March 25, 2011
Death row inmate sues over change in living conditions
By ANDREW BERGH
Special to the Journal

Even death row inmates are feeling the squeeze from our state budget crisis.

Just ask Jonathan Gentry, who has been stuck in solitary confinement since December 2008 because other living options were eliminated by our fiscal crunch.

It has now been two decades since Gentry was convicted of murder and sentenced to death. (The longest-serving death row inmate in Washington's history, Gentry's latest appeal is pending before the 9th U.S. Circuit Court of Appeals.)

When Gentry was convicted in 1991 of killing a 12-year-old girl in Kitsap County, state law required all death row inmates to be housed in “single cell units” at the Washington State Penitentiary in Walla Walla. Under existing regulations passed by the Department of Corrections, this meant Gentry initially had to be housed at the “intensive management unit.” DOC regulations further provided that after 12 months in the IMU, inmates could have their housing placement reviewed.

Based on good behavior, Gentry was transferred to the “special housing unit” after 12 months in the IMU. While no stroll in the park, the SHU was definitely an upgrade in his living conditions. The additional privileges included daily contact with other inmates during “out-of-cell leisure time,” a part-time prison job, and family visits.

But all this ended in December 2008.

That's when the SHU was closed due to the state budget crisis. So although Gentry hadn't committed any infractions, he was returned to the IMU where he spends approximately 23 hours a day confined to a single cell. Besides being subject to solitary confinement, Gentry isn't allowed to work or have any family visits.

Time for a short diversion in Constitutional Law 101.

The U.S. Constitution contains prohibitions against so-called “ex post facto” laws. Latin for “after the fact,” ex post facto refers to a law that retroactively criminalizes conduct that wasn't criminal when performed, or increases the punishment for crimes already committed.

For example, in 1890 – no, that's not a typo – the U.S. Supreme Court reviewed a Colorado statute that retroactively imposed mandatory solitary confinement for death row inmates. Since solitary confinement wasn't contemplated at the time of the crime or the defendant's sentencing, our highest court in the land struck it down as an ex post facto law.

Unhappy about the return to his old digs, Gentry filed a personal restraint petition with the Washington Supreme Court. (Our own high court has “exclusive original jurisdiction” in such proceedings when the petitioner has been sentenced to death.)

According to Gentry, the changed conditions of his confinement amounted to an “impermissible increase in the severity of his punishment,” and thereby violated the constitutional ban against ex post facto laws. So what relief did he seek? An order releasing him from the IMU and reinstating the confinement conditions that he enjoyed at the SHU.

By a 7-2 margin, the justices recently ruled on Gentry's petition. (I won't say they “decided his fate,” as Gentry's pending appeal in the federal courts will have more bearing on whether his death sentence will ever be carried out.)

The short answer? Gentry won't enjoy a change of scenery anytime soon.

At the end of the day, Gentry's claim that his placement in the IMU violated the prohibition on ex post facto punishment had one huge shortcoming: It wrongly “presuppose(d)” that he had a “liberty interest” in residing in the SHU or in retaining the privileges that he once enjoyed at that facility.

First of all, the majority quickly observed that the U.S. and Washington Constitutions don't create a liberty interest in a particular form of prison housing. The stickier question was whether Gentry had a protectable liberty interest as created through statute, and/or by the regulations passed by the DOC.

On this score, the court indicated that Gentry's petition would have merit if he could show – get ready for a mouthful – that he had suffered an “atypical and significant deprivation from the normal incidents of prison life.”

This was easy to establish in that 1890 case because there, solitary confinement for death row inmates in Colorado had been retroactively imposed.

But unlike the Colorado statute, said the court, the Washington statutes and DOC regulations in effect at the time of Gentry's crime and sentencing required death row inmates to be placed and held in the IMU for at least one year. On top of that, the majority emphasized that housing in the SHU is a “privilege,” which the DOC can allocate for “any number of administrative reasons, including safety concerns, staffing constraints, or budget crises.”

In short, since Gentry couldn't show that he had suffered an “atypical and significant deprivation,” the majority rejected his petition.

This means Gentry will probably be calling the IMU home as long as he remains on death row, or until our budget crisis goes away. And since our high court's ruling is the first and last word on this subject, there's not a solitary thing he can do about it.