Virginia’s practice of automatically holding people held on Virginia death row in solitary confinement will be reviewed by a federal appeals court. Experts claim that the case could have an impact beyond just the state of Virginia.

The Daily Press opens its story on the subject with the controversial question:

“Should prisoners in Virginia sentenced to die for their crimes be kept in solitary confinement for the rest of their lives?”

2013 Ruling By U.S. District Judge

According to the Associated Press:

U.S. District Judge Leonie Brinkema in Alexandria ruled last year that around-the-clock isolation of condemned inmates is so onerous that the Virginia Department of Corrections must assess its necessity on a case-by-case basis. Failure to do so, she said, violates the inmates’ due process rights.

The story notes that in 2013 U.S. District Judge Leonie Brinkema found that prisoner Alfredo Prieto’s constitutional due process rights are being denied by the prison system disallowing him to challenge the state’s use of solitary, “in which death row inmates can’t interact even with each other.

According to the Associated Press:

The lawsuit was filed by Alfredo Prieto, who was on California’s death row for raping and murdering a 15-year-old girl when a DNA sample connected him to the 1988 slayings of George Washington University students Rachel Raver and Warren Fulton III in Reston. He also was sentenced to death in Virginia, where he has spent most of the last six years alone in a 71-square-foot cell at the Sussex I State Prison.

Some capital punishment experts say a victory by Prieto could prompt similar lawsuits by death row inmates elsewhere.

The Herald quotes Brinkema in her late 2013 ruling:

“The most significant restrictions are those depriving plaintiff of human contact.” …  She called the practice in Virginia — one of 12 states not allowing death row inmates to congregate — “uniquely severe.”

Preito, one of eight prisoners held on Virginia’s death row could have “non-contact” meetings with his immediate family through a glass partition. However, as noted by Brinkema, “in actuality no one ever comes.”

In fact, Prieto’s only source of human contact is that with correctional officers and medical staff at the prison in Waverly, VA.

According to the Daily Herald:

“He is not allowed to join general population inmates for vocational, educational or behavioral programming, nor is he allowed to attend religious services,” Brinkema wrote, adding that he must eat all his meals by himself in his cell.

This treatment, the judge added, stands in contrast to most prison inmates, who “enjoy the near-constant company of others,” and “can socialize and play games together in a common area.”

“This is to say nothing of the benefits of two communal meals a day, regular contact visits from family and friends, and group religious and educational programming,” Brinkema wrote. “In other words, the experience for general population inmates … is hardly a solitary one.”

In a ruling that the state prisons reform their policy, Brinkema dismissed the state’s charge that those held on death row are higher risk prisoners since they have “nothing to lose.” She further stated that, in fact, people held on death row have more reason to behave, including any chances they may have at commutation.

State’s Assertions 

The state appealed, asserting that the courts should defer to the experience of prison officials on safety issues. This was the issue in front of the U.S. 4th Circuit of Appeals in Richmond earlier this week, with the Virginia Department of Corrections (DOC) pushing for the court of appeals to overturn Brinkema’s 2013 ruling requiring the state of Virginia reform the practice.

The story continues:

The ACLU of Virginia wants Brinkema’s decision upheld, calling solitary confinement “an extreme form of punishment” that’s been “proven to cause devastating mental and physical harms, including paranoia and self-mutilation.”

But in appealing the decision to a three-judge panel at the court of appeals, the Virginia attorney general’s office contends that how to house inmates is “at the core” of prison officials’ expertise.

“Virginia’s decision to house death-row inmates in segregative confinement is entitled to deference, and Prieto has failed to provide substantial evidence to show that such confinement is unnecessary,” the AG’s office asserted. In the state’s view, ending solitary confinement for death row inmates “isn’t worth the gamble.”

While Brinkema noted that Prieto has been a model prisoner, the attorney general’s office responded that courts “courts should not be lulled into complacency because a death-row inmate has committed no infractions while awaiting execution.”

The state added that people held on death row who were allowed to assemble “staged a mass escape” in the late 1980s.

“Death-row inmates with the greatest incentive to escape have an easier chance of doing so if not in segregation,” the AG’s brief said. “Those who have been on their best behavior while pursuing legal efforts to avoid being executed can lash out when legal setbacks occur.”

Moreover, the state said, Prieto got two death sentences because of his “vile” crimes, and because he “poses a risk of future dangerousness.”

The Associated Press quotes the Virginia state prisons chief:

“They’re segregated because we see those individuals as potentially the most desperate of all offenders,” state prisons chief Harold C. Clarke said in a deposition in the Prieto lawsuit. “Again, they have been sentenced to die. They have nothing to lose.”

He pointed to the 1984 escape by six death row inmates who had been allowed to congregate at the since-closed maximum security prison in Mecklenburg, saying the jailbreak “could have been catastrophic” had the convicted killers not been quickly apprehended. Virginia was not automatically isolating death row inmates at the time.

In spite of the state’s stance, Prieto is not calling for solitary to be abolished. According to the Associated Press he is asking that:

…the decision should be based on the same risk factors that are used to determine the security classification for the approximately 39,000 prisoners who are not facing execution. His lawyers say Prieto “likely would be assigned to less harsh conditions” if death row inmates were assessed in the same manner as other prisoners.

Death Row “Privileges”

Like other people held on Virginia’s death row, Prieto is permitted a television and CD player in his cell, has the option of having books delivered to him from the prison’s library and is also allowed thee 10-minute showers a week.

Under VDOC’s current policy, people held on death row are also permitted to leave their cells five days a week for one of solitary exercise in a separate, slightly larger cell which contains no exercise equipment. Every meal is eaten alone, not permitted to work or participate in education programs or religious services. They are allowed only limited visitation.  hour outside, during which time he has the option of being transported “to a small closed space with no exercise equipment. Prieto is also allowed three 10-minute showers a week.

The state has conceded that Brinkema’s ruling  “would do away with death row as it is currently operated in Virginia and numerous other states.”