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Fourth Circuit Agrees Virginia’s Death Row Conditions Violated Eighth Amendment

by Scott Grammer

Almost 120 years ago, the U.S. Supreme Court recognized the harm that solitary confinement causes. Prior to 2015, prisoners on Virginia’s death row were housed in solitary in 71-square-foot cells (about the size of a sub-compact car) for 23 to 24 hours per day. They were only allowed one 10-minute shower three days a week, and received just one hour of outdoor recreation five days a week, in a parking-space sized steel and wire mesh cage.

In November 2014, condemned prisoners Thomas Porter, Anthony Juniper, Ricky Gray, Ivan Teleguz and Mark Lawlor sued in federal court raising Eighth Amendment claims. Shortly after the case was filed, prison officials changed the conditions on death row. A new exercise yard was constructed. Prisoners were provided more time for recreation, including indoor recreation with other prisoners. They were allowed showers every day, and contact visits with family members.

On February 21, 2018, U.S. District Court Judge Leonie M. Brinkema awarded summary judgment to plaintiffs Porter, Juniper and Lawlor. Gray had been executed on January 18, 2017, while Teleguz had his death sentence commuted in April 2017. The district court held that “under the undisputed evidence, the conditions of confinement on Virginia’s death row – particularly inmates’ prolonged periods of isolation – ‘created, at the least, a significant risk of substantial psychological or emotional harm.’” The court also found the defendants were deliberately indifferent to that risk of harm. [See: PLN, Sept. 2018, p.22].

The state appealed, arguing “that the district court erred (A) in awarding summary judgment to Plaintiffs on their Eighth Amendment claim and (B) in awarding Plaintiffs injunctive relief.” In a May 6, 2019 amended ruling, the Fourth Circuit Court of Appeals affirmed the district court’s order in a divided opinion.

Regarding the grant of summary judgment, the majority wrote, “In sum, the undisputed evidence established both that the challenged conditions of confinement on Virginia’s death row created a substantial risk of serious psychological and emotional harm and that State Defendants were deliberately indifferent to that risk. Accordingly, the district court properly awarded summary judgment in Plaintiffs’ favor on their Eighth Amendment claim.”

In regard to injunctive relief, the appellate court stated: “The district court’s decision also is consistent with this Court’s admonition that ‘[a]n injunction should not be refused upon the mere ipse dixit [an unproven statement] of a defendant that, notwithstanding his past misconduct, he is now repentant and will hereafter abide by the law.’”

The Fourth Circuit added, “Given that State Defendants have shown no ‘repentan[ce]’ – they continue to argue, as they are entitled, that the challenged conditions comply with the Eighth Amendment – State Defendants’ professed intent not to return to the challenged practices did not preclude the district court from exercising its discretion to award injunctive relief.” The Court of Appeals further noted that the district court “awarded Plaintiffs injunctive and declaratory relief, concluding that such relief was available under the Prison Litigation Reform Act (PLRA) and was necessary because there ‘exist[ed] some cognizable danger of recurrent violation.’” The appellate court upheld the district court’s interpretation of the PLRA.

In an 18-page dissent, Judge Paul V. Niemeyer, a George H.W. Bush appointee, said the district court should not have granted summary judgment because the death row conditions at issue no longer existed, and the appellate court should not have upheld the order for the same reason. He also rejected the majority’s interpretation of the PLRA, opining that “the district court’s judgment is especially misguided in the face of the strict standards that Congress imposed in the PLRA for this type of litigation.” See: Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019), rehearing and rehearing en banc denied


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Related legal case

Porter v. Clarke