Get Informed

Regular updates, analysis and context straight to your email

Close Newsletter Signup

Pennsylvania’s Death Row Prisoners Argue That the Right to Execute Does Not Include the Right to Isolate

Flickr user jmiller291 (CC BY 2.0)

Pennsylvania’s Death Row Prisoners Argue That the Right to Execute Does Not Include the Right to Isolate

Historically, whenever a Pennsylvania court handed down a death sentence, it was effectively condemning the defendant to live the rest of his or her years in isolation. The Pennsylvania Department of Corrections mandates that people on death row be held in solitary confinement. And Pennsylvania isn’t the only state to do so: A recent survey by The Marshall Project found that of the 2,802 state prisoners sentenced to death nationwide, 61 percent are isolated for 20 hours or more per day.

On January 25, the ACLU of Pennsylvania, along with three other law firms, filed a federal class action lawsuit challenging this policy’s constitutionality.

The five plaintiffs have each spent over a decade in solitary confinement. These men spend between 22 and 24 hours per day in a “small cell, the size of a regular parking spot,” where the lights are never turned off, according to the complaint. One of the plaintiffs has been in solitary for 27 years. Nearly 80 percent of Pennsylvania’s 156 death row prisoners have been there for over a decade.

“There is a difference between saying this person can be put to death, and saying our constitution actually allows people to be tortured while they’re in prison,” said Susan Lin, an attorney at Kairys, Rudovsky, Messing, Feinberg & Lin, one of the law firms that filed the suit.

Pennsylvania Department of Corrections Secretary John Wetzel, who frequently touts himself as a criminal justice reformer in media interviews and on academic panels, is the lead defendant in the lawsuit. This practice is hard to square with his reform-minded reputation.

This isn’t the first time Wetzel has been a defendant in a lawsuit challenging his department’s policies on solitary confinement. In 2016, he was sued for keeping an intellectually disabled man, Arthur Johnson, in solitary for 37 years. The federal court judge ruled that because there weren’t adequate grounds to consider the man a threat to other prisoners or guards, his prolonged isolation constituted cruel and unusual punishment.

The new ACLU-led lawsuit challenges mandatory solitary for death row prisoners as violating both the Eighth Amendment and the constitutional right to due process. The suit argues that just because a person is death-sentenced, he or she is still entitled to a process to determine the necessity of isolation.

Civil rights attorneys are using this due process argument more frequently in similar suits challenging mandatory solitary. “We are increasingly recognizing that solitary confinement is a form of torture, that it is categorically a different kind of punishment than just being in prison,” said Johanna Kalb, professor of law at Loyola University in New Orleans, who has written about long-term isolation, “There is a liberty issue when you’re put there without a meaningful process.”

The United States Supreme Court declined to hear a similar argument in 2015, in part because the case became moot when Virginia executed the defendant, Alfred Prieto, before the high court could rule on his final stay application. In Prieto’s case, a trial court ruled that the conditions he and other prisoners on death row faced in solitary were “dehumanizing” and “undeniably severe.” As such, the trial court ruled that prison officials should either decide whether a person needs to be in solitary on a case-by-case basis, or make the conditions of solitary more humane.

The Fourth Circuit Court of Appeals, however, shot down this decision. In a 2–1 ruling, the court maintained that Prieto “can only be deprived of that to which he is entitled.” Due process doesn’t apply, the court decided, because it is explicitly written into Virginia state law that people sentenced to death should be placed in solitary confinement; thus he was not entitled to any other placement.

That same year, Supreme Court Justice Anthony Kennedy wrote, in a concurring opinion regarding a death-row prisoner’s legal challenge on an unrelated issue, that the “near-total isolation” of solitary “exacts a terrible price.” He went on to quote Dostoyevsky: “The degree of civilization in a society can be judged by entering its prisons.”

Solitary confinement for people on death row is often justified by the belief that prisoners sentenced to death are too dangerous to live among the general population. But according to Kalb, “The data increasingly shows us that this just isn’t true.” For example, since Colorado stopped automatically housing death-sentenced prisoners in solitary in 2014, prison officials have reportedthere was no rise in the level of violence.

A Pennsylvania Department of Corrections spokesperson, Amy Worden, declined to comment on the ACLU lawsuit or the state’s policy, but in a statement wrote that the DOC is “undertaking changes that will allow more out-of-cell time in capital case housing units.”

As research on the psychological and physical detriment caused by long-term isolation proliferates and a national movement to limit the use of solitary confinement gains traction, abolishing these policies is critical, Kalb explained. “In some ways, this is a very mild and moderate ask,” she said. “Don’t put people in it automatically. Look at them as individual people.”

NYC Agency Uses Brooklyn Gang Raid To Encourage Evictions Of Entire Families From Public Housing

Early on the morning of January 19, police raided the Sheepshead/Nostrand Houses in Sheepshead Bay, Brooklyn, arresting 13 alleged members of the Towaz Boyz Gang.
Scott Heins for In Justice Today

NYC Agency Uses Brooklyn Gang Raid To Encourage Evictions Of Entire Families From Public Housing

Early on the morning of January 19, the New York Police Department and local and federal partners raided the Sheepshead/Nostrand Houses, a large public housing complex in Sheepshead Bay, Brooklyn, arresting 13 alleged members of the “Towaz Boyz gang.”

Unnamed law enforcement authorities described the scene to the Daily Newsas a “New Jack City-style sales operation” — a reference to the iconic 1991 Wesley Snipes movie about the crack cocaine trade, in which a paramilitary-type drug organization takes over an entire pubic housing complex. The New York City Department of Investigation also touted the raid in a lengthy press release, detailing its 16-month investigation into the alleged drug sales operation. The release quotes William Sweeney, assistant director of the FBI New York Division, praising DOI. “People deserve to leave their homes without fearing the drug dealers and violent gang members loitering around their front doors,” he said.

But the charges against the total of 18 defendants (two men were already in custody on the morning of the raid) do not involve violent crimes. Moreover, the raid description and accompanying set of DOI policy recommendations are a transparent attempt to push the New York City Housing Authority to more regularly utilize its power to kick entire families out of public housing permanently through its tenancy termination policy, advocates told In Justice Today.

2938 Avenue W, the site of one of the raid arrests.
Scott Heins for In Justice Today

“This particular instance is being used to make a point,” said Alison Wilkey, director of public policy at the Prisoner Reentry Institute at John Jay College.

Four of the 18 defendants are charged with conspiracy to sell narcotics in the fourth degree, a charge that can be based on as little as a conversation that suggests a person is knowledgeable of drug sales. Another four are charged with criminal sale of heroin or cocaine in the third degree, which can apply to small, nickel- and dime-bags. Only two defendants, Michael Warren and Larry Davis, are charged with criminal sale in the first degree — heroin and oxycodone in excess of two ounces. Three NYCHA employees are also charged: one with trespass for allegedly unlocking a vacant apartment at Sheepshead/Nostrand so dealers could sell drugs there, two with marijuana possession for allegedly purchasing out of the apartment while on shift.

“It’s not kilos,” said Babe Howell, professor of criminal law at CUNY Law School. “It’s not, ‘We’re flooding your neighborhood with drugs.’ This is essentially a small retail drug house.” The New Jack City narrative, she added, is meant “to keep us in a position of fear and antagonism towards poor people of color in this city” despite the fact that crime in New York City is at record lows.

“I think it’s pretty racist, honestly,” a 28-year-old Sheepshead/Nostrand resident told In Justice Today on a recent Friday (he declined to provide his name). “That’s all it is. Who needs police around as much as they are? They just make it worse, honestly. They harass people for no reason.”

“Oh, wow. Not Sheepshead,” added Ebony Humphrey, 36. “It’s nice. The only thing I could complain about is the work that NYCHA does. Like the mold and stuff.”

According to DOI, two Sheepshead/Nostrand residents on the indictment were living in NYCHA apartments despite already having been banned from public housing, or “permanently excluded.” Eight others were allegedly living in public housing or government-subsidized Section 8 apartments without authorization, meaning their names were not listed on leases. The agency is now referring these addresses to NYCHA, and urging the authority to consider further action.

“I think it’s pretty racist, honestly. That’s all it is. Who needs police around as much as they are? They just make it worse, honestly. They harass people for no reason.”

DOI has released two previous reports on safety in NYCHA buildings, including in March 2017, urging NYCHA to “more aggressively prosecute tenancy termination cases,” or exercise its ability to evict entire households based on the actions of one member. NYCHA formally rejected this recommendation last July.

Still, DOI Commissioner Mark Peters’s Sheepshead/Nostrand press release encourages NYCHA once again to aggresively pursue permanent exclusion of individuals, and to evict entire families in cases where the leaseholder “participated in, or knew or should have known of serious criminal activity” by someone living there. If the leaseholder was unaware of the activity, and the person under scrutiny is part of a localized gang, DOI suggests moving the family to a “far away” NYCHA property.

“Today’s arrests highlight the inherent dangers of allowing serious, recidivist criminals to continue to reside on NYCHA property,” Peters stated.

Inside 3595 Nostrand Ave., the site of at least one NYPD arrest at the Sheepshead/Nostrand Houses.
Scott Heins for In Justice Today

NYCHA has historically moved to evict entire households only when a convicted criminal is the primary leaseholder, according to Wilkey of John Jay College. While the number of eviction and permanent exclusion cases tends to fluctuate from year to year, depending on how aggressively the NYPD is reporting incidents, she said that “evictions are always in the minority.”

In 2016, the most recent data available, NYCHA evicted 97 households over alleged dangerous conduct, 74 by default because the leaseholder missed his or her mandatory appearance before NYCHA’s Office of Impartial Hearings. In 649 other cases, a household member was permanently excluded. Another 985 cases were dismissed without any action.

“Mark Peters keeps saying, ‘You’ve got to evict, you’ve got to be much more aggressive in evicting families,’” said Lucy Newman, a lawyer at the Legal Aid Society who also sits on a task force with the Prisoner Reentry Institute. As for the family relocation suggestion, “people can be just caught up in these gang sweeps and they’re not involved in the activity at all. And to make their families move is absolutely ridiculous.”

Gang raids at NYCHA properties have become commonplace in recent years, driven by a policing strategy that views gangs or “groups” as the primary drivers of violent crime. In June 2014, the NYPD arrested 40 men and boys at the Grant and Manhattanville Houses in East Harlem. Of that total, 25 were charged with conspiracy in the first degree, a felony with sentences ranging from 15 years to life. The vast majority of defendants took a plea (93 percent of the total) and thus acquired criminal records that can negatively impact their job and housing prospects. In April 2016, 78 people were arrested and charged with conspiracy at the Eastchester Gardens Houses in the Bronx.

According to Newman, the Sheepshead/Nostrand raid is the first time DOI has “gone the extra step to then go back to NYCHA and see who’s permanently excluded and who isn’t,” ramping up the pressure to more aggressively evict individuals and households.

These actions increase NYCHA residents’ likelihood of becoming homeless in the midst of a citywide housing crisis, she added. Newman says that NYCHA should instead be dedicating more resources to after-school activities, job training, and programs like NYC Cure Violence, which trains NYCHA residents, mostly young men, to mediate conflicts.

The fourth-floor hallway of 3677 Nostrand, where the NYPD claims to have arrested at least one gang member in the early morning hours of January 19
Scott Heins for In Justice Today

NYCHA declined to say explicitly if it will heed DOI’s recommendations for stricter eviction policies. “NYCHA’s permanent exclusion policy balances the need to exclude dangerous individuals while protecting the tenancy of other family members,” spokesperson Jasmine Blake told In Justice Today. “We always welcome recommendations on how we can improve as safety and security of our residents is our top priority.”

Marie D., an 18-year-old Sheepshead/Nostrand Resident, told In Justice Today that she often feels unsafe in her home. “There’s poor supervision,” she said. “People that are not supposed to be here, they know that, and they still come back here.” But evicting entire households isn’t fair, she added. “That shouldn’t happen because there are entire families with kids, you understand?”

Raids, she said, don’t make her feel safer. A few months ago, police officers banged down Marie’s boyfriend’s door at 6 a.m. She was asleep, and police handcuffed her before they realized their mistake, she said.

“It was actually scary,” Marie recalled. “They said, ‘Oh, we had the wrong apartment,’ and they ended up leaving and going to do it to other apartments.”

More in Explainers

Did Prosecutorial Misconduct Result in the Indictment of an African-American Louisiana Couple in a Federal Drug Case?

Did Prosecutorial Misconduct Result in the Indictment of an African-American Louisiana Couple in a Federal Drug Case?

In the early spring of 2013, Yolanda and Jessie Smith, an African American couple, agreed to accept what they believed were packages of cancer medicine for a 58-year-old white man named Alvin Phillips, whom they knew from a pool hall in Waggaman, Louisiana, a tiny town comprised of about 10,000 residents near New Orleans.

The Smiths say they wanted to help Phillips because they believed him to be gravely ill — and they figured they owed him anyway. Around Christmas 2012, he paid an overdue electricity bill for the couple. But in May 2013, soon after agreeing to accept Phillips’s packages, rumors circulated in the pool hall that Phillips had been arrested. The Smiths suspected that perhaps they hadn’t been signing for packages of medicine at all. Phillips had changed his story multiple times. At one point, he told the couple that the packages contained birthday gifts for his son.

Both Yolanda and Jesse live with serious impairments — Jessie is on Social Security for a mental disability and can neither read nor write, and Yolanda has been diagnosed as bipolar, and suffered trauma and abuse as a child. Confused and scared when they heard that Phillips was arrested, they now figured the packages might contain drugs. Still, indebted to Phillips, they felt obliged to accept a package that was already on its way.

On May 30, 2013, Yolanda answered the door at her Dandelion Street home in Waggaman and signed for a package addressed to an “Alan Phillips.” She signed her name as “Patrice Phillips” because she believed that to sign for it, she needed to be a relation to Phillips, and took the package to an outside shed. Meanwhile, high overhead, a police helicopter followed her movements outside of the house. A few minutes later, postal inspectors, U.S. Customs and Border Protection agents, and members of the Jefferson Parish Sheriff’s Office stormed into Yolanda’s house and arrested her.

The postman who had delivered the package was actually a postal inspector performing a “controlled delivery” of drugs for a joint task force of local and federal law enforcement agents who had monitored every aspect of the transaction. In the package behind Yolanda’s house, federal agents found methylone, otherwise known as “Molly.” Methylone is a psychoactive drug with properties similar to those of MDMA (better known as ecstasy) and has become a popular street drug in recent years; witnesses later told Yolanda’s attorneys that Phillip was a high-profile Molly dealer in the area.

Customs and Border Protection had intercepted a package from China addressed to Phillips earlier that month, which led to his arrest. Cutting a deal with federal prosecutors, Phillips gave them the names of the low-income black households whose trust he had gained over the previous few months, and to whom he had been arranging deliveries of methylone in order to cover his tracks.

Yolanda was originally charged by state prosecutors with possession with intent to distribute methylone, but in October 2013, the task force returned to their home and served both Yolanda and Jessie with federal drug distribution charges. After her second arrest by federal agents, Yolanda admitted to the arresting officers that she suspected she might be receiving drugs, but had never opened any of the packages to make sure of it. Before that statement, Yolanda, along with the three other black defendants who received packages for Phillips, were indicted by a federal grand jury and each charged with two counts of conspiracy to distribute a controlled substance and one count of possession with intent to distribute. Despite being at the very lowest rung of a drug trafficking network, she was now facing several years in federal prison.

The next spring, days before trial, the three other defendants (along with Phillips) accepted plea deals. But Yolanda was never offered deals by the prosecutors from the U.S. Attorney for the Eastern District of Louisiana. Instead, both Yolanda and Jessie were hit with another grand jury indictment, narrowing the target of prosecution to just the couple, with the same distribution and possession charges lodged against them.

The court severed their two cases, and in early 2015, Yolanda was convicted on all three counts after Phillips and every other defendant who took a plea deal testified against her for the prosecution. Jessie, her husband, was acquitted on all charges when he went to trial over a year later. Yolanda was sentenced to 33 months in federal prison and served almost her entire sentence. Alvin Phillips was sentenced to 51 months, but only served 31.

How did Yolanda end up as the only person convicted at trial in a drug trafficking conspiracy that sparked an investigation involving federal agencies and state law enforcement? The answer is likely an overzealous U.S. Attorney’s office that has long faced accusations of significant prosecutorial misconduct, but has rarely been held accountable by the state and federal agencies meant to monitor this type of overreach.

Following the guilty verdict on January 23, 2015, Yolanda’s lawyer, Sara Johnson, began the appeal process. During the appeal process, Johnson received a document from the court’s sealed record that she had never been given or made aware of during Yolanda’s trial — a complaint from a member of the grand jury to the judge assigned to the case that a high-ranking federal prosecutor had “intimidated and successfully coerced the grand jury into returning an indictment.”

According to the unnamed member of the grand jury, this prosecutor had responded to the grand jury’s skepticism over the case against the Smiths and other defendants “with anger and derision.” Even after the grand jury voted not to hand down an indictment, the prosecutor persisted, telling the jurors he was “insulted” by their decision. Then, the grand juror claimed, the prosecutor “physically approached jurors (including himself) in an intimidating manner, sometimes coming face-to-face.” In his complaint to the judge, the juror claimed the jury only reversed its vote and handed down an indictment because of the threats of the prosecutor.

“The federal grand jury is perhaps the best example of an institution that is designed in a way that’s going to insulate misconduct that occurs,” Jennifer Laurin, a professor at the University of Texas School of Law, told The Appeal, noting that grand juries at the state level have taken more steps to loosen the secrecy surrounding their deliberations. “The federal grand jury is closed to all other than jurors and the prosecutors. There’s no judge there. No defense lawyer. Nobody with a committed position outside the government is observing.”

This creates a grand jury process where it’s rare for misconduct allegations to ever see the light of day.

“Absent a situation … like this where you actually have a grand juror coming forward and disclosing something that happened in secret, you’re unlikely to know what was going on in secret in order to argue that you should be able to know what went on in secret,” Laurin explained.

Meanwhile, outside of the grand jury process, prosecutors from the Eastern District have engaged in misconduct that has made national headlines.

Earlier this month, during Senate confirmation hearings for the Fifth Circuit Court of Appeals based in New Orleans, Trump-nominee and U.S. District Judge Kurt Englehardt had to answer questions about the Eastern District’s handling of the Danzinger Bridge case, where New Orleans police officers killed two black New Orleans residents and wounded several others in the days following Hurricane Katrina. Englehardt eventually vacated the convictions of four police officers after prosecutorial misconduct came to light. Prosecutors, including the Eastern District’s senior litigation counsel Sal Perricone, had repeatedly commented on news articles about their own cases under pseudonyms like “Henry L. Mencken 1951,” or “eweman,” creating what Englehardt deemed “a prejudicial atmosphere in the community, long before indictments came down, long before a jury could possibly be picked.”

Last week, Louisiana’s Office of Disciplinary Counsel recommended that Perricone receive a one-year suspension from practicing law for his comments, a decision that is exceptionally rare in a state with widespread instances of prosecutorial misconduct.

Laurin hopes the juror’s complaint in Yolanda Smith’s case will help expose other misdeeds. “This is conduct that is out of line,” she says. “If disciplinary entities do not take seriously these allegations when they actually do manage to emerge and approach them with the understanding that this may well be the tip of the iceberg, then you have a real problem on your hands.”

All of Smith’s appeals, which were based in part on prosecutorial misconduct, were unsuccessful. Tragically, while in federal prison, Yolanda’s mother passed away. She is currently living in a halfway house as part of her parole.

Smith’s attorney Sara Johnson filed a complaint about the prosecutor’s conduct with the U.S. Department of Justice’s Office of Professional Responsibility in June 2017 and followed up in August 2017, but received no response from the agency. Last week, The appeal contacted Kenneth Polite, the former U.S. Attorney for the Eastern District, who oversaw the prosecution of the case, with questions about the conduct of his office. Polite has since declined to comment, but on Tuesday, seemingly out of the blue, the Department of Justice finally informed Johnson that it had begun a “preliminary inquiry” into her complaint.

This story has been updated to specify that it is unclear when exactly Alvin Phillips began cooperating with federal prosecutors.

More in Podcasts