Federal judge challenges how Conn. treats former death row inmates
A recent ruling says these inmates are held under 'cruel and unusual conditions'
Edmund H. Mahony
HARTFORD, Conn. — For the third time in a little more than a month, a federal court has slapped down Attorney General William Tong’s efforts to defend the state from accusations that Connecticut imprisons its most heinous killers in illegal circumstances that amount to cruel and unusual punishment.
The most recent ruling last week suggests that Judge Stefan R. Underhill’s patience may be wearing thin. The continuing argument by the attorney general’s office, the judge wrote, suggests it is inclined more toward “recalcitrance” than “good faith,” the evidence of that being "a parade of horribles” the state lawyers concocted from “a hypertechnical reading” of an earlier order.
It’s also apparent that the court’s principal conclusion — that the state’s treatment of its worst killers is unconstitutional — is based on an odd, five-paragraph law the legislature enacted in 2012 during its debate over the abolishment of capital punishment. The law that Underhill calls patently unconstitutional was a compromise that, ultimately, contributed to the abolition of executions in the state.
If Underhill is right and the compromise law is thrown out - Tong says he is appealing — death penalty backers are planning to raise another bill this yearto add to the seemingly endless debate over capital punishment.
The law, which is at the center of Underhill’s decision, created a new category of prison inmates — 11 killers formerly sentenced to death — and it guaranteed that for the remainder of their lives, these “special circumstances” inmates would be confined in especially harsh circumstances created especially for them.
The so-called compromise was a not-very-subtle effort by legislative death penalty opponents to win over votes in a state where most people supported capital punishment. The larger death penalty legislation pushed by death opponents in 2012 was called “prospective,” meaning it was written to prohibit death sentences in the future, but allow the state to execute convicts already sentenced to death.
Supporters of execution derided the prospective legislation as a ploy. They predicted — accurately, it turned out — that prospective abolition would would be overturned and the state would be left with no means of execution — prospective, retrospective or otherwise.
The compromise law, known as section 18-10b, was intended to mollify lawmakers who were afraid of constituent reaction if their votes left the state with no capital punishment of any kind. Section 18-10b requires that, even if capital punishment were abolished, death row inmates would have to spend the rest of their lives confined under death row conditions — among them, little if no interaction with others; no physical contact, ever, with family; and only a brief period of two hours or so a day outside of cramped, concrete cells.
The thinking at the Capitol was that section 18-10b would allow abolitionists to vote their conscience while telling constituents that they were voting for something arguably worse than death for the killers.
As former Sen. Joseph Crisco, a Woodbridge Democrat, said during floor debate in 2012: “And while some would say doing this bill may be soft on crime, I’d just like to remind those, you know, those of you about Northern Prison, death row. To me, that is hell on earth. How one retains his sanity in an environment like that is incomprehensible. And the amendment that we approve tonight [Section 18-10b] . . . really presents to us, I believe, the right way to go.”
The compromise, orchestrated by former Gov. Dannel P. Malloy’s office, worked. A prospective death penalty became law — until it was narrowly overturned by a fractious state Supreme Court three years later. Underhill’s ruling threatens to do the same to the compromise law that was supposed to mollify capital punishment hardliners.
Underhill’s rulings was a a big win for Richard Reynolds, a New York crack dealer who was sentenced to death in 1995 for shooting to death Waterbury policeman Walter Williams a week before Christmas in 1992. Williams had stopped Reynolds and was planning to frisk him. Reynolds bumped Williams to learn whether he was wearing a bulletproof vest, then pulled a gun and shot the officer in the head.
Reynolds was re-sentenced to life without possibility of release in 2017 after the Supreme Court abolished capital punishment. He became a special circumstances inmate under Sec. 18-10b, one of nine remaining in the state prison system, according to the Department of Corrections. With little else to do, Reynolds has become a prolific litigator, challenging a host of conditions of his confinement. He is awaiting a decision in one of his federal cases on whether the state is violating his first amendment right by preventing him from viewing pornography.
Reynolds challenged the highly restrictive conditions of special circumstances confinement in a long, handwritten suit in 2013. Two years later, Underhill allowed a law clinic affiliated with Columbia University’s law school to be appointed, at public expense, to press the suit in Reynold’s behalf.
In a strongly-worded, late-August decision, Underhill ruled for Reynolds and against eight current and former prison administrators. He said that the conditions of Reynolds’ confinement — conditions spelled out in 18-10b — violate multiple constitutional protections, including the prohibition against cruel and unusual punishment. Underhill cited research done by a Reynolds’ witness that suggests prison conditions, such as his, more often than not drive inmates insane.
Among the court’s findings: “He lives alone in a 12 foot by 7 foot cell. His cell is enclosed by concrete walls, a metal door, and a three-inch wide window. Reynolds is allowed out of his cell for two fifteen-minute periods to eat lunch and dinner. He is allowed to take one fifteen-minute shower each day. He is allotted two hours of recreation each day for six days a week and two hours of weekly indoor gym recreation. Reynolds may, upon request, receive visits from clergy, attorneys, or prison medical staff. Other than those periods, Reynolds remains isolated with no contact with anyone but the six other inmates on special circumstances status. Although he is allowed social visits with family members, no physical contact is permitted during those visits, which occur through Plexiglass. Reynolds’ conditions of confinement are more restrictive than any other form of incarceration available within the State of Connecticut prison system.”
Underhill said the state’s counter argument wasn’t persuasive: Special circumstances inmates have single cells and, as a result, more room for things like radios, televisions, video game players, books and legal files. They can communicate through vents and cracks in their cell doors. The state has expanded recreation time and the time the inmates are allowed to gather as a group.
Significantly, Underhill also ruled that the prison administrators are not protected by qualified immunity, meaning that Reynolds will be allowed to collect financial damages if the ruling holds up on appeal.
In his late August ruling, Underhill gave the state 30 days to comply with his orders and said he will schedule a hearing on damages sometime in the future. The state immediately asked for a 30-day stay or postponement of the order. When Underhill denied that, the state said it was appealing and asked for stay while the appeal is pending.
Lawyers assigned to the Reynolds case, and corrections department officers, have said, through spokesmen, they cannot comment on the Reynolds suit because it is “pending litigation.”
Tong spokeswoman Elizabeth Benton issued statement in Tong’s behalf: “The Attorney General’s principal focus is on public safety and the families of victims, while complying with our statutory and constitutional obligations and the rights they guarantee. The Office of the Attorney General is seeking a stay of the district court ruling pending the outcome of our appeal with the Second Circuit.”
In the latest ruling, Underhill agreed to postpone a hearing on damages pending an appeal. But he declined to delay his other orders that, collectively, would almost immediately remove Reynolds and presumably the other special circumstances inmates from the allegedly unconstitutional conditions imposed by of 18-10b.
Underhill calls 18-10b “a bill of attainder.” Such bills are an odious legislative device the British Parliament perfected half a century ago to kill or otherwise punish the king’s political enemies. The U.S. Constitution specifically proscribes such bills, which are pieces of legislation enacted to impose enhanced punishment on specific individuals previously convicted and punished in court. Modern courts, Underhill among them, have decided that only the judiciary is empowered to determine whether someone has violated a law and assess punishment.
Tong’s office said it is appealing because of legal errors by Underhill, a claim that drew a sharp response in Underhill’s most recent ruling.
“The years-long and continuing violation of Reynolds’ constitutional rights arising from his placement in solitary confinement as mandated by a bill of attainder passed by the legislature is literally stunning,” the court said "Thankfully, bills of attainder increasing penal effects of past convictions of specifically identified inmates are rare in modern-day America.
“The (state admits) that the legislature ‘defined the severity of punishment for murder with special circumstances.’ That legislative decision was made decades after Reynolds committed and was convicted for his crime. That legislation, increasing the punishment for a crime after the fact and identifying the small class of prisoners subject to the increased punishment is a classic bill of attainder. I see very little chance that the Court of Appeals will reverse ... on those grounds.”