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Civil Death Laws: When Life is Death

by Jayson Hawkins

Certain human rights are inalienable, even for incarcerated individuals. When Joshua Davis received a shot of insulin in 2018 that was tainted with other prisoners’ blood, the resulting lawsuit against the institution that risked exposing him to a host of deadly diseases should have been a slam dunk. Yet an unusual issue prevented the suit.

According to Rhode Island law, Davis was already dead.

An archaic state statute defines anyone sentenced to life as “civilly dead,” which renders their civil rights null and void. Not only do they lack the ability to sue, they cannot be lawfully married or divorced, nor can they hold title to any property. This holds true even if they eventually regain freedom.

The idea of civil death traces its roots to the Classical Greeks and Romans. Criminals facing execution were barred from military service, voting, and other civic privileges.

The Germanic tribes utilized “outlawry,” a similar concept wherein those guilty of certain crimes lost all rights and protections within the community. Much later, the English incorporated civil death into the common laws, and it made its way to America with the colonists. An 1871 court ruling in Virginia declared convicted felons had no rights and existed solely as “slave-[s] of the state.”

English common law only applied civil death to felony convictions, but almost all felonies used to be capital crimes. Lengthy prison terms began to be substituted for the death penalty over the years for many crimes, but rather than also eliminating civil death, many U.S. states opted to widen its definition to include life sentences. Problems inevitably arose when some lifers were paroled yet still found themselves legal non-persons.

A New York man declared civilly dead while serving a life term discovered after his release he was still legally wed even though his wife had remarried during his incarceration. A judge refused to annul the original union simply because of his temporary “death,” thus leaving his (ex) wife married to both men.

A Missouri court ruled the legal paradoxes of civil death unconstitutional in 1976, agreeing that it was “an outdated and inscrutable common law precept.” Civil death nonetheless remains on the books of New York and Rhode Island, though only the latter enforces it. Other states that long ago overturned their own statutes have found ways to retain several effects of civil death. Rights such as having certain occupations, voting, and running for office remain forbidden for many felons even after serving their time.

Sonja Deyoe, an attorney representing Joshua Davis and another Rhode Island lifer burned by a steam pipe at the same facility, has brought suit against the state on their behalf. The Civil Death Act, she claims, has denied her clients “basic civil, statutory, and common law rights and access to the courts, [and] imposes an excessive and outmoded punishment contrary to evolving standards of decency.” Her argument echoes rulings of other states’ courts and alleged numerous Constitutional violations. “The state could choose not to feed these individuals, deny them medical care, torture them, or do anything short of execute them,” she said.

A number of Rhode Island’s current population of over 200 civilly dead prisoners will have parole opportunities, but courts have not determined if freedom will include legal resurrection. The few lifers who have already been paroled have been hesitant to question their status. The state’s General Assembly agreed on legislation to overturn civil death in 2007 only to have it vetoed by the governor at that time. Multiple bills that would achieve the same end have since been proposed, but not one has passed.



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