by David M. Reutter

A Pennsylvania prisoner whose death sentence was tossed by a federal court 17 years ago has finally won release from the state’s death row after spending more than three decades in solitary confinement there. In a September 1, 2020, ruling, the U.S. Third Circuit Court of Appeals granted the request of the prisoner, 59-year-old Ernest Porter, sending him back into the general population of the State Correctional Institution in Greene County.

Porter, who is Black, was convicted in the 1985 shooting death of a White man, 52-year-old Raymond F. Fiss, Jr., during a robbery at his beauty shop in South Philadelphia. The crime led to racial unrest, with angry White citizens marching on City Hall.

A federal court in 2003 granted Porter’s habeas corpus request when it determined a verdict form used in the penalty phase of his case was unconstitutional. His death sentence was vacated and a new sentencing was ordered within 180 days. But both parties asked for a stay to that order while they pursued their appeals – the state of Pennsylvania, which wanted Porter’s death sentence re-instated, and Porter, who was challenging his conviction.

A stay was granted Porter by the Third Circuit on February 7, 2007. As of June 30, 2020, the state’s petition remained unresolved in Pennsylvania courts. But the state decided to keep Porter on death row anyway, arguing that either the denial of its own requested stay or an outcome favorable to the state in either appeal would send him back to his solitary confinement cell, awaiting execution.

For thirty-three years, that 7-by-12-foot cell with a 6-inch-wide window has been Porter’s home for all but 10 hours a week, when he is strip-searched and shackled before release into a caged exercise area with no more than one other prisoner.

On June 12, 2017, Porter filed a 42 U.S.C. Section 1983 complaint asking the federal district court to get him out of solitary and off death row, arguing that holding him there after his death sentence had been vacated was a violation of his Eighth and Fourteenth amendment rights under the U.S. Constitution.

The state conceded that as a result of his solitary confinement on death row Porter had limited movement, exercise and opportunities to work. He wasn’t allowed to participate in educational programs or to attend religious services. He couldn’t challenge his solitary confinement through the prison’s appeals process nor earn additional privileges. Porter alleged these conditions caused “irreparable damage” to his mental health. The state argued he’d be headed back to death row anyway if he lost his appeal, so letting him leave now with “nothing to lose” might make him more dangerous.

As for Porter’s Constitutional claims, the state responded that it was protected under the doctrine of “qualified immunity,” which absolves authorities of liability from any Constitutional claims not specifically addressed by a court already. The Magistrate Judge agreed and granted the state’s motion.

On appeal, the Third Circuit went looking for case law which might have put the state on notice that it was trampling over either Porter’s Eighth and Fourteenth Amendment rights. The judges found evidence of the latter in Williams v. Secretary Pennsylvania Department of Corrections (PDOC), 848 F.3d 549 (3d Cir. 2017).

Like Porter, the plaintiffs in Williams remained in limbo because they couldn’t be resentenced until their appeals were resolved. Which party filed the appeal made no difference because a stay occurs automatically under the local rules of the district court. After a state court vacated the plaintiffs’ death sentences and ordered resentencing, the state decided to keep them on death row because they would return there if their appeals failed. The Williams court overruled that decision, reasoning that prisoners granted resentencing hearings have a due process interest in avoiding indefinite detention in solitary confinement.

Relying on the Williams precedent, the Third Circuit agreed with Porter that the state “violated his procedural due process rights by keeping him in solitary confinement for thirty-three years without any regular, individualized determination that he needs to be in solitary confinement, even though he has been granted a new sentencing hearing.”

“It is well established in both case law and scientific and medical research that prolonged solitary confinement, like that experienced by Porter, poses a significant risk of serious psychological and physical harm,” wrote the Third Circuit.

In his complaint, Porter alleged his 33 years of solitary confinement caused him “severe anxiety, depression, panic, paranoia, bipolar mood swings, and at times suicidal impulses.” The court found that a jury could conclude his extended confinement posed a substantial risk of harm and that the state disregarded that risk. As such, it said the district court should not have granted summary judgment on that claim.

Moreover, the court’s Williams decision had already established that the existence of a stay does not extinguish a death row prisoner’s due process rights in avoiding continued indefinite solitary confinement. That decision gave the state “fair warning” that leaving Porter in solitary confinement after his death sentence was vacated had violated his rights.

The Third Circuit also rejected the state’s “nothing to lose” argument, noting Porter – who had never received a disciplinary infraction – “is as likely as the Williams plaintiffs to be on good behavior since he could be resentenced to a lesser penalty.”

But what about Porter’s Eighth Amendment claim? Because the district court granted the state summary judgment on his procedural claims, it had not reached this one and so it hadn’t adjudicated the state’s qualified immunity defense.

Here the Third Circuit held the state was entitled to qualified immunity because Porter’s right to avoid solitary confinement under “sufficiently similar fact patterns” had not been judicially established. But it added that its opinion renders the right clearly established going forward. Thus, the district court’s order was reversed in part and affirmed in part. See: Porter v. Pennsylvania Department of Corrections, 974 F.3d 431 (3d Cir. 2020). 

Additional source: inquirer.com

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