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THE SOLITARY confinement conditions under which Virginia used to house death row inmates amounted to cruel and unusual punishment, and was therefore unconstitutional, the 4th U.S. Circuit Court of Appeals in Richmond ruled recently.

The three-judge panel ruled 2–1 for the plaintiffs, upholding a lower court ruling in a lawsuit filed in 2014 on behalf of five death row inmates. The suit had taken issue with the small cells in which the inmates were confined—at 71 square feet, they were about half the size of a parking space; the lack of time outside the small cell—one hour, five days a week in a small outdoor cell plus three 10-minute showers a week; and the policy of separating inmates and their visitors with a plexiglass wall.

Clearly the wheels of justice turn slowly in every aspect of capital punishment cases, even in the tangential consideration of how death row inmates are housed.



The wheels of the Virginia Department of Corrections, however, turned anything but slowly. Within a year of the lawsuit’s filing, the department had apparently recognized the problem and the validity of the suit. It acted quickly to not only liberalize its confinement and human interaction policies for death row inmates, it undertook the physical enlargement of cells to provide more inside and outdoor space.

Virginia death row inmates are housed at Sussex I State Prison in Sussex County. Those nearing execution are transported to Greensville Correctional Center, where the death chamber is located.

The improvements to Sussex 1 prompted the plaintiffs to acknowledge that conditions were no longer cruel or unconstitutional. The dissenting opinion by U.S. Judge Paul V. Niemeyer pointed to the improvements, suggesting that the case was moot and the appeal unnecessary.

The reason for the appeal, however, was that Virginia corrections officials had refused to guarantee that they would never revert to their former policies and methods. Because the same officials had been so pro-active in improving conditions, the refusal constituted “a head-scratching choice,” according to Robert Dunham, executive director of the Death Penalty Information Center.

We think that issuing the ruling and closing the circle on the lawsuit was a wise and worthwhile decision. The state is forced to agree that it will never revert, and other states facing similar situations can refer to the 4th Circuit ruling as they determine their own courses of action.

It’s worth noting that Virginia’s death row population, which peaked in 1995 at 57 inmates, is currently only three. Juries have gotten away from imposing the death penalty, preferring the life-without-parole option when available. The diminished death row population also comes at a time when the drugs used to administer a lethal injection are controversial and in short supply.

Corrections officials in Virginia and elsewhere are studying the overall use of solitary confinement and whether it in itself represents cruel and unusual punishment under the Eighth Amendment. There is evidence to suggest its use causes mental illness or exacerbates existing mental health issues in isolated prisoners, and that reform of the practice is necessary.

Legislation before the Virginia General Assembly earlier this year to require detailed annual reporting on solitary confinement passed both chambers unanimously and was signed by Gov. Ralph Northam. It requires information be compiled on the number of inmates placed in solitary and for how long and why; each inmate’s “age, sex, gender identity, national origin, race and ethnicity, English proficiency status, developmental or intellectual disability”; a specific count of “vulnerable” inmates—those 21 years old or younger and 55 or older; and the number of “self-harm” incidents involving each solitary inmate.

Inmates are where they are for good reason, but their treatment while incarcerated needs to be humane. The challenge is how to manage the worst of the worst, such as the South Carolina inmate who has now twice killed cellmates—17 years apart—since his original life sentence for murder was imposed in 1999. His second cellmate killing occurred after he had spent 15 years in solitary and had “earned” his return to the general population.

Virginia is doing the right thing by studying and reforming its use of solitary confinement, even if it must remain a last-resort practice.