the strike has mobilized prisoners as a unified voice to an extent we have never seen before,” Janos Marton, state campaigns manager of the American Civil Liberties Union’s Campaign for Smart Justice, told The Guardian. “The most tangible impact of that amplified voice after the strike ends is a specific effort over voting rights.”
In Florida, organizers will be pushing for Gainesville to cut its contracts that use prison labor. She pointed out that the kind of work done by prisoners in Florida for little to no pay could instead by done by local workers. “These jobs could be performed by them and, even better, they could be performed by union members who could make demands and use collective bargaining,” she said.
They also plan more efforts to raise awareness of prison conditions. “We will just become more coordinated,” Smith said. “Our network doubles with every action.” Her group has planned three teach-ins in the coming months to educate the community about their goals. A similar effort is underway in Oakland, where the local chapter is now figuring out how to incorporate all the new people who said they want to be involved in the movement during the strike.
“This action really solidified this movement as a coordinated force that can strike as one, which is what we’ve been building towards for years,” Smith said. “An epiphany has come out of this action.”
In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.
In August 2018, the state of Tennessee executed Billy Ray Irick, the first man executed in the state since 2009. He had spent over 30 years on death row. As a child, Irick experienced unimaginable abuse. His mother would tie him up with a rope and beat him. Neighbors described his father as “an excessive drinker and a brutal man” who beat his wife and kids. [Liliana Segura / The Intercept]
Irick exhibited signs of mental illness as early as 6, leading some to hypothesize that he had suffered brain damage from his abuse. Around the time of the offense, he reportedly started hallucinating, telling the victim’s family, with whom he lived, that he heard the devil’s commands, who gave him “instructions on what to do.” A neuropsychologist believed Irick was likely schizophrenic or psychotic during this period, and in post-trial proceedings, the state’s own expert called Irick’s competence into question.
But the jury never heard this evidence. The defense attorneys presented no family history, called no witnesses, and presented no mental health evidence. It was only after a jury sentenced him to death for the rape and murder of a young girl that lawyers on appeal uncovered the trauma and illness that marred Irick’s life, at which point it was too late.
This August, the state executed Irick using a three-drug cocktail that experts predicted would cause sensations of “drowning, suffocating, and being burned alive from the inside out.” Dissenting from the Supreme Court’s refusal to grant Irick a stay of execution, Justice Sonia Sotomayor warned that we “have stopped being a civilized nation and accepted barbarism.”
Although America’s use of the death penalty is declining rapidly, even with fewer cases, courts are not getting better at ensuring that only the most culpable are sentenced to death, and the system is deeply broken. Below, we explore the state of the death penalty in America today.
1. The death penalty is dying.
There’s ample evidence that the death penalty is on the wane in America. Here’s what we know about why.
New death sentences are down—and prosecutors are seeking it less.
New death sentences have plummeted. In 2016, juries meted out only 30 new death sentences — the lowest number since capital punishment’s resurrection in 1972. [Mark Berman / Washington Post] In 1996, there were 315; in 2006, there were 125. That number increased slightly in 2017, where juries issued 39 new death sentences, but it was still one of the lowest yearly totals. [Death Penalty Information Center]
The data behind the 2017 numbers is telling: Responsibility for new death sentences continued to lie within a handful of outlier jurisdictions, with 31 percent of the sentences coming from three counties: Riverside, California; Clark, Nevada; and Maricopa, Arizona. In 2017, for the first time since 1974, there were no death sentences in Harris County, Texas. [Death Penalty Information Center] Put differently, out of the 3,141 counties in the U.S., only 16 sentenced five or more people to death between 2010 and 2015. Two percent of counties nationwide now account for the majority of prisoners on states’ death rows. [Emily Bazelon / New York Times Magazine]
In an interview, Frank Baumgartner, who recently co-authored a book analyzing capital punishment statistics, acknowledges district attorneys’ death penalty choices as the “key driver in the system.” [Keri Blakinger / Houston Chronicle] This makes the elections of progressive prosecutors like Larry Krasner in Philadelphia and the potential elections of Wesley Bell in St. Louis County and Joe Gonzales in San Antonio, Texas, all the more significant—counties that traditionally use the death penalty will cease doing so.
Juries are rejecting it.
But there is another reason for the decline: Juries are rejecting prosecutors’ requests to sentence people to death.
Prosecutors had not sought a death sentence in Dallas, a traditional death penalty stronghold, since 2015. But in 2017, they tried and failed twice. Jurors in the Justin Smith case indicated they were deadlocked on the penalty decision, and Smith reached a plea agreement with the prosecutor sentencing him to life in prison without parole. [Tasha Tsiaperas / Dallas Morning News] A month later, a jury declined to sentence Erbie Bowser to death. A former military veteran and special education teacher, the government accused him of killing his girlfriend, her daughter, his estranged wife, and her daughter. The defense argued that he was seriously mentally ill and suffered from chronic traumatic encephalopathy (CTE). [Jessica Pishko / Slate] After eight hours of deliberations, the jury signaled it was hopelessly deadlocked and he received a life verdict. [Tasha Tsiaperas / Dallas Morning News]
In the notorious Aurora, Colorado, movie theater shooting case, Colorado prosecutors sought the death penalty against James Holmes, accusing him of shooting 12 people during a screening of “The Dark Knight Rises.” After a 65-day trial, the jury deliberated for just seven hours, deadlocked and Holmes received a life sentence. The defense had argued Holmes suffered from a severe and debilitating mental illness. [Deborah Hastings / New York Daily News]
In Wake County, North Carolina, home to Raleigh, juries have declined to sentence a defendant to death in eight out of eight cases over the last decade. After the last life sentence, the elected prosecutor stated: “At some point, we have to step back and say, ‘Has the community sent us a message on that?’” [Brandon Garrett / Slate] North Carolina overall is rejecting the death penalty: The state sentenced no one to death in 2017, making it the third year since 2012 that it had no death sentences. Only a single person has been sent to the state’s death row in the past three and a half years, and most of the state’s prosecutors are no longer seeking the death penalty. The ones who are, are failing: Juries did not impose death sentences in all four trials where North Carolina prosecutors sought the penalty in 2017. In three of those trials, juries chose LWOP, and in a fourth, they convicted of a lesser crime. [Gretchen M. Engel / Herald-Sun]
This rejection of death sentences is arguably the most revealing metric about society’s current tolerance for the death penalty. When asked to make real life-or-death decisions about a real person in a real case, prosecutors increasingly don’t seek and jurors don’t return death sentences. [Robert Smith / ACS Blog]
Public support for the death penalty is declining.
Recent polling has mirrored the decline in the death penalty’s use, with support among Americans dropping sharply. According to a Gallup poll, it reached its lowest in 45 years —in 2017, just 55 percent of Americans voiced support for its use. [Jeffrey M. Jones / Gallup]
In August 2018, Pope Francis declared the death penalty “unacceptable in all cases,” a change from the church’s previous position, holding it acceptable when considered “the only practicable way” to save lives. This could have a ripple effect in the United States, where the majority of Catholics support the death penalty. [Elisabetta Povoledo and Laurie Goodstein / New York Times]
Among Republican politicians, support for the death penalty has significantly decreased over the past seven years. In 2013, Republican lawmakers sponsoring death penalty repeal bills doubled; the figure rose to 40 sponsors by 2016. [Conservatives Concerned]
And while some voters are still in favor, the tide is turning.
In California, voters narrowly passed Proposition 66 to speed up the state’s use of the death penalty, with 51 percent voting in favor of it. But 47 percent voted to repeal the death penalty altogether (Proposition 62), suggesting that the tide may too be changing in that state. In Los Angeles, the county with the largest number of death row prisoners, 52.3 percent voted for the repeal.
In Nebraska, the 2016 referendum in which voters opted to repeal the legislature’s death penalty abolition bill is a source of controversy. Governor Pete Ricketts is being sued by the ACLU of Nebraska, on behalf of the state’s death row prisoners, for overstepping his executive office boundaries by donating $425,000 along with staff members’ time to the organization Nebraskans for the Death Penalty. [Josh Saul / Newsweek] According to the lawsuit, Ricketts provided the majority of total funding for the petition drive to get the referendum on the ballot in its first months. [Taylor Dolven / VICE]
2. The death penalty is broken.
Those who are executed are not the worst of the worst, despite the Supreme Court’s requirement that capital punishment be limited to society’s most culpable. In Roper v. Simmons (2005), the Supreme Court ruled: “Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Capital punishment must be limited to those offenders … whose extreme culpability makes them ‘the most deserving of execution.’”
The Court has established bright line rules prohibiting the execution of certain groups, finding it cruel and unusual in violation of the Eighth Amendment : the insane [Ford v. Wainwright (1986)], the intellectually disabled [Atkins v. Virginia(2002)], and juveniles under 18 [Roper v. Simmons (2005)].
And yet numerous cases arise where people may be intellectually disabled or insane, but are nevertheless on death row. The vast majority of those executed in 2017 suffered from some form of impairment. Twenty of the 23 men had one or more of the following impairments: significant evidence of mental illness; evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range; serious childhood trauma, neglect, or abuse. All eight of the men who were under 21 at the time of their capital offenses had experienced serious trauma. [Death Penalty Information Center]
Many argue — in court pleadings and in the media — that serious mental illness,intellectual disability, or mental decline because of aging should also render people ineligible for the death sentence. Several states, including Ohio, Indiana, South Dakota, Tennessee, Texas, and Virginia, have or are considering legislation proposing such a rule. [Bob Taft and Joseph E. Kernan / Washington Post] A 2014 poll showed that Americans oppose executing the mentally ill by a margin of 2–1. [DPIC]
And yet death row is replete with those suffering from serious mental illness, trauma, and other impairments.A study by Frank R. Baumgartner and Betsy Neil found that those executed between 2000 and 2015 suffered from serious mental illness at a far greater rate than those in the general population. And 39.7 percent experienced childhood abuse, compared to 1 in 10 kids in the U.S. [Frank Baumgartner and Betsy Neil / Washington Post]
Arkansas came close to killing Bruce Ward, who suffered from paranoid schizophrenia and believed he would “survive the triple lethal injection and walk out of the prison to fabulous wealth and public acclaim, then go on to found an evangelical ministry that will spread God’s love through the power of his preaching.” [Ed Pilkington / The Guardian] The Arkansas Supreme Court stayed the execution over the state’s objection. [Max Brantley / Arkansas Times]
Texas is trying to kill Andre Thomas, a man who gouged out his own eye and ate it after receiving the death penalty. He had a lengthy history of mental illness —he started hearing voices at age 9; had multiple suicide attempts, also starting at 9; and as an adult, started putting duct tape over his mouth because, he said, God told him not to talk. He also claimed he heard voices of God dueling with the voices of demons. [Michael Hall / Texas Monthly]
Ohio plans to execute 23 men over the next four years. Eighty-eight percent of these men have some combination of significant mental impairments, disabilities, brain injuries, trauma resulting from horrific childhood abuse, or potential intellectual disabilities. [Prisoners on Ohio’s Execution List / Fair Punishment Project] David Sneed is one of the men Ohio plans to execute. According to court documents, he has “severe manic bipolar disorder and a schizo-affective disorder involving hallucinations and delusions.” Doctors initially found him incompetent to stand trial until they administered psychotropic drugs, after which he became a model prisoner. As a child, he suffered from physical abuse and repeated sexual abuse by his foster family, by someone at his elementary school, and by his mother’s friend. [Ohio Report / Fair Punishment Project]
In Alabama, Vernon Madison was sentenced to death even though parts of his brain are essentially dead due to a stroke. He is incontinent, has slurred speech, impaired vision, and cannot walk without assistance. He has both dementia and amnesia, and does not remember the crime for which he is sentenced to die. In 2018, the Supreme Court issued a last minute stay of execution, over the dissent of three justices [S.M. / The Economist]
Prosecutors also keep putting the innocent on death row.
As of Oct. 17, 2017, 160 people have been exonerated from the nation’s death rows, and numerous executions have taken place despite strong evidence of innocence. According to one study, 1 out of every 25 people sentenced to death is most likely innocent. [Pema Levy / Newsweek]
In California, despite recent attempts to speed up the death penalty, Vincent Benavides Figueroa was recently exonerated after spending 25 years on death row. He had been convicted of raping, sodomizing, and murdering his girlfriend’s 21-month-old daughter, but medical experts who testified at trial recanted their testimony, stating there was zero evidence the girl was “raped to death.” They acknowledged that they reviewed incomplete medical records at the time of trial, records that omitted the fact that many of her injuries actually occurred during initial attempts to save her life at a hospital. As the Los Angeles Times pointed out, had Proposition 66 been in effect at the time of Mr. Benavides’s conviction, he would almost certainly have been executed. [Radley Balko / Washington Post]
In Illinois, Gabriel Solache was exonerated in 2017 after a judge overturned his conviction and death sentence for a stabbing-murder during a home robbery. With no physical or eyewitness evidence tying him to the case, the prosecution relied almost entirely on his confession. But the judge found that the disgraced Chicago detective Reynaldo Guevara told “bald-faced lies” about whether he beat a false confession out of Solache during a three-day interrogation where Solache received little sleep, drink, or water until he incriminated himself—a “confession” transcribed entirely in English even though Solache only spoke Spanish. Upon release, ICE immediately seized Solache. [Nereida Moreno / Chicago Tribune]
In Louisiana in 2017, prosecutors dismissed charges against Rodricus Crawford, who had been put on death row in 2012 for allegedly killing his 1-year-old son. Autopsy results showed bronchopneumonia in the baby’s lungs and sepsis in the blood, but led by notorious (and now disgraced) prosecutor Dale Cox, the government put on testimony that Crawford suffocated his baby. After his conviction, numerous experts showed the child died of natural causes. [Rachel Aviv / New Yorker]
Race clearly plays a role in the imposition of the death penalty.
In 1983, David Baldus found that defendants accused of killing white victims were 4.3 times more likely to receive a death sentence than those accused of killing a Black person. [Adam Liptak / New York Times]That trend remains true: Recent reports in Pennsylvania, Florida, and Oklahoma found that death sentences are more common when the victim is white and less common when the victim is Black.
The race of the defendant featured prominently in two capital punishment cases that made headlines in 2017:
In Texas, Duane Buck was sentenced to death after an expert witness testified Buck would be dangerous because he is Black. The Supreme Court reduced his sentence. [Alex Arriaga / Texas Tribune]
Georgia is fighting hard to execute Keith Tharpe notwithstanding a juror’s admission that he voted for death because Tharpe is Black, stating he “wondered if Black people even have souls.” The 11th Circuit Court of Appeals recently declined to hear the case on procedural grounds. [Bill Rankin / Atlanta-Journal Constitution]
3. The death penalty is in chaos, largely because of unconstitutional laws.
Many states are struggling after utilizing laws around capital punishment that violate the Constitution.
Florida currently has 346 people on its death row, and now it must decide what to do with many of those cases after courts upended its sentencing scheme. In 2016, in Hurst v. Florida, the Supreme Court struck down Florida’s death penalty statute that made a jury’s decision of life or death only a recommendation and allowed a judge to override it. [Harry Lee Anstead / Tallahassee Democrat] In October of the same year, the Florida Supreme Court found that the state’s revamped law, which did not require unanimous jury verdicts, was unconstitutional. [Bill Chappell / NPR] That left prosecutors and courts with the task of deciding what do with about 285 cases — nearly 75 percent of the death row population at the time. [Larry Hannan / Slate] But whether those prisoners get relief depends largely on a date because the unanimity jury requirement is retroactive only to 2002. [Nathalie Baptiste / Mother Jones] As a result, in October 2017, the state executed Mark Lambrix, even though the jury in his first trial voted only 8-4 in favor of death, and then in the second 10-2. [Jason Dearen / Orlando Sentinel]
Alabama could be next. Alabama does not require unanimous death verdicts, and some experts predict that soon, the state will be in the same place as Florida. [Op-ed: Scott Martelle / Los Angeles Times] Alabama already took major action to bring its capital punishment scheme into constitutional compliance, passing a bill eliminating judicial override in 2017. [Death Penalty Information Center]
Changes are also afoot in Texas. In March 2017, the Supreme Court declared Texas’s scheme for evaluating intellectual disability unconstitutional (Moore v. Texas). That test, which one judge linked to the character Lennie in John Steinbeck’s Of Mice and Men, lacked any basis in science and medical standards. [Robert Barnes / Washington Post] Prosecutors asked the Texas Court of Criminal Appeals, the highest criminal court, to change Moore’s death sentence to a life sentence, and agreed that he is intellectually disabled when evaluated according to current medical standards. [Jolie McCullough / Texas Tribune] Using new, more scientific standards for evaluating intellectual disability, the court found that Moore, who dropped out of school in the ninth grade and still struggled to understand the days of the week at age 13, still did not meet the definition. [Jolie McCullough / Texas Tribune]
4. Lethal injection may be torturing people.
In execution after execution, people are awake as their lungs shut down. Most states use a three-drug cocktail to execute people. The first drug, historically an anesthetic, renders you unconscious; the second drug, pancuronium bromide, stops breath and acts as a paralytic; and the third drug, potassium chloride, stops your heart from beating. [DPIC] But lawyers and experts have argued that this is not fail-safe, and, although the Supreme Court has rejected challenges, evidence shows they are right.
Most states use midazolam for the anesthetic. It is unclear if midazolam reliably causes unconsciousness; once the second drug is administered, “the prisoners will be paralyzed, unable to move a muscle, unable to indicate in any way if they are experiencing the suffocating effects of the paralytic and the searing pain of the potassium chloride.” [Op-ed: Ty Alper / Los Angeles Times]
Oklahoma infamously botched Clayton Lockett’s 2014 execution; he died 43 minutes after administration of a cocktail of midazolam, bromide, and potassium chloride. During that time, he raised and jerked his head, repeatedly tried to speak, groaned, and writhed. [Katie Fretland / The Guardian] The state then imposed a moratorium on executions and convened a commission to investigate. In April 2017, the commission recommended extending the moratorium until “significant reforms” are instituted. [Tracy Connor / NBC News] The state recently announced, however, that it has “finalized” its new three-drug cocktail. [Michael Cook / BioEdge]
In Arkansas in April 2017, Marcel Williams arched his back and breathed heavily during his execution. [Ed Pilkington and Jacob Rosenberg / The Guardian] Later the same week, a reporter witnessing the execution of another prisoner, Kenneth Williams (no relation to Marcel Williams), described him “[c]oughing, convulsing, lurching, and jerking.” The reporter said, “It was clear that he was in trouble. It was clear that he was striving for breath.” [Liliana Segura / The Intercept]
States are also experimenting with new drug combinations — but those are also causing problems.
InOhio, executions had been on hold since Dennis McGuire’s botched 2014 execution, using a two-drug combination that included midazolam. That has ended, and the state is using midazolam, rocuronium bromide, and potassium chloride. [Jackie Borchardt / Cleveland.com] But during Gary Otte’s September 2017 execution, according to his lawyer, Otte appeared to be in pain after the administration of midazolam and looked like he was struggling for air. His lawyer also noted that Otte was crying. [Eric Heisig / Cleveland.com] Ohio encountered further controversy when it had to call off its November 2017 execution of 69-year-old Alva Campbell after 30 minutes of struggling to find a vein. Campbell’s lawyers had warned that an exam failed to find veins suitable for IV insertion in arguments that Campbell was too ill to execute. [Andrew Welsh-Huggins / Associated Press]
In Alabama, officials similarly called off Doyle Lee Hamm’s execution in February 2018 after the team spent several hours probing him and jabbing him in search of a usable vein, and even punctured his bladder, penetrating his femoral artery. [Roger Cohen / New York Times]
Nevada is trying to use a brand new drug combination: the opioid fentanyl; the sedative midazolam and a paralytic, cisatracurium besylate, to execute Scott Dozier. But the state has twice stayed his execution after the judge forbade the state from using the paralytic. Most recently, the execution has been stayed after Alvogen Pharmaceuticals, which manufactures the midazolam, sued because it does not want its drug used in executions. [Maurice Chammah / Marshall Project]
In Nebraska, the state used fentanyl as a painkiller, followed by cisatracurium besylate as a paralytic, during Carey Dean Moore’s 2018 execution. This was a totally new and untested procedure. One expert predicted Moore would be “aware as he develops organ failure and, as a consequence of the paralysis caused by cisatracurium,” would “die by choking to death.” [Kashmira Gander / Newsweek]
A few justices are troubled by these botched executions. Dissenting from the Supreme Court’s refusal to intervene in Alabama’s execution of Thomas Arthur earlier this year, Justice Sonia Sotomayor, joined by Justice Stephen Breyer, called midazolam-centered execution protocols “our most cruel experiment yet.” [Mark Joseph Stern / Slate] So are companies. Drug companies across the world are trying to keep states from using their products in executions; Pfizer is one famous example. [Erik Eckholm / New York Times] Johnson & Johnson is another. [Carolyn Johnson / Washington Post]
Amid this controversy, states are trying to keep their drugs and suppliers secret. In Arkansas in August 2017, the state paid $250 cash for four vials of midazolam from an unknown source, enough for two executions. [Taylor Dolven / VICE]Controversy also brewed after the Arkansas Department of Corrections director revealed that one of the drugs used — potassium chloride — was “donated” to her after she drove her car to pick it up from an unnamed supplier. [Jacob Rosenberg / Arkansas Times]
5. Conditions of confinement on death row are cruel and unusual.
Along with the problems of execution, the lives of prisoners on death row also deserve scrutiny. The majority of death row prisoners are held in solitary confinement. Of the more than 2,700 state prisoners currently condemned to death, 61 percent are isolated for 20 hours or more a day. In Texas, death row prisoners spend up to 23 hours per day alone in an 8-by-12-foot cell with virtually no human contact or exposure to natural light. For 14 years in Arkansas, Bruce Ward, suffering from schizophrenia, was held every day in a 12-by-7.5 cell with a toilet and shower. Guards passed his meals in through a slot. He was permitted one hour per day in another enclosed “exercise” cell, although for a decade he refused to go there. [Ed Pilkington / The Guardian]
These conditions have devastating psychological effects. The isolation and sensory deprivation drives some prisoners to insanity: They suffer from delusions and hallucinations, mutilate themselves, and experience psychotic episodes in which they attempt suicide or smear the walls of their cells with their blood and excretions. The suicide rate in solitary is five to 10 times higher than it is in the general prison population. [Nathaniel Penn / GQ]
Extended time on death row may amount to cruel and unusual punishment. Although the Supreme Court has rejected this claim, which is based on a 1995 case (Lackey v. Texas), Justice Breyer has signaled a commitment to it, lodging a number of dissents from denials of certiorari. Regarding the long delay at issue in Foster v. Florida, he wrote: “[Twenty-seven] years awaiting execution is unusual by any standard, even that of current practice in the United States, where the average executed prisoner spends between 11 and 12 years under sentence of death.” [David Savage / Los Angeles Times]
In Texas, for example, the politically appointed Texas Board of Pardons and Paroles must recommend parole before the governor can grant it. The board is not required to hold a hearing on a clemency petition, and during the six years that George W. Bush was governor, none of the 152 people executed received one. Since 2001, the state has executed 314 people while the board has recommended clemency just six times. Idaho, Louisiana, Oklahoma, and Arizona operate similarly. Georgia keeps its clemency proceedings secret, making it impossible to know how they make decisions. [Jess Stoner / The Morning News]
In Florida, there has not been a commutation since 1983. The state has put 96 people to death since 1979, and only six were commuted — in four of those, juries had voted to spare their lives but a judge overrode that decision. [Editorial Board / Orlando Sun Sentinel]
7. What’s next for the death penalty?
While thousands of people remain on death row, elected officials are increasingly moving to end it.
Thirty-one states, the District of Columbia, the federal government, and the military have all turned away from executing people. Twenty-three states and D.C. have either abolished the death penalty or seen their governors impose moratoriums. Four more jurisdictions (New Hampshire, Kansas, Wyoming and the military) have executed one or fewer people in the last 50 years, and six other jurisdictions (the federal government, Idaho, Kentucky, Montana, Nebraska, and South Dakota) each executed three people in the past half-century.
Governors in Oregon, Pennsylvania, Washington, and Colorado have vowed not to allow any executions during their terms. [DPIC]
In 2013, Colorado Governor John Hickenlooper granted a temporary reprieve to Nathan Dunlap, one of the state’s three death row inmates . Hickenlooper called Colorado’s system of capital punishment “imperfect and inherently inequitable” and called it “highly unlikely” that he would reconsider the death penalty for Dunlap. In a published order, he wrote that “[i]t is a legitimate question whether we as a state should be taking lives.” [Karen Augé / Denver Post] Hickenlooper also noted that, in Dunlap’s case, three jurors later said they might not have supported the death penalty if they had known Dunlap was bipolar. [Kirk Mitchell and John Frank / Denver Post]
Oregon Governor Kate Brown announced in 2016 she would continue the death penalty moratorium imposed by her predecessor due to “serious concerns” about the “constitutionality and workability” of Oregon’s death penalty statute. [Tony Hernandez / The Oregonian]
The Supreme Court also plans to take up two death penalty-related cases in fall 2018. In Madison v. Alabama, the Court will consider whether states can execute people who committed murders but, due to cognitive dysfunction, no longer remember their crimes. The second case, Bucklew v. Precythe, deals with whether a prisoner’s medical condition could render execution by lethal injection “cruel and unusual.” [Garrett Epps/The Atlantic]
A new policy has put Pennsylvania prisoners’ communications under intense surveillance in the name of stopping contraband drugs. On Sept. 5, the state’s Department of Corrections (DOC) announced that it would be largely restricting mail to prisoners. Effective immediately, all incoming mail would be sent to a private company in Florida, Smart Communications, for scanning into a searchable database. Prisoners would then receive photocopies of the incoming mail—and the originals would be shredded. The DOC has also banned prisoners from receiving books from vendors—including book donation organizations like Books Through Bars. Instead, prisoners will have the option of paying for ebooks via tablets that cost over $147 each.
The DOC implemented this policy after it said prison staff members were exposed to drugs. On Aug. 29, staff members at a Pennsylvania state prison were taken to the hospital because of alleged exposure to a substance that the DOC later identified as sorbitan trioleate, a chemical compound found in a wide range of household products. Later that day, the secretary of the DOC, John Wetzel, announced an immediate lockdown of the entire state prison system. The department’s press release stated that “multiple staff members [had] been sickened by unknown substances during the past few weeks.” The wide range of reported symptoms included elevated blood pressure, dizziness, migraines, and tingling extremities. One guard reported developing bumps along his hairline. When the lockdown was lifted on Sept. 10, the department stated that “toxicology results confirmed the presence of synthetic cannabinoid in multiple instances of staff exposure,” but did not specify which synthetic cannabinoid was found. “There are 30-40 types of synthetic cannabinoid and the field tests did not identify the type,” DOC spokesperson Amy Worden said in an email.
In two out of the 25 incidents where prison staff members received medical treatment since the beginning of August, field test results came back positive for synthetic cannabinoid, according to the DOC website. Worden also said the number of drugs found in the first eight months of 2018 (2,034 drug finds) have surpassed the amount found in 2017 (1,966 drug finds).
However, toxicology experts have poked holes in the official version of events, stating that simply touching K2 should not cause exposure to the drug. They have suggested that it might be “mass psychogenic illness,” where symptoms are similar to anxiety. The DOC has also not released any biological testing results, such as blood or urine tests, which would prove drug exposure.
A $15 million response
Despite the questions surrounding the alleged drug exposure, the DOC’s new security plans will cost Pennsylvanians $15 million, according to the Philadelphia Inquirer. The state is paying Smart Communications $4 million a year to scan and forward the mail, and will spend an additional $1.9 million annually on copy machines and paper to photocopy legal mail.
Mark (not his real name), a person currently incarcerated in the Pennsylvania state prison system, said in a letter to a prisoner rights advocacy group that he thinks “the real reason [for the policy change] is to further monetize incarceration,” adding that “this policy has effectively precluded prisoners from obtaining knowledge.”
The Abolitionist Law Center says it has received complaints from prisoners and their families that include privacy concerns with an outside corporation having access to all their mail, accounts of the photocopies being unreadable or incomplete, and color photographs being photocopied in black and white (Worden said the DOC is in the process of installing color printers in all their facilities). “It’s one thing to know strangers are perusing through the most intimate details of your life and it’s completely jarring to now know that a whole corporation is copying the information,” Bret Grote, legal director of the center, said.
This additional layer may also add more room for error and confusion.
“We had one report of outgoing mail being wrongly sent to Florida where it was copied and returned to the incarcerated sender instead of the addressee,” Grote said. “We have no confidence that similar mistakes will not continue to occur.”
Sean Damon, a paralegal and organizer with the Amistad Law Project, said the new policy will most likely result in self-censorship. Some prisoners have asked loved ones not to send them mail, multiple organizers said. “An incarcerated person may not want a private company to know about them and their family’s medical problems. They may not want a private company to know about grievances that they have,” Damon said.
“The real thing that is frightening to me is not only the overreach by the government but the self-censorship that it’s going to entail and the chilling effect that’s currently happening on family members and their loved ones.”
Legal mail endangered
The new policy of photocopying legal mail has effectively ended mailed communication between lawyers and their clients because they cannot guarantee confidentiality. The prison retains the original copy of the mail for 15 days.
“This new policy is already having a chilling effect on how lawyers are communicating with their clients. Because legal mail is being opened and copied, attorney-client privilege is basically being ignored,” Grote said. “This jeopardizes the ability to zealously advocate for clients because there is a possibility that any strategy and evidence communicated in legal mail is compromised.”
The Abolitionist Law Center, the ACLU of Pennsylvania, and the Pennsylvania Institutional Law Project wrote a letter to the Department of Corrections last week that stated: “Experts in professional ethics have advised us that the DOC’s new process for handling legal mail raises sufficient confidentiality concerns that we should not continue to communicate privileged information with clients incarcerated in state prisons via mail.”
Worden argued that the new policy is more secure than how they previously treated legal mail.
“The procedure for processing privileged mail is more confidential than the prior policy,” Worden said. “Staff no longer are required to inspect each page for the presence of contraband, significantly reducing the time that staff handle or view privileged documents and allowing the inmate to receive the mail sooner. Finally, under the revised procedure, the entire transaction is recorded by video.”
An end to book donations
The policy also bans educational programs and books donation programs. Instead, the DOC has said that prisoners will have access to free books at the library and e-books (which cost $3 to $25) on $147 tablets. The DOC has also announced that prisoners can request a book through the department and pay for it via a cash slip. If it approves the request, the DOC will then order the book and have it shipped to the prisoner.
Books Through Bars, a donation service that has operated in Pennsylvania for over 30 years, is protesting this change as censorship. Through the program, prisoners can request two or three free books every three months.
“Its direct effect is going to be cruelty. It surveils and censors and monitors people’s reading choices.” Keir Neuringer, a longtime volunteer with Books Through Bars, said. “We believe books are not contraband. Knowledge is not contraband. And that policy makers who align themselves with the action of taking books out of people’s hands are putting themselves in historical precedent that is very frightening.”
Many organizers agree that the book donation ban is an increase in prison censorship as well as surveillance. A “million books are published a year. The DOC is saying they’ll offer [about] 8,000 titles on e-readers,” Neuringer said. “When you consider that those of us on the outside have access to millions and millions of titles. This policy cuts you out of such an enormous access to books.” Neuringer also stated that e-book tablets make it possible for the DOC to start monitoring what people were reading.
Robert “Saleem” Holbrook, who was incarcerated in the Pennsylvania prison system for 27 years, said most prisoners have access to the library, at least once a week. But the library does not have a large variety of books. “Prisoners who want a broader read or greater depth of reading unfortunately are left out of books at library.” Holbrook, an organizer with the Abolitionist Center, said. “They’re mostly oriented towards fiction, not nonfiction.”
“We are effectively being prevented from learning, making connections to and communicating with the outside world,” Mark said.