Order RE: In-Chambers Status Conference
Public Court Documents
December 12, 1985

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Brief Collection, LDF Court Filings. Groseclose v. Dutton Brief for Amicus Curiae, 1986. 7540d7e3-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/45aa67b1-0995-45e3-88c3-f52f44df6d93/groseclose-v-dutton-brief-for-amicus-curiae. Accessed July 01, 2025.
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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 T o _ ££*l □ a c e VHM . T , m . /ZtX} WHILE M. o f . P h o n e RE OUT Area Code Number Extension TELEPHONED PLEASE CALL IX CALLED TO SEE YOU WILL CALL AGAIN WANTS TO SEE YOU URGENT RETURNED YOUR CALL e s s a g e Opel i AMPAD V I EFFICIENCY® 23-020 I 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.