The Forgotten Population:, Schemes and Mind Maps of History

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A Look at Death Row in the United States

Through the Experiences of Women

The Forgotten

Population:

Published December 2004

Prepared by the American Civil Liberties Union’s Capital Punishment Project, Women’s Rights Project and National Prison Project, with the National Criminal Justice Program of the American Friends Service Committee and the National Clearinghouse for the Defense of Battered Women.

ACKNOWLEDGMENTS Rachel King and Judy Bellin were the prin- cipal authors of the report and were assist- ed by: Lenora Lapidus, Namita Luthra, Elizabeth Alexander, David Fathi, Tonya McClary and Sue Ostoff. The authors would also like to acknowledge Ruth Friedman for her ongoing assistance with this project and Ron Tabak, Dick Dieter and Kate Stewart for reading earlier versions of the report. Lastly, we would like to acknowledge our friend and colleague, Diann Rust-Tierney, whose vision made this report a reality.

THE AMERICAN CIVIL LIBERTIES UNION is the nation’s premier guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and freedoms guaranteed by the Constitution and the laws of the United States.

OFFICERS AND DIRECTORS Nadine Strossen, President Anthony D. Romero, Executive Director Kenneth B. Clark, Chair, Executive Advisory Council Richard Zacks, Treasurer

ACLU National Headquarters 125 Broad Street, 18th Fl. New York, NY 10004- (212) 549- www.aclu.org

ACLU Capital Punishment Project 915 15th Street, NW, 6th Fl. Washington, DC 20005

ACLU Women’s Rights Project 125 Broad Street, 18th Floor New York, NY 10004

ACLU National Prison Project 733 15th Street NW, Suite 620 Washington DC, 20005

National Clearinghouse for the Defense of Battered Women 125 S. 9th St., Suite 302 Philadelphia, PA 19107

American Friends Service Committee Criminal Justice Project 1501 Cherry St. Philadelphia, PA 19102

Cover Photo: Rev. Jesse Jackson comforts Oklahoma Death Row inmate Wanda Jean Allen, shortly before her execution.

The Forgotten Population:

A Look at Death Row in the United States

Through the Experiences of Women

THE FORGOTTEN POPULATION

“For six and a half years I’ve been telling EVERYBODY that I’m innocent,

but no one wants to listen, nor do they care. The media have a horrible

name for me – which is murderer. And which is all anyone knows me as.

But God knows they are wrong.”

“It’s very hard to live day after day and not know what to do. When you

see what I see and feel what I feel, there’s no way out. My sorrow and

loneliness are huge. To be forgotten is the worst.”

— Voices of women on Death Row in the United States

Introduction

M

any researchers and journalists have studied and written about the United States death penalty system in the last 30 years. Nearly all of their work has focused on the experiences of men. This is not surpris- ing because men constitute the overwhelming majority of Death Row prisoners. Since 1973, 148 women have been sentenced to death in the United States. ( See Table 1 ) As of Dec. 31, 2003, the 48 women on Death Row constituted 1.4% of the total Death Row population of about 3,500 people and less than 0.1% of the approximately 50,000 women in prisons in the United States.^1 The women on Death Row ranged in age from 22 to 73 years old and had been on Death Row for periods ranging from a few months to nearly 20 years.

To gain a more complete understanding of the death penalty system as it applies to women, the American Civil Liberties Union (ACLU) Capital Punishment Project, Women’s Rights Project and National Prison Project undertook a project, with the National Criminal Justice

Program of the American Friends Service Committee (AFSC) and the National Clearinghouse for the Defense of Battered Women (NCDBW), to look at the experiences of women on Death Row in the United States.^3

To learn about the day-to-day lives of the women on Death Row, we sent questionnaires to the lawyers of 49 of the women who were on Death Row between April and November 2002 and asked them to administer the survey to their clients.^4 To learn about how they got to Death Row, we read court opinions and news- paper articles, interviewed defense attorneys, and reviewed research compiled by NCDBW. Our conclusions regarding the issues in these women’s cases, therefore, are based on many sources, some of which were not independent- ly verifiable. Altogether, we looked at the lives of 66 women, including 56 women who were on Death Row between April 2002 and December 2003 and ten women who have been executed since 1976.

Not surprisingly, we found that the women’s experiences in the criminal justice system mir- rored the problems that have been documented in the cases of men condemned to death, such as

THE FORGOTTEN

POPULATION:

A Look at Death Row in the United States

Through the Experiences of Women

A D e a t h Pe n a l t y R e p o r t

inadequate defense counsel and official misconduct, and social problems suffered by defendants such as poverty, alcoholism and drug abuse. This report focuses mainly on women, even though men suffer similar problems.

Many of the women whose cases we looked at identi- fied themselves as having experienced abuse as chil- dren and as adults. In many cases, there was independent evidence available to veri- fy these claims. Sometimes the abuse was

not brought out at trial so the jury did not take it into account when it sentenced the woman to death.

Further study is needed on the role of abuse in capital cases. We urge researchers to study such issues as: How many women were in abusive relationships at the time of their crime and did that abuse play a role in the crime? How many women acted in self-defense or defense of another? How many batterers coerced women into criminal activity or falsely accused women of crimes?

Researchers should examine these questions in depth. Especially important would be

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Table 2^5

Women Executed Since 1976

Date of Execution Name^

Execution Method

Race

W W W W W B W W W W

NC

TX

FL

TX

AR

OK

OK

OK

AL

FL

Lethal Injection

Lethal Injection

Electrocution

Lethal Injection

Lethal Injection

Lethal Injection

Lethal Injection

Lethal Injection

Electrocution

Lethal Injection

Velma Barfield

Karla Faye Tucker

Judy Buenoano

Betty Lou Beets

Christina Riggs

Wanda Jean Allen

Marilyn Plantz

Lois Nadean Smith

Lynda Lyon Block

Aileen Wuornos

State

Marilyn Plantz was executed on May 1, 2001 by the State of Oklahoma.

longitudinal studies documenting women’s experiences of abuse throughout their life- times. Attorneys defending women in capital cases should be trained to investigate for abuse and to raise that issue at trial.

This report is divided into five sections, con- sisting of: an introduction, an overview of the modern death penalty, and examinations of procedural problems and obstacles faced by women in capital trials, social problems that affect women and may have an impact on who is sentenced to death and living conditions of women on Death Row.

Overview of the

Modern Death Penalty

In the 1972 case Furman v. Georgia, the United States Supreme Court temporarily halted exe- cutions, finding that the states were administer- ing the death penalty arbitrarily and unfairly.^6 States quickly revised their statutes to comply with the Court’s ruling. Four years later, the Court upheld newly revised capital punishment statutes.^7 Thus, 1976 marks the beginning of the “modern era” of the death penalty, which continues today.

The newly revised death penalty statutes creat- ed a bifurcated process that separated the deter- mination of guilt from the assessment of the penalty, known as the sentencing phase of the trial. Since the Furman Court invalidated an automatic death penalty, the punishment phase of the trial has become very important. During this phase, defense counsel is permitted to introduce any evidence that might be relevant to spare the client’s life. Juries weigh all the evidence and determine if there are aggravat- ing factors – those factors that argue in favor of a death sentence – or mitigating factors – those

factors that argue against a death sentence.^8 In some of the women’s cases it appeared that the lawyers may not have presented evidence of the physical or sexual abuse their clients had suffered. Such evidence would have given the jury a fuller picture of the defendant and per- haps convinced it to spare her life.

Although there are many stages of death penalty litigation, it is difficult on appeal to raise new issues that were not raised in the original trial. ( See Table 3, outlining the death penalty appellate process. ) After conviction and sentencing, state appellate courts review the trial and sentencing on direct appeal. At this stage, the courts review only issues and evidence presented at the trial. Moreover, if a lawyer fails to raise an issue at trial it will usu- ally not be considered on direct appeal. If the conviction and sentence are affirmed in state court, a defendant may seek review in the United States Supreme Court, although this review is rarely granted.

Next, issues that were lost or did not get raised at trial – because the defense attorney failed to raise them or because new evidence was dis- covered after the trial was over –may be raised in post-conviction litigation (sometimes called habeas corpus), first in state court, then in fed- eral court. However, many state laws place severe procedural limitations on when and how new issues and evidence may be considered, even with respect to evidence that the person may be innocent. Also, federal courts review only for violations of federal law and, except in rare cases, do not substitute their judgment for that of the state courts. Another difficulty faced by individuals sentenced to death is that many states do not provide indigent prisoners with court-appointed counsel during post-con- viction proceedings.

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of innocence. As a result, many people have been and continue to be sentenced to death without being able to raise serious claims of wrongful conviction, including claims of innocence, in the court system. The fact that it is so difficult to obtain a reversal in a crim- inal case underscores how extraordinary it is that so many death penalty convictions and sentences are reversed, and emphasizes how widespread problems are in the administra- tion of the death penalty.

One way to address questions of innocence and unfairness that are not corrected by the court system is through executive clemency. The executive branch – usually the governor of a state but sometimes a pardons or parole board

• has the authority to commute death sentences to another type of sentence, usually life in prison. Clemency may be granted for reasons such as doubts about the defendant’s guilt, questions of fairness regarding the process, the

prisoner’s efforts at rehabilitation, or the gov- ernor’s desire to show mercy.

For women, as for men, clemency represents the last hope of avoiding execution. Clemency appeals are also an important means of calling attention to the unfairness of the death penalty system. From 1976 until the end of 2003, 12 of the 146 women sentenced to death have been granted clemency.^14

Of these 12 grants of clemency, at least eight were prompted by concerns about unfairness. In 1991, Ohio Governor Richard Celeste granted clemency to four African-American women – Debra Brown, Rosalie Grant, Beatrice Lampkin and Elizabeth Green — shortly before he left office. Governor Celeste cited disturbing evi- dence of racial bias as the reason for his action. In 2003, the retiring governor of Illinois, George Ryan, commuted the sentences of all prisoners on Death Row to life imprisonment, after a thorough study of the Illinois death penalty system persuaded him that he could not rely on the validity of the death sentences. Four of those commutations were given to women: Dorothy Williams, Latasha Pulliam, Jacqueline Williams and Bernina Mata. All were women of color.

Appendix cases 1 and 2 provide the case histories of Sabrina Butler, an innocent woman who was wrongfully convicted and sentenced to death, and of Frances Newton, who won a 120-day reprieve on Dec. 1, 2004, two hours before her scheduled execution.

Ineffective Assistance of Counsel is

Pervasive in the Death Penalty System

In a capital case, as in all criminal prosecu- tions, those who cannot afford private counsel are appointed an attorney at public expense. Some states or counties provide indigent

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defense counsel through public defender agen- cies, legal organizations whose only job is to represent poor people. Many states, however, do not have public defender services. In those states, judges appoint counsel who may or may not have criminal law experience. Sometimes judges use lists of qualified lawyers, but some- times they simply appoint a lawyer who hap- pens to be in court that day, even if he or she is not a criminal defense lawyer.

A 2002 report based on a study of the post-con- viction system in Texas found that judges fre- quently appointed unqualified counsel. The report reached the following conclusions about appointed counsel: “[T]heir work product is perfunctory, demonstrating that all too often, no investigation into the case is performed. No oversight is exercised to prevent the same errors from being repeated; indeed, the current appointment and compensation scheme encour- ages them.” The report also found that judges tend to appoint lawyers skilled at moving cases through the system, rather than lawyers who zealously represent their clients.^15

Even when a defendant is fortunate enough to receive a properly trained lawyer, that lawyer is likely to be hampered by a lack of resources. Lawyers representing defendants in capital cases often carry heavy caseloads, leaving them with little time to spend on each client. They seldom have enough funds to conduct an independent investigation of the case or to hire expert witnesses necessary to provide a compe- tent defense. Stephen Bright, a capital litigator and death penalty expert, often represents on appeal clients who were not properly repre- sented at trial. He notes, “While some juris- dictions provide competent representation through a public defender or an assigned coun- sel program, many fail to fund them adequate- ly, leaving underpaid lawyers with staggering caseloads and insufficient resources for inves- tigation and experts. Some states pay assigned

counsel such low rates that attorneys make less than the minimum wage in some cases.”^16

Bright has concluded that many Death Row prisoners are there not because they commit- ted the worst offense, but because they had the worst lawyers. A disturbingly high per- centage of lawyers representing indigent cap- ital defendants have been the subject of disci- plinary actions. For example, lawyers who were later disbarred or suspended from prac- tice had represented at trial four of the 13 innocent people released from Death Row in Illinois between 1987 and 2000. 17 In the state of Washington “one-fifth of the 84 people who faced execution [in the 20 years before 2001] were represented by lawyers who had been, or were later, disbarred, suspended or arrested.” 18 Most people on trial for their lives get less competent representation than a middle-class person would get in a run-of- the-mill civil case such as a divorce.

Betty Lou Beets’ attorney knew that his client had not killed her husband for pecu- niary gain, a key factor neces- sary for the jury to impose a death sentence, but failed to present that evidence at trial.^19

Carolyn King, currently on Death Row in Pennsylvania, was represented at trial by a lawyer who practiced fami- ly law at a small firm. The lawyer had handled only one previous trial – a drug case – and was not familiar with the death penalty statute. He conducted no mitigation investigation and was unaware that the sen- tencing hearing would be held immediately after the guilty verdict was returned. In post- conviction proceedings, Carolyn challenged the constitutionality of her representation

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Betty Lou Beets was executed by the State of Texas on Feb. 24, 2 0 0 0. S e e appendix for further details.

Wanda Jean Allen killed her female lover in the heat of passion and claimed to have acted in self-defense. This is not the type of homicide that typically results in a death sentence. In order to prove that Wanda Jean was dangerous, the prosecutor called the victim’s mother, who testified that Wanda Jean had been abusive toward her partner. However, according to appellate briefs filed by the defense, attempts to show the extremely violent nature of the vic- tim’s character were largely held inadmissible by the trial court, at the prosecutor’s urging.^28 Additionally, the prosecutor went to great lengths to show that Wanda Jean had been the “man” in their relationship, reinforcing the idea that Wanda Jean was the dominant partner in a lesbian relationship. Besides being potentially inaccurate, this portrayal of Wanda Jean may have biased the jury against her by emphasiz- ing her sexual orientation, influencing their decision to convict and sentence her to death.

In the trial of Aileen Wuornos, the prosecution called Aileen a “lesbian whose hatred of men caused her to murder again and again.” Lesbianism was brought up as an “aggravating circumstance” during the sentencing phase of her trial.^29 Issues of sexual orientation and stereotyp- ing should play no role in the courtroom, for they have no bearing on proof of innocence or guilt.

Professor Joan Howarth of the University of Nevada School of Law believes that women who do not fit into stereotypes of femininity are at greater risk of being sentenced to death. Executing women who transgress feminine norms, including women who are lesbians, Howarth contends, reaffirms our society’s tra- ditional norms of femininity. 30

Professor Howarth’s theory might in part explain why Wanda Jean and Aileen were sentenced to death: They transgressed traditional notions of femininity – by being “the man” in a lesbian rela- tionship or by being a prostitute who killed

johns. At the very least, the finding that the pros- ecutors emphasized the fact that Wanda Jean Allen and Aileen Wuornos were lesbians likely made them less sympathetic to their juries.^31 See Appendix numbers 6 and 8 for the case histories of Wanda Jean Allen and Aileen Wuornos.

Social Factors in Death

Penalty Cases

Women Are Convicted of Killing Family

Members or People They Knew

Nearly two-thirds of the women on Death Row were convicted of killing family mem- bers or people they knew—19 (29%) spouses, 10 (15%) children, three (4.5%) both spouse and children, three (4.5%) other family mem- bers, and six (9%) friends or acquaintances — bringing the total number of women who had killed people they knew to 41 (62%). Twenty-five (38%) of the women had killed strangers. No one has calculated how many of the men on Death Row are there for killing family members, but from what we know from government homicide statistics, women who are in prison are more likely than men to have killed family members or intimates. 32

One death penalty scholar, Professor Elizabeth Rapaport, has theorized that there are fewer women than men on Death Row because most women commit “domestic homicide” – killing close kin or a sexual inti- mate – which is less likely to be prosecuted as a death penalty case than are homicides against strangers. 33

If Rapaport is correct, how can her theory be reconciled with the fact that most women on Death Row are there for killing family mem- bers? Perhaps because in the cases of the

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women on Death Row, the state alleged that other factors such as kidnapping, rape, burgla- ry, or killing for pecuniary gain made the case an aggravated homicide, and therefore eligible for the death penalty.

Most often a prosecutor charged a domestic killing as a death-eligible case based on the belief that the woman had plotted the murder and had done so for monetary gain. Many of the women and their lawyers maintained that the real motive for the killing was the woman’s need to escape abuse. Although we cannot definitively establish this, it is worth consider- ing that abuse may play a large role in domes- tic homicides and that juries may not be getting the full story when they sentence a woman to death in such a case.

More Culpable Co-Defendants May

Have Been Treated More Leniently

In cases with multiple defendants, the state often attempts to use the testimony of co- defendants against each other. One defen- dant may make a deal with the prosecutor for a reduced sentence in return for his or her testimony at trial. There are many reasons why the prosecution makes a deal with one defendant and not with another. Sometimes the prosecutor makes a deal with the person who has the most evidence necessary to prove the state’s case; sometimes it is the first person who agrees to cooperate with the prosecutor. As a result the person most cul- pable for the crime may end up with the least severe punishment.

In half of the cases we reviewed, the women acted with at least one other person. Of those cases, 22 (67%) resulted in the co-defendant receiving a sentence other than death – even in cases where children were killed. In one case the charges against three co-defendants

were dropped in exchange for their testimony against the woman. In another, a son, the co- defendant of his mother, was acquitted at trial for the murder of his father, while the mother received the death penalty. In four of the cases involving two co-defendants, the woman and one co-defendant received a death sentence while the other received a life sentence. In two of those cases, additional people involved in the case were not charged with any crime.

Nearly one third of the 66 women on Death Row were accused of committing homicide by an intimate partner, usually a man (16 were accused by a man, one was accused by a woman), whose self-interest was served by blaming the woman for the crime.

Additionally, nearly one-fifth (17%) of the women were sentenced to death for a homicide that they claimed to have committed under threat of coercion by a male perpetrator in order to protect themselves or their children.

We looked only at cases in which women were sentenced to death, not at co-defendant cases where women may have made deals and received less severe punishment. Therefore, although these women received more severe sentences than their male co-defendants, we cannot say that women are treated less fairly than men in similar situations. This is, howev- er, an issue for further study.

At Least Half of the Women Sentenced to

Death Said They Had Been Victims of

Childhood Abuse, Partner Abuse or Both

Twenty (30%) of the women reported that spouses or partners had regularly battered them, seven (11%) claimed they had been severely beaten as children, and nine (14%) claimed to have been abused as both children and adults. Thus, 36 (55%) of women on

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ality of the death penalty for mentally retard- ed persons. (At the time of Wanda Jean’s execution, it was not unconstitutional to exe- cute a mentally retarded defendant. However, it was common practice for defense attorneys to raise the fact of their clients’ retardation because juries were allowed to, and frequently did, consider it a mitigating factor that justified a sentence of life instead of death.) Wanda Jean’s defense counsel had tried repeatedly to be removed from the case or to have an additional attor- ney appointed to assist him because he believed that he was unqualified to represent defendants in capital cases.

Teresa Lewis was convicted of hiring someone to kill her husband Julian and her stepson C.J. The hit man got a life sentence and Teresa was sentenced to death. Teresa claimed her motive was to escape an abusive relationship, not to obtain money, and that the hit man, not she, had planned the crime. Testimony from a defense psychiatrist that Teresa had an IQ of 72, which means she is borderline mentally retarded, strengthens her assertion that the hit man had planned the crime.^39 Her low IQ and history of abuse raise concerns about the appropriateness of sentencing her to death.

Latasha Pulliam was sentenced to death for kidnapping, abusing and killing her neighbor’s 6-year-old child along with her boyfriend, Dwight Jordan. Although they shared equal responsibility for the crime, Dwight Jordan was sentenced to life in prison, while Latasha received a death sentence. Defense experts tes- tified that Latasha’s IQ was 69. She had mild mental retardation, which made her more like- ly to be a follower than a leader. Latasha had a long history of abuse. Besides being abused by Jordan, Latasha was sexually and physically abused as a child, and as a teenager she bore children by two of her mother’s boyfriends.^40

Life on Death Row

In addition to enduring the otherwise harsh conditions of prison life, most women on Death Row live in almost complete isolation, rarely leaving their cells, and most of their infrequent human contact involves sometimes- hostile guards.

Death Row prisoners, like all prisoners, have constitutional and human rights. For exam- ple, the Eighth Amendment, which prohibits subjecting prisoners to cruel and unusual punishment, requires prisons to meet basic human needs, such as the need for food, shel- ter, sanitation, medical care, reasonable safe- ty, and out-of-cell exercise. Prison condi- tions vary from state to state, but women in our survey reported being denied many of these basic rights. However serious the crimes of which they are accused, prisoners, whether male or female, deserve to be treated with dignity and humanity, and should be provided safe and sanitary housing.

Isolation and Mistreatment by

Prison Guards

While dangerous and unhealthy conditions of confinement affect both men and women on Death Row, women frequently face additional deprivations. Because of their small numbers, women sentenced to death are often in effect sentenced to solitary confinement as well. Seven states’ Death Rows hold only one woman each. Many death-sentenced women have almost no interaction with other prison- ers, and very limited interaction with other human beings.

Comments from lawyers for survey partici- pants describe their clients’ profound isolation from human contact:

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My client is held in a small area iso- lated from the rest of the prison. She is only allowed to see one prisoner, her prisoner substitute counsel. She is allowed out of her cell for a 15- minute shower each day and one hour outside (alone) five days per week, weather permitting. … [T]wo guards sit in front of her cell 24 hours each day, seven days a week. There also is a video camera on her at all times.

Although the law does not require mandatory segregation, the women on Death Row are kept outside of the gen- eral population. Lack of peer interac- tion is detrimental psychologically. Prisoners need jobs; something to keep their minds busy and mentally alert.

Donna Marie Roberts, who was sentenced to death in Ohio in June 2003, is housed in condi- tions that have been described in an Ohio newspaper as medieval:

Roberts’ cell measures six feet by eight feet 10 inches, the size of a closet. Until recently, she had no hot water in her cell and had a light shining on her 24 hours a day that was so bright that “I see spots when I close my eyes.”

Unlike the 209 men awaiting execution at the Mansfield Correctional Institution whose cells measure eight feet, nine inches by 10 feet, 10 inches, Roberts does not have a window in her cell or a working television.

So complete is her sensory deprivation that even when she is allowed to leave her cell for one hour of recreation, five days a week, she is cloistered in the recreation yard by herself.

“Because I am back in this corner, I must bang on my door like an animal to get my tray, turn in trash and even for the nurse to bring me meds,” Roberts wrote. 41

Noted author Phyllis Chesler, who developed a relationship with Aileen Wuornos before her 2002 execution in Florida, reported in the New York Times that Aileen was physically and psy- chologically abused while she was held in Volusia County Branch Jail in Daytona Beach. Chesler wrote:

[S]he spent long periods of time in soli- tary confinement, freezing and naked.

She has been deprived of daylight and exercise and is often forbidden to phone her lawyer. Ms. Wuornos cannot hear or see very well, but her frequent requests for a hearing aid and glasses have all been denied, as has permission for her to see a gynecologist for her almost continual heavy bleeding. She has lost 40 pounds.^42

Before her execution, Wournos wrote a 25- page letter to the judge detailing problems with four guards at the Broward Correction Institution in Pembroke Pines:

Guards spitting in food trays brought hours late, tampering with air condition- ing and water pressure, unnecessarily peering into the cells and talking about sexually assaulting her on the way to her execution.^43

An attorney for a woman in our survey described what happened to her when the prison chaplain came to tell her that her son had been brutally murdered:

She was put in chains and then the chaplain told her that her son had been

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prisoner has not suffered a physical injury. As a result of PLRA, prisoners have been prevent- ed from challenging body-cavity strip search- es; strip searches by guards of the opposite sex; and being routinely subjected, while nude, to viewing by guards of the opposite sex.^49

Another provision of PLRA bars prisoners from filing civil rights lawsuits unless they have first presented their complaints to the prison’s grievance systems. This requirement presents another serious obstacle for prisoners who have been sexually assaulted by guards. Many prison systems require, as a prerequisite to filing a grievance, that the prisoner attempt to resolve the issue informally with staff. 50 Such requirements increase the ever-present possibility of retaliation against the prisoner for writing a grievance. 51 Moreover, the griev- ance systems frequently have deadlines as short as a week or 10 days, and a prisoner who misses the deadline, for any reason, can per- manently lose the right to sue. 52

Medical Care

Prisoners as a group have significantly greater health-care needs than the general population.^53 The prevalence of HIV infection, tuberculosis, Hepatitis B and C, major mental illness, and asthma are all higher in prisons and jails than in the general population; indeed, the prevalence rates for some infectious diseases are higher by an order of magnitude.^54 Unfortunately, as a recent report to Congress by the National Commission on Correctional Health Care con- cluded, many prisons fail to provide adequate medical and mental health care.^55

The federal courts have frequently found shocking deficiencies in the treatment of the unique medical needs of women. 56 Failures to treat serious mental illness among women prisoners are also common. While male pris-

oners who are seriously mentally ill also suf- fer from inadequate treatment, the problems of mentally ill women in need of in-patient treatment are exacerbated because their small numbers result in states failing to develop treatment programs for women at different security levels. 57 Obviously, mentally ill women confined on Death Row are particu- larly at risk of being barred from treatment programs because of their security level. Indeed, women in our survey reported not having access to mental health services as a result of their death sentences as described in the section below.

Decent and Sanitary Living Conditions

The women in the survey also reported sig- nificant issues regarding their living condi- tions. A majority of women responding to the survey indicated that they were exposed to uncomfortably hot or cold temperatures in their cells. Nearly half reported that their cells lacked adequate ventilation, and most reported the presence of rodents or insects in their cells. A majority also reported that the showers they used were infested with insects or rodents. While the survey lacked suffi- cient detail to explore the seriousness of these complaints, the responses are troubling, and the reported conditions may include viola- tions of the Eighth Amendment. 58

Restricted Visits and Phone Calls

For some of the women on Death Row, their sense of isolation is magnified by the difficul- ty in receiving visits from family and friends. Rules about visitation and phone calls vary from state to state. For those women permit- ted visitors, visits last, on average, two hours. Inflexible rules regulate the days and times family members may visit, and those rules often do not correspond to times when family

members are able to visit. For example, fam- ily members who live out of town may only be able to visit on weekends but the visits might only be permitted during the week. More than one-third of the survey respondents have children under the age of 18, but only two of them were allowed physical contact with their children during visits. Although the United States Supreme Court has generally approved restrictions on family visits for pris- oners, it has suggested that a lifetime ban on prisoners’ visits from family members would pose serious Constitutional questions. 59 For women on Death Row, those who are barred from visits with their families are, in effect, suffering a lifetime ban.

Some of the women are not allowed to make or receive any telephone calls. Others are permitted to do so a few times a month. Fourteen women surveyed have an unlimited number of phone calls or can make or receive a daily phone call. Most calls can last between 10 and 15 minutes. Prisoners must call collect when making long-distance calls. Because the prison usually contracts with a single long-distance provider the charges are often exorbitant. One respondent said her phone calls were limited to 10 minutes at a cost of $25 per call. This greatly restricts the number of times a woman can call her chil- dren, other family members or an (approved) acquaintance.

Access to Programs and Services

Women prisoners often are denied access to programs and activities because they are on Death Row. Several women in our survey reported that they did not have access to reli- gious services, even though prison rules per- mitted them to worship, simply because they were on Death Row. Although the Supreme Court once ruled that prison officials have wide discretion to deny prisoners access to

religious services, 60 in 2000, Congress passed the Religious Land Use and Institutionalized Persons Act, 61 which requires a “compelling state interest” for state restrictions on the reli- gious rights of prisoners.

Many women reported that they did not have access to recreation, programs, and services even when prison rules explicitly granted access. Some respondents believed they were treated more severely because they were on Death Row.

Although nearly all of the women who responded to our survey reported that they had been addicted to drugs or alcohol at the time of their arrest, two-thirds said that no drug or alcohol treatment was available at their facility. In addition, although more than half reported that they had been victims of physical or sexual abuse, fewer than half of the facilities offered any counseling for sexu- al, physical, or emotional abuse.

We are not suggesting that Death Rows should resemble hotels. At the same time, everyone, regardless of criminal history, deserves living conditions that do not induce psychosis, and all should be afforded sanitary living environ- ments, necessary health care and protection from sexual abuse. Abusive and degrading conditions have no legitimate place in our criminal justice system.

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