The death row phenomenon, also known as the death row syndrome, is a term used to refer to the emotional distress felt by prisoners on death row. Concerns about the ethics of inflicting this distress upon prisoners have led to some legal concerns about the constitutionality of the death penalty in the United States and other countries. In relation to the use of solitary confinement with death row inmates, death row phenomenon and death row syndrome are two concepts that are gaining ground.
Harrison and Tamony[1] define death row phenomenon as the harmful effects of death row conditions, whilst death row syndrome is the consequent manifestation of psychological illness that can occur as a result of death row phenomenon.
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According to some psychiatrists, the results of being confined to death row for an extended period of time, including the effects of knowing one will die and the living conditions, can fuel delusions and suicidal tendencies in an individual and can cause insanity in a form that is dangerous.[2] The theory of the death row phenomenon may be traced to 1989, when the European Court of Human Rights agreed that poor conditions on death row in Virginia should mean that a fugitive should not be extradited to the US unless the US agreed it would not execute the fugitive should he or she be convicted.[2] Additionally, the number of years that the fugitive would be on death row was considered problematic. The case is known as Soering v. United Kingdom.[3] Earlier, however, in 1950, a justice on the United States Supreme Court in Solesbee v. Balkcom remarked that the "onset of insanity while awaiting execution of a death sentence is not a rare phenomenon". Often the death row phenomenon, being a result of a prolonged stay on death row, is an unintentional result of the long procedures used in the attempt to ensure the death penalty is applied only to the guilty.[4]
As of 2008[update], arguments about the death row phenomenon have never been successful in avoiding the death penalty for any person in the US, but the US Supreme Court has been aware of the theory and has mentioned it in its decisions. When a serial killer named Michael Bruce Ross agreed to be executed, this had also led to a legal dispute over whether he could ever legally agree to such a thing, as the death row phenomenon might have contributed to his decision.[2]
In Canada, the Supreme Court of Canada cited the death row phenomenon, along with a few other concerns about execution, to declare the risk of a prisoner being executed after he or she is extradited to another country to be a breach of fundamental justice, a legal right under Section 7 of the Canadian Charter of Rights and Freedoms in the Constitution of Canada. The case was United States v. Burns (2001). Earlier, in 1991, some Supreme Court justices had, in Kindler v. Canada (Minister of Justice), expressed skepticism about the legal argument regarding the phenomenon, writing that the stress was not as severe a punishment as the execution itself, and writing that the prisoners themselves choose to appeal their sentences, thus being responsible for the prolonged stay on death row. In Burns, however, the Court acknowledged that the mere process of execution, including making sure that the sentence is carried out justly, "seems inevitably to provide lengthy delays, and the associated psychological trauma." This cast doubt on whether the risk of execution after extradition, as a whole, could be compatible with the principles of fundamental justice.[4]
In Jamaica, in the case Pratt v. Attorney General for Jamaica, the death penalty was overturned for two prisoners by the Judicial Committee of the Privy Council, who had made reference to the death row phenomenon. In these judges' opinions, the prisoners had been on death row for too long, and that too many appeals were allowed to the prisoners, who were forced by instinct to attempt to appeal and were thus confined to death row for too long.