Suit threat­ens to up­end soli­tary con­fine­ment on Va. death row

The Washington Post Sunday - - METRO - BY MATT ZAPO­TO­SKY

A fed­eral law­suit in Vir­ginia is threat­en­ing to up­end the state’s prac­tice of au­to­mat­i­cally plac­ing death row in­mates in near con­stant soli­tary con­fine­ment, and ex­perts say it could spark sim­i­lar chal­lenges across the coun­try to a pri­son prac­tice that is in­creas­ingly be­ing scru­ti­nized.

A U.S. Dis­trict judge in April re­jected Vir­ginia of­fi­cials’ bid to have the case thrown out in its early stages, not­ing that while courts had ruled that such con­fine­ment for death row pris­on­ers was con­sti­tu­tional, the time might be right for a re­assess­ment. U.S. Dis­trict Judge Leonie M. Brinkema said the is­sue needed to “be looked at in the con­text of evolv­ing and chang­ing moral and legal stan­dards,” and she urged state of­fi­cials to “give some se­ri­ous thought to try­ing to work this case out.”

“I do not un­der­stand why the com­mon­wealth is in­sist­ing on main­tain­ing this level of th­ese con­di­tions,” Brinkema said. “They re­ally need to be thought about care­fully.”

The law­suit — and Brinkema’s com­ments— come at a time when long-term soli­tary con­fine­ment is fac­ing in­creas­ing crit­i­cism across the coun­try.

Ad­vo­cates say that pris­on­ers who are forced to spend nearly 23 hours a day iso­lated in small cells — as those in Vir­ginia and else­where do — suf­fer se­vere men­tal dis­tress and that the prac­tice amounts to cruel and un­usu- al pun­ish­ment.

“The over­whelm­ing con­sen­sus in the men­tal-health com­mu­nity, in the med­i­cal com­mu­nity, is that [it] is ex­traor­di­nar­ily un­healthy,” said Robert Dun­ham, ex­ec­u­tive direc­tor of the Death Penalty In­for­ma­tion Cen­ter. “In the ver­nac­u­lar, soli­tary will drive you crazy.”

The prob­lem is par­tic­u­larly pro­nounced for death row in­mates, who of­ten spend a decade or more in pri­son be­fore they are ex­e­cuted, have their sen­tences

“In the ver­nac­u­lar, soli­tary will drive you crazy.” Robert Dun­ham, ex­ec­u­tive direc­tor of the Death Penalty In­for­ma­tion Cen­ter

changed or, for some, are ex­on­er­ated. A fed­eral judge in Cal­i­for­nia last year ruled the state’s death penalty un­con­sti­tu­tional be­cause of the long time that death row in­mates must wait be­fore they are ex­e­cuted, if they are ex­e­cuted at all.

Brian Stull, an at­tor­ney with the Amer­i­can Civil Lib­er­ties Union who spe­cial­izes in cap­i­tal pun­ish­ment is­sues, said that long-term iso­la­tion is par­tic­u­larly prob­lem­atic on death row be­cause soli­tary con­fine­ment is “not part of the pun­ish­ment.”

“It feels like a sen­tence of tor­ture be­fore ex­e­cu­tion,” Stull said.

Vir­ginia of­fi­cials have said the prac­tice is nec­es­sary to en­sure pri­son safety and noted pre­vi­ously that in the 1980s, death row in­mates who were not iso­lated or­ga­nized an es­cape.

To be sure, the four death row in­mates in Vir­ginia who are su­ing were con­victed of heinous crimes. (The law­suit was ini­tially brought by five in­mates, but one dropped out.) One of the four con­demned men killed a po­lice of­fi­cer, an­other raped and killed a woman whom he at­tacked while she was sleep­ing, and the other two killed sev­eral peo­ple each, in­clud­ing chil­dren. At­tor­neys for the state deny that the in­mates have suf­fered the harm they al­lege.

Although Brinkema in­di­cated a will­ing­ness to hear more from both sides, the in­mates may still face an up­hill battle. The U.S. Court of Ap­peals for the 4th Cir­cuit, for ex­am­ple, re­cently over­turned a dif­fer­ent rul­ing from Brinkema that de­clared un­con­sti­tu­tional Vir­ginia’s prac­tice of au­to­mat­i­cally plac­ing death row in­mates in soli­tary con­fine­ment. But the judge’s rul­ing in that case fo­cused on whether the state’s pro­ce­dure vi­o­lated the in­mates’ right to due process. Now, she must de­cide more di­rectly whether plac­ing in­mates in soli­tary con­fine­ment while they await ex­e­cu­tion is cruel and un­usual pun­ish­ment.

Vic­tor M. Glas­berg, an at­tor­ney rep­re­sent­ing the four in­mates in Vir­ginia, said the law­suit could spark a “sig­nif­i­cant change” if it were suc­cess­ful, although it prob­a­bly would have to go through the ap­peals court and pos­si­bly to the U.S. Supreme Court. He said that while Brinkema’s com­ments were no guar­an­tee of suc­cess, she was at least say­ing, “‘I need to learn about this.’ ”

“She’s telling the depart­ment, ‘Maybe you’ll win, but I need to see the facts. I need to learn what there is to be said about whether this is ap­pro­pri­ate or not ap­pro­pri­ate,’ ” Glas­berg said.

Legal ex­perts say many of the 31 states that still use cap­i­tal pun­ish­ment do hold death row in­mates in some type of soli­tary con­fine­ment. Those ju­ris­dic­tions in­clude Texas and Louisiana, as well as the fed­eral pri­son sys­tem, although con­di­tions of con­fine­ment vary. Even at­tor­neys for the four in Vir­ginia ac­knowl­edge that the prac­tice has — in the past — been determined to be con­sti­tu­tional.

A spokesman for the Vir­ginia at­tor­ney gen­eral’s of­fice re­ferred ques­tions to the state Depart­ment of Cor­rec­tions, and a spokes­woman for that agency de­clined to com­ment for this ar­ti­cle, cit­ing the pending lit­i­ga­tion. In court fil­ings, state lawyers have cited other cases to ar­gue that “com­fort­able prisons” are not man­dated by the Con­sti­tu­tion.

“More specif­i­cally, with re­gard to soli­tary con­fine­ment, the Fourth Cir­cuit has made it clear that con­fine­ment in seg­re­ga­tion in and of it­self does not amount to cruel and un­usual pun­ish­ment, even if for a pro­longed pe­riod,” state lawyers wrote.

Civil lib­er­ties lawyers and oth­ers counter that au­to­matic soli­tary con­fine­ment for those on death row is costly to tax­pay­ers— as it is more ex­pen­sive to house par­tic­u­lar in­mates away from the gen­eral pri­son pop­u­la­tion — and is in­ef­fec­tive. They say in­mates should be screened in­di­vid­u­ally to de­ter­mine whether they pose se­cu­rity risks that war­rant iso­la­tion, not sim­ply made to live in iso­la­tion be­cause they have been sen­tenced to death.

“There’s in­creas­ing recog­ni­tion of how dam­ag­ing it is, how un­nec­es­sary it is, how it does not in­crease safety in pri­son,” Stull said. “There’s re­ally no good rea­son for it.”

In an­other, ul­ti­mately un­suc­cess­ful chal­lenge to Vir­ginia’s prac­tice of au­to­mat­i­cally plac­ing death row in­mates in soli­tary con­fine­ment, a group of nine for­mer cor­rec­tions of­fi­cials sub­mit­ted an ami­cus brief ar­gu­ing that the prac­tice was “harm­ful and un­nec­es­sary to in­sti­tu­tional safety” and that there was a “grow­ing recog­ni­tion that longterm iso­la­tion is danger­ous, coun­ter­pro­duc­tive, and costly.”

They said that two U.S. Se­nate hear­ings were held to dis­cuss the mat­ter, that the Fed­eral Bureau of Prisons had be­gun re­view­ing its poli­cies, and that other states — in­clud­ing Mis­souri, North Carolina and Colorado — had aban­doned au­to­matic soli­tary con­fine­ment for those on death row.

Ad­vo­cates note that some death row in­mates are even­tu­ally ex­on­er­ated, and some­times, once re­leased, suf­fer post-trau­matic stress from their time be­hind bars.

“We don’t know what the courts are ul­ti­mately go­ing to de­cide on this, but we do know more and more about the con­se­quences of soli­tary con­fine­ment,” said Dun­ham, of the Death Penalty In­for­ma­tion Cen­ter.

Glas­berg said that while the crimes that death row in­mates have com­mit­ted are de­testable, the pun­ish­ment they face also is prob­lem­atic. “I don’t think most peo­ple want peo­ple kept in soli­tary 23 hours a day, no mat­ter how bad they are,” Glas­berg said. He said he would view a victory in the case not just as a win for those in soli­tary con­fine­ment, but also as a ben­e­fit for the public.

“If this case suc­ceeds in mov­ing the sys­tem to­wards a more hu­mane treat­ment of pris­on­ers con­demned to death, that’s huge,” he said. “It’s huge for them, and it’s huge for us as a so­ci­ety.”

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.