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Opinion Virginia finally curbs solitary confinement — but not enough

A mentally ill inmate who is under solitary confinement at the Hampton Roads Regional Jail in Portsmouth, Va., peers from behind his cell door on Nov. 29, 2004. (Chris Tyree/Virginian-Pilot/AP)
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Virginia’s General Assembly passed legislation last month aimed at curbing punitive solitary confinement — one of the penal system’s darkest practices — in the commonwealth’s prisons. Gov. Glenn Youngkin (R) is now reviewing the measure. Lawmakers watered it down as it made its way through the General Assembly, which is split between Democrats and Republicans. Yet this is nevertheless a moment to celebrate, reflecting increasingly widespread recognition that solitary confinement is barbaric. Mr. Youngkin should sign the bill — and Virginia lawmakers should get to work on the next one to further curtail the practice.

The commonwealth’s criminal code and the Virginia Department of Corrections refer to solitary confinement as “restorative housing.” That’s an Orwellian euphemism that obscures what it is: isolating human beings in a maximum security setting, often for long periods of time. Inmates call it “the hole” or “the jail within the jail.” We are not alone in considering it cruel and unusual punishmenta sanitized term for torture.

Research shows that prolonged stays in solitary take a severe mental and physical toll on inmates. Solitary shrinks the parts of the brain used for learning and memory while triggering overactivity in the parts of the brain that cause fear and anxiety. Long-term isolation breaks many people. It makes them more antisocial, and therefore more likely to reoffend when they’re back on the streets.

A total of 4,962 inmates exited “Restorative Housing Units” in Virginia at some point during the most recent fiscal year, according to a report issued in October, a tally that’s required to be released annually under a 2019 law. The Virginia Department of Corrections says that 66 percent of them were Black, that half had a history or showed evidence of mental health impairment, and that their average age was 36. On any given day, there were approximately 354 inmates in such isolation in Virginia — about 1.3 percent of prisoners.

Virginia’s Department of Corrections says it has tried to reduce the use of solitary since 2011. Since 2020, Virginia prisons say they have been voluntarily providing inmates with at least four hours of time outside the cell each day. But activists complain that they hear about many cases in which that doesn’t happen.

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So the bill would codify into law a requirement that inmates be allowed to spend at least four hours outside their cell every day and make it harder to indefinitely isolate people from the rest of the prison population without justification. Prisons would need to perform medical and mental health evaluations on anyone placed into solitary confinement within a day of their arrival. Each week, the prison would be required to formally review each inmate’s placement in solitary and prepare a written report on why a less restrictive setting could not be utilized. And every facility must prepare a publicly available policy that lays out the processes and procedures for people who are in solitary to transition back into the general prison population.

An unlikely duo of lawmakers made it possible for the GOP-controlled House of Delegates and Democratic-controlled Senate to rally behind the kind of deal that collapsed in the last three legislative sessions. Del. Glenn R. Davis Jr. (R-Virginia Beach) and House Minority Leader Don L. Scott Jr. (D-Portsmouth) got it done after visiting a maximum-security facility together in January.

Mr. Scott spent seven years in federal prison on drug-related charges in the 1990s before having his rights restored and becoming an attorney and lawmaker. He says he spent months in solitary confinement, and he was sent there for baseless disciplinary reasons. “Basically, to punish me,” he said, recalling how he got no time out of his cell and only one shower each week.

The bill would leave room for improvement. It says that inmates may still be placed into solitary if “there is a need to prevent an imminent threat of physical harm to the incarcerated person or another person” or if “such person’s behavior threatens the orderly operation of the facility.” There are some cases in which separating prisoners from others is the only way to prevent violence. But “orderly operation” is not defined in the bill, and activists worry that this provision is so broad and subjective that prison authorities will use it as a loophole to harshly mistreat prisoners they dislike.

In many cases, there are more humane options than solitary. Colorado, Oregon and Washington state successfully implemented “cool-down areas” in their prisons, which allow inmates to manage stress with simulated nature therapy. Last year, Virginia began a cool-down room pilot program at five facilities. Preliminary data showed that 85 percent of inmates sent to these rooms returned to the general population and did not need to go into solitary confinement. Inmate participants also said that spending time in these rooms helped them gain better control of their emotions. Virginia is now rolling out cool-down rooms across its system. The bill could have done more to limit when solitary can be considered over such alternatives.

The bill falls short in a few other areas, too. An earlier version would have required that inmates get seven hours of daily socialization outside of solitary, rather than just four. Meanwhile, the main sticking point in negotiations was on whether lawmakers should restrict how long someone can be kept in solitary. An earlier version of the bill limited solitary to no more than 15 consecutive days in any 60-day period unless a prison administrator determined that the incarcerated person needed to be there to prevent an imminent threat of physical harm to themselves or others. But lawmakers removed the cap after lawyers for the state expressed concerns that it could lead to lawsuits if the exceptions weren’t broad enough.

The U.N. General Assembly adopted the Nelson Mandela Rules in 2015. These are intended to restrict the use of solitary confinement across the world as a measure of last resort that should only be used in exceptional circumstances. Mandela, who spent 27 years locked up as a political prisoner in apartheid South Africa, called solitary confinement “the most forbidding aspect of prison life” because “there was no end and no beginning; there’s only one’s mind, which can begin to play tricks.” The U.N. resolution defines solitary confinement lasting longer than 15 days as “prolonged,” and says that indefinite or prolonged detention in solitary should be prohibited.

More than 30 states have enacted laws over the past decade to limit the use of solitary confinement in ways big and small. New York last year limited isolation to no more than 15 consecutive days, with narrow exceptions, and the state now bans “segregated confinement” for people with disabilities, and those younger than 21 or older than 55. This is the right thing to do. We hope Virginia follows soon.

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