Virginia Federal Judge: Indefinite, Unreviewed Solitary Confinement Is Not OK

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Around the country, there are inmates serving time in solitary confinement for a variety of reasons. Some, as young as 13, are held in isolation purportedly for their own protection. Others as mental health treatment. Still others because they are considered a danger to others. Some federal courts have held that this treatment is unconstitutional as applied to mentally ill inmates, who are particularly vulnerable to lifelong impacts from the treatment that has been called a “living death” and “torture.” But the practice has largely continued with few limits. Now, a federal judge has held that a Virginia prison’s automatic, indefinite subjection of death row inmates to these conditions is unconstitutional as a violation of inmates’ due process rights.

Like many other inmates in solitary confinement, the plaintiff in this case sees very little time outside his cell, and even during that time he is confined. He gets one hour of recreational activity in another confined outdoor space five days per week, and is permitted to shower three times per week. U.S. District Judge Leonie Brinkema described the conditions for death row inmates at Sussex I State Prison (SISP) this way:

Plaintiff’s conditions of confinement on death row are undeniably extreme and atypical of conditions in the general population units at SISP. He must remain alone in his cell for nearly 23 hours per day. The lights never go out in his cell, although they are scaled back during the overnight hours. Plaintiff is allowed just five hours of outdoor recreation per week, and that time is spent in another cell at best slightly larger than his living quarters. He otherwise has no ability to catch a glimpse of the sky because the window in his cell is a window in name only. Nor can he pass the time in the company of other inmates; plaintiff is deprived of most forms of human contact. His only real break from the monotony owes to a television and compact disc player in his cell and limited interactions with prison officials. Such dehumanizing conditions are eerily reminiscent of those at the maximum-security prison in Wilkinson.

Brinkema notes that these conditions are “uniquely severe” as compared to other inmates at the same prison. Death row inmates are also unique in that they are automatically placed in solitary without an opportunity to challenge that placement unless they are taken off death row. Noting the fundamental lack of due process provided to these inmates, Brinkema concludes that these inmates are being unconstitutionally held without “notice of the factual basis” for their placement and “allowing the inmate a rebuttal opportunity.” In a follow-up to this ruling, she held Friday that Virginia must immediately end this process, and could not delay a change pending appeal, according to the Washington Post.

As the American Civil Liberties Union noted, this ruling sends an important message that death row is “not a ‘Constitution-free zone’.” But the conditions described by Brinkema as “uniquely severe” are not much different than those experienced by those in solitary confinement around the country, and should apply to other conditions of confinement outside death row. For most, placement in solitary confinement is not automatic based on a particular sentence. It is, however, based on arbitrary factors that often bear little relationship to the danger of the inmate, such as possession of black literature as evidence for concluding that inmates are involved in gangs and must be isolated. While some form of process exists in most prisons for reviewing these decisions, this process at the notorious Pelican Bay prison is a secret 20-minute meeting that involves the inmate, a gang investigator, and no witnesses.

The practices at Pelican Bay and elsewhere have thus far managed to survive scrutiny, despite several hunger strikes by tens of thousands of prisoners and ongoing litigation. But last year, the Massachusetts top court invalidated that state’s prolonged solitary confinement as a due process violation.

Brinkema also laments that most death row inmates are confined for an average of 6-9 years, which she calls an “excessive duration.” The research supports her finding. In fact, psychological studies have found that those who spend even a few days in solitary confinement can suffer lasting severe psychological harm. But others not on death row have spent far longer “in the hole.” Herman Wallace, convicted of murder based solely on the testimony of four inmate witnesses whose credibility was questionable at best, spent 42 years in solitary confinement. And in California, more than 500 inmates have reportedly been held in solitary confinement for 10 to 28 years.

Last February, the federal agency tasked with overseeing U.S. prisons agreed for the first time to undertake a close examination of the practice, but no reforms have emerged thus far.