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.