Life On Death Row: Can It Be Unconstitutional?

Posted: June 16, 1986

By inmates, it is considered both cruel and unusual - a dim, grim place where you spend 22 or 23 hours a day alone in an isolated cell, waiting to lose your life or, some of them say, your mind, whichever comes first.

To state prison officials, it is a humane and sound arrangement - a security measure made necessary by the growing number of inmates facing death in an electric chair whose return to use is looming ever closer.

It is Death Row, Pa., population 65 and growing, and it is the subject of a civil trial that will begin today in a wood-paneled federal courtroom in Philadelphia and will also be heard in a concrete classroom at the state prison in Graterford, Montgomery County.

At Graterford, U.S. District Judge Joseph L. McGlynn Jr. is scheduled to hear the testimony of five condemned men who contend that, regardless of whether Pennsylvania's death penalty is unconstitutional, waiting for it is.

During a trial that is expected to last two weeks, McGlynn is also scheduled to hear from a former death-row resident, Neil Ferber, who, according to his attorney, suffered a nervous breakdown during the 14 months he spent there. Ferber was freed from prison after his murder conviction was overturned.

The trial stems from a class-action lawsuit filed in January 1983 by Otis Peterkin and nine other death-row inmates at Graterford. The lawsuit, written in longhand and mailed to U.S. District Court in Philadelphia, was filed two months after the state removed death-sentenced inmates from the general prison population and put them into restricted housing.

In the suit, since taken over by the American Civil Liberties Union, the inmates say they are confined in noisy, cramped, poorly ventilated quarters for up to 23 hours a day, that their outdoor recreation must be taken in fully enclosed wire mesh "dog runs," and that they have limited access to visitors, legal materials, religious services, educational programs and each other.

The inmates contend that those conditions and others violate the Eighth Amendment, which prohibits cruel and unusual punishment.

"Death-sentenced inmates are no longer being treated (in other states) like they're being treated in Pennsylvania," said Stefan Presser, legal director of the American Civil Liberties Union of Pennsylvania and the attorney who will represent the inmates in court.

The state, according to motions it has filed in the case, contends that conditions on death row do not violate the Constitution and that the restrictions are necessary to better monitor inmates who they say have already committed violent acts and, since they have nothing to lose, could do so again in prison.

Before November 1982, inmates sentenced to death in Pennsylvania lived among the rest of the prison population and enjoyed the same privileges.

Then, shortly after the state Supreme Court upheld the state's 1978 death penalty statute, the state Department of Corrections adopted a new policy, moving all death-sentenced inmates into the restricted housing units of the state's three maximum security prisons - Graterford, Huntingdon and Pittsburgh.

At the time of the transfers, corrections officials said an escape attempt by one death-sentenced inmate and an assault on a guard by another also played a role in the decision.

The death-row inmates are held in what prison officials call ''administrative custody" - they avoid use of the term "death row" - which is a level of custody generally used for inmates who need protection or close monitoring, or who have broken prison rules. The inmates are held one to a cell.

Despite the state's assertion when it changed its policy that Pennsylvania was the only state with a death penalty that did not isolate death-sentenced inmates from the rest of the prison population, Presser, in an interview, said that many states have been moving away from highly restrictive death rows and are allowing inmates more out-of-cell time.

Texas, for example, allows death-sentenced inmates 16 hours a day of out- of-cell time, California six, and Georgia five, he said. In addition, he said, lawsuits and consent decrees in other states have led to a lifting of severely restrictive conditions of confinement on death rows.

One of the most crucial issues raised in the lawsuit, Presser said, is the lack of access death-row inmates have to legal materials. Because of their restricted status, death-row inmates cannot confer with members of inmate law clinics within the prisons and cannot go to the prison law library. Instead they must request by name law books from the library.

"They are under the most severe sentence imposed by our legal system, yet they are hamstrung in their ability to challenge their sentences of death by not having access to law libraries," Presser said.

The trial on death-row conditions starts the day before what was to be the first execution in Pennsylvania since 1962 - that of John Lesko, whose electrocution was to have taken place tomorrow but was stayed on Thursday by a U.S. District Court judge in Pittsburgh.

As Lesko's case - and Pennsylvania's death penalty - head for a review by a federal court in Pittsburgh, Lesko's co-defendant, Michael Travaglia, will be testifying in the death-row conditions trial at the other end of the state.

Travaglia, convicted with Lesko in the slaying of an Apollo, Pa., police officer, received a stay of execution in November, and his appeals are pending. Other death-row inmates scheduled to testify in the trial are Peterkin, who received two death penalties after his 1982 conviction for shooting to death his former supervisor and an attendant at a Philadelphia gas station; Charles Lee, of Norristown, sentenced to death for the 1979 killing of a West Philadelphia woman and also serving a life sentence in connection with another murder; Ronald Wheeler, convicted in 1983 of the contract killing in Bristol, Bucks County, of a convicted drug dealer who was also a federal informant; and Henry Fahy, a Kensington man convicted in 1983 of raping and stabbing to death a 12-year-old girl in 1981.

The five are among 65 death-row inmates in Pennsylvania state prisons - one at Pittsburgh, 44 at Huntingdon and 20 at Graterford. At least 15 more people in county jails are awaiting formalization of their death sentences and transfer to state prisons.

Of those 80, all are men, 42 are black, and 30 are from Philadelphia. They range in age from 19 to 49, and include one man, now 20, who was sentenced to death at age 15. Two death-row inmates are brothers.

According to the NAACP Legal Defense and Education Fund, only six states have more death penalty inmates - Florida, Texas, California, Georgia, Illinois and Alabama.

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