January 27, 2014
Brad Livingston
Executive Director, Texas Department of Criminal Justice
P.O. Box 99
Huntsville, TX 77342-0099
FAX: 936-437-2123
Bryan Collier
Deputy Executive Director, Texas Department of Criminal Justice
P.O. Box 99
Huntsville, TX 77342-0099
FAX: 936-437-2123
Oliver Bell
Chairman, Texas Board of Criminal Justice (TBCJ)
P.O. Box 13084
Austin, Texas
FAX: 512-305-9398

SUBJECT: REVISION TO TDCJ’S DEATH ROW PLAN
Dear Mr. Livingston, Mr. Collier, and Mr. Bell:
In light of the upcoming revisions to the Death Row Plan, we, members of the undersigned
organizations, are writing to submit suggested revisions to the plan. Security experts, correctional
officers, religious leaders, mental-health professionals, civil-rights advocates, and lawyers understand the
import of maintaining security in all TDCJ facilities. It is our belief, based on accepted research and
proven methods used in other jurisdictions, that the following revisions will make things safer and in no
way compromise security, reduce the filing of grievances, and even improve the lives of correctional
staff, who currently must work in the most hostile and tense of environments.
As you are aware, until 1999, inmates on Texas death row were housed at the Ellis Unit, where
inmates could work in manufacturing jobs, eat with other inmates, participate in communal religious
services, and recreate together in outdoor recreation yards and in the dayroom. Following the move to the
Polunsky unit, all individuals on death row, regardless of their prison record, are housed in what amounts
to permanent solitary confinement. They are not allowed to work, they eat their meals alone, they cannot
practice their faith with others, and they are not permitted to recreate with one another.
Inmates on death row have stated, “[t]here is no incentive for good behavior at Polunsky” because
all inmates are housed in punitive conditions. And research has found that removing inmates from solitary
confinement to more humane and less restrictive housing can improve security, whereas “on average,
long-term administrative segregation—especially if prisoners perceive it as being unfair and indefinite—
1 
 

will in many cases exacerbate misconduct and psychiatric dysfunction.”1 More privileges for people on
death row will improve security by giving people an incentive to comply with prison regulations.
We ask TDCJ to implement a formal classification system that allows people on death row to
move toward increased privileges, based on good behavior while housed at the Polunsky Unit. These
changes should not compromise security, as these privileges will not apply to all individuals on death
row, but only to those who have demonstrated through their behavior that they do not present a security
risk. Moreover, individuals on the female death-row unit already have the capability of moving toward
similar increased privileges, and there have been no security issues associated with such a policy on that
unit. Privileges should include permitting individuals to work towards:












Contact visits with families: People on death row used to be allowed to have contact visits with
families at Ellis, but now they can only meet their families from behind a glass window. This
isolation has a profound impact not just on inmates, but on their families.
Communal recreational activities: In the Ellis unit, inmates were able to recreate with one
another. At the Polunsky Unit, inmates are completely alone during their recreational time.
Work capability: People on death row were allowed to work on the Ellis Unit. Working
provided a sense of purpose and community, and an incentive for good behavior. Although the
new death row unit may not be constructed for manufacturing jobs, people on death row could
still usefully participate in chores on their own unit, like cleaning, kitchen, and laundry.
Religious services: People on death row participated in communal religious services in the Ellis
Unit, but inmates report this is no longer the case at the Polunsky Unit.
Television: At the Ellis Unit, people were able to watch television in the dayroom, and the
televisions were also visible from their cells. For people on death row, television is not just
entertainment; it is a life-line. As Anthony Graves explained, “television [at Ellis] was really
important. It kept us all connected to the outside world. It kept us sane.” Now death-row inmates
are not allowed to watch television at all.
Wide range of in-cell arts and crafts: Inmates on death row used to have access to a wider
range of arts and crafts. Arts were a meaningful activity. At Polunsky, the craft program is greatly
circumscribed.
Phone privileges: There is no phone in the day room. This is extremely troubling for people on
death row, who often need to communicate urgently with their counsel, or may need to quickly
find new counsel if their current attorney drops their appeal. Also, inmates are rarely allowed to
call their families. TDCJ should increase phone privileges for inmates both for legal and personal
calls.

In addition to the above suggestions, conditions in death row are a significant concern to a broad
range of individuals. We ask the Department to facilitate dialogue with outside groups regarding death
row policies and conditions. Among other matters for discussion, organizations have reported that people
are not receiving their psychotropic medications upon their transfer to death row. We are also concerned
                                                            
1

Terry A. Kupers et al., “Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking
Prison Classification and Creating Alternative Mental Health Programs,” Criminal Justice and Behavior (July 21,
2009), at 12. 

2 
 

about lawyers’ ability to meet with their clients in confidential attorney meeting rooms. Attorneys used
to be able to meet with their clients in confidential meeting rooms, where their attorney-client
communications could not be overheard by other visitors or TDCJ staff. Now, attorneys can only
communicate with their clients in the general meeting area, where they have no privacy to discuss
confidential issues in their clients’ criminal cases. Moreover, attorneys used to be able to buy snacks and
beverages for their clients during their often-times lengthy meetings. Lately, attorneys have been told that
they can no longer provide snacks or beverages for their clients. Finally, we are concerned about inmates’
reports that their mail is being held up to 72 hours before being distributed to them, inhibiting their
communication with counsel about urgent matters and causing them to miss court deadlines.
We urge TDCJ to incorporate these changes in the upcoming Death Row Plan review. Please
contact Cindy Eigler of Texas Impact to follow up on the progress of our request, at 512-472-3903 or
cindy@texasinterfaith.org. Also, we have enclosed letters of support from the following broad range of
advocates and organizations:












Jeanne Woodford, Former Warden and Former Director of California’s Department of Corrections
AFSCME Correction Employees Union Local 3807
National Alliance on Mental Illness (NAMI) Texas
Mental Health America of Texas
Texas Inmate Family Association
The Criminal Justice Ministry of the Diocese of Beaumont
Catholic Pastoral Center, Diocese of Beaumont
Texas Impact
Texas Defender Service
Richard Burr, Attorney
Texas Civil Rights Project

Sincerely,
American Civil Liberties Union of Texas
Texas Civil Rights Project
Texas Coalition to Abolish the Death Penalty
Texas Criminal Justice Coalition
Texas Defender Service
Texas Impact
Enclosures: 11
cc:

 

Gary Hunter, Warden, Allan B. Polunsky Unit
State Senator John Whitmire
State Representative Tan Parker
Tom Mechler, Vice-Chairman, TBCJ
Leopoldo Vasquez III, Secretary, TBCJ
3 

Eric Gambrell, TBCJ
Judge Lawrence Gist, TBCJ
Carmen Villanueva-Hiles, TBCJ
Janice Harris Lord, TBCJ
R. Terrell McCombs, TBCJ
Thomas P. Wingate, TBCJ

4 
 

To Whom It May Concern:

I

of San Quentin, which houses the largest death-row population in the
I have also served as Director of the Califomia Department of Corrections and the
Undersecretary of the California Department of Corrections and Rehabilitation, the largest correctional
am the former warden

country.

system in the United States. I have over 30 years of experience in criminal j ustice.

I

write to support this coalition's demand that Texas cease to house death-row inmates in
permanent solitary confinement. Based on my experience as a warden in Califomia, I believe

automatically housing death-row inmates in permanent solitary confinement decreases prison security.

Unlike inmates on Texas death row, death-row prisoners in California are classified into different
security levels based on their behavior. Those inmates who demonstrate good behavior have greater
privileges, including group recreation, contact visits, communal religious programming, and the
ability to
purchase televisions. These privileges do not present a security concern.
Indeed, allowing inmates privileges based on good behavior enhances security because it creates
incentives for inmates to comply with prison regulations. When inmates are permanently and
automatically housed in highly restrictive environments-as they are in Texas-it is more difficult to
control their behavior. To make matters worse, complete idleness breeds mental illness, causing inmates
to act out and putting correctional officers at risk.

I

recommend that the Texas Department of Criminal Justice create a classification system that
allows inmates increased privileges based on good behavior. These changes will benefit TDCJ by making

it easier for correctional officers to manage death-row inmates.

Sincerely,

[4],-'W'//
Q:,o
ArunnrWoodford /

AFSCME Texas
Correctional Employees
Local 3807
“We Patrol Texas' Toughest Beat”

January 20, 2014
Greetings,
As the president of the largest correctional professional organization in Texas I am calling on the
Texas Department of Criminal Justice to change the death row plan to positively impact both the
correctional staff and offenders on Texas death row. After the November 1998 escape of Offender
Martin Gurule, the Texas Department of Criminal Justice engaged in a knee jerk reaction regarding the
administration of Texas death row inmates.
Staff incompetency and lack of proper security equipment were the biggest factors resulting in
Gurule's escape from the O.B. Ellis death row. As a result of the escape the agency ignored the root of
the problem and addressed the lack of security equipment by increasing the physical perimeter security,
in addition to the number of firearm rounds issued to perimeter pickets. Lack of staff competency was
never addressed in a positive manner and has resulted in a less experienced force securing Texas death
row.
The changes in the death row plan following the Gurule escape have resulted in the solitary
housing of “D1” offenders who were capable and had additional privileges which could be used as
management tools for negative behavior. As a result of the changes to the Texas death row plan,
inmates have very few privileges to lose and staff become an easy targets.
The Texas death row plan needs to address tools that can manage positive behavior. D1 offenders
who are work capable should be utilized. Housing death row D1 offenders in a solitary cell is a waste
of valuable security personnel and money. D1 offenders should be housed 2 offenders to a cell and
treated similar to G3 offenders in terms of privileges such as work assignment and allowed TV
privileges by streaming over the air television to a computer tablet using a closed WiFi network. Use
of technologies such as computer tablets and streaming TV should be offered to offenders who exhibit
positive behavior. Lack of visual or audio stimulation result in increased psychological incidents and
results in costly crisis management.
Staff incompetency should be addressed by offering death row officers a salary differential and
substantially increase their training for staff committed to working death row. A greater pay differential
will insure we have the best officers watching Texas most dangerous population. Other correctional
agencies have successfully used differentials to address staffing issues. Let's make Texas a model for
successful death row criminal justice reforms.
Respectfully,

Lance l Lowry

Lance Lowry
President Local 3807

1314 Tenth, Street, Suite 110, Huntsville, Texas 77320
(936) 295-5265 ' 1-800-374-9772

January 14, 2014
To Whom It May Concern,
The Texas chapter of the National Alliance on Mental Illness (NAMI) would like to express support for the letter
recently submitted to TDCJ regarding suggested revisions to the Death Row Plan. NAMI Texas is affiliated with the
National Alliance on Mental Illness (NAMI) and has 28 local affiliates throughout Texas and nearly 5,000 members
made up of mental health consumers, family members, friends, and professionals. Our purpose is to help improve the
lives of people affected by mental illness through education, support, and advocacy.
We wholeheartedly support the recommendations in the Death Row Plan letter to TDCJ. As indicated in the letter,
increasing certain privileges of individuals on death row improves prison security, amounts to more humane treatment,
and can have profoundly positive consequences for inmates, correctional staff, and family members. The specific
recommendations made would make criminal justice facilities managed by TDCJ a safer environment.
NAMI has concerns about the common practice of placing death row inmates in long-term solitary confinement. Studies
have shown that depriving inmates of human contact and keeping them in solitary confinement for long periods of time
may exacerbate mental health disturbances, assaultive and other antisocial behaviors, and chronic and acute health
disorders.1 Psychological effects can include anxiety, depression, anger, cognitive disturbances, perceptual distortions,
obsessive thoughts, paranoia, and psychosis.2 Solitary confinement is also linked to increased suicide risk. A review of
past studies found that 50% of completed suicides by inmates occur among the 2-8% of prisoners who are housed in
solitary confinement.3 Increasing certain privileges of inmates on death row would help to address the negative
psychological and security consequences associated with solitary confinement.
We strongly recommend that TDCJ consider the suggested revisions in the upcoming Death Row Plan review.
Additionally, we respectfully request further investigation into the issue of individuals not receiving psychotropic
medications upon transfer to death row.
Sincerely,
Greg Hansch
Policy Coordinator, NAMI Texas
Email: ghansch@namitexas.org
Phone: 908-229-7082

1

Angela Browne, Alissa Cambier and Suzanne Agha, “Prisons within Prisons: The Use of Segregation in the United States,” Federal Sentencing Reporter, Vol. 24, no.
1 (October 2011), p. 46 (citing David Lovell, L. Clark Johnson, and Kevin C. Caine, Recidivism of Supermax Prisoners in Washington State, 53 CRIME DELINQUENCY
633-56 (2007); David Lovell & Clark Johnson, FELONY AND VIOLENT RECIDIVISM AMONG SUPERMAX PRISON INMATES IN WASHINGTON STATE: A PILOT STUDY
(University of Washington, 2004), available at http://www.son.washington.edu/faculty/fac-page-files/Lovell-SupermaxRecidism-4-19-04.pdf).
2
Smith PS: The effects of solitary confinement on prison inmates: a brief history and review of the literature. Crim Just 34:441-568, 2006
3
The Colorado Study vs. the Reality of Supermax Confinement, Stuart Grassian, M.D., J.D., and Terry Kupers M.D, M.S.P., Correctional Mental Health Report,
Volume 13 No. 1, May/June 2011

Fountain Park Plaza III 2800 South IH 35 Suite 140
512-693-2000
512-693-8000

Austin, Texas 78704
www.namitexas.org

January 22, 2014

To Whom It May Concern:

Mental Health America of Texas expresses our support for the attached letter regarding
suggested changes to the death row plan.

Mental Health America of Texas is the oldest statewide mental health advocacy organization
in Texas—79 years. We continue to work diligently to prevent mental illness and substance
abuse, and ensure all Texans have access to effective, culturally competent mental health
care.

In addition, Mental Health America of Texas serves on the Texas Council on Offenders with
Medical and Mental Impairments (TCOOMMI) and we believe the recommendations in the
death row plan are consistent with the principles of the Committee.

Mental Health America of Texas believes that the revisions suggested in the attached letter
can safeguard individuals’ mental health, and prevent some mental health-related crises from
developing. It is our view that incorporating the suggested changes will lead to creating a
safer, more humane environment at the Texas Department of Criminal Justice (TDCJ).

We strongly urge TDCJ to incorporate the suggested revisions in the final death row plan.

Sincerely,
Lynn Lasky Clark, President & CEO
Mental Health America of Texas

John Theiss, Board Chair
Mental Health America of Texas

www.mhatexas.org
For further information, contact: Gyl Switzer, Public Policy Director, Mental Health America of Texas 1210 San Antonio Street, Ste 200  Austin, TX 78701
P: (512) 454-3706  F: (512) 454-3725 gyl@mhatexas.org

Texas Inmate Families Association
P.O. Box 300220
Austin, TX 78703-0004

Jan 16, 2014

To Whom It May Concern:
The Texas Inmate Families Association (TIFA) wants to express our support of the
attached letter to the Texas Department of Criminal Justice (TDCJ) in regard to the
suggested revisions to the Death Row Plan. These revisions support our advocacy for
families of incarcerated loved ones in Texas prisons.
TIFA knows how vitally important it is for families to be able to continue physical and
verbal contact with their incarcerated loved ones. There is the importance of a child with
an incarcerated parent being able to visit their parents or siblings, to be able to hug them
or to hold their hand in a contact visit. Most family members suffer extreme emotional
anguish over finding their mother, father, sister, brother or other family members being
sentenced to prison and eventually death. Incarceration has a very real effect upon the
families. As one of our members has pointed out, having contact visits makes a child
realize that their father or mother is real, and not just a figure behind plexiglass. Just as
some people suffer from Empty Nest Syndrome if their child goes off to college, parents
whose child goes to prison suffer in the same way. But going to prison is so much more
severe, especially for those families who know that their child or loved one will
eventually be killed.
It would benefit our civilization as a whole, and especially the families of Death Row
inmates, if we can encourage the implementation of policies that would increase
privileges, such as contact visits. Solitary confinement, no contact visits with families,
no privileges whatsoever for years is cruel and unusual punishment, especially for
families who suffer with no recourse. Rather than make families suffer because of the
inmate’s incarceration, it would make life more bearable for Death Row Inmate families
who are living through these emotionally traumatic years, if TDCJ could consider
implementing the changes suggested in the attached letter regarding the Death Row
Plan.
Sincerely,
Jennifer Erschabek
Executive Director
Texas Inmate Families Association
	

Please respond to Houston office.
Email: KMKase@texasdefender.org

January 24, 2014
Brad Livingston
Executive Director, Texas Department of Criminal Justice
209 West 14th Street
5th Floor, Price Daniel Building
Austin, TX 78701
Austin Office
510 S. Congress
Suite 304
Austin, Texas 78704
[v] 512 320-8300
[f] 512 477-2153
Houston Office
1927 Blodgett St.
Houston, Texas 77004
[v] 713 222-7788
[f] 713 222-0260

Bryan Collier
Deputy Executive Director, Texas Department of Criminal Justice
P.O. Box 99
Huntsville, TX 77342-0099
Oliver Bell
Chairman, Texas Board of Criminal Justice (TBCJ)
P.O. Box 13084
Austin, Texas
Re:

Revision of Death Row Plan

Dear Director Livingston, Deputy Director Collier and Chairman Bell:

www.texasdefender.org Texas Defender Service submits this separate letter in support of specific

Executive Director
Kathryn M. Kase
Interim Post-Conviction
Director
Lee Kovarsky
Trial Project Director
Ken Murray
Board of Directors
Prof. Jordan Steiker
Chair
Murray Fogler
Noah C. Graubart
Charles S. Kelley
Alison Leland
Neal S. Manne
Prof. Jeff Pokorak
Douglas Robinson
Prof. Elisabeth Semel
Raoul Schonemann
Gretchen S. Sween
Andrew Tauber

revisions to the Death Row Plan, which we understand is slated for
reconsideration and amendment. We support the Plan’s amendment because
we seek conditions that allow us to better serve our clients.
Texas Defender Service is a non-profit legal services organization focused on
improving indigent defense through the lens of the death penalty in Texas.
Since our founding in 1995, our attorneys have represented scores of
condemned prisoners. In so doing, our attorneys, mitigation specialists,
paralegals, and law interns have regularly traveled to death row – whether
located at the Ellis, Polunsky or Mountain View units – to confer with clients,
observe mental evaluations, conduct depositions, and otherwise represent
the interests of those facing Texas’ most severe punishment.
The foundation of the lawyer-client relationship is a client’s trust that the
lawyer will exercise appropriate professional judgment on the client’s behalf.
This “relationship of trust” is so important in death penalty cases that both
the State Bar of Texas and the American Bar Association explicitly require
that post-conviction counsel and the members of their defense teams build
such a relationship with condemned clients.1
American Bar Association, Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, Guideline 10.2 (Rev. ed. 2003), reprinted in
31 HOFSTRA L. REV. 913 (2003) (hereinafter “ABA Guidelines”); State Bar of Texas,
Guidelines and Standards for Texas Capital Defense Counsel, Guideline 10.2 (Apr.
21, 2006), reprinted in 69 TEX. BAR J. 966 (Nov. 2006) (“Texas Guidelines”).
1

Director Livingston, Deputy Director Collier and Chairman Bell
Re: Revision of Death Row Plan
January 24, 2014
page 2
The ABA acknowledges that a death-row client may be unwilling to trust counsel because,
by the time the post-conviction lawyer is appointed, “the client will have put his life into the
hands of at least one other lawyer and found himself on death row.”2 Trust also may be
impeded by mental illness, mental retardation, chronic health conditions, as well as
language and cultural barriers.3 Thus, amid these obstacles to trust, it is even more critical
that post-conviction counsel seek and obtain the client’s confidence.
Previously, visitation practices on the Polunsky Unit – and, in particular, the use of the
attorney-client visitation booths and the ability of counsel to purchase food for clients –
assisted the building of a trust relationship between condemned inmates and their counsel.
The recent unexplained elimination of those accommodations has made it much more
difficult to establish and maintain the attorney-client relationship.
While prison personnel may see no need for use of the visitation booths by counsel, the
booths ensure the privacy of attorney-client communications. The Texas Disciplinary Rules
of Professional Conduct make clear that lawyers must keep their communications with
clients confidential.4 The Polunsky Unit’s current requirement that attorneys sit in the
general visitation area to conduct legal visits creates an unacceptable risk that TDCJ staff,
other visitors, and other inmates will overhear attorney-client conversations and that staff
and other visitors will view documents that attorneys have brought to discuss with clients.
Also damaging to the attorney-client relationship is the Polunsky Unit’s elimination of the
opportunity for counsel to purchase food and drink for clients during the visit. Postconviction counsel are mandated to explain the state and federal law that governs capital
habeas cases to their clients.5 This law is complicated and not easily explained to other
attorneys, let alone to clients whose education likely ended in high school. As a result,
death row legal visits can stretch to hours while lawyers fulfill their professional duties.
Food purchases are made to facilitate visits for clients who would otherwise miss meals
because they are having a legal visit when meals are delivered to their cells or because they
have health conditions or are on medications (or both) and must eat at regular intervals.
When the client is hungry, legal visits become truncated and the likelihood is diminished
that the client will be well-informed about his case and the law that governs it.
It is no solution that post-conviction counsel could theoretically explain the law in letters to
clients. Many death row prisoners are barely literate, some because their cognitive
functioning is extremely low. Others suffer from mental illnesses that make it difficult for

2

Commentary to ABA Guideline 10.5.1.

3

Commentary to ABA Guideline 10.5.

4

Texas Disciplinary Rules of Professional Conduct, Comment 1 to Rule 1.05.

5

Texas Guideline 12.2(B)(2)(b).

Director Livingston, Deputy Director Collier and Chairman Bell
Re: Revision of Death Row Plan
January 24, 2014
page 3
them to communicate straightforwardly in writing. For these prisoners, verbal
communication is the only way that they can hope to understand their legal cases.
For these reasons, the Death Row Plan should permit prisoners greater access to
telephones for confidential consultation with their legal teams. The current policy limits
phone calls to those requested by counsel and then to topics that cannot be addressed
during visits or in correspondence. This practice effectively ensures that communication
runs in only one direction (from counsel to the client) and prevents prisoners from
communicating with legal counsel who have been non-responsive by mail.
Texas Defender Service asks TDCJ to amend its Death Row Plan in order to eliminate the
practices discussed here that impede the delivery of legal services to death row inmates.
We would be more than willing to meet with you to discuss these requests in greater detail.
Very truly yours,

Kathryn M. Kase
Executive Director

BURR & WELCH
Attorneys at Law
P.O. Box 525
Leggett, Texas 77350
Richard Burr
(dick@burrandwelch.com)
Mandy Welch
(mandy@burrandwelch.com)

(713) 628-3391
fax (713) 893-2500

January 24, 2014

Re: Revision of Death Row Plan
To Whom It May Concern:
I am writing concerning possible revision of Texas’ Death Row Plan. Since 1979, I have been
representing people sentenced to death, and since 1981, I have devoted my entire practice to this
work. Since 1994, the primary focus of my work has been in Texas.
I am writing to urge at least three reforms of the current plan: (1) private contact legal visits, (2)
contact social visits, and (3) the development of options for greater out-of-cell and social time for
death row prisoners.
Private contact legal visits play a very significant role in the development of the attorney-client
relationship. The development of a relationship of trust and honesty between a death-sentenced
person and his or her lawyer is critical to the lawyer’s ability to provide effective legal
representation. The ability to meet in a room together, in private, enhances communications in
every respect – assuring that the client understands information necessary to make the choices the
client must make in the course of a case, allowing the client to get to know the lawyer better and
to feel safe in disclosing information that might be seen as shameful or humiliating or hurtful,
and creating an inviolate sanctuary that allows anything to be said in relation to the client or the
case that needs to be said. I understand that it is not the job of a prison to assist lawyers in the
representation of their clients. However, it is the responsibility of the prison to do nothing that
constricts and make less effective the representation of a client. Failing to provide private
contact visits hinders the representation of clients on death row.
I know this first-hand, because for more than ten years, before my practice focused on Texas, I
represented death-sentenced people in Florida and other states. During that time, Florida State
Prison provided private contact legal visits. I was able to develop a closer and more trusting
relationship with my Florida clients than I could with my clients on state death rows that did not
allow for such legal visits. This enhanced the quality of the assistance I was able to provide to
these clients. Texas should allow for such visits.

Re: Revision of Death Row Plan
January 24, 2014
page 2
Contact social visits should also be provided. One of the greatest risks to people sentenced to
death is that they will become depressed and suicidal, or severely mentally ill. The weight of the
sentence, the isolation from others, the execution of people they come to be friends with – all
take a toll on people on death row. Sometimes people on death row become both depressed and
severely mentally ill, and if not suicidal, become so miserable that they hurt themselves or make
others around them miserable. Everyone on death row is susceptible to depression, mental
illness, acting out as a result of depression and mental illness, and suicide. Not all succumb to
these disorders, but many do.
One of the best means of helping people live for however long they must live on death row
without succumbing to mental illness, is to provide contact social visits. Such visits provide
opportunities for people to be touched by someone who cares about them, to embrace and be
embraced by those who love them, to laugh, to cry, to experience the full range of human
emotion that is experienced only when human beings have direct contact with one another.
Providing contact social visits nurtures the core of human-ness of people on death row and
allows them to live with less suffering and less mental torture. The infliction of death should be
seen as punishment enough. The gradual killing of people on death row that comes from social
isolation and the deprivation of affectionate human contact should not be part of a death
sentence.
This, too, is the reason to allow death row prisoners opportunities to be out of their cells more
than they are and to include in their out-of-cell time opportunities for social interaction. When
Texas’ death row was in the Ellis Unit, these opportunities were provided through communal day
rooms work. The move to Polunsky ended these opportunities. My own experience with clients
is that after death row moved to Polunsky, the rate of depression, mental illness, and suffering
went up significantly. While not the only cause of this, the deprivation of opportunities for social
interaction surely has played a significant role in this increase in suffering. Again, we should not
be about increasing the suffering of those who will pay for their offenses with their lives. That
punishment and the suffering it inherently causes is surely punishment enough.
I would be honored to met with you in person to discuss these and other concerns.
Sincerely,

Richard H. Burr

TEXAS CIVIL RIGHTS PROJECT - HOUSTON
2006 Wheeler Ave.
Houston, TX 77004
(832) 767-3650 (phone)
(832) 554-9981 (fax)

January 27, 2014
Brad Livingston
Executive Director, Texas Department of Criminal Justice
P.O. Box 99
Huntsville, TX 77342-0099
FAX: 936-437-2123
Bryan Collier
Deputy Executive Director, Texas Department of Criminal Justice
P.O. Box 99
Huntsville, TX 77342-0099
FAX: 936-437-2123
Oliver Bell
Chairman, Texas Board of Criminal Justice (TBCJ)
P.O. Box 13084
Austin, Texas
FAX: 512-305-9398

To Whom It May Concern:
The Texas Civil Rights Project enthusiastically joins this coalition to recommend changes
to conditions of confinement for inmates on death row. We write separately to emphasize why
increasing privileges for death-row inmates who demonstrate good behavior is not just a smart
idea from a security standpoint: These changes are required by the United States Constitution.
Constitutional protections extend to all inmates, including those on death row. In
particular, the conditions on Texas death row implicate inmates’ rights under the Fourteenth and
Eighth Amendments.
I.

Fourteenth Amendment—Right to Due Process

TDCJ violates the Fourteenth Amendment rights of death-row prisoners by placing them
all in permanent solitary confinement for indefinite periods of time—in many cases nearly a
decade and a half—without any procedural protections to evaluate their most appropriate
housing situation on an individualized basis.
The Fourteenth Amendment provides that no state shall “deprive any person of life,
liberty, or property, without due process of law.” The Supreme Court has ruled that the
Fourteenth Amendment requires prisons to provide inmates with procedural protections—such as
a classification process—before imposing an “atypical and significant hardship within the
correctional context.”1 In Wilkinson v. Austin, the Supreme Court found that conditions of
permanent solitary confinement at an Ohio supermax facility amounted to an atypical and
1

Wilkinson v. Austin, 545 U.S. 209, 224 (2005).
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significant hardship, such that prisoners were entitled to procedural protections before being
housed there.2 Among other factors, the Court noted that the inmates at the supermax—like those
on Texas death row—were “deprived of almost any environmental or sensory stimuli and of
almost all human contact,” and were confined in this way for an indeterminate period.3 Many
“courts of appeals have held that periods of [solitary] confinement that approach or exceed one
year may trigger a cognizable liberty interest.”4 And the Fifth Circuit has observed that
Wilkinson “constitutes a crucial exception to the general rule that a prisoner has no liberty
interest in his classification: that is, when the prisoner is incarcerated in super-maximum security
conditions.”5
In a significant ruling this November, the District Court for the Eastern District of
Virginia determined that the Fourteenth Amendment protects people on death row from being
confined to permanent solitary confinement without any due-process protections.6 Alfredo
Prieto, an inmate who had been on death row for half a decade, filed a lawsuit arguing that the
Virginia department of corrections violated his right to due process by automatically housing
him in near-complete isolation, without offering him any opportunity to review his placement.
The district court agreed.
The conditions of confinement on Virginia’s death row were almost identical to those in
Texas. Based solely on their sentences, Virginia death-row inmates were housed in a single cell
measuring 71 feet squared for all but one hour a day, ate all three meals alone in their cells, had
no in-pod recreation, and could not go to the gymnasium or the prison yard.7 Death-row inmates
could leave their cells only for three ten-minute showers per week and for an hour of recreation
five days a week—which took place in an outdoor cell hardly larger than their inside cell, with a
concrete floor and no exercise equipment.8 Their visitation was limited to non-contact visits with
immediate family members through a glass window.9 And the death-row inmates were entirely
prohibited from joining general-population inmates for vocational, educational, or behavioral
programs, or from attending communal religious services.10 If anything, the conditions in
Virginia were less restrictive than those for death-row inmates in Texas: Inmates could purchase
televisions and compact-disc players, whereas Texas death-row inmates are not permitted to use
either.11 (Indeed, Texas is only one of two states that prohibit death-row inmates from watching
television.12)
2

See id.
Id. at 214-15.
4
Marion v. Columbia Correction Institution, 559 F.3d 693, 698-99 (7th Cir. 2009) (citing Iqbal v. Hasty, 490 F.3d
143, 161 (2d Cir. 2007); Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006); Williams v. Fountain, 77 F.3d
372, 374 (11th Cir. 1996)).
5
Tate v. Starks, 444 F. App’x 720, 723-24 (5th Cir. 2011).
6
See Prieto v. Clarke, No. 1:12-cv-01199-LMB-IDD, Doc. No. 91 (E.D. Va. Nov. 11, 2013).
7
See id. at 2-3.
8
See id.
9
See id. at 3.
10
See id.
11
See id.
12
See
Dave
Mann,
“Solitary
Men,”
The
Observer
(Nov.
10, 2010), available at
http://www.texasobserver.org/solitary-men/
3

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Given the lengthy nature of post-conviction proceedings, death-row inmates were
confined to complete isolation for extremely long periods.13 The court described these
conditions as “dehumanizing.”14 They were significantly more restrictive than the conditions for
general-population inmates.15 Moreover, non-death-row inmates received a classification
procedure to determine the security level that was most appropriate for each individual.16
The court ruled that the department of corrections violated the Due Process Clause by
confining the plaintiff to permanent solitary confinement without any procedural recourse.17 It
also determined that there was no legitimate penal objective justifying the complete lack of
procedural protections.18 Indeed, it rejected the argument that death-row inmates had no
incentive to behave well or take rehabilitation seriously, noting that there was always “the
possibility that new forensic evidence might undercut a conviction, a habeas petition might be
granted, or that good behavior might improve the prospects of a commuted sentence.”19
TDCJ violates the due-process rights of inmates on death row by housing them all in
permanent solitary confinement, without providing any procedural protections. The Due Process
Clause requires that these inmates have the opportunity to participate in classification procedures
to determine, on an individualized basis, their most appropriate housing situation. TDCJ must
make changes to conditions of confinement on death row to ensure that Texas inmates are
housed in accordance with the requirements of the United States Constitution.
II.

Eighth Amendment—Cruel and Unusual Punishment

TDCJ should also be well aware that all inmates have a right to be free from cruel and
unusual punishment under the Eighth Amendment. Eighth Amendment protections
unquestionably extend to death row: The Fifth Circuit has affirmed that the Eighth Amendment
requires prisons to provide death-row inmates with “humane conditions of confinement.”20 And
in December, the District Court for the Middle District of Louisiana ruled that conditions of
extreme heat on Louisiana’s death row violated the Eighth Amendment.21
Moreover, studies have found that solitary confinement causes extreme psychological
suffering. In the words of one researcher, “There are few if any forms of imprisonment that
appear to produce so much psychological trauma and in which so many symptoms of
psychopathology are manifested.”22 The Supreme Court recognized the psychological
consequences of solitary confinement in 1890, observing that “[a] considerable number of the
prisoners [in isolation] fell, after even a short confinement, into a semi-fatuous condition, from
13

See Prieto v. Clarke, supra n.6, at 16.
Id. at 14.
15
See id. at 14-15.
16
See id. at 4-5.
17
See id. at 10-25.
18
See id. at 19.
19
Id. at 20.
20
Gates v. Cook, 376 F.3d 323, 332 (5th Cir. 2004).
21
See Ball v. LeBlanc, --- F. Supp. 2d ----, 2013 WL 6705141 (M.D. La. Dec. 19, 2013).
22
Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime &
Delinquency 124, 125 (Jan. 2003).
14

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which it was next to impossible to arouse them, and others became violently insane; others still,
committed suicide; while those who stood the ordeal better were not generally reformed, and in
most cases did not recover sufficient mental activity to be of any subsequent service to the
community.”23
Crucially, many courts, including a Texas district court, have ruled that the Eighth
Amendment prohibits correctional departments from placing mentally ill people in solitary
confinement because of the psychological suffering it causes.24 Demonstrating the wide-spread
recognition that housing the mentally ill in isolation is cruel and unusual, six states have agreed,
in settlement decrees, to cease housing the mentally ill in solitary confinement.25 TDCJ should be
concerned about this case law because many mentally ill people are housed on death row.
Currently, 102 people on death row have a history of a mental disorder, are currently on
psychotropic medications, or receive ongoing counseling or monitoring for a mental illness.26
TCRP urges the Texas Department of Criminal Justice to comply with the United States
Constitution and institute the requested changes to the death-row plan. TDCJ must make these
revisions to ensure that Texas death row is operated safely, humanely, and lawfully.
Sincerely,

Burke Butler
Staff Attorney

23

In re Medley, 134 U.S. 160, 168 (1890).
See Indiana Protection and Advocacy Services Commission v. Commissioner, No. 1:08-cv-01317-TWP-MJD,
2012 WL 6738517 (S.D. Ind. Dec. 31, 2013); Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001); Ruiz v.
Johnson, 37 F. Supp. 2d 855, 912 (S.D. Tex. 1999), rev’d on other grounds, 243 F.3d 941 (5th Cir. 2001); Madrid v.
Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).
25
Thomas L. Hafemeister & Jeff George, The Ninth Circule of Hell: An Eighth Amendment Analysis of Imposing
Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, 90 Denv. U. L. Rev. 1, 28 (2012).
26
Data received from the Texas Department of Criminal Justice by the Texas Civil Rights Project through a Public
Information Act request. 
24

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