Death Row Inmates --Growing Numbers Straining the System

As the warden of San Quentin prison, Daniel Vasquez has the legal responsibility to carry out all sentences of death in California.

Toward that end, he has tested the 51-year-old gas chamber to make sure it works and selected an execution team. He even has a good idea of who is most likely to die in California’s first execution since 1967.

But despite a state Supreme Court that regularly affirms death sentences, Vasquez has no idea when he will be called upon to follow through on a death sentence. It could be later this year. It may be years from now.

After spending half a dozen years as San Quentin’s warden and therefore in charge of California’s condemned population, Vasquez is philosophical about it all. “What is imminent?” the warden asked. “Does such a word exist for condemned inmates?”

The reality is that executions remain a “far-off concept” in California, he said. California is not alone. Nearly all states with a Death Row face the same situation: People are being sentenced to death at a rate of 250 a year throughout the country, yet fewer and fewer executions are taking place.

As a result, an unprecedented 2,200 condemned inmates are straining prisons in most of the 34 states that have a Death Row. Questions of morality and fine legal points aside, some prison experts have started to wonder whether capital punishment is more trouble than it is worth.

“From what I can tell, the courts, whether right or wrong, aren’t allowing the states to enforce it. The issue is: If it’s not going to be enforced what is the point?” asked Scott M. Wallace, a death penalty expert at the American Correctional Assn., which represents prison officials and staff.

Opponents of capital punishment long have used the argument that the death penalty should be abolished because it clogs the criminal justice system. Now, a National Institute of Justice-funded report prepared by the American Correctional Assn. may bolster that argument.

The report does not take a position on the death penalty. But it cites an array of problems wrought by the growing number of Death Row inmates:

- The rising condemned population is “the primary concern of the 40 wardens surveyed” in the report. Several states plan to move condemned inmates to expanded rows at new or remodeled prisons to ease overcrowding.

- Wardens believe that there will be more executions in future years, making Death Row prisoners more desperate. In response, officials have tightened security to protect their staffs and to guard against escapes.

- At the same time, the number of executions has dropped in every year since 1981, when there were 21 state-sanctioned killings. There were 11 last year. Eight executions so far this year suggest that another year will pass with the logjam firmly in place.

- Acting on behalf of prisoners who are spending increasing numbers of years on Death Row, prisoners’ rights lawyers have filed at least 23 major lawsuits over prison conditions.

Inmates have litigated over the right to marry, receive visits from wives that include limited physical contact, have more access to better law libraries, spend more time on exercise yards and to not undergo body cavity searches.

To fend off such suits, correctional officials create procedures to deal in the most minute detail with the condemned inmates’ lives, specifying everything from the number of showers they may take to the number of blankets issued.

Housing Standards

Condemned prisoners have won court orders that establish housing standards in six states, including California. Violations of the court-enforced agreements, generally called consent decrees, can result in contempt citations against the states.

“Consent decrees add a great deal of work and trouble to the staff because they give more rights to the inmates. It increases their workload. They have to be more careful,” said Wallace, who was editor of the American Correction Assn. report titled “Management of Death Row Inmates.”

In California, Department of Corrections officials represented by the state attorney general have launched a broad attack to dismantle this state’s Death Row consent decree. The decree, signed in 1980, sought to settle a sweeping suit over conditions on San Quentin’s Death Row.

San Quentin’s Death Row meets all “minimum” constitutional requirements, Deputy Atty. Gen. John Donhoff argues. The settlement that was struck when there were 40 condemned inmates no longer applies, he says, now that there are 259 condemned men.

Request Being Considered

U.S. District Judge Stanley Weigel, who oversees the decree, is considering the request. It’s “not highly likely” Weigel will set aside the Death Row settlement, said Deputy Atty. Gen. Kristofer Jorstad, in charge of the prison law section in the attorney general’s office. But he said the state intends to pursue the issue to the U.S. Supreme Court if necessary.

“It places restrictions on them (the prison). They’d prefer to not have any restrictions,” said Sallyanne Campbell of the Prison Law Office, which filed the Death Row suit in 1979 on behalf of six original Death Row inmates and attempts to force the state to comply with its provisions.

As it is, each new condemned inmate receives a copy of the decree upon his arrival. Officers assigned to the row go through training courses that cover points in the settlement.

The 20-page document specifies the amount of time inmates may spend out of their cells, the educational opportunities available, the types of clothing they can wear, the furnishings their cells must have and all other aspects of life on Death Row.

Broad Authority

Weigel in 1985 appointed Robert Riggs, his former law clerk, to act as monitor of the decree. Riggs has broad authority to visit the prison, convene hearings to investigate conditions, and he makes recommendations to Weigel. At Weigel’s direction, the state pays Riggs $100 an hour, a raise over the $75 an hour he received when he started.

The state signed the agreement hoping to end what promised to be drawn-out litigation. Instead, there has been continuous wrangling. The case fills 20 volumes in the federal courthouse in San Francisco.

As the condemned population grows, Vasquez is chafing under the settlement. He said that while many of its provisions are reasonable, “the safety of this institution” would be threatened if he followed each aspect of the decree.

The question of restraints continues to rankle the warden. When he became San Quentin’s warden in 1983, officers, as the settlement mandated, could not place handcuffs on prisoners when they escorted inmates to the visiting room.

But Vasquez is convinced that when voters ousted Chief Justice Rose Bird in 1986, prisoners concluded that they had a worse chance of winning reversals and became more of an escape threat. He decided that his officers should start using restraints whenever they moved prisoners.

Deal Was Reached

But first, he had to negotiate with prisoners’ lawyers. A deal was reached: Vasquez could use restraints, but inmates who had the money could buy electric typewriters with enough memory to store about 10 pages of material.

The typewriters pose no particular security threat. Still, Vasquez does not believe that he should have to had to negotiate over what he sees as a basic safety measure.

“That is how dangerous and ludicrous that kind of a system is,” he said.

More recently, prisoners’ lawyers asked that Riggs recommend that the state be held in contempt of court for failing to let them out of their cells to mingle inside their cellblock. At the time the consent decree was signed, San Quentin still used the original Death Row. Its design allowed for out-of-cell time. But the population long since has outgrown that tier.

The cost of creating a similar design in East Block, where most condemned inmates are housed now, would be $100 million, officials say. Inmates’ lawyers contend that the figure is vastly inflated, and that it could be done with minimal cost.

Prisoners Moved

Corrections officials acknowledge that San Quentin’s turn-of-the-century design is less than ideal for housing the highest-security inmates, those on Death Row.

The department has moved maximum-security prisoners who are not condemned to new prisons in the state. About 2,800 medium- and minimum-security inmates are imprisoned at San Quentin now.

With the condemned population nearing 300, the Department of Corrections is considering alternatives to San Quentin and East Block. Vasquez submitted a proposal to the department in February. The department hopes to come up with a plan later this year, said Deputy Director Robert Denninger, in charge of institutions.

If all of East Block were used for the condemned, there would be cells for 500 inmates. But the consent decree requires that the prison give prisoners 29 3/4 hours of outside exercise time a week. And with 500 inmates in East Block, there could be a shortage of exercise yards, noted James L. Park, consultant to the joint legislative committee on prison construction and former associate warden at San Quentin.

Suggestions Offered

Some planners have suggested building a prison specifically for condemned prisoners on vacant land at San Quentin. Some have suggested moving them to one or more of the recently built high-security prisons.

Before Death Row can be moved, state law, which mandates that it be at San Quentin, would have to be changed. Such a change in the law would result in hearings likely to elicit an emotional debate over capital punishment.

“Are we willing to budget a million dollars to relocate the gas chamber?” Park said. “Imagine the environmental studies. When the thing is vented, it vents cyanide gas. It’s supposed to be neutralized by the time it leaves, but I wouldn’t want to be up there sniffing it.”

The housing issue will not go away any time soon. California courts will sentence as many as 40 people to death this year. While the Bird court reversed the bulk of the death penalty cases to go before it, the court of Chief Justice Malcolm Lucas upholds more than twice as many sentences as it reverses.

Long-Term Residents

But because inmates have a right to pursue appeals in habeas corpus actions in the state and federal courts, most of the condemned prisoners will remain on the row for years to come.

“The logjam has never broken and probably never will break, because this society is simply not equipped to kill people without due process,” said Michael Lawrence of the NAACP death penalty project in San Francisco.

Vasquez, more familiar than most with the implications of the logjam, was among the few people who noticed that an anniversary passed on Death Row on March 14. On that date, Robert Alton Harris had been on the row for one decade.

Harris has used more appeals by far than any other condemned inmate in this state. Many people believe that he will be the first to be executed in California since 1967.

“That’s what we say to each other. The attorney general says that to me. I say that to the attorney general. But nobody really knows,” Vasquez said.

Death Sentence Affirmed

In each of the last three years, California’s top law enforcement officials have predicted that Harris would be executed. The state Supreme Court affirmed his death sentence in 1981 for the killings of two teen-age boys in San Diego in 1978.

His case has been in the federal courts ever since, most recently before the U.S. 9th Circuit Court of Appeals. With the year more than half over, it is unlikely that Harris will die in 1989.

Even if Harris is executed this year or next, no one will follow him on the long walk for years, unless an inmate drops all appeals or there is a dramatic change in the criminal justice system. No other condemned inmate is within two years of completing the judicial steps to the gas chamber, attorneys who handle death penalty appeals say.

“In a sense, we get the best of all worlds,” former San Quentin Associate Warden Park said. “The vicious, terrible criminal is sentenced to death. Then he never gets killed, so nobody has to feel bad about it.”

Preparations Continue

Still, the man who by law must carry out the sentences continues to prepare.

“What I tell my staff,” Warden Vasquez said, “is that there’s one person who is not to survive the ritual of the execution, and that is the condemned inmate. We have to survive. We have to go back to our families, our children, our loved ones, intact, emotionally and physically healthy.”

To that end, Vasquez fights any attempt to make lethal injections or the electric chair the method of execution in California. Workers would have to get too close to the condemned man to find a usable vein or shave his head in preparation for a fatal electric jolt. In the gas chamber, contact is minimal. Inmates are strapped down, and the heavy steel door is shut.

“I’m not an executioner,” the warden said. “I wasn’t born with a little black hood over my head with the eyes cut out. My mother didn’t give birth to an executioner. I carry out the law and so do my staff.”