Treatment of prisoners on Virginia’s death row was unconstitutional before recent changes, and the state is now barred from reverting to the old conditions, a federal judge in Alexandria ruled this week.
Virginia altered its treatment of death row prisoners in 2015, no longer isolating them completely from visitors, other prisoners and recreational facilities. But the state refused to commit to keeping those changes. Now they must.
“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,” Judge Leonie M. Brinkema wrote.
Attorney Victor M. Glasberg, who filed the lawsuit on behalf of five death row prisoners in 2014, said Brinkema is the first federal judge to find such conditions unconstitutional.
“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.
The Office of the Attorney General, which represents Virginia prison officials, did not immediately return a request for comment.
Under the old policies, prisoners scheduled for execution spent about 23 hours a day alone in a 71-square-foot prison cell and could see visitors only through a plexiglass wall. For one hour a day, five days a week, they were taken to an equally small “outdoor cell” with a concrete floor and no exercise equipment. They were barred from the recreational facilities used by other inmates.
Now, death row inmates can use a new outdoor yard built by the state, with a basketball court and exercise equipment, as well as an indoor recreation space with games and a television. They can spend an hour and a half in the outdoor yard five days a week and an hour a day together in the indoor recreation room. They can shower daily rather than three times a week.
Yet the Virginia Department of Corrections continued to argue that the old conditions were constitutional and that prison officials should have the discretion to undo the reforms.
The Supreme Court and the U.S. Court of Appeals for the Fourth Circuit have both ruled such conditions constitutional in the past. But “given the rapidly evolving information available about the potential harmful effects of solitary confinement,” Brinkema wrote, she is “not bound by the decades-old determinations.”
It took time for the law to catch up with societal changes, said Kathryn Ali, an attorney with Hogan Lovells. The firm has helped on the case since its early stages and is involved in similar litigation in Louisiana and South Carolina.
“The law in this area is very bad but it's also very old,” Ali said. “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.”
Only three of the plaintiffs in the case are still living: Anthony Juniper, Mark Lawlor and Thomas Porter. Juniper killed his ex-girlfriend, her children and her brother in 2004. Porter was sentenced to death for killing a Norfolk police officer in 2005. Mark Lawlor raped and murdered a woman in her Fairfax County apartment in 2008.
The use of solitary confinement has come under increased scrutiny in recent years. In 2016, President Barack Obama banned solitary confinement for juveniles in federal prison. A 2017 Justice Department report expressed concern about the number of prisoners in isolation, particularly the mentally ill.
And across the country, state prisons have begun relaxing conditions on death row, according to a 2017 Marshall Project survey, sometimes in the face of lawsuits similar to the one in Virginia. But most death row inmates are still kept isolated for at least 20 hours a day. Prisoners in Pennsylvania and Florida are the latest to sue over conditions prisoners describe as torture.