The Cost of Doing Nothing

by Paige St. John

Revisiting California’s death row

From Boom Summer 2016, Vol 6, No 2

Slotted between steel and concrete, California’s condemned grow old.

Child stalkers, serial killers, men who maimed, dismembered, and raped are in walkers and wheelchairs. Graying now are the hold-up men who shot pizza-joint clerks or jewelry-store managers, and the crack-addicted panhandler who gunned down the woman who had rebuffed him outside a hotdog stand.

In California, they do not die by lethal injection but by hepatitis and cancer or the infirmities of time. They overdose on meth or strangle themselves on knotted bedsheets and electric cords. Others wait in diapers, with oblivious minds, shipped to hospital wards and hospice units.

For the rest, there is limbo.

For the majority of condemned men in California, death row is a cavernous granite warehouse at San Quentin State Prison called East Block. The cells are stacked five high, akin to containers in the hold of a cargo ship. Here, some 500 convicted murderers wait for executions that never come.

East Block also is shuttered to the forces of redemption. The condemned seldom leave, and outsiders even more rarely are allowed in. There is no pretext of rehabilitation—no prison jobs, no drug treatment, no courses on anger management. The condemned speak with envy about what they do not know: that “other” San Quentin with its army of prison volunteers, the Shakespearean acting troupe, the inmate newspaper, the technology lab, and business incubator.

They live in extraordinary confinement, allowed out of their cells only every few days, one at a time to shower, or in gang-aligned groups to exercise. The tennis-court-sized yard is so crowded that many inmates remain in their 4′ x 8′ cells. Vitamin D deficiency from lack of sun is common.

Every half hour, a guard walks by, to check for suicides.

State corrections administrators refused to allow journalists access to the state’s death row for years. Then in December 2015, Corrections Secretary Jeffrey Beard changed his mind. Death row had become topical. For half a day, he opened death row to the media—then closed it again.

The impetus for the brief opening was California’s public comment period on its latest execution protocol—the step-by-step procedures prison officials would have to follow if the state were to resume executions. This is California’s third protocol in a decade, and it is as unlikely as its predecessors to be used anytime soon. Death penalty opponents and death penalty advocates meanwhile are preparing dueling ballot initiatives to repeal or expedite the killing of prisoners.

There will be convincing arguments about the innocents almost assuredly cast among the condemned.

There will be outrage over the unrequited pain of those whose mothers and sons were slain.

And the heat will be about a capital punishment system that exists only in name.

None of this is new in California. It is an old dance around an older question that never confronts the reality, the high price of doing nothing.

Kenneth Friedman didn’t pretend to be innocent.

He admitted to kidnapping and murdering two men in Torrance in the early 1990s—one of them apparently a bystander—on the order of one of Miami’s petty crime bosses. He sat on their chests and strangled them slowly, one at a time with a phone cord. Already serving a life sentence in federal prison for the interstate aspects of the killings when he pleaded guilty in California, Friedman expected a return trip to the more comfortable confines of the federal penitentiary in Leavenworth, Kansas.

What the hit man from Queens, New York, hadn’t bargained for was San Quentin.

When he arrived in 2005, conditions on death row were deplorable. Pigeons free-ranged in the granite cell block and their dung encrusted the steel railings and catwalks of the five-story tiers of cells. The rest was rust. Sewage dripped from the open showers and inmates flushed their houses clean by flooding the cell floor with toilet water, then releasing a dam of towels with a shouted warning—or sometimes not—to those in the cells below.

The insane on the row ranted and screamed so much above the general din of steel upon rock that a federal master ordered the installation of noise monitors.

Friedman had been an athletic figure who practiced martial arts. On East Block he was crippled by a degenerative joint disease. His legs swelled. He tore a rotor cuff that went unrepaired and contracted hepatitis. He became reliant on a walker and painkillers. When medical staff believed he was dealing his fentanyl patches to other prisoners, they cut him off the powerful opioid so abruptly while simultaneously tapering his morphine prescription that they were chastised by a federal court monitor for failing to provide a substitute painkiller.

Then, prison doctors wanted to amputate Friedman’s foot.

He saw his future in the other crippled men in the cells surrounding him on the bottom tier, where San Quentin put the elderly, the lunatic, and the crazed. Eight years after conviction, with the deadline to file his state appeal extended thirteen times, Friedman’s California taxpayer-funded lawyer had just turned in the opening brief of his bid to return to federal prison.

He told his cousin in New Jersey that death would be better. “He said ‘Fuck these people. I’m going to do it my way,'” said Charlie Heller.

Just before dawn on 26 August 2012, a patrol guard found Friedman strangled by a bedsheet stripped into rope and strung to a steel shelf, knotted around his neck, hands, and feet. The rigging was so complex it stuck years later in the mind of the Marin County Sheriff’s coroner who handled the report. At the time, what the deputy noted in his report was that after cutting Friedman free, or perhaps even before, the guards had shackled the corpse.

It’s a hallmark of California death row. In nearly every suicide report—and there are many; until 2013 the state led the nation in condemned suicides—coroners arrive to find the dead men in cuffs.

In a wilder California, from 1800 to 1941, 510 condemned were hung or shot for offenses as minor as theft and sodomy. The state began to gas condemned prisoners in 1938, executing another 194.

But modern California’s appetite for execution is no match to its even greater passion for the death sentence. Since 1978 when California voters restored the death penalty after courts had decreed it unconstitutional, prosecutors have convinced juries to condemn more than 900 murderers to death. The sentences are trumpeted in headlines. Jurors are congratulated on their civic duty and their courage, and discharged back to their ordinary lives. Only the prosecutors go on, adding up capital convictions like coups to roll out at election to remind voters of their championship of justice.

And at that point, the vengeance of California looks away.

In thirty years, only thirteen of the condemned have been executed by the state, and none for a decade while lawyers argue whether the state’s execution methods are painless and merciful. There are few who are eligible, anyhow.

The California Supreme Court upholds nearly every death penalty conviction it hears but federal judges reverse a large percentage of cases that make it that far—not because they find the appellants innocent, but because they find their trials flawed. The cases are sent back for retrial, and, if prosecutors want to attempt it, the process begins again. There is no statute of limitations on second chances to get it right. Douglas Stankewitz, condemned thirty-seven years ago, longer than anyone else on death row, is now awaiting a new trial in Fresno.

Some men have been reconvicted three times. Others win on appeal and are converted to life prisoners. By that change in status they are suddenly afforded much of what California had denied—prison employment, open cell blocks, extensive yard time, the ability to walk without chains. Life.

For an appeal to get that far in California requires now on average almost three decades. So few condemned cases have run the gauntlet that a federal judge in 2014 deemed the state’s capital punishment system was unconstitutionally random, but his ruling was overruled in 2015 by a federal appeals panel.

Only 16 of the current condemned class of 747 are eligible for execution, if the state did such a thing. The eldest of them is seventy-eight. He has been waiting thirty years.

Killing time then becomes the objective.

California has scant provisions to occupy the condemned, fewer still that might pass as a form of human enrichment. Each man may buy himself a television, but it must remain silent, listened to through earphones. Inmates may also own a guitar or a flute or a harmonica, and playing hours are restricted. The rest is books, correspondence classes, and paper crafts. A major object of negotiation last year for the death-row-inmate advisory council was to seek restoration on the exercise yard of a deck of Uno cards.

Enrichment then, for Clifton Perry, is the poetry circle he happened into through death row’s psychiatric program—a program once infamous for running therapy sessions that consisted of nothing more than movies. To read and critique each other’s work, a small number of men gather in a semicircle of booth-sized cages, death row’s version of group interaction.

Through this outlet, Perry has found a pursuit that carries him forward. His poetry is contained in a collection housed at the State Capitol, bound in a collection of California’s best works. He is competing for international recognition.

Once a member of LA’s 59 East Side Crips who came of age in juvenile detention halls, he’s the son of a heroin addict. He enrolled in college but between classes, he robbed stores. Once, his case files show, he resuscitated a child. In 1995, at twenty-five, Perry shot the owner of a Stop and Shop.

Twenty-one years later, lawyers in state and federal courts still argue over whether the gun was fired in panic, while Perry tries to not obsess about just having lost a shot at one of East Block’s rare custodial assignments. After a hiatus of several years, San Quentin recently decided to return work privileges to death row. Fourteen of the more than 500 men on East Block are assigned as “porters” to scrub the showers or clear lunch sacks or stray balls from the exercise yards. But Perry, having been deemed so lucky, lost his spot even before his first day after he sent himself to the mental health program for a cooling-off spell.

He speaks in the careful fashion of a long-timer, breaking off anything he has to say at the slightest interruption. “Go ahead.” It frustrates him that a state that holds the fate of men in limbo for so long puts no effort in their reform—as if the lives and souls of those to die do not still matter.

In a legal sense, they don’t. Federal rulings hold that the US Constitution requires only that prisons be “safe.” There is no right to rehabilitation.

Thus, the “constitutional minimum” of existence for California’s condemned has been governed by federal judges from almost the start.

The year after the death penalty was reinstated, a briefly condemned man named Maurice S. Thompson (he was resentenced the following year) filed what became a twenty-year class action lawsuit to force the state to provide a prison life approximating that of other inmates. In a series of consent decrees beginning in 1980, the state was required to provide exercise, access to the law library, typewriters, sanitary conditions, hot meals, tolerable noise levels, and religious services. In 2006, it was ordered to quiet the screaming psychotics and remove the dung of pigeons.

The death row chapel speaks to the minimalist reading of those decrees. It is a converted shower bay, fenced to resemble a holding cell. The clergy stands in his own cage, in bulletproof vest, beneath the water pipes.

“I believe the saddest thing for me is when I was seeing the languishing Men here, Men like Horace Kelly & Mack Man,” Perry wrote in a letter last July.

“Mack Man would walk around so filthy that it grieves me as a proud Black Man to see another Brotha that deteriorated! His hair was so crunchy that he had lice that made a home in his hair. They said when they cut his hair, about 40 bugs just started scattering because of the light.”

The men he referred to were the delusional and psychotic inmates who lived on death row before the 2013 federal order for California to provide the condemned with full psychiatric care.

Since the 1980s, they had been left on East Block, ranting and delusional in their cells, rolling feces into imaginary confections. Horace “Smelly” Kelly, who raped the women he killed, had lived unwashed amid garbage to his knees. Mack Man was Jeffrey Jones, the real-life version of a Hollywood psycho killer who prowled bathrooms, using a hammer to bash the heads of his victims. Prison records show Jones often fell catatonic, lying naked for days at a time on the floor in his feces. At other times, he rambled in endless nonsensical wordstreams, promising to “kill again with a black-handled buck knife” as soon as he was paroled, “a 217-pound muscle with sperm.” As recently as 2011, a note in his psychiatric files shows, Jones, still shitting on himself, had maggots living in his beard.

In 2014, a federal judge added full psychiatric care to the “constitutional minimum” of the condemned. In 2015, California opened the nation’s first psychiatric death row unit. In less than a year, the forty-cell floor had only a single empty bed.

With a death penalty that exists in name only, California whittles away at its condemned with time.

Simply wait long enough, and terrifying men like Teofila Medina become nothing. The gigantic killer’s capacity for violent rage was infamous. His frightened sister turned him in to police in 1984 after he killed four people in four robberies in Orange and Riverside counties. In prison, he had terrified two doctors, smashing the glass partition separating him from a psychiatrist and proposing sex with another, right before his attorney. His lawyer, a man with some humor, relished in calling his towering client “Junior.”

In 1987, at conviction, two doctors testified Medina was schizophrenic and hallucinating but three doctors said they doubted it. Four years later, a prominent expert on serial killers, neurologist Dr. Jonathan Pincus, examined Medina on death row. He described a man unable to carry on a conversation, rutted in “reiterative, pressured speech regarding hemorrhoids.”

Prison medical files show he had chronic bladder problems written off as “benign prostatic hypertrophy”—an enlarged prostate. When his belly swelled with urine in late 2014 to the size of advanced pregnancy, Medina was driven to a local hospital where a urologist quickly surmised cancer. No one informed Medina’s lawyer back in Los Angeles who was still working on an appeal that argued Medina’s mental illness merited him the mercy of a life sentence.

Months after the diagnosis, a state lawyer who came to visit found a confused man refusing treatment for normally treatable prostate cancer. He said doctors who sought to do a bone scan were trying to kill him with radiation. He became so frail another lawyer who came to check on him asked the guard if he had brought the right man to the legal visiting room.

A San Quentin physician tried one more time to convince Medina to accept treatment and then when he still refused, referred him to California’s praised hospice program at another prison, where dying inmates are visited by family without the tight custody of incarceration. The staff there said he never made it.

The warden wouldn’t allow his admission. Junior Medina died in March 2015 under high security down the hall. Coincidentally, the very next day the Ninth Circuit Court of Appeals rejected the dead man’s appeal—thirty-one years after conviction. By then Medina was headed to the crematorium.

A month later, San Quentin released Medina’s medical records. The files revealed that just before his cancer was discovered, Medina had been diagnosed with “cognitive deficits.” A prison psychiatrist declared the mental impairment cured with vitamin B12 just in time for the prison system to allow the condemned man to reject medical care because he feared a bone scan more than death by cancer.

In the end, Californians got no execution, if they had ever wanted one.

They were spared the wrenching debate and moral challenge of having to actually kill someone. They avoided, too, the no-less-difficult moral prospect of extending mercy to a guilty and cruel killer. Nor were they asked to consider what California had actually done—still does—with its pretend death penalty and its sentences of limbo.

Medina’s lawyer of three decades was left with a storage locker stacked with boxes of files and evidence, old family photos by the beach, and case notes as well as the killer’s requests for magazines and sappy greeting cards addressed to the female legal aides who were his only visitors—the summation of a life on death row.

There was no place to take the next appeal.

There was no one to claim the belongings.

There was no one to pay to preserve any of it.

The lawyer turned in the key and left it to the storage company to dispose of the remains.

Note

Artwork photographed by Melissa Ysais and reprinted courtesy of the artist, William A. Noguera, who is a death row inmate at San Quentin State Prison.