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As Darrel K. Harris enters his fourth year on death row, the regulations he lives by have been relaxed after years of inquiry by attorneys and the threat of a lawsuit over New York’s treatment of condemned inmates. Some changes to death row’s rules have required physical and technological renovations to the Clinton Correctional Facility in Dannemora, N.Y., home to the Unit for Condemned Persons. All told, the construction of death row and recent renovations have cost nearly $1.3 million over seven years, said James Flateau, a spokesman for the state Department of Correctional Services. A large part of the bill — more than a half million dollars — went to remodeling the 12 cells and installing a video surveillance system. (For a breakdown of costs, see chart). One of the more substantial changes in recent months has been the construction of a new attorney-inmate meeting room that lawyers say has improved the quality of visits. Although attorney and inmate are still separated at all times by plexiglas, they no longer have to shout to be heard through a metal mesh opening in the glass. Before the room was constructed last year, conversations between an inmate and his attorney could be heard by other inmates and guards. “The old conversations were not confidential,” said Russell Neufeld, the attorney in charge of the Capital Division at the Legal Aid Society. The new room has a video camera rolling while an attorney and inmate talk, but the audio can be turned off by the attorney. Flateau said the room cost $21,330 to build. Most important to the inmates in terms of their physical health have been changes to provisions governing sleeping and purchasing. The lights in death row had until recently been kept on 24 hours a day to aid surveillance cameras. One inmate complained to lawyers last year that he had tried to block out the light by putting his head under his blanket, but he said guards would wake him up and ask him to uncover it. Flateau said in a memo to the New York Law Journalthat the policy was recently changed to address concerns that the inmates were unable to sleep. Instead, the corrections department has installed infrared equipment — at a cost of more than $47,000 — that allows the men to be watched in the dark. Another consistent complaint among inmates was that while they could spend $55 a month on commissary items, only $15 could be spent on food. That allowance has recently been doubled to $30, and the choice of snacks has been increased to include most things other than canned goods and foods requiring cooking. Food items include bagels, popcorn, peanut butter, grape and strawberry jellies, and sliced turkey and American cheese; non-food items include playing cards, knit caps and various shampoos and deodorants. All inmates, whether on death row or in the general prison population, make purchases by selecting items on a form, and guards then deliver the goods. Several of the other changes involve communications equipment. In a letter to Amy Berman, a Sullivan & Cromwell attorney who is representing inmates with complaints about conditions on death row, Anthony J. Annucci, deputy commissioner and counsel of the Department of Correctional Services, wrote that inmates could now make two telephone calls per week to family members and approved spiritual advisors. The phone calls can last no more than 10 minutes each. The letter, dated Jan. 22, 2002, also describes new headsets through which visitors and inmates can speak. “These new headsets,” the letter says, “will be state of the art and similar to those used by professional coaches to communicate with their staff during sporting events.” Flateau said the headsets cost $1,300 to install. Visitation rules have been amended as well. Spouses of immediate family members are now allowed to visit. If an inmate has no immediate family or has not been visited by family members for six months, he can be visited by a person he has “lived with and shared a long-term personal relationship with,” according to the letter from Annucci. All visitors are subject to prior approval by the corrections department. NO PHYSICAL CONTACT Though attorneys say these changes are improvements, they still claim many of death row’s policies are arbitrary and violate the rights of inmates. The attorney visiting room is still the subject of one of the more significant disagreements. In a letter dated April 1, Berman, who has represented the inmates pro bono for nearly two years, expressed concern over the video cameras, and asked whether the cameras would allow corrections employees to read the lips of inmates or attorneys or see what is written on documents. Documents are already subject to searches for contraband when attorneys enter the facility, and again if an attorney has to hand a document to an inmate to be perused or signed. Attorneys have complained that the searches sometimes happen out of their sight. Neufeld of Legal Aid said perhaps the worst thing about death row is that inmates are allowed no physical contact with other human beings — not with lawyers, visitors or each other. “You can’t touch your wife or your daughter or shake hands with your lawyer,” he said. “It is an additional punishment that I don’t think is contemplated by the statute.” The cells of death row are made of solid walls with bars in front, and arranged in a row so inmates cannot look at one another. They can speak to each other through their bars, but they have no physical contact with anyone other than guards or doctors. The inmates can exercise on their own for an hour each day and are allowed three showers a week in open stalls with no curtains. Meals are eaten in their cells. Visits with family are conducted in a room at the rear of the cells, with inmates speaking over the new headsets. Attorneys for the inmates describe these circumstances as full-time solitary confinement, the type of imprisonment usually reserved for inmates who have violated the rules of a prison. Lawyers argue that other states, such as California, Florida and Ohio, allow condemned inmates to congregate and exercise with each other, and at least one state, Missouri, mixes death row inmates into the general prison population. But the corrections department has opposed changes to its confinement procedures, stressing safety concerns for the guards of death row inmates and for the inmates themselves. Death row inmates have nothing to lose, the argument goes, and are therefore a special security risk. Though there have been no dangerous incidents on death row since capital punishment was reenacted, the corrections department “has had to consider that the number of inmates sentenced to death would invariably increase over time and that not all of these inmates would maintain a positive custodial adjustment,” Annucci wrote in his letter to Sullivan & Cromwell. The letter goes on to describe attempted escapes and assaults on guards at other death row facilities, several of which were elaborate plans crafted in secret among numerous inmates. In defending non-contact visits with attorneys, the letter recounts the recent actions of Kenneth Kimes, a Clinton inmate facing extradition to California who took a reporter hostage during a media visit and held a pen to her throat for more than four hours. Annucci stressed that the corrections department does not believe that the inmates are in solitary confinement because they are allowed to communicate through cell bars. He noted that the inmates can play chess and Scrabble with each other by shouting out moves, and often interact with guards, members of the medical staff and lawyers. On one occasion, he said, a death row inmate at Clinton has been overheard threatening the life of another inmate. The letter did not reveal who had threatened whom. In his memo on the recent changes to death row, Flateau stressed what the corrections department perceives as the benefits from the closed-off visiting room and other policies. For one, he said, inmates do not have to undergo a strip search and pat down before and after visits. Also, he said, most correctional systems in the United States limit visits to two hours, while the Unit for Condemned Persons at Clinton allows visits to last six hours. GROUND RULES The death row ground rules that attorneys have been butting up against were laid out in a 1995 directive by the corrections department. The directive was the collaborative creation of numerous individuals with “years of correctional experience,” according to Annucci’s correspondence with Sullivan & Cromwell. But the Department of Correctional Services has denied repeated Freedom of Information Law requests asking for the names of those individuals. The death row committee included Wayne Strack, then the acting deputy commissioner for facility operations, and Christopher Artuz, superintendent of the Green Haven Correctional Facility. But revealing the other members, the department has argued, could endanger the life and safety of members because of the controversial nature of the death penalty. “It’s like pulling teeth,” said Norman L. Greene of New York’s Schoeman, Updike & Kaufman of his attempts to learn the names of other committee members. Greene, the chair of the Committee on Capital Punishment at the Association of the Bar of the City of New York, has been investigating death row since it was reestablished in an effort to improve what he sees as harsh conditions for inmates. Since his committee published “Dying Twice: Conditions on New York’s Death Row” last year, Greene, who does not represent any death row inmates, has been rebuffed in his attempts to learn more about the committee, and is unlikely to try to bring his case further. As far as Sullivan & Cromwell, the New York firm’s April 1 letter to the corrections department reveals a possible foundation for a lawsuit over the rules governing visits from lawyers and the general treatment of inmates. Though the right to contact visits between inmates and attorneys has not been addressed by the 2nd U.S. Circuit Court of Appeals, Sullivan & Cromwell contends that the 10th Circuit’s ruling in Mann v. Reynolds, 46 F.3d 1055 (1995), establishes that death row inmates have a constitutional right to such visits. Though visitation has been extended to husbands and wives of immediate family members, the firm contends that other guests — such as aunts, cousins and close friends — should not be barred from visits. The condition is not placed on any other New York prison or on most other death rows in the country, the firm has argued. The firm’s letter cites other complaints by the inmates, such as inadequate medical attention (Harris has not received a physical since arriving at death row three and a half years ago) and the inability to attend congregations for worship and religious studies classes. Inmates are not given access to exercise equipment like balls or barbells, and are not allowed to wear gloves while exercising in cold weather because “gloves make it less painful for inmates to use their fists as weapons and easier for inmates to climb razor-wire fences,” Annucci’s letter says. As far as the commissary, attorneys say the department’s recent changes are a step forward, but Sullivan & Cromwell contends that death row inmates should be treated the same as other prisoners, who can spend their entire $55 a month on whatever items they choose. The firm has requested that the department sell writing supplies and sundries for the “specific needs of African-Americans (such as hair pomade, cocoa butter sticks and skin creams).” Flateau said the corrections department has been open to changes since the new death row was created in 1995. He said the department expected to make further modifications in the future, but he declined to discuss possible changes before they are approved. Flateau also said the department has made few preparations for an eventual execution — such as choosing people to carry out the sentence — since Harris has far from exhausted his appeals. If the time comes, Harris will be transferred to the Green Haven Correctional Facility and executed by lethal injection.

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