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Virginia DOC Called Out for Use of Solitary Confinement

by Kevin W. Bliss

After releasing a 67-page investigative report in May 2018 on the use of solitary confinement by the Virginia Department of Corrections (VDOC) and the effects of solitary on prisoners, especially those with mental health issues, the ACLU of Virginia called on Governor Ralph Northam to curb the use of segregation.

In its report, “Silent Injustice,” the ACLU said it found that one in every 20 prisoners in state prisons had spent time in isolation, with the average stay lasting 2.7 years. Solitary confinement in the VDOC – officially known as “restrictive housing” – keeps a prisoner in a locked cell 22 to 24 hours a day with few privileges. Officially, solitary is used to punish rule infractions, to hold high-risk prisoners or to protect prisoners from each other. But the ACLU argued it is also used to house the mentally ill and exact retribution against prisoners who file grievances.

The ACLU’s report contends that segregation has especially detrimental effects on prisoners with mental health issues, resulting in feelings of panic, hallucinations and paranoia. For the 15 percent of VDOC prisoners being treated for some type of mental health issue – and the ACLU says those with undiagnosed problems could push the total as high as 26 percent – being placed in restrictive housing reduces the chance of receiving proper treatment.

The report found that if a prison had a qualified mental health professional – and some facilities use selected guards with training from the VDOC to fill that role – then treatment took place behind a steel door, where prisoners were statistically more likely to be abused and suffered a higher suicide rate.

Under the “Mandela Rules,” the United Nations considers confining a prisoner in isolation for more than 15 consecutive days to be a form of torture. The rules, known officially as the Standard Minimum Rules on the Treatment of Prisoners, were adopted in 2015.

Rabbi Charles Feinberg, executive director of Interfaith Action for Human Rights (IAHR), based in nearby Washington, D.C., said his group “believe[s] strongly that solitary confinement is an act of torture and that it is practiced widely in the state of Virginia and its prison system.”

In 2011, the Vera Institute of Justice selected the VDOC and four other state prison systems to participate in a pilot step-down program to reduce the number of prisoners held in solitary, by allowing them to earn their way out.

Concerned that the program was not being properly implemented, the ACLU investigated and found the VDOC lacked rules to govern the use of restrictive housing, where prisoners are placed by administrative decision without a hearing or an opportunity to appeal.

Further, no data had been compiled on prisoners in restrictive housing units, though some prisoners reported they had been held there for years, even after successfully completing the step-down program and incurring no new disciplinary infractions.

Instead, the ACLU found the VDOC regularly held prisoners in restrictive housing who were not classified as high risk, but were actually being punished for mental health problems or placed in solitary in retaliation for using the grievance procedure.

Correctional staff failed to abide by principles and practices promoted by Vera program materials, with investigators uncovering accusations that guards used racist language, withheld recreation or showers, tampered with food, destroyed personal property and sexually harassed prisoners in solitary. Some prisoners also reported being held in restraints or “strip cells” far longer than allowed by program guidelines.

As a result, the ACLU called for more transparency and accountability by prison officials and provided 14 recommendations for improvements, including limiting solitary confinement to no more than 15 days, banning solitary for prisoners with mental health issues, providing documentation to prisoners for their initial placement in segregation, limiting the release of prisoners from restrictive housing directly to the community and prohibiting solitary as a form of punishment.

Several other groups joined the ACLU’s call for reforms, including IAHR. Board member Gay Gardner, a Northern Virginia grandmother, said she was moved to personally answer the many letters she received from VDOC prisoners held in restrictive housing.

“I have been housed here in segregation for over 15 years and I don’t see no relief in sight,” one prisoner wrote to her.

“No one deserves to be discarded by society and abused,” Gardner said. “I really believe we are defined by how we treat people who are deemed by society to be the least worthy.”

The VDOC pushed back against the ACLU’s report with a news release that lauded VDOC Director Harold W. Clarke, under whose leadership, the department stated, “Virginia has become a nationally-recognized leader in reforms that reduce the use of restrictive housing and ensure that inmates are properly prepared to succeed in society when they leave restrictive housing or any corrections environment.”

From December 2016 to December 2017, the VDOC said it had reduced the population in restrictive housing by 29 percent. But a news article published at the same time in the Washington Post reported that nearly two-thirds of prisoners at the Red Onion “super-max” in the southwestern corner of the state were held in isolation, many for years at a time.

The VDOC also contended that prisoners diagnosed with mental health issues were not held in restrictive housing longer than 30 days. But Bill Farrar, with the ACLU of Virginia, questioned how that could be certain because so many prisoners have mental health problems that have not been diagnosed. He cited the restrictions faced by VDOC prisoners held in solitary – 22 hours a day in a cell the size of a parking spot, with limited human interaction or natural light – and noted they were deprived of “the things that make us human.”

The ACLU called on VDOC officials to end the use of restrictive housing not only for the mentally ill but also for juveniles, pregnant women, the disabled and LGBTQ prisoners. They argued that solitary should be used “only in rare and exceptional cases, for the shortest duration, with the least restrictive setting necessary and only when the prisoner poses a credible continuing and serious threat to the security of others.”

Instead of an administrative decision used to inflict punishment, placement in solitary needs to follow a determination that a prisoner otherwise poses a risk of harm to himself or others. That determination, as well as regular reviews, should come from a multi-disciplinary team of corrections and medical professionals that provides its findings to the prisoner in writing. A process for an independent investigation of complaints needs to be developed, too.

“Despite some attempts at addressing this serious problem, Virginia continues to lag behind the federal government and other states in ending this inhumane practice,” observed Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. 



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