For anyone, the prospect of facing death is likely to be a frightening one. Americans learned during the COVID-19 pandemic the special terror of facing death alone, cut off from family, friends, and the comfort they offer.
For people on death row, those fears and comforts have special meaning, as they face the moment when they know their lives will end. They often crave contact with their loved ones, lawyers, and spiritual advisors.
That is why Tennessee’s new policy of imposing a two-week period of strict isolation on those people in the run-up to their executions is especially cruel. Not only is it cruel; it serves no purpose other than to degrade and terrorize people condemned to death.
The Volunteer State should reconsider this draconian policy. Or, failing that, the courts need to put a stop to it.
Life on death row is already hard enough. It takes an extraordinary toll on those who find themselves there, where they can be housed for decades.
In many death penalty states, death row means being in solitary confinement. The Death Penalty Information Center reported in March that “More than half of all U.S. death-row prisoners are, or have recently been, incarcerated in prolonged conditions of solitary confinement that are likely unconstitutional and that violate international human rights norms.”
Twelve states that mandate prolonged solitary confinement—Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Mississippi, Nevada, Oklahoma, South Dakota, Texas, and Wyoming—“collectively accounted for 953 death-row prisoners, or 38.6% of those on death rows nationwide at the end of 2020.”
International tribunals, the DPIC observes, “have found that extended incarceration on death-row under the continuing threat of execution violates U.S. human rights obligations, separate and apart from prolonged detention in solitary confinement.”
Closer to home, in 1995, Supreme Court Justice John Paul Stevens wrote that neither of the two principal purposes of the death penalty, “retribution and deterrence…retains any force for prisoners who have spent some 17 years under a sentence of death.… Moreover, after such an extended time, the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted.”
Stevens recognized the horror of living in the shadow of a death sentence, especially when forced to be in that shadow alone.
As the anti-death penalty group Reprieve explains, “For prisoners on death row, the decades of harsh conditions are endured in a state of both certainty and uncertainty – the certainty and mounting tension that execution is an inevitability that looms ever closer, but uncertainty about exactly when it will happen” and what the experience of being executed will be like.
Reprieve suggests that “the unique psychological impact on prisoners of long periods under the harsh conditions of death row…can result in a sharp deterioration in a prisoner’s mental and physical state, often making inmates suicidal.”
Four years after Stevens’s discussion of life on death row, Justice Stephen Breyer joined in recognizing the “suffering inherent in a prolonged wait for execution.” And in 2009, Stevens called confining death row prisoners for “up to 23 hours per day in isolation in a 6 X 9‑foot cell…dehumanizing.”
This brings us back to Tennessee.
There are forty-five people on its death row, which is located at the Riverbend Maximum Security Institution in Nashville. Twenty-one of them are white. Twenty-three are Black people, and one is Asian.
The oldest is now seventy-five years old, and the person who has been there is longest has been on death row since 1983.
But Riverbend’s death row is, as one commentator put it, “unusual.” For new arrivals, “it works more or less the way death row is expected to: Residents are allowed almost no privileges of any kind. This is called Level C.”
Condemned prisoners who maintain good behavior “can progress to levels B and then A, gaining access to things like dayroom activities and group workshops. People can eat together. For a time, they could even have jobs at a mini on-site call center. “
All of this suggests that Tennessee should be considered a model of humane treatment. In fact, in the past, the state even allowed inmates to visit with others on death row right up to the night before they were scheduled to die.
Oscar Smith, who was put to death on May 22 for killing his wife and her two sons, was not so lucky. He was subject to Tennessee’s new two-week isolation policy, which also includes a “12-hour blackout policy,” under which he was not allowed even to make phone calls for the last twelve hours of his life.
Last March, Smith joined with eight other Tennessee death row inmates who filed suit challenging that policy as well as other aspects of the state’s execution protocol. They claimed that “the 12-Hour Blackout Policy is a restriction on the individual’s ability to communicate his thoughts and feelings as he faces death” and, as such, violates the First Amendment.
Meanwhile, it is clear that two weeks of isolation and a twelve-hour blackout do nothing to make the people of Tennessee or the officials responsible for carrying out the execution any safer than they would otherwise be. In fact, all the state offers by way of explanation is the following non-sequitur: the policies “ensure lawful and effective procedures are followed in carrying out death sentences.”
At the same time, being left alone for two weeks to contemplate the end of one’s life is inhumane and imposes more pain than is necessary on those the state puts to death. Surely, Tennessee or any other death penalty state should recognize this and end this cruel practice.
