Heyward v. Public Housing Administration Joint Appendix

    No. 86-5448

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

WILLIAM GROSECLOSE, et al. , 
Plaintiffs-Appellees, 

v.
MICHAEL DUTTON, Warden, et al., 

Defendants-Appellants.

On Appeal from the United States District Court for the 
Middle District of Tennessee 

Nashville Division

BRIEF FOR AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

JULIUS L. CHAMBERS 
JOEL BERGER 
99 Hudson Street 
16th Floor
New York, New York 10013 
[212] 219-1900
ATTORNEYS FOR AMICUS CURIAE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, 
INC.



TABLE OF CONTENTS
Page

STATEMENT OF INTEREST OF AMICUS CURIAE NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND, INC.................... 1

ISSUE PRESENTED ............................................  4
ARGUMENT

THE LOCK-IN REGIMEN IMPOSED BY TENNESSEE UPON 
PRISONERS UNDER SENTENCE OF DEATH AT THE TIME 
THIS CASE WAS TRIED WAS UNNECESSARILY CRUEL 
AND INHUMAN IN LIGHT OF (i) THE SUCCESS OF 
MANY OTHER STATES IN OPERATING SAFE AND SECURE 
DEATH ROWS WITHOUT SUCH A HARSH LOCK-IN 
POLICY, (ii) THE EXTRAORDINARILY LONG PERIODS 
THAT PRISONERS REMAIN ON DEATH ROW WHILE THEIR 
APPEALS AND POST-CONVICTION PROCEEDINGS ARE 
PENDING AND (iii) THE HIGH REVERSAL RATE IN 
DEATH CASES, WHICH PROVIDES MOST DEATH-SEN­
TENCED PRISONERS WITH A POWERFUL INCENTIVE TO 
MAINTAIN GOOD RECORDS OF INSTITUTIONAL 
BEHAVIOR .............................................  5

I. Introduction .........................................  5
II. Many States Are Today Operating Safe and Se­

cure Death Rows Without The Cruel Lock-in 
Regimen Imposed By The Defendants at the
time this Case Was Tried ...........................  6

III. Most Death-Sentenced Prisoners Remain on
Death Row for Extraordinarily Long Periods 
of Time While Their Appeals and Post- 
Conviction Proceedings Are Pending .................  17

IV. The High Reversal Rate In Death Cases Pro­
vides Most Death-Sentenced Prisoners With A 
Powerful Incentive to Maintain Good Records
of Institutional Behavior ........................  21

V. Conclusion ......................................  23

l



Page
CASES
Barefoot v. Estelle, 463 U.S. 880 ( 1983) ..................  2
Bell v. Wolfish, 441 U.S. 579 ( 1979) ......................  20
Daniels v. Zant, Civil Action No. 79-110 MAC (M.D. Ga.

June 5, 1981) ...........................................15
Estelle v. Smith, 451 U.S. 454 ( 1981 ) ...................... 2
Furman v. Georgia, 408 U.S. 238 ( 1972) ..................... 2
Gregg v. Georgia, 428 U.S. 153 ( 1976) ......................  2
Groseclose v. Dutton, 609 F.Supp. 1432 (M.D. Tenn.

1985) .................................. 5, 18, 23, 24
Haines v. Kerner, 404 U.S. 519 ( 1972) ......................  2
Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971) ..............  3
Hutto v. Finney, 437 U.S. 678 ( 1978) ...................  3, 20
Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972) ............  2
Kendrick v. Bland, 541 F.Supp. 21 (W.D. Ky. 1981) ........ 16
Lockett v. Ohio, 438 U.S. 586 (1978) .......................  2
McDonald v. Armontrout, No. 85-4422-CV-C-5

(W.D. Mo. May 22, 1986) ............................  3, 15
Ex Parte Medley, 134 U.S. 835 ( 1890) ......................  23
Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980) .......... 7
Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981) .............  7
Ruiz v. Estelle, 666 F.2d 854 (5th Cir. 1982) .............  7
Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) . 3, 7, 18, 23
Sinclair v. Henderson, 331 F.Supp. 1123 (E.D. La. 1971) .. 23
Skipper v. South Carolina, 476 U.S. , 90 L.Ed.2d

1 ( 1986) ...............................................  22

TABLE OF AUTHORITIES

- ii -



CASES Pages

Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) ........  20
Sweet v . South Carolina Department of Corrections, 529

F . 2d 854 (4th Cir. 1975) ............................. 20
Taylor v. Sterrett, 499 F.2d 367 ( 5th Cir. 1974) ..........  2
Thompson v. Enomoto, No. 79-1630 SAW (N.D. Cal. October

23, 1980) ...............................................  14
Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984).. 20
Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984) ......  20
Witherspoon v. Illinois, 391 U.S. 510 ( 1968) ..............  2
Woodson v. North Carolina, 428 U.S. 280 (1976) ............  2
OTHER AUTHORITIES
Greenberg, Capital Punishment as a System, 91 Yale L.J.

908 ( 1982) .......................... ...................  21
NAACP Legal Defense and Educational Fund, Inc.

Death Row; USA (August 1 , 1986) .................... 24

- iii -



No. 86-5448

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

WILLIAM GROSECLOSE, et al. ,
Plaintiffs-Appellees, 

v.
MICHAEL DUTTON, Warden, et al.,

Defendants-Appellants.

On Appeal from the United States District Court for the 
Middle District of Tennessee 

Nashville Division

BRIEF FOR AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

STATEMENT OF INTEREST OF AMICUS 
CURIAE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.______

The NAACP Legal Defense and Educational Fund, Inc., is a 
non-profit corporation established in 1939 to assist black 
citizens in securing their constitutional rights. The Fund has 
for many years appeared before this Court in a variety of cases 
concerning school desegregation, employment discrimination and 
other civil rights issues.



In 1967 the Fund began a program of representing indigent 
death-sentenced individuals and finding volunteer defense counsel 
in other death cases. The Fund has frequently represented 
death-sentenced individuals before the Supreme Court of the 
United States (e . g . , Furman v. Georgia, 408 U.S. 238 ( 1972); 
Woodson v. North Carolinaf 428 U.S. 280 (1976); Lockett v. Ohio, 
438 U.S. 586 (1978); Estelle v. Smith, 451 U.S. 454 (1981)), and 
has appeared as amicus curiae in that Court in other death cases 
(e .g ., Witherspoon v. Illinois, 391 U.S. 510 (1968); Gregg v. 
Georgia, 428 U.S. 153 ( 1976); Barefoot v. Estelle, 463 U.S. 880 
(1983)). Today the Fund continues to represent several death- 
sentenced individuals, and provides consultative assistance to 
counsel representing such individuals in other cases both within 
the Sixth Circuit and elsewhere. In addition, the Fund publishes 
every two months a roster of all death-sentenced prisoners in the 
United States (Death Row: USA), and maintains records as to the 
length of death row confinement for these prisoners, the reversal 
rates of federal courts of appeals and state supreme courts in 
capital cases, and other relevant data.

The Fund has also participated in many cases in which courts 
have been called upon to consider the constitutionality of prison 
conditions. These include some of the earliest cases developing 
the law in this area (e . g . , Haines v. Kerner, 404 U.S. 519 
(1972); Taylor v. Sterrett, 499 F.2d 367 (5th Cir. 1974); Jones

2



v. Metzger, 456 F . 2 d 854 (6th Cir. 1972); Holt v. Sarver, 442 
F.2d 304 ( 8th Cir. 1971)), as well as more recent cases (e .g., 
Hutto v. Finney, 437 U.S. 678 (1978); Ruiz v. Estelle, 679 F.2d 
1115 (5th Cir. 1982)).

In Ruiz v. Estelle, supra, the Fund secured an order from 
the District Court requiring an increase in out-of-cell recrea­
tional opportunities for prisoners under sentence of death in 
Texas. The Fund subsequently entered into a series of consent 
decrees with the defendants in that case, under which out-of-cell 
time on death row has steadily increased without incident. As a 
result of our experience in Ruiz we began providing consultative 
assistance to attorneys working to improve death row conditions 
in several other states, including the attorneys for plaintiffs 
in the instant Groseclose case. At the request of the Ohio 
Public Defender and a group of Ohio defense attorneys, the Fund 
has been monitoring death row conditions in that state; we are 
advised that out-of-cell time on the row in Ohio is presently 
even more restrictive (only 2 hours per week) than in Tennessee. 
Last year the Fund filed a lawsuit challenging the constitu­
tionality of death row conditions in Missouri (McDonald v. 
Armontrout, No. 85-4422-CV-C-5 (W.D. Mo.)), where the totality of 
physical conditions closely approximated those found by the 
District Court in this case. On May 22, 1 986 , the parties 
entered into a 21-page consent decree requiring gradual increases 
in out-of-cell time, expanded recreational facilities, and

3



numerous other changes. In other states negotiations with 
correctional authorities have resulted in significant improve­
ments, under which death-sentenced prisoners have been accorded a 
more humane living environment and increased out-of-cell time 
without any harm to institutional security.

Because of the Fund's extensive experience with the death 
penalty and the subject of death row conditions, we believe that 
we can be of assistance to this Court in its consideration of the 
issues presented by this appeal. Counsel for the parties herein 
have all consented to the filing of this amicus curiae brief.

ISSUE PRESENTED
Whether the lock-in regimen imposed by Tennessee upon 

prisoners under sentence of death at the time this case was tried 
was unnecessarily cruel and inhuman in light of (i) the success 
of many other states in operating safe and secure death rows 
without such a harsh lock-in policy, (ii) the extraordinarily 
long periods that prisoners remain on death row while their 
appeals and post-conviction proceedings are pending and (iii) 
the high reversal rate in death cases, which provides most 
death-sentenced prisoners with a powerful incentive to maintain 
good records of institutional behavior.

4



ARGUMENT

THE LOCK-IN REGIMEN IMPOSED BY 
TENNESSEE UPON PRISONERS UNDER 
SENTENCE OF DEATH AT THE TIME THIS 
CASE WAS TRIED WAS UNNECESSARILY 
CRUEL AND INHUMAN IN LIGHT OF (i)
THE SUCCESS OF MANY OTHER STATES IN 
OPERATING SAFE AND SECURE DEATH 
ROWS WITHOUT SUCH A HARSH LOCK- IN 
POLICY, (ii) THE EXTRAORDINARILY 
LONG PERIODS THAT PRISONERS REMAIN 
ON DEATH ROW WHILE THEIR APPEALS 
AND POST-CONVICTION PROCEEDINGS ARE 
PENDING AND (iii) THE HIGH REVERSAL 
RATE IN DEATH CASES, WHICH PROVIDES 
MOST DEATH-SENTENCED PRISONERS WITH 
A POWERFUL INCENTIVE TO MAINTAIN 
GOOD RECORDS OF INSTITUTIONAL 
BEHAVIOR

I. Introduction
The District Court held that the totality of conditions on 

Tennessee's death row at the time of trial violated plaintiffs' 
Eighth Amendment rights. Groseclose v. Dutton, 609 F. Supp. 
1432, 1445-48 (M.D. Tenn. 1985). This holding was based upon 
detailed and unassailable findings of fact, depicting a myriad of 
deplorable conditions affecting the day-to-day existence of 
death-sentenced prisoners on Unit VI of the Tennessee State 
Penitentiary. Id. at 1434-38, 1446.

The District Court's "principal concern" was that "the 
inmates remain in their small cells for so much time "(_id. at 
1 446) —  in excess of 22 hours a day, day after day, week after 
week, year after year, during an appellate and post-conviction 
process which lasts an average of six to ten years (id. at 1446,



1447). The purpose of this amicus curiae brief is to underscore
this concern and to demonstrate why Tennessee's lock-in regimen 
was unnecessarily cruel and inhuman. We believe that the 
District Court was highly justified in considering this lock-in 
policy a principal factor in its Eighth Amendment totality 
analysis.

II. Many States Are Today Operating Safe and Secure Death 
Rows Without The Cruel Lock-In Regimen Imposed By The 
Defendants at The Time This Case Was Tried____________

A.
Prior to the District Court's decision in Ruiz v. Estelle, 

supra, death-sentenced prisoners in the custody of the Texas 
Department of Corrections (TDC) were allowed out of their cells 
for only three one-hour periods per week. These periods were 
conducted on Monday, Tuesday and Wednesday; on the remaining four 
days death row prisoners were confined to their cells round-the- 
clock, except for a brief shower period each day. Out-of-cell 
time was spent either in a dayroom, where the only "recreation" 
equipment consisted of dominoes, or in a tiny 12' x 15' yard. In 
winter, no yard recreation at all was permitted. Thus, in 
addition to being locked into cells 165 out of 168 hours per 
week, death row prisoners were afforded extremely minimal 
recreational opportunities during their limited hours of release 
from cell confinement.

6



The District Court's Amended Decree of May 1, 1981, Section 
IV.C.1, required the defendants to file a plan providing for "in­
creased and regular out-of-cell recreation opportunities for 
prisoners segregated on Death Row." See Ruiz v. Estelle, 666 
F.2d 854, 869 ( 5th Cir. 1 982 ) (copy of Amended Decree). The
defendants initially sought to stay this provision pending 
appeal, but the stay was denied. Ruiz v. Estelle, 650 F.2d 555, 
563, 578 (5th Cir. 1981). On the appeal itself the defendants did 
not challenge the provision; the Court of Appeals accordingly 
held that any objection was waived, and explicitly affirmed this
remedial measure. Ruiz v. Estelle, 679 F .2d 1115, 1163-64 (5th 

1
Cir. 1982).

After several unsuccessful efforts to reach a settlement as 
to an appropriate remedial plan, a hearing was set for October 
1 7, 1 983 . Just before the hearing was to commence, however, the 
parties agreed to an experimental three-month death row program. 
The program was set forth in a Stipulation and Order Regarding 
Death Row Conditions, approved by the Court on October 21, 1983. 
This experimental program was continued with minor modifications

Testimony at the trial also revealed major inadequacies in the 
medical care accorded death row prisoners. Ruiz v. Estelle, 503 
F. Supp. 1265, 1321 (S.D. Tex. 1980). In declaring the defen- 
dants' medical care system violative of the Eighth Amendment, the 
Court criticized T D C 's "unjustified interference . . . with 
legitimate medical treatment of inmates, in the name of exaggera­
ted security . . . concerns." Id. at 1331. A Consent Decree 
covering the Ruiz medical care issues, entered April 20, 1981 
(11 I.A.7), now guarantees "full access to health care for all 
prisoners, regardless of segregation status."

7



for another three months in a Second Stipulation and Order
Regardina Death Row Conditions, approved by the Court on February 

2
28, 1984.

The Ruiz defendants' 1983-84 experiment represented a marked 
departure from their past practices. The program provided that a 
majority of death-sentenced prisoners were to be classified as 
"work capable," while the others would be classified into "death 
row segregation" status. The work capable prisoners were 
assigned to jobs in general population and given all of the 
freedom of movement accorded general population prisoners (e,g., 
access to the gymnasium, mess hall, chapel, classes and writ 
room). Although not required by the stipulations, the defen­
dants also chose to house the work capable inmates in general

3
population cellblocks of the prison where death row is located.

The Office of the Ruiz Special Master issued four reports 
concerning the experimental program described above. The Four­
teenth Monitor's Report of Factual Observations to the Special

It is our understanding that the various Ruiz stipulations and 
reports referred to in this brief were introduced into evidence 
below as Plaintiffs' Exhibits 5-11.

 ̂ The stipulations also provided for an increase in out-of-cell 
recreation time for death-sentenced prisoners not classified work 
capable. These death row segregation prisoners were accorded two 
hours of recreation per day, five days per week, and given the 
option of recreating during these periods in either a dayroom or 
an outdoor yard. The second stipulation provided for a signifi­
cant increase in the size of the yards used by all death row 
prisoners, and for improvements in the facilities available in 
those yards.

8



Master Report on Stipulation and Order Regarding Death Row 
Conditions was submitted to the Special Master by Monitor William 
G. Babcock on March 2, 1984. No party objected to the factual 
observations contained in that report, and the Report of the 
Special Master Concerning the Fourteenth Monitor's Report of 
Factual Observations to the Special Master - Report on Stipula­
tion and Order Regarding Death Row Conditions was submitted to 
the District Court on April 25, 1984 and confirmed, without 
objection, by order of June 28, 1984. In that order the Court 
stated:

The parties to this case, the TDC employees 
involved in the experimental death row program, and the 
Office of the Special Master, are each to be commended 
for the success of their cooperative efforts in this 
area. Both the smooth implementation of this innovative 
program design, and the growth opportunities which it 
has offered to TDC prisoners under sentence of death, 
constitute noteworthy achievements in the lengthy 
history of this complex case.

The findings of fact made by the Special Master in 
his Report reflect this success, and are supported by 
ample evidence.

The Sixteenth Monitor’s Report of Factual Observations to the 
Special Master - Report on Second Stipulation and Order Regarding 
Death Row Conditions was submitted to the Special Master by 
Monitor Babcock on May 21, 1984. On June 25, 1984, the Special 
Master filed the Report of the Special Master Concerning the 
Sixteenth Monitor's Report of Factual Observations to the Special 
Master - Report on Second Stipulation and Order Regarding Death

9



Row Conditions, and that report was confirmed by the Court,
without objection, by order of July 13, 1984. The Special Master 
summarized these four reports in his most recent Report to the 
Court concerning death row, filed March 14, 1985 (p.4): all four 
reports established that the defendants' experimental death row 
program operated "without significant difficulty."

Although the program was a successful innovation, by its 
terms the defendants were under no legal obligation to continue 
it indefinitely. Around the time that the second stipulation 
expired, a new TDC Director took office. He determined to 
modify the experiment in part by removing the death-sentenced 
work capable prisoners from general population cellblocks and 
jobs. However, the work capable prisoners were accorded vir­
tually unlimited out-of-cell time during waking hours, either in

4
their dayroom or in the yard adjacent to their cell area, and 
plans were announced for construction of a garment factory near 
the cell area to provide them with meaningful employment oppor­
tunities. The parties meanwhile commenced negotiations that led 
to the filing of a new Stipulation Regarding Death Row Conditions 
and Death Row Activity Plan, submitted to the Court on January

As noted at p. 8 n. 3, supra, by now the death row yards were 
significantly larger and better equipped than at the time of 
trial.

10



28, 1985, which the Court preliminarily approved by order
entered February 26, 1985. That order also required the defen-

5
dants to implement the settlement "forthwith."

The Death Row Activity Plan calls for the separation of 
death-sentenced prisoners into the earlier experimental cate­
gories of "death row work capable" and "death row segregation." 
It establishes criteria for the classification of death-sen­
tenced prisoners, and these criteria alone control classifi­
cation decisions. The Plan calls for the assignment of all work 
capable prisoners to "a meaningful prison job if available, 
consistent with the provisions of the Stipulation Regarding Death 
Row Conditions to which this Plan is attached." Paragraph two of 
the Stipulation in turn provides that "adequate space for outdoor 
recreation, recreation during inclement weather, work activity, 
programming, and other out-of-cell activity will be based on an 
assumption that as many as 100 death-sentenced prisoners may be 
classified into 'Death Row Work Capable' status at any given 
time," and requires that space for these activities "be designed 
to provide a reasonably balanced range of recreation, work, 
programming, and other out-of-cell activity simultaneously to at

5 Prior to granting preliminary approval of the settlement, the 
Court was advised by plaintiff-intervenor United States, in a 
letter dated February 1 9, 1985, that it "has no objection to 
entry of the proposed Stipulation."
After formal notice to all Texas death-sentenced prisoners and a 
hearing, the Court entered an order on January 3, 1986, granting 
final approval of the Stipulation and Plan.



least 100 prisoners." If more than 100 prisoners are classified 
work capable, the Stipulation contemplates development of a 
waiting list for admission pending a vacancy.

The Plan provides that all work capable prisoners are to be 
accorded fourteen hours per day out-of-cell time Monday through 
Friday of each week, and ten hours per day out-of-cell time 
Saturday and Sunday of each week. At least four hours of the 
prisoners' out-of-cell time is to consist of outdoor recreation. 
The Plan establishes criteria as to the size of the outdoor 
recreation yard, provides for the equipping of an indoor dayroom 
with tables, stools, exercise equipment, table games and drinking 
water, and permits work capable prisoners to eat their meals at 
tables in the dayroom if they so desire. The Plan also provides 
for weekly congregate religious services in the dayroom in 
addition to the out-of-cell time referred to above.

Although prisoners classified into "death row segregation" 
are not permitted to work, they are allowed under this Plan to 
recreate outside their cells at least three hours a day five days 
a week. They have the option of spending this 3-hour period in 
either a dayroom or an outdoor recreation yard. The Plan es­
tablishes criteria as to the size of the death row segregation 
yard; provides for suitable equipment in the death row segre­
gation dayroom; permits prisoners to have access to all materials 
available in the unit library; permits involvement in a GED 
program upon request; and affords prisoners an opportunity to

12



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attend congregate weekly religious services in a dayroom. The 
Plan further requires that each prisoner classified death row 
segregation be reviewed every six months pursuant to the proce­
dures and criteria set forth in the Plan, and be reviewed within 
no less than 90 days if he wins reversal of his death sentence in 
the courts but must remain on death row pending an appeal by the 
State.

Although the plaintiffs are estopped, for a period of two 
years from the January 17, 1985 signing of the Stipulation, from 
seeking expansion of the number of work capable prisoners for 
whom a "reasonably balanced range of recreation, work, program­
ming, and other out-of-cell activity" will be provided, there­
after they may re-open the proceedings to seek a ruling on the 
adequacy of out-of- cell recreation opportunities for death-sen­
tenced prisoners if "the number of death-sentenced prisoners 
committed to the defendants' custody has risen to the point where
a 'Death Row Work Capable' group in excess of 100 prisoners is 

6
necessary."

In summary, the Stipulation and Plan represent a remarkable 
relaxation of the cruel lock-in regimen to which all death-sen­
tenced prisoners were subjected at the time of the Ruiz trial. As 
many as 100 death-sentenced prisoners are accorded a minimum of 
90 hours a week out-of-cell time, and participate in meaningful

 ̂ There were approximately 185 prisoners on death row in Texas when 
the Stipulation was signed (see paragraph 4 of the Stipulation).

13



7
employment activity. And all other death-sentenced prisoners 
are assured of at least fifteen hours a week out-of-cell 
recreation time.

The present Texas death row settlement has been in effect 
since it received initial court approval on February 26, 1985, 
and the prior settlements date back to October 1983. These 
programs have been subjected to careful scrutiny by a court- 
appointed Special Master and his staff, and by TDC itself; no 
security-threatening problems of any significance have been 
reported.

B.
Texas is by no means the only state where cruel lock-in 

policies on death row are a thing of the past. Five years ago 
California entered into a consent decree under which death-sen­
tenced prisoners classified "Grade A" receive six hours out-of­
cell time per day, seven days per week. Thompson v. Enomoto, No.

8
79-1630 SAW (N.D. Cal. October 23, 1980). The Grade A death 
row prisoners also eat their noon meal at tables outside the

The Ruiz defendants intent to build a work facility adjacent to 
the work capable cell area was confirmed in the Special Master's 
Report of March 14, 1985 (p. 7), recommending court approval of 
the settlement. The work facility was completed in the Spring of 
1986 and is now fully operational.
A copy of the Thompson consent decree was introduced into 
evidence below as Plaintiffs' Exhibit 3.

14



cells, and may attend group religious services. And all Cali­
fornia death-sentenced prisoners, regardless of classification 
status, are accorded 12 hours of outdoor exercise per week.

Under a 1981 consent decree, all death row prisoners in 
Georgia are guaranteed a minimum of 32 hours per week out-of-cell
time. Daniels v. Zant, Civil Action No. 79-110-MAC (M.D. Ga.

9
June 5, 1981). At least six hours per week of outdoor exercise 
is also required. The decree does not specify the size of the 
outdoor yard, but it appears from the recreational equipment 
required that the yard is quite large: the decree obligates the
prison authorities to provide softballs and gloves, footballs, 
basketballs and volleyball equipment. Although out-of-cell time 
and recreation are not tied to classification status, the decree 
does require a thorough classification process and links classi­
fication status to a variety of other activities including group 
religious services and access to certain hobby materials.

In May 1986 Missouri entered into a consent decree providing 
for phased increases in recreation time to at least 32 hours per 
week by January 1 , 1 988, for death row prisoners classified
"Regular Custody." McDonald v. Armontrout, No. 85-4222-CV-C-5 
(W.D. Mo. May 22, 1 986 ). In addition to renovating three

A copy of the Daniels consent decree was introduced into evidence 
below as Plaintiffs' Exhibit 4.

15



outdoor recreation yards, Missouri has agreed to create a 60' X
40' indoor recreation area by utilizing space on the ground floor
of another cellblock adjacent to the death row yards.

The Commonwealth of Kentucky, pursuant to a consent decree
which required reevaluation of all segregation and recreation 

10
policies, began implementing major changes on death row several 
years ago. Today all death-sentenced prisoners receive approxi­
mately 5 3/4 hours of out-of-cell time per day, seven days per 
week. Physical exercise is available not only in the death row 
yard but also in the prison gymnasium. Death row inmates are
allowed to eat both lunch and dinner in the prison's central 

11
dining room.

In Virginia, all death-sentenced prisoners are now allowed 
out of their cells in groups of 6 or 7 from 8 A.M. to 8 P.M. 
daily (except for 2 counts). They eat their meals outside of 
their cells, and are allowed group religious services. They 
receive 10 hours per week of outdoor exercise.

In Arizona, approximately 20 of the state's 66 death-sen­
tenced prisoners have been classified for housing in a cellblock 
separate from the principal death row area. These inmates are

See Kendrick v. Bland, 541 F. Supp. 21, 33, 36 (W.D. Ky. 1981).
Kentucky's death row policies are reflected in the Operations 
Manual of the Kentucky State Penitentiary, on file with the 
District Court in Kendrick.

16



allowed out of their cells and taken to the general population 
mess hall for three meals daily, in addition to receiving an hour 
of yard time each day.

Amicus does not have records as to the administrative 
policies of every single state housing death-sentenced prisoners. 
However, we are familiar with the procedures in enough states to 
assert reliably that Tennessee was pursuing unnecessarily cruel 
and restrictive policies at the time of trial. This Court need 
not decide at this time precisely what changes in Tennessee's 
death row lock-in policies are constitutionally required; the 
State has submitted a flexible remedial plan which does not fix 
any minimum or maximum amounts of out-of-cell time, the District 
Court has approved the plan, and nowhere does the State's brief 
on this appeal claim that implementation of the plan has created 
any hardship. But it should be clear that the District Court's 
underlying determination —  that the conditions existing on 
Tennessee's death row at the time of trial, including a horribly 
restrictive lock-in policy, violated minimal Eighth Amendment 
standards —  was well justified and should be affirmed.

III. Most Death-Sentenced Prisoners Remain on Death Row 
for Extraordinarily Long Periods of Time While Their 
Appeals and Post-Conviction Proceedings Are Pending

The type of lock-in regimen at issue in this case is 
frequently imposed by departments of corrections upon prisoners 
who have been the subject of individualized determinations based 
upon institutional conduct. Such prisoners are confined in areas

17



typically labeled "punitive segregation," "administrative 
segregation" or the like, because of things which they have done 
while in prison. They are subjected to close confinement either 
as punishment for specific infractions, or because their institu­
tional records demonstrate that they pose special management 
problems.

However, this type of lock-in is relatively short-term. 
Often it may last only a few weeks or months. In the case of a 
particularly difficult administrative segregation prisoner, it 
might last a year or two. Yet defendants required all plaintiffs 
to endure such lock-in for infinitely longer periods of time, 
solely because of their sentence and without regard to their 
records of institutional behavior.

The District Court found that "[t]he average death row 
inmate spends six to ten years pursuing appeals." Groseclose v. 
Dutton, supra, 609 F. Supp. at 1447. In the experience of ami­
cus, this is a very accurate estimate. A length-of-stay survey 
stipulated to by the parties in Ruiz v. Estelle, supra, in 1983 
revealed that 25.8% of the death-sentenced prisoners in Texas had 
been on the row five years or longer. According to the data of 
that survey, the Texas prisoners executed to date have averaged

18



1/2 years, one had been there over 9 1/2 years, and one had been
12

there over 11 years.
In Kentucky, where the State began receiving death-sentenced 

prisoners in 1978, 25% of those prisoners (7 out of 28) have been 
on death row for over four years; three of these men have been 
there five years, one has been there six years, and another has 
been there eight years. Yet only two of Kentucky's 28 death 
cases have completed state post-conviction proceedings and have 
entered federal habeas corpus. Thus, it appears that the length- 
of-stay for Kentucky's death row prisoners will increase substan­
tially in the years ahead.

The record of this case contains Tennessee length-of-stay 
data, provided by defendants in their answer to interrogatory one 
of plaintiffs' first set of interrogatories (served on October 5, 
1984). Of the 41 men on Tennessee's death row at that time, nine 
(nearly 22%) had been there four years or longer; three of these 
had been there approximately six years, and one had been there 
nearly seven years. All of these prisoners have spent nearly two 
additional years on the row since the filing of defendants' 
answers to the interrogatories. Today, 15 out of Tennessee's 57 
death-sentenced inmates (26.3%) have been on the row five years 
or longer; six of these men have been there over five years,

5.8 years apiece on death row; three had been on the row over 8

The present Texas death-sentencing statute was enacted in 1974.

1 9



three have been there over six years, two have been there over 
seven years, three have been there over eight years, and one has 
been there nearly nine years.

As in Kentucky, the process of judicial review in Tennessee 
is not very far advanced. According to the Fund's records, only 
six death cases have completed state post-conviction review and 
are pending or will soon be pending in federal district court on 
habeas corpus petitions. The length-of-stay for prisoners on 
Tennessee's death row is therefore likely to increase signifi­
cantly over the next few years.

Any assessment of the constitutionality of prison conditions
must necessarily take into account the length of time to which
inmates are subjected to those conditions. It is one thing to
confine a human being in a tiny cell over 22 hours a day for a
few weeks or months; it is quite another thing to keep him caged

13
in this manner for six to ten years.

There have been many cases holding that conditions of confinement 
of non-death sentenced prisoners in other long-term segregation 
units constitute cruel and unusual punishment. See, e ,g., 
Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984); S p a m  v. 
Procunier, 600 F.2d f89 (9th Cir. 1979); Toussaint v. McCarthy, 
597 F. Supp. 1 388 (N.D. Cal. 1984). See also Sweet v. So~uth 
Carolina Department of Corrections, 529 F„2d 854, 866 (4th Cir. 
1975) (determination as to whether exercise accorded segregated 
prisoner was constitutionally inadequate may depend on the length 
of his stay in segregation). The Supreme Court, in other 
contexts, has also recognized that length-of-stay in a particular 
prison environment is a factor in determining the constitu­
tionality of conditions there. See Hutto v. Finney, 437 U.S. 
678, 686-88 (1978); Bell v. Wolfish, 441 U.S. 520, 543 (1979).

20



IV. The High Reversal Rate in Death Cases Provides Most 
Death-Sentenced Prisoners With a Powerful Incentive to 
Maintain Good Records of Institutional Behavior_____

Many of the persons who remain on death row for these long 
periods will not be executed. One study has estimated that as of 
1980 the reversal rate nationally in capital cases was either 60% 
or 79%, depending upon the method of calculation. Greenberg, 
Capital Punishment as a System, 91 Yale L.J. 908, 916 (1982). At 
the time of the survey Texas had already removed from death row 
53 persons sentenced under its 1974 death-sentencing statute, and 
Georgia had already removed 68 persons sentenced under its 1973 
statute (_id. at 929-36).

The Fund has for many years kept records on the reversal 
rates in capital cases of several state courts of last resort. In 
our experience, these reversal rates are often remarkably high. 
For example, of the 206 capital appeals decided between 1974 and 
1985 by the Texas Court of Criminal Appeals, 80 (38.8%) resulted 
in reversals. The reversal rates are also quite high in the two 
Sixth Circuit states whose death penalty statutes have been on 
the books for several years. In Kentucky, 9 out of the 18 
capital appeals decided to date (50%) have resulted in reversals. 
In Tennessee, 16 of the 50 capital appeals decided to date (32%) 
have resulted in reversals.

21



The above figures reflect only review by state court 
systems. In the Fund's experience, many other death row inmates 
will eventually prevail on federal habeas corpus either in the 
district courts or the courts of appeals. For example, the 
Fund's records reveal that of the 160 capital federal habeas 
corpus appeals decided across the nation since 1978, a total of 
68 have been decided in favor of the death-sentenced prisoner. 
That is a success rate of 42.5%.

A death row prisoner who obtains a reversal may well face a 
new trial. If the reversal is because of an error committed at 
sentencing, he will be subjected to a new sentencing trial at 
which his record of institutional behavior will undoubtedly be a
factor. See Skipper v. South Carolina, 476 U.S. ___, 90 L.Ed.2d
1 (1986). If the reversal is because of an error affecting 
guilt, there is at least a possibility that a new trial will 
result in another capital conviction and hence another sentencing 
phase at which his prison record will be scrutinized. Even if 
the reversal leads to a guilty plea or conviction resulting in a 
sentence other than death, the prisoner's record of institutional 
behavior will obviously be a factor in determining his classifi­
cation status and his ultimate chances for parole. Thus, many 
death-sentenced prisoners have good reason to be concerned about

22



institutional discipline, but also to extra years in prison or
14

even a new death sentence upon retrial.
V. Conclusion
Courts in this country have grappled with issues concerning 

the treatment of death-sentenced inmates for nearly a century. 
See, e .g . , Ex Parte Medley, 134 U.S. 835 ( 1 890) (Colorado
statute mandating confinement of all death-sentenced prisoners in 
solitary confinement, and severely restricting their visitation 
rights, declared unconstitutional); Sinclair v. Henderson, 331 F. 
Supp. 1123, 1129-31 (E.D. La. 1971) (23 3/4 hour lock-up per day 
for death row prisoners, with no opportunity for outdoor exer­
cise, constitutes cruel and unusual punishment; some inmates were 
subjected to such treatment for more than nine years); Ruiz v. 
Estelle, supra.

We will not burden the Court by repeating the legal argu­
ments which will be presented in the brief of plaint if fs-appel- 
lees. But we do wish to stress that a correctional system which 
treats all death-sentenced prisoners as desperate, vicious 
monsters, certain to kill and maim while in prison and to attempt 
escape at the slightest opportunity, is living in a world of 
unreality. That is simply not the way the death-sentencing

-14 In addition, as the District Court noted, even a death row 
prisoner who loses all his appeals will want to compile a good 
institutional record to improve his chances for clemency. 
Groseclose v. Dutton, supra, 609 F. Supp. at 1447.

their record on death row. Infractions may lead not only to

23



process operates in America in the mid-1980's. Most prisoners
arriving on death row today face many years of appeals, with
considerable grounds for hope that a reviewing court will rule in
their favor. Recognition of this fact, well known for years by
lawyers and jurists who participate in the process, may have
escaped notice by some correctional administrators at first. But

15
as the years have passed, and the death rows have grown, and 
the reversal rates have remained high, an increasing number of 
correctional officials have recognized the obvious and have 
eliminated cruel, unnecessarily harsh lock-in policies that are a 
throwback to an earlier era.

The lock-in regimen revealed by this record, taken together 
with the many other deprivations found by the District Court, 
establish that at the time of trial Tennessee was running a death 
row which was virtually medieval. Indeed, half the prisoners were 
literally entombed over 22 hours per day by the lock-in policy, 
since their cell area has no windows or other openings to natural 
light. Groseclose v. Dutton, supra, 609 F.Supp. at 1435. The 
record amply demonstrates that the District Court was correct in 
holding that conditions on this death row violated the minimal 
standards of human decency required by the Eighth Amendment.

^  There are presently 1,765 persons under sentence of death in the 
United States. NAACP Legal Defense and Educational Fund, Inc., 
Death Row; USA (August 1, 1986).

24



For the above-stated reasons, the order of the District
Court should be affirmed.

Respectfully submitted,

JULIUS L. CHAMBERS 
JOEL BERGER

99 Hudson Street
16th Floor
New York, New York 10013 
[212] 219-1900

ATTORNEYS FOR AMICUS CURIAE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, 
INC.

25



CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the 
foregoing Brief for Amicus Curiae NAACP Legal Defense and 
Educational Fund, Inc., has been forwarded via United States 
Mail, first class mail, postage prepaid, addressed to Larry D. 
Woods, Esq. attorney for plaintiffs, 121 Seventeenth Avenue 
South, Nashville, TN 37203; William P. Redick, Esq., attorney 
for Ronald Harries, c/o Federal Public Defender, 808 Broadway, 
Nashville, TN 37203; Richard McGee, Esq., attorney for Ronald 
Harries, 207 Third Avenue North, 5th Floor, Nashville, TN 37201; 
Hal D. Hardin, Esq., guardian ad litem for Ronald Harries, First 
American Center, 14th Floor, Box 99, Nashville, TN, 37238; and 
Wayne E. Uhl, Esq., Assistant Attorney General of the State of 
Tennessee, attorney for defendants, 450 James Robertson Parkway, 
Nashville, TN 37219, this 'Z & fb  day of August, 1986.

■JOEL BERGER
Attorney for Amicus Curiae NAACP 
Legal Defense and Educational Fund, 
Inc.