State’s loos­ened death row rules still face law­suit

Court says in­mates’ le­gal chal­lenge can pro­ceed, de­spite re­laxed re­straints

The Washington Post Sunday - - LOCAL OPINIONS - VIR­GINIA BY RACHEL WEINER rachel.weiner@wash­post.com

For more than a year now, pris­on­ers on Vir­ginia’s death row have been al­lowed to shower daily, in­stead of three times a week. They can see their fam­i­lies weekly with­out a glass par­ti­tion be­tween them, and they take part in daily in­door or out­door re­cre­ation.

Those changes were made in re­sponse to a law­suit ar­gu­ing that the iso­lated con­di­tions on the state’s death row vi­o­late the Con­sti­tu­tion’s man­date against cruel and un­usual pun­ish­ment. But a fed­eral court ruled Fri­day that the con­ces­sions do not let the state off the hook. The law­suit will con­tinue.

U.S. Dis­trict Judge Leonie M. Brinkema was con­vinced last year that the law­suit was moot, ac­knowl­edg­ing that the Depart­ment of Cor­rec­tions had spent nearly $2 mil­lion to up­grade the death row fa­cil­i­ties.

A three-judge panel of the U.S. Court of Ap­peals for the 4th Cir­cuit dis­agreed.

“De­fen­dants have re­fused to com­mit to keep the re­vised poli­cies in place and not re­vert to the chal­lenged prac­tices,” they wrote.

Now, the state prison sys­tem will have to go back to court if an agree­ment can­not be reached. At­tor­ney Vic­tor Glas­berg rep­re­sents the plain­tiffs and said they hope to reach an agree­ment with gov­ern­ment of­fi­cials.

“In most cases like this, the gov­ern­ment agrees to some kind of con­sent de­cree or a set­tle­ment,” said David Ru­dovsky, a civil rights lawyer who teaches at the Uni­ver­sity of Penn­syl­va­nia Law School. “It’s just a case where I think the dis­trict court made an er­ror in giv­ing too much cre­dence to the de­fen­dants.”

The Amer­i­can Civil Lib­er­ties Union of Vir­ginia cel­e­brated the rul­ing, say­ing in a state­ment that “tem­po­rary re­lief of harsh, in­hu­mane con­di­tions in a state prison is not enough to cast aside a le­gal claim of un­con­sti­tu­tional treat­ment.”

The state Depart­ment of Cor­rec­tions and the at­tor­ney gen­eral’s of­fice de­clined to com­ment.

Un­der the old poli­cies, pris­on­ers slated 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, the six death row pris­on­ers at Sus­sex I State Prison in Waverly, Va., have their own yard with a bas­ket­ball court and sta­tion­ary ex­er­cise equip­ment, as well as an in­door re­cre­ation room with books and movies.

How­ever, of­fi­cials re­fused to come to a for­mal agree­ment man­dat­ing that the changes stay in place.

“Things might change in the fu­ture,” As­sis­tant At­tor­ney Gen­eral Mar­garet Anne O’Shea ar­gued in court last year. “If there’s an at­tempted es­cape next month, the depart­ment might need to tem­po­rar­ily go back on lock­down sta­tus.”

The state had pre­vi­ously ar­gued that iso­la­tion was nec­es­sary to keep the death row in­mates from plot­ting es­cape or cre­at­ing other con­flicts. All six men await­ing ex­e­cu­tion in Vir­ginia were con­victed of mur­der.

A sep­a­rate case chal­lenged Vir­ginia’s soli­tary con­fine­ment of death row pris­on­ers, on due­pro­cess grounds. The case died with the ex­e­cu­tion of the man who brought it, Al­fredo Pri­eto, in 2015.

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