By: Kylie Love

On January 31, California Governor Gavin Newsom announced he is moving to dismantle the United States’ largest death row. The state vows to transfer all individuals on death row within San Quentin State Prison to other maximum-security prisons within two years.

With numerous critics and supporters of the decision on both sides of the aisle, one consideration stands out. There are concerns about how the transfer to general population could affect those on death row, as many of them have been in isolation for decades. “To simply move them without very serious consideration of their needs, their personal issues, their psychological state[,] and their safety would be a hideous mistake,” says Mike Farrell, president of  Death Penalty Focus. However, not all individuals on death row are eligible for transfer; if officials decide that an individual on death row cannot be safely housed with others, they can be housed in solitary or disciplinary confinement. Eligibility also depends on an individual’s disciplinary record, pending charges, or conviction of specific offenses within the past five years.

While the move towards abolishing death row is a necessary step towards justice, California’s regulations highlight what is all too common on death row: indefinite solitary confinement. Currently, twelve states in the U.S. automatically house individuals on death row in indefinite solitary confinement, where the conditions are horrendous. Individuals are confined to a tiny cell for at least twenty-two hours a day with virtually no human contact or natural light. Arizona, along with several other states, has recently ended automatic and indefinite solitary confinement for those on death row, in response to lawsuits filed by those incarcerated.

Individuals on death row typically challenge excessive solitary confinement under the Eighth Amendment prohibition against cruel and unusual punishment, or the Fourteenth Amendment right to due process and equal protection. Another legal avenue is available to those on death row: claims of violations of international human rights. The United States ratified the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the Torture Convention) in 1988. The treaty forbids physical and psychological abuse of people in detention around the world. The convention defines torture as “any act by which severe pain or suffering . . . is intentionally inflicted on a person . . . by. . . a public official”; however, it does not include any pain or suffering that arises from lawful sanctions. Therefore, the death penalty itself cannot be argued under the Torture Convention. Nevertheless, there is certain suffering peripheral to executions that should constitute a form of torture. One such suffering is the egregious length of time spent in solitary confinement while awaiting execution.

Prisons are already inherently harmful; placing those condemned to death row in solitary confinement adds additional torture to their lives. Solitary confinement has an adverse effect on an individual on death row’s mental health. While death row individuals in solitary confinement comprise only six to eight percent of the total prison population, they account for approximately half of those who commit suicide. Furthermore, it is possible for individuals on death row to develop a specific psychiatric syndrome due to prolonged isolation. Extended solitary confinement can cause those condemned to death row to lose basic communication skills and experience an overall emotional numbness.

A death sentence is harsh enough; individuals on death row should not be executed having spent the last few decades lacking meaningful human contact. As Supreme Court Justice Anthony Kennedy wrote, “[r]esearch still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price.” As more states decide whether to place a moratorium on death sentences, it is imperative that states also abolish solitary confinement and create conditions on death row that fall in line with the U.S. Constitution and international human rights laws.

Kylie (she/her) is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Her legal interests range criminal justice reformation to social justice issues affecting minority groups and people of color. When not in law school, Kylie enjoys hiking throughout northern Arizona, visiting national parks, and attempting to keep her multiple plants alive.