DEATH ROW INMATES SUE TEXAS GOVERNOR RICK PERRY AND SENATOR JOHN WHITMIRE FOR ABUSIVE CONDITIONS
Livingston, Texas, USA ‐ April 26, 2012
Thomas Whitaker, an inmate on Texas death row, has filed a class action lawsuit against Texas Governor Rick Perry, Senator John Whitmire, and the Texas Department of Criminal Justice
for the inhumane and unconstitutional conditions under which the men on death row must live.
Allegations include taking away wheelchairs from those who cannot walk, denying mental and physical health care, being held in solitary confinement for over ten years without any legal justification based on their conduct, dangerously unsafe living conditions, inadequate nutrition, inadequate exercise, denial of adequate access to telephones, destruction and loss of necessary legal documents, denial of religious freedom, denial of fair administrative process, failure to timely deliver mail including legal correspondence, and other abuses.
In the case of Ruiz v. Estelle, the U.S. District Court for the Southern District held that conditions for the Texas prison system were unconstitutional but also held that the inmates of death row would need to bring a separate lawsuit to address their unique situation. That is the action now being taken by Whitaker. There have been acts of retaliation by TDCJ toward men who have been a part of this suit or similar litigation.
Thomas Whitaker, No. 999522, age 32, from Fort Bend County, Tx, Residing on Texas Death Row since March 2007, convicted under the Law of Parties. Visit his blog: “Minutes Before Six”.
Robert B. Wells,
P.O. Box 49339, Austin, Tx 78765
3724 Jefferson, Ste. 309, Austin, Tx 78731
The following acts and omissions of the Texas Department of Criminal Justice have caused irreparable harm to all residents of death row at the Polunsky Unit in Livingston, Texas. These acts and omissions continue to harm the residents of death row at the Polunsky Unit. All residents now housed at Polunsky, previously housed at Ellis, on death row were put in solitary confinement in administrative segregation improperly and in violation of the existing plan for incarceration of those persons on male death row. Although most of the residents had not been charged with or found guilty of any conduct that would be punishable by solitary confinement, they have been retained in solitary for over ten years (since 2000). No less than a full due process hearing is required to determine whether there is a valid reason for the continued confinement in solitary. No such hearings have been held. The Texas Department of Criminal Justice regulations require a hearing with attendance by the Plaintiff, the warden, and the Classification Committee of the unit to determine if administrative segregation is appropriate or to extend such conditions beyond a limited period. There have been no such hearings. Those so held do not meet the Texas Department of Criminal Justice [TDCJ] requirements for such confinement because there has been no determination that each individual is in need of segregation for his protection or safety; there is no violation of the regulations of TDCJ for which a hearing is pending, there is no reason to assume that all are “custody risks” when they have shown no signs of being such. The fact that another person attempted escape does not make this entire class any more of a custody risk than the average person incarcerated in the general population.
By both action and inaction basic human needs of adequate food, safe shelter, adequate exercise, medical care and living conditions conducive to mental health are being denied every resident of death row. There are frequent failures to provide sufficient nutrition for the residents of death row in their daily food provision. Housing conditions include unsanitary living conditions due to inadequate cleaning of the cells and shower areas. At times, no cleaning product other than water is used by those performing general cleaning. Residents are not given access to cleaning products to maintain their cells in a sanitary condition and to kill black mold. Although security might dictate precluding caustic chemicals in the area housing those who might be a security risk, there is no reason to deny them ordinary cleaning products to keep their living area safe from disease causing bacteria. The food trays are often placed on the floors where there is sewage or spittle. The showers have inadequate ventilation causing it to be so humid and hot that residents have been made ill. The attorney visitation booths are not adequately ventilated for the residents. When an unruly resident is being gassed for misconduct, the other are exposed to so much of the caustic and harmful fumes as to also suffer from the contact. There is inadequate exercise. One hour a week is inadequate for the maintenance of physical health. There is no reason access to the outdoors and vigorous physical activity daily should be denied. The cells have inadequate ventilation and they effectively shut off the residents from all contact with the outside world. The occupants of the cells are subjected to harsh temperatures. The ceilings of some cells leak and there is black mold growing in some cells. Lights are controlled by officers who turn them off and on at their discretion exposing those trying to sleep to light that awakens them and prevents adequate rest. Food is served at hours not usually considered appropriate for meals with no justification for such a schedule. Clothing also is delivered at hours designed to interrupt sleep. Other than the brief periods they are allowed out to shower and one time a week they are allowed recreation, they are in solitary confinement twenty‐four hours a day, seven days a week. The prolonged period of sensory deprivation has resulted in serious mental health conditions. No effort has been made to examine the residents of these isolation cells to see how they have been damaged by these conditions.
There has been a frequent lack of care used in regard to legal documents. When their cells are searched for contraband, their legal documents are often tossed in with other property and subsequently lost or damaged.
In violation of the regulations of the Texas Department of Criminal Justice, “legal visits” between offenders in order to obtain needed assistance in their legal cases have been curtailed. Adequate postage is denied which prevents corresponding with legal counsel when necessary. Mail sent to or received from legal representatives has been opened and read.
Access to law books is very limited and difficult as well as access to information that could be gained from having greater access to the library and to television. Telephone access so as to be able to contact their legal representatives is not permitted. Residents of death row are denied adequate telephone access to contact legal counsel. At times, the transport of the resident is so slow that they are denied access to legal counsel. Counsel often is forced to wait for up to an hour or completely denied a legal visit.
Residents of death row have been denied reasonable treatment for diagnosed medical conditions. Medical staff exhibits indifference or is unavailable. Dental care is extremely inadequate as is care of vision. Those in need of wheelchairs are now being denied access to a wheelchair and required to walk using a walker out of an excessive reaction to one person having been a security risk because he was being transported in a wheelchair when a weapon was found in the wheelchair. There is a concerted effort to avoid identifying the mentally handicapped for fear it will lead to them getting their sentences reduced to life rather than execution. Further, the mentally ill are not housed separately as is required by the regulations. Those nearby are kept awake by the shouts of those who are psychologically disturbed. There is inadequate treatment of the mental health issues that incarceration in these conditions necessitates. There is totally inadequate screening to determine whether mental health issues have arisen. There is inappropriate supervision of the mentally ill in terms of their maintenance on the prescribed treatment. The seriously mentally ill are not transferred to more suitable facilities nor is staff trained to deal with them properly. Prescribed medications and “over the counter” medications are not provided promptly or consistently so as to allow maintenance of the health of all residents, both mentally and physically in need of regular treatment. Both the mentally and physically ill have had the water turned off in their cells to prevent them from urinating due to dehydration. They have been denied food so as to not have fecal matter if the mentally ill individuals throw feces at guards. The physically ill had hemorrhoids and was bleeding excessively. At such time as each such sick individual became unable to move, they were finally given some degree of treatment at the University of Texas Medical Branch in Galveston, Texas. Contrary to the ethical standards required, no physician or guard or warden reported these crimes of abuse. The elderly, diabetic or mentally ill have been abused because they could not move quickly or fell due to their fragile condition. The very severely mentally ill are incapable of completing their administrative appeals due to their condition. Everyone suffers emotional trauma from witnessing these episodes of abuse of weak and fragile individuals. The mentally challenged or mentally ill are subject to punishment for their failure to understand the regulations they must follow. Their non‐compliance due to confusion leads to longer and longer confinement in segregation without clothes, mattress, linens, and inadequate food and medication. Guards are poorly trained in mental health so as to recognize whether there is real misconduct or a lack of comprehension. Those who are delusional are harassed and tormented by some guards. These guards are not disciplined or terminated, but are allowed to continue to abuse the mentally ill. Those who are mentally ill are incompetent to personally bring any grievance or complaint on their own behalf. Assistive devices such as braces, medical issue boots, and wheelchairs have been confiscated and not provided to those requiring them for proper function of their extremities or movement from location to location. Adequate pain medication is routinely withheld.
All residents are denied activities that would be conducive to good mental health such as an opportunity to engage in creative work or crafts which are allowed those in the general population of the Texas Department of Criminal Justice and only denied to residents of death row, including those who have nearly perfect conduct records. They are further denied access to television. These activities were allowed until recently. Some men escaped from Ellis, as a consequence of their conduct ‐ not the conduct of the current residents of death row at Polunsky, all previous activities that actually provided the residents with an incentive to improve their conduct so as to be able to engage in such activities, have been curtailed. It should be noted that the residents of death row purchase the materials with which to do crafts from the commissary operated by the Texas Department of Criminal Justice which provides money for the operation of the prison system. The men then were able to sell their work and spend the money paid for the completed craft project at the commissary, which actually recirculates the money again into the income of TDCJ. There is no security reason for denial of this activity. Furthermore, when a resident attempts to design his own craft activity, it is destroyed because using shoe strings or thread or plastic lids to make a craft is deemed using the item for a purpose other than the one originally intended. This is cruel and an absurd abuse of authority.
The residents of death row are thwarted in their attempts to pursue their administrative appeals as these appeals are mislaid either accidentally or intentionally or by there being a denial of the right to pursue their administrative appeal to conclusion due to action designed to delay or circumvent the administrative process.
Access to religious literature and other religious objects is denied in an indiscriminate manner. Those on death row are also denied the right to attend a religious service. No religious service is available for them to attend. Some are denied access to a representative of their faith as a spiritual adviser. In regard to adequacy of food, food that is Halal or Kosher is being exposed to pork grease.
The mail room is one of the worst situations for those men on death row. Entire publications are being withheld because the newspaper or magazine contains one article that the particular person screening the mail found unacceptable without applying the written standard as set out in Department regulations. Correspondence is very, very frequently mishandled. There is an ongoing retaliatory process to prevent some residents from sending or receiving their mail or to delay receipt of their mail unnecessarily. The amount of postage actually physically permitted each individual has been unduly and unreasonably curtailed.Access to postage at all has also been unreasonably curtailed. Legal mail has been opened before being delivered and has been read. Outgoing legal mail has been read. There is no justification for denial of access to television. Television was available until death row was moved to the Polunsky Unit. Charitable groups have offered to donate televisions, there is an empty rack for holding a television in the day room, but no television. There is no valid security reason for denying access to the educational and recreational benefits of television. No other residents of penal institutions in Texas are denied televisions. This, on occasion, denies access to information that would be beneficial in regard to their legal defense.
The opportunity to work in a job in the Department of Criminal Justice is now suspended. That suspension needs to be ended. Other men found guilty of murder who are in the general population are permitted to work. This would be a very strong incentive for the men to maintain good conduct. Many, if not most, men on death row would be eager to have an opportunity to perform work. This would reduce the cost of maintaining their pod. They would willingly clean their pod themselves. They would maintain their own living area better than it is now cleaned.
Giving any person who is incarcerated incentives for good conduct is going to result in fewer disciplinary problems. Treating people fairly and with decent concern for their health and safety and emotional needs will result in a group that is easier to discipline. Those who do not respect the opportunity, then deserve to have opportunities denied.