As Delaware's Supreme Court weighs whether 12 men sentenced to death should be spared from execution, prison officials have quietly disbanded the state's death row and moved its former occupants to other housing.
Prison officials say the move, which occurred in August, resulted in former death row inmates having 5 times more recreational time than they had before, and in some cases, sharing cells with other inmates who are not facing the death penalty.
"It's gone well," Department of Corrections Commissioner Robert Coupe told The Associated Press this week. "Some of the inmates initially preferred not to interact ... but we continued to work with them through our behavioral health folks and eventually all of them were moved out of what was formerly known as death row."
The former death row space is now being used as general maximum security housing.
Officials said the move comes amid evolving standards for treatment of inmates in restrictive housing settings and will help the DOC keep its American Correctional Association accreditation.
In an August revision of its standards, the ACA said inmates in extended restrictive housing should have access to educational services, commissary services, library services, social services, behavioral health and treatment services, religious guidance and recreational programs.
"Although services and programs cannot be identical to those provided to the general population, there should be no major differences for reasons other than danger to life, health, or safety," the ACA said.
Delaware officials said they were already working on a revision to restrictive housing standards when the ACA issued its guidance.
"It was already in the works," said DOC spokeswoman Jayme Gravell.
But Coupe said the change was not related to a recent settlement in a federal lawsuit by the Community Legal Aid Society alleging that mentally ill inmates in Delaware have been subjected to solitary confinement without proper evaluation, monitoring and treatment. Under the settlement, the Department of Correction agreed to limit the length of time inmates spend in disciplinary housing and increase the amount of unstructured recreation time available to inmates in certain maximum security settings.
Inmates in restrictive housing, formerly known as solitary confinement, traditionally have been kept in their cells for up to 72 hours at a time, with only three hours outside their cells each week for exercise and showers.
Officials said inmates sentenced to death will now be offered 17.5 hours of unstructured recreational time per week.
"They definitely have more freedom than they would in the SHU," Coupe said, referring to the secure housing unit at the maximum security prison in Smyrna.
Coupe said DOC officials believe the change is "humane" and beneficial to both the inmates and the institution.
Officials said 12 of the former death row inmates are now in "medium housing," where nine of them are sharing cells with other inmates who have not been sentenced to death.
One former death row inmate, whom prison officials would not identify, remains in a single cell in the secure housing unit.
Among the former death row inmates sharing a cell is Otis Phillips, a gang member who was sentenced to death after a 2012 soccer tournament shooting that left three people dead, including the tournament organizer and a 16-year-old player.
The state Supreme Court heard arguments earlier this week in an appeal by Phillips challenging his conviction. In response to Phillips' appeal, prosecutors acknowledged that because his conviction is on direct appeal and not considered final, he is covered under a Delaware Supreme Court ruling declaring Delaware's death penalty unconstitutional.
In August, a majority of Delaware justices concluded that Delaware's law was unconstitutional because it allowed a judge to sentence a person to death independently of a jury's recommendation and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution.
The Supreme Court is now considering whether that ruling applies retroactively to the 12 men already facing execution.
Source: Associated Press, December 10, 2016
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