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Virginia Death Row Conditions Subjected Prisoners to Risk of Harm

by David M. Reutter

On May 3, 2019, the Fourth Cir­cuit Court of Appeals affirmed a district court’s order that found the conditions of confinement on Virginia’s death row violated the Eighth Amendment. The appellate court held the conditions that existed when the suit was filed created a “substantial risk” of serious psychological and emotional harm.

The lawsuit was brought in November 2014 by death row prisoners Thomas Porter, Anthony Juniper and Mark Lawlor, who were held at Sussex I State Prison.

They alleged they were “denied access to any form of congregate recreation, either indoor or outdoor; they were not allowed to eat meals outside their cells; and they could not participate in congregate religious services or programs.” As a result, they spent 23 to 24 hours a day in their cells. The district court granted summary judgment to the prisoner plaintiffs and entered an injunction. [See: PLN, Sept. 2018, p.22]. The state appealed.

The Fourth Circuit began its analysis by pointing to the prisoners’ “expert evidence establishing the risks and serious adverse psychological and emotional effects of prolonged solitary confinement [and] the surveys of the scholarly literature supporting that evidence.” It cited several recent cases, including two from the U.S. Supreme Court, that recognized this empirical evidence.

The Court of Appeals noted that its prior rulings upholding conditions of confinement similar to those challenged in this case “lacked the benefit of the recent academic literature” on the effects of prolonged solitary confinement. Thus, those earlier decisions were not controlling. The Court also found the facts presented by the plaintiffs belied the defendants’ contention that death row prisoners were not in “solitary” confinement or “subject to ‘prolonged isolation’ or ‘lack of stimulation.’”

Virginia prison officials also argued that the plaintiffs had failed to show they suffered harm from their confinement. While the parties presented conflicting expert testimony on that point, the Fourth Circuit agreed with the district court that such an argument missed the mark. What is relevant under the Eighth Amendment is not the harm suffered, but that the prisoners faced a “substantial risk” of serious harm from their conditions of confinement. The district court was correct in finding that such a risk existed, and that the defendants were deliberately indifferent to that risk.

The Court of Appeals further held the district court did not err in granting injunctive relief to address the constitutional violations. Prison officials argued an injunction was not appropriate because they had voluntarily changed policies and conditions on death row. The prisoners agreed the current conditions were not unconstitutional, yet the record supported a finding of “cognizable danger of recurrent violation.”

The Fourth Circuit wrote the defendants had “shown no ‘repentance’ – they continue to argue, as they are entitled, that the challenged conditions comply with the Eighth Amendment.” Under those circumstances, injunctive relief was appropriate to ensure they do not return to the challenged practices. The district court’s order was affirmed; one appellate judge entered a dissenting opinion. See: Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019), rehearing and rehearing en banc denied

Related legal case

Porter v. Clarke