Running head: DEATH ROW

Death Row: Cruel and Unusual?

James Bain
University of Alabama

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Abstract

There are over 3,000 death row inmates currently awaiting a sentence of death in American
prisons. Except for a small minority in the Missouri prison system, these prisoners spend, on
average, over a decade wasting away in isolation and horrid conditions. These conditions lead
many inmates to experience the death row phenomenon. Death row inmates are said to face
two punishments: punishment by death, and punishment by wasting away for years on death row.
The conditions and the amount of time spent on death row have caused many to challenge the
constitutionality of todays death rows. However, the Missouri Department of Corrections
successful experiment with the integration of death-sentenced inmates into the general
population may be a solution. The purpose of this paper is to examine the mental and physical
conditions of inmates living on death rows, with an emphasis on the constitutionality of the long
delays between inmates sentences and executions.
Keywords: death row, death row phenomenon, death row syndrome, Eighth Amendment

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Death Row: Cruel and Unusual?

According to the Death Penalty Information Center (DPIC) (2011), there are currently 3,251
inmates awaiting their fate on Americas death rows. Death row refers to the segregated unit
of the prison that is used to house a certain type of inmate, one who has been sentenced to death.
Although death rows do vary somewhat in their characteristics from state to state, the conditions
on death row are typically the sametomblike (Smith, 2008 p. 237). Moreover, the time an
inmate in the United States spends awaiting their punishment has slowly been increasing (Smith,
2008). The length of time death row inmates now spend living on death row has become so great
that many are contemplating the constitutionality of these prolonged stays on death row
(Bradford, 2010; Simmons, 2009; Smith, 2008). The purpose of this paper is to examine the
mental and physical conditions of inmates living on death rows, with an emphasis on the
constitutionality of the long delays in between their sentences and executions.
History of Death Row
The number of crimes in the American colonies punishable by death is, by todays standards,
shockingly high. Treason, murder, manslaughter, rape, robbery, burglary, arson, counterfeiting,
and theft all were punishable by death (Banner, 2002). Steven Banner, (2002) in his book The
Death Penalty, states that the justification for the death penalty in early America was the concept
of deterrence. The fear of punishment is assumed to deter a criminal from committing a crime.
If capital punishment is to impose fear on the public, it must be seen (Banner, 2002). As Cesare
Beccaria (1764/1963) pointed out in his treatise, On Crimes and Punishments, if a punishment is
to deter others, it must be swift. As such, early American executions were made public.
Condemned prisoners would be paraded thought the city on their way to the gallows. This
parading though the street was intended so that those who could not attend the execution could

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still witness the condemned on his or her way to the gallows (Banner, 2002). The gallows were a
wooden structure used for the hanging of condemned prisoners, and was the most popular form
of execution in early America (Banner, 2002). Banner (2002) does not mention any separation of
death-sentenced prisoners from other inmates. The prisoners were simply placed under
confinement until their sentence was commenced. Also the amount of time the prisoner awaited
his or her fate, by todays standards, was minimal. Being convicted in October and sentenced to
die in November was considered a lengthy amount of time and a costly burden to the state
(Banner, 2002). Todays death-sentenced inmates, however, spend much longer than a mere
month living in the conditions of modern death rows.
Modern Conditions of Death Row
One of the first American prisons to house inmates on a death row was New Yorks Sing
Sing prison. In 1922, a new death row named the condemned cells was built at Sing Sing,
which the prisoners nicknamed the slaughterhouse (Johnson, 2006). The slaughterhouse
required the prisoners to be isolated in their locked cells for over 23 1/2 hours a day, with little to
no contact with fellow prisoners. The lives of the inmates were ones of strict regimentation,
dehumanization, and isolation (Johnson, 2006). The way of life for the inmates on Sing Sings
death row is common for the many types of persons on death row.
Persons on Death Row
There are 34 states in the United States that house condemned prisoners. The typical death
row inmate is a white male. Males make up over 98% of the inmates on death row; and whites
are the major race represented with 44% of the death row inmate population (DPIC 2011).
Johnson (2006) suggests that women are underrepresented on death row. There are only 60
women on death row, and since 1976 only one women death row inmate has been executed.

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Although the Supreme Court ruled in Roper v. Simmons in favor of the abolishment of the
execution of juveniles, there have been 22 juveniles executed since 1976 (DPIC 2011). Prior to
Roper v. Simmons there were 24 states that held 17 to be the minimum age allowable for a
defendant to be sentenced to death, while 19 states only required the defendant to be 16 years of
age (Cunningham & Vegan, 2002). Furthermore, in a study of the characteristic of death row
inmates, Cunningham and Vigen (2002) found death row inmates to have an average to low
average IQ, and over half of death row inmates to not have a high school diploma. The
researchers also found a rate of psychosis in death row inmates substantially higher than that of
the general prison population. Many of these death row inmates have a history of parental
abandonment and or parental substance abuse (Cunningham & Vegan, 2002). Although there is a
multitude of types of death row inmates, most of them all share, at least, one thing in common.
The living conditions that death row inmates are faced with are very similar.
Conditions of Death Row
Although there is some variability between states, for the most part, the living conditions on
different states death rows are very similar (Cunningham & Vegan, 2002). Most prisons
segregate their death-sentenced prisoners from the general population (Johnson, 2002). The
general population prisoners do not have any contact or interaction with the death row inmates.
Most inmates receive only one hour per day of time outside of the inmates cell, and even that is
isolated from the rest of the prison (Cunningham & Vegan, 2002). Johnson (2002) describes
how the death row prisoners are not treated like the other prisoners. Inmates on death row are
only given the bare necessities. While visiting Alabamas death row Johnson (1981) observed
the following features: The inmates live in small cells without amenities. The toilets are small
and can be describes as simply a metal pipe stuck in the floor. The smells of sweat, urine, and

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feces are unbearable. The food is not much better. It is cold and tasteless (Johnson, 1981).
Cunningham and Vegan (2002) give a slightly more analytic analysis of death row conditions. In
21 of the 37 death row jurisdictions, visitations are non-contact only. 35 of these jurisdictions
only provide the inmates with one hour of daily time outside of their isolated cell. These austere
and rigid living conditions have a detrimental effect on the inmates that live under them.
Effects of Living on Death Row
Years of living in the types of conditions of death row have an effect on inmates mental and
physical health. On death row in Sing Sing, Johnson (2002) describes the transformation of the
death row inmates. The hair of the inmates would turn gray and the skin of the inmates would
begin to wrinkle. The inmates were sent to daily chapel that provided them with much stress,
and a reminder of their impending fate. Johnson (2002) describes death row as human storage.
Johnson (2002) sees the warehousing of the inmates as simply keeping bodies alive so that they
can be killed. This type of treatment can have disastrous psychological effects on an inmate.
Psychological Effects
The inmates on death row have no control over their daily lives (Cunningham & Vegan, 2002;
Johnson, 2002; Smith, 2008). This loss of control along with the monotony and loneliness of
their lives causes many of them to feel helpless and defeatedpowerless (Cunningham & Vegan,
2002; Johnson, 2002). Johnson (2002) describes the inmates as Reduced to dehumanized
objectsmere pawns [emphasis added] in the modern execution process (p.95). The inmates
begin to feel the loneliness that is brought on by daily life on death row. The officers are, for
many of the inmates, their only source of human contact (Johnson, 2002). The officers do not
care about the inmates they are simply performing their duties as prison guards. The isolation
and segregation from the inmates family can often causes his or her personal relationships to

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wane (Johnson, 2002). This powerlessness and loneliness often leads to a sense of vulnerability
(Johnson, 2002). The inmates are alone and helpless. The guards have complete power over
them and as a result the inmate feels vulnerable and begins to deteriorate (Cunningham & Vegan,
2002). The daily life of the death row inmate also leads to a decline in physical strength and
laziness or sluggishness may be exhibited (Cunningham & Vegan, 2002). These common
characteristics of death row inmates may lead to the death row phenomena and or death row
syndrome.
Death row phenomena.
In Caycie Bradfords (2010) paper, Waiting to Die, Dying to Live, Bradford describes death
row phenomena as, The circumstances that are found on death row and the physical
deterioration in prisoners who are serving death sentences and awaiting their execution (p. 79).
Amy Smith (2008) sees death row phenomena as requiring three key components: a temporal
component, a physical component, and an experiential component. The temporal component is
the amount of time between the inmates sentencing and the actual execution (Smith, 2008).
Some inmates spend over three decades on death row awaiting their fate (Simmons, 2009).
Studies have shown that inmates may develop a type of learned helplessness after several years
of regimented and monotonous living (Smith, 2008). The physical component is the conditions
that the inmate is subjected to while living on death row (Smith, 2008). Cunningham and Vegan
(2002) describe the conditions of todays death row inmates. The conditions are austere, dirty,
cold, and unacceptable. Smith (2008) claims that harsh physical conditions have a negative
impact on a persons well-being and behavior. Likewise, the conditions on death rows in
America have a negative impact on death row inmates well-being. Lastly, the third element is
the experiential component, which is the psychological effect of living of living on death row

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awaiting execution (Smith, 2008). Smith (2008) describes this last component as being what
differentiates death row inmates from the millions of other inmates serving lengthy sentences in
American prisons. Death row inmates are faced with a unique set of circumstances while serving
their time in prison (Smith, 2008). They have to live with the impending execution looming over
them everyday. The death row phenomenon refers to the experience that occurs while living on
death row under the previously stated conditions, while death row syndrome refers to the actual
psychological harm that results from death row phenomena (Smith, 2008).
Death row syndrome.
Death row syndrome can be used to describe the dehumanizing effects of a person caused by
a prolonged stay on death row (Smith, 2008). Although death row syndrome has yet to be
defined as a clinical concept, it has been brought up in court cases (Smith, 2008). Death row
inmates have, in certain cases, waived his or her right to appeal and volunteered for death
(Smith, 2008). One notable case is that of Michael Ross. Michael Ross, after years of living on
death row, tried to waive his mandated appeals. On three different occasions, Ross attempted to
kill himself while on death row (Bradford, 2010). In light of Rosss actions his execution date
was postponed. It was wondered if Ross suffered from death row syndrome. However, Rosss
lawyers argument that a negative psychological effect due to a combination of Rosss stay on
death row and the impeding knowledge of his own death compelled Ross to volunteer was
unsuccessful (Bradford, 2010). Ross was deemed competent to waive his appeals and he was
executed (Smith, 2008). Smith (2008) argues that if death row phenomena does exist and causes
the individual to waive his or her rights, then this would be a violation of the Eighth Amendment
of the United States Constitution.

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Constitutionality of the Death Penalty

The Supreme Court and lower courts alike have yet to decide on the constitutionality of a
prolonged stay on death row (Simmons, 2009). The Supreme Court even rejected to hear the
claim of a man who had spent 27 years on death row (Simmons, 2009). It has been argued that
the years of prolonged wait, by themselves, are a violation of the United States Constitution
(Bradford, 2010). These arguments are directed towards the Eighth Amendment of the
Constitution, which prohibits cruel and unusual punishment.
Eighth Amendment.
The Eighth Amendment of the United States Constitution prohibits cruel and unusual
punishments, yet it does not provide a definition of cruel and unusual (Simmons, 2009).
However, Simmons (2009) explains that in Trop v. Dulles the Supreme Court provided a more
precise interpretation of the Eight Amendment. The Court noted that the words in the
Amendment draw their meaning from the evolving standards of decency of society. Therefore
when considering if a punishment is deemed cruel and unusual or not, the Court is to consider
what society, at that time, considers cruel and unusual. The prolonged waits on death row, as
long as there is a death row, according to Smith (2008), appear to be permanent. This is a result
of the many cases that have appeared before the Supreme Court challenging the constitutionality
of the death penalty.
Furman v. Georgia.
In 1972, the United States Supreme Court held that the death penalty, as it was being
administered at the time, violated the Eighth Amendment (Latzer, 2002). The court did not hold
that the death penalty was unconstitutional per se, only that the way it was being applied,
arbitrarily, was unconstitutional (Latzer, 2002). Part of this arbitrariness, was the

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overrepresentation of implementing the death penalty in cases of minorities. This effectively

ended executions in the United States, but left out the possibility for the death penalty to be
reinstated on a state-by-state basis (Latzer, 2002). This moratorium stayed in effect until Gregg
v. Georgia in 1976.
Gregg v. Georgia.
In 1976, the United States Supreme Court held that the sentence of death in the case of Troy
Gregg was constitutional. Furman v. Georgia did not rule that the death penalty itself was cruel
and unusual, only that the way it was being applied was. Gregg v. Georgia allowed for the death
penalty only in homicides with certain characteristics (Latzer, 2002). The homicide had to have
certain aggravating factors, which are factors that make a crime more reprehensible. The
homicide also had to have few mitigating circumstances, which are circumstances that make the
crime less reprehensible (Latzer, 2002). The ruling also held that these aggravating and
mitigating factors must be proven at a separate trial only after the defendant has been found
guilty. Furthermore, Gregg also implemented a mandatory appeal to the states highest court in
death penalty convictions (Latzer, 2002). Gregg v. Georgia became the model for other states
death penalty statutes as well (Latzer, 2002). Although Gregg reinstated the death penalty in
America, it did not sufficiently determine which mitigating factors determined the violation of
the Eighth Amendment. One case that did recognize one of these factors is that of Atkins v.
Virginia.
Atkins v. Virginia.
In 2002, the United States Supreme Court held that of execution of a criminal who is mentally
retarded is a violation of the Eighth Amendment (Latzer, 2002). Criminals that are, by law,
intellectually disabled cannot be held legally culpable of the most serious of adult crimes (Latzer,

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2002). Daryl Atkins IQ was 59 at the time when he committed abduction, armed robbery, and
capital murder. Justice Stevens, in the majority opinion of the Supreme Court, held that the
American publics standard of decency prohibited the execution of a criminal who is
intellectually disabled (Latzer, 2002). Therefore, the Supreme Court ruled that the death penalty,
when applied to persons who are intellectually disable, violates the Eight Amendment of the
United States Constitution.
Discussion
The United States Supreme Court, through various rulings, has held that the death penalty, in
and of itself, does not violate the Eight Amendments prohibition against cruel and unusual
punishment (Latzer, 2002). The court applies the evolving standards of society when
determining which particular mitigating factors violate the Eighth Amendment in all such
instances of that mitigating factor occurring (Simmons, 2009). The Court has not made any
ruling on mitigating factors such as the death row phenomena or death row syndrome. These
terms are, not even recognized, at the moment, as actual terms by any medical or psychological
association (Bradford, 2010). The long delay between a death sentence and the carrying out of
the execution does not appear to be getting any shorter (Smith, 2008). Furthermore, the standard
of decency in the United States does not seem to be close to deeming the death penalty as cruel
and unusual any time in the near future. The only logical solution to the problems of death row
phenomena and death row syndrome lies with the conditions of living on death row. If the
conditions of death row are not as austere, lonely, dirty, constricted, cold, and separated, death
row phenomena and death row syndrome may not occur. Since 1991, death-sentenced inmates in
Missouri have not been separated into an isolated death row, but have been integrated with the
general population (Cunningham, Reidy, & Sorensen, 2005; Lyon & Cunningham, 2005).

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Missouri System

Death-sentence inmates in Missouri are sentenced to the Potosi Correctional Center (PCC)
where they are integrated into the general prison population (Cunningham et al., 2005; Lyon &
Cunningham, 2005). This system challenges one of the main assumptions behind death rows, the
assumption that death-sentenced inmates are disproportionality more violent than their general
population counterparts and therefore need to be separated (Lyon & Cunningham, 2005). An 11
year study by Cunningham, et al. (2005) has shown that death-sentence inmates do not commit
higher rates of prison violence. In fact, for most crimes, the death-sentence inmates had a lower
rate of violence than that of the general prison population. The study by Cunningham, et al.
(2005) supports the notion that death-sentence inmates do not need to be separated from the
general prison population. Furthermore, the findings from the study are expected to generalize to
other prison systems (Cunningham, et. al., 2005). If this is the case, the Missouri system could
potentially have significant policy implications for the United States corrections system.
Policy Implications
If the findings from the Cunningham, et al. (2005) study of the Missouri prison system can be
generalized to the prison systems of other states, this would have significant implications. The
death row inmates of the 33 other states that house death row inmates could be integrated into
the general population. This could allocate significant amounts of resources for other
correctional duties. No longer would there be a need for separate death row prison guards. As
far as the author of the paper is aware, death row inmates are the most expensive to house. Some
of this financial burden has to come from the fact that the inmates have their own separate
prison within a prison. Eliminating the need for death row would be financially beneficial.
The concepts of death row phenomena and death row syndrome seem to hold the isolation of the

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inmate as an integral component in these theories. With the inmates integration into the general
population it could be suggested that the death row phenomena and death row syndrome would
cease to be a relevant issue, and more time could be allotted for more important issues. Overall,
it seems, that the integration would have a beneficial effect on, not only the inmates themselves,
but also the entire prison system.

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References

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Beccaria, C. (1963). On Crimes and Punishments (H. Paloucci, Trans.). New York:
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Bradford, C. D. (2010). Waiting to die, dying to live: An account of the death row phenomenon
from a legal viewpoint. Interdisciplinary Journal Of Human Rights Law, 5(1), 77-96.
Cunningham, M. D., & Vigen, M. P. (2002). Death row inmate characteristics, adjustment,
and confinement: A critical review of the literature. Behavioral Sciences and the Law,
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Cunningham, M. D., Reidy, T. J., & Sorensen, J. R. (2005). Is death row obsolete? A decade of
mainstreaming death-sentenced inmates in Missouri. Behavioral Sciences and the Law, 23
(3), 307-320.
Death Penalty Information Center. (2011). Facts about the death penalty. Retrieved from
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Johnson, R. (2006). Death work: A study of the modern execution process. Mason, OH:
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punishment. Burlington, MA: Butterworth-Heinemann.
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state interest in maintaining a separate death row make it unlawful?. American Journal Of

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Criminal Law, 33(1), 1-30.
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[Lackey revisited]. Case Western Reserve Law Review, 59(4), 1249-1270.
Smith, A. (2008). Not Waiving but drowning: The anatomy of death row syndrome and
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237-254

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