Pro Bono Team Obtains Landmark Settlement for Pennsylvania Death Row Inmates

For the past two years, a cross-office team of Drinker lawyers has led an effort to force the Pennsylvania Department of Corrections (DOC) to end its practice of holding death-sentenced prisoners in permanent solitary confinement. (Pennsylvania currently houses 136 people on death row, the fifth most in the country.) These efforts culminated on November 18, 2019, with the submission of a proposed class settlement to the federal judge overseeing the case.

The case, Reid v. Wetzel, was filed in the Middle District of Pennsylvania in January 2018. In their class action complaint, our clients alleged that their decades-long captivity in solitary confinement—22 hours a day on weekdays and 24 hours a day on weekends—violated the Eighth and Fourteenth Amendments. In addition to exacting a devastating physical and mental toll (the basis of the Eighth Amendment claim), DOC’s policy prohibited inmates on death row from challenging their placement in solitary. Thus, even a model prisoner with decades of good behavior and no indicia of continued dangerousness was housed alone without recourse until his execution or natural death (the due process claim).

Plaintiffs’ counsel, led by lawyers from Drinker’s Philadelphia office, secured certification of a Rule 23(b)(2) litigation class, conducted extensive discovery, and then negotiated and ultimately reached a classwide settlement agreement with DOC. Under the terms of the settlement, death-sentenced inmates, while still residing in a dedicated prison unit, will be treated like members of the general prison population. Notable settlement provisions include:

• A guaranteed minimum of four hours out of cell each day (including at least two hours of outdoor exercise) and 42.5 hours out of cell each week.
• Opportunities to participate in congregate meals, congregate religious worship, treatment or counseling meetings, work assignments—including work assignments outside of the capital unit (e.g., groundskeeping), and group educational programming.
• Contact visits with friends, family, counsel, and religious advisors.
• Permission to use the phone on a daily basis for at least 15 minutes per use.
• No longer being subjected to strip-searches, shackling, or other restraints, unless security measures are required in response to a temporary, emergency situation.
• Removal of the frosted glass on cell windows and replacement with traditional, transparent glass.
• Physical and mental health baseline evaluations performed by independent physicians not on the DOC payroll.
• Resocialization assistance for individuals adversely affected by long periods in solitary confinement to help with the transition to living in a general population setting.
• Appointment of an independent monitor for a three-year period. And,
• Payment of plaintiffs’ costs and reasonable attorneys’ fees as determined by the court.

The Drinker team was led by Wilson Brown, Barry Gross, and Mark Taticchi, and supported extensively by associates Victoria Cordova, Jenna Pike, and Renée Dudek; paralegal Jane Gorman; and former associates Mira Baylson and Elizabeth Coyne. The team worked hand-in-hand with attorneys from the ACLU of Pennsylvania, the ACLU’s National Prison Project in Washington, D.C., the Abolitionist Law Center, and Kairys, Rudovsky, Messing, Feinberg & Lin LLP to bring and prosecute the case.

The settlement is available here and is also covered on the ACLU Pennsylvania website. Watch Mark Taticchi discuss the case in this video.