Virginia Death-Row Prisoners Win ​“Landmark” Prison Conditions Lawsuit

In what lawyers for Virginia death-row pris­on­ers have called ​“a land­mark rul­ing,” a fed­er­al judge has issued an injunc­tion bar­ring the Commonwealth from sub­ject­ing pris­on­ers who have been sen­tenced to death to auto­mat­ic soli­tary con­fine­ment, phys­i­cal iso­la­tion from vis­i­tors and oth­er pris­on­ers, and oth­er harsh conditions. 

In a deci­sion issued on February 21, Judge Leonie M. Brinkema wrote that the con­di­tions to which Virginia sub­ject­ed death-row pris­on­ers before insti­tut­ing reforms in 2015 vio­lat­ed the Eighth Amendment pro­scrip­tion against cru­el and unusu­al pun­ish­ments. Virginia had refused to com­mit to keep­ing the reforms, which it adopt­ed only after the pris­on­ers ini­ti­at­ed suit, and the court’s order pre­vents the state from revert­ing to the pri­or unconstitutional conditions. 

Before 2015, death sen­tenced pris­on­ers spent about 23 hours a day alone in a 71-square-foot prison cell and were sep­a­rat­ed from vis­i­tors — includ­ing fam­i­ly mem­bers — by a plex­i­glass wall, although the war­den had dis­cre­tion to per­mit con­tact vis­its with fam­i­ly. For one hour a day, five days a week, pris­on­ers were tak­en to a small ​“out­door cell” with a con­crete floor and no exer­cise equip­ment. Death-row pris­on­ers were barred from the recre­ation­al facil­i­ties used by pris­on­ers in the gen­er­al pop­u­la­tion and allowed to show­er only three times per week. Brinkema decid­ed in favor of the three remain­ing death-row pris­on­ers who had sued the state in 2014. While the suit was pend­ing, one of the orginal plain­tiffs, Ricky Gray, was exe­cut­ed and anoth­er, Ivan Teleguz, was grant­ed a commutation. 

Lawyers for the pris­on­ers said Brinkema’s deci­sion was the first time a court had ruled such conditions unconstitutional. 

In grant­i­ng the pris­on­ers’ peti­tion, the court said that ​“the rapid­ly evolv­ing infor­ma­tion avail­able about the poten­tial harm­ful effects of soli­tary con­fine­ment” set this case apart from pri­or prison-con­di­tions law­suits, and as a result the pri­or ​“decades-old deter­mi­na­tions” by the Supreme Court and fed­er­al appeals court uphold­ing death-row prison con­di­tions were not bind­ing. ​“As courts and cor­rec­tions offi­cers across the coun­try have begun to real­ize, the years-long iso­la­tion that the pre-2015 con­di­tions of con­fine­ment forced on plain­tiffs cre­at­ed, at the least, a sig­nif­i­cant risk of sub­stan­tial psy­cho­log­i­cal and emo­tion­al harm,” Brinkema wrote. 

Kathryn Ali, one of the lawyers for the pris­on­ers, said “[t]he law in this area is very bad but it’s also very old. … Judge Brinkema’s rul­ing is a land­mark rul­ing but i think its also just com­mon sense, that we should­n’t be tor­tur­ing peo­ple by keep­ing them in isolation.” 

Victor M. Glasberg, who filed the law­suit on behalf of the five orig­i­nal plain­tiffs in 2014, said the court’s deci­sion could have impli­ca­tions for prison-con­di­tions law­suits in oth­er states. ​“This opin­ion should serve as a snow­ball let loose at the top of a snowy moun­tain, to turn into an avalanche as advo­cates in oth­er states bring sim­i­lar suits to end what has become increas­ing­ly rec­og­nized as unten­able con­di­tions in which to hold human beings,” he said. 

Under the reforms Virginia imple­ment­ed in 2015, death-row pris­on­ers are per­mit­ted to have con­tact vis­its with fam­i­ly mem­bers one day per week, for up to an hour and a half, as well as non-con­tact vis­its on hol­i­days and week­ends. They now have access to a cov­ered out­door yard for up to an hour and a half per day, five days a week. The yard has a bas­ket­ball court and exer­cise equip­ment, which up to four pris­on­ers at a time may share. Virginia now also per­mits dai­ly one-hour access for up to four pris­on­ers at a time to an indoor recre­ation space that has games, music, and a tele­vi­sion. Death-row pris­on­ers also are now per­mit­ted to shower daily.

70% of the approx­i­mate­ly 2,900 pris­on­ers on death row in the U.S. are auto­mat­i­cal­ly held alone in their cells for more than 20 hours per day, with near­ly two-thirds in soli­tary con­fine­ment more than 22 hours per day. In March 2017, in set­tle­ment of a death-row con­di­tions law­suit, Arizona agreed to end its pol­i­cy of auto­mat­i­cal­ly and indef­i­nite­ly incar­cer­at­ing death-row pris­on­ers in soli­tary con­fine­ment. In February, a fed­er­al appeals court declared uncon­sti­tu­tion­al Pennsylvania’s prac­tice of auto­mat­i­cal­ly keep­ing pris­on­ers whose death sen­tences had been over­turned in soli­tary con­fine­ment pend­ing the out­come of retri­al or resen­tenc­ing pro­ceed­ings and its death-row pris­on­ers have recent­ly filed suit chal­leng­ing the state’s auto­mat­ic inde­ter­mi­nate use of death-row solitary confinement.