“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Third Circuit judge David Porter would allow a death row prisoner to remain in solitary confinement after being held there for more than 33 years in violation of his right to due process.  The September 2020 decision was Porter v. PA Department of Corrections.

Ernest Porter was convicted of murder and sentenced to death in 1986. Since 1986 he has been held in solitary confinement.

Porter alleged that his solitary confinement has caused “irreversible damage” to his mental health and he suffers from “severe anxiety, depression, panic, paranoia, bipolar mood swings, and at times suicidal impulses.” He takes depression medication to deal with his mental health issues.

In 2003, the district court vacated Porter’s death sentence and required the Commonwealth of Pennsylvania to conduct a new sentencing hearing.  Both Porter and the Commonwealth appealed to the Third Circuit, and the district court’s order was stayed.

In 2017, Porter filed an action in district court alleging that his Eighth and Fourteenth Amendment rights were violated by continuing to confine him on death row even though his death sentence had been vacated.

In a 2-1 decision, the majority determined that a reasonable jury could find that the Department of Corrections knew that prolonged solitary confinement had serious detrimental health impacts and that they disregarded the risk in Porter’s case by leaving him in isolation for more than thirty-three years, “sixteen of which were after Porter was granted relief in the habeas proceedings. Porter is in limbo: he may not be resentenced until his appeals are resolved.”

Judge Porter strongly dissented explaining that the majority incorrectly held that Porter’s solitary confinement violated his procedural due process rights. Porter’s solitary confinement is required by his still-active death sentence.  However, the majority reasoned that “extended delays and the attendant uncertainty do not justify Porter’s continued solitary confinement without review.”