Is a long stay on death row itself cruel and unusual punishment?

Condemned prisoners often spend decades on death row before being executed—if the execution ever happens at all—a fact that undermines any retributive value capital punishment might provide, according to Slate.

Approximately 40 percent of the 2,739 people currently on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50. (This is according to data collected by the Fair Punishment Project and sourced from the NAACP’s Legal Defense Fund, the Federal Bureau of Prisons, and state corrections departments.)

According to a Los Angeles Times investigation, roughly two dozen men on California’s death row require walkers and wheelchairs, and one is living out his days in bed wearing diapers. In North Carolina, nine death row prisoners have died of natural causes since 2006—the same year the state last executed someone. These delays suggest that executions must be sped up significantly.

And yet, the process that creates those delays cannot be eliminated without a corresponding increase in the risk of wrongful executions. Since 1973, 157 men and women have been exonerated from death row.

Behind this conundrum rests a profound moral and legal problem. Decades spent awaiting an uncertain execution inflicts an additional and nakedly cruel layer of punishment on the condemned. Most death row inmates are housed alone for years in tiny concrete cells even as a growing body of evidence suggests the psychological burden of solitary confinement is tantamount to torture. In Texas, for example, death row prisoners await their fates in the Allan B. Polunsky Unit, a Polk County prison where they spend 23 hours per day isolated in 60-square-foot cells. They exit only to shower or exercise and are handcuffed, stripped naked, and subjected to a full body search when they do leave their cells.

Decades spent awaiting uncertain execution inflicts a nakedly cruel layer of punishment.

In 2015, Supreme Court Justice Anthony Kennedy questioned the humanity of confining prisoners “in a windowless cell no larger than a typical parking spot.” In his concurring opinion in Davis v. Ayala, Kennedy cited an 1890 Supreme Court ruling that solitary confinement represented “a further terror and peculiar mark of infamy” for prisoners who’ve been sentenced to death. That kind of isolation can “exact a terrible price” and “literally drives men mad,” Kennedy wrote.

With public support for executions at historic lows, death row delays seem likely to increase. Just 20 of the nearly 3,000 prisoners on death row nationwide were executed last year.

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