A fed­er­al appeals court has declared that Virginia for many years housed its death-row pris­on­ers in uncon­sti­tu­tion­al con­di­tions and has barred the state from revert­ing to its pri­or prac­tices. On May 3, 2019, the U.S. Court of Appeals for the Fourth Circuit ruled that the Commonwealth’s for­mer pol­i­cy of 23- or 24-hour per day soli­tary con­fine­ment of death-row pris­on­ers con­sti­tut­ed cru­el and unusu­al pun­ish­ment in vio­la­tion of the Eighth Amendment. The 2 – 1 deci­sion upheld a rul­ing by the U.S. District Court that found Virginia’s death-row con­di­tions ​“cre­at­ed, at the least, a sig­nif­i­cant risk of sub­stan­tial psy­cho­log­i­cal or emo­tion­al harm” and that the state had been ​“delib­er­ate­ly indif­fer­ent” to that risk.

At the time the Commonwealth’s three cur­rent and two since-exe­cut­ed death-row pris­on­ers filed suit, Virginia lim­it­ed death-row pris­on­ers to one hour of recre­ation per day five days a week and a ten-minute show­er three days per week. During recre­ation, they ​“were con­fined to indi­vid­ual enclo­sures with con­crete floors and enclosed by a steel and wire mesh cage.” At all oth­er times, they were held alone in 71-square-foot cells, about half the size of a park­ing space, with lights on 24 hours a day. Contact vis­its with imme­di­ate fam­i­ly mem­bers could be grant­ed at the warden’s dis­cre­tion once every six months under ​“extreme cir­cum­stances.” In prac­tice, this pol­i­cy meant that pris­on­ers were only grant­ed con­tact vis­its as their exe­cu­tion date approached.

The appeals court deci­sion cit­ed over­whelm­ing sci­en­tif­ic research that has found seri­ous detri­men­tal effects of soli­tary con­fine­ment. A lead­ing sur­vey of such research stat­ed ​“there is not a sin­gle pub­lished study of soli­tary or super­max-like con­fine­ment in which non­vol­un­tary con­fine­ment last­ed for longer than 10 days, where par­tic­i­pants were unable to ter­mi­nate their iso­la­tion at will, that failed to result in neg­a­tive psy­cho­log­i­cal effects.” The court also relied upon a grow­ing body of caselaw in which courts have found soli­tary con­fine­ment con­di­tions to be uncon­sti­tu­tion­al. The court found par­tic­u­lar­ly rel­e­vant ​“the empir­i­cal evi­dence … that soli­tary con­fine­ment pos­es an objec­tive risk of seri­ous psy­cho­log­i­cal and emo­tion­al harm to inmates, and there­fore can vio­late the Eighth Amendment.” Cate Stetson, who argued on behalf of the pris­on­ers, praised the court’s action as ​“a land­mark deci­sion.” In a state­ment released to the media, she said: ​“The court was right to find that the severe iso­la­tion to which our clients were sub­ject­ed for years on end put them at a sub­stan­tial risk of severe psy­cho­log­i­cal and emo­tion­al harm and vio­lat­ed their right to be free from cru­el and unusual punishment.”

In August 2015, about a year after the suit was orig­i­nal­ly filed, Virginia revised its death-row reg­u­la­tions to allow week­ly con­tact vis­its with fam­i­ly, in-pod shared recre­ation sev­en days a week and out­door recre­ation five days a week, and dai­ly show­ers. However, the Commonwealth repeat­ed­ly refused to rule out the option of revert­ing to its pri­or death-row hous­ing prac­tices. The death-row pris­on­ers con­ced­ed that the new con­di­tions do not vio­late the con­sti­tu­tion, but per­suad­ed the court that the state’s lack of ​“repen­tance” left the pris­on­ers fac­ing a ​“cog­niz­able dan­ger of recur­rent vio­la­tion.” The deci­sion pro­hibits the state from return­ing to the ear­li­er, uncon­sti­tu­tion­al con­di­tions. Judge Paul V. Niemeyer dis­sent­ed from the major­i­ty opin­ion because the uncon­sti­tu­tion­al con­di­tions are no longer in effect.

(Debra Cassens Weiss, Solitary con­fine­ment con­di­tions vio­lat­ed death-row inmates’ Eighth Amendment rights, 4th Circuit rules, ABA Journal, May 6, 2019; Brad Kutner, Solitary for Virginia Death Row Inmates Ruled Cruel & Unusual, Courthouse News Service, May 3, 2019.) Read the Fourth Circuit deci­sion in Porter v. Clarke. See Death Row.

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