Cruel and Unusual Confinement on Virginia's Death Row

Facts of the Case

Death row inmates Thomas Porter, Anthony Juniper, and Mark Lawlor (the plaintiffs) filed a lawsuit against Harold Clarke (Director of the Virginia House of Corrections) and David Zook (Warden of Virginia's Sussex I State Prison), collectively referred to as “state defendants” for the purpose of this article, challenging their conditions of confinement. The plaintiffs put forth evidence that on death row at Sussex I State Prison in Virginia, death row inmates were housed in separate, constantly illuminated 71-square-foot cells (i.e., the size of half a parking space). They were allowed one hour of outdoor recreation five days a week in small wire-meshed enclosures without use of exercise equipment. Other than to perform institutional jobs, death row inmates were not permitted to leave their cells. Due to these restrictions, death row inmates spent between 23 and 24 hours a day in their cells. In November 2014, plaintiffs filed a lawsuit against the state defendants, alleging that then-existing conditions of confinement on Virginia's death row were cruel and unusual in violation of the Eighth Amendment and asked the court to prohibit these death row procedures.

On February 21, 2018, the district court sided with the plaintiffs on their Eighth Amendment claim. The district court ruled that there was undisputed evidence the conditions of confinement on Virginia's death row (most notably the inmates' prolonged periods of isolation) created a significant risk of substantial psychological or emotional harm and that the state defendants were deliberately indifferent to that risk of harm. The district court then prohibited the conditions under the Prison Litigation Reform Act, 18 U.S.C. 3626 (1997), which was necessary because there was a clear danger of recurrent violation. The state defendants appealed, arguing that the district court erred in awarding summary judgment to the plaintiffs on their Eighth Amendment claim and granting injunctive relief.

Ruling and Reasoning

The U.S. Court of Appeals for the Fourth Circuit relied on a large body of social science evidence recognizing the adverse consequences of prolonged solitary confinement on inmates' mental health. The Fourth Circuit noted that the U.S. Supreme Court had recognized these effects of prolonged solitary confinement more than a century ago (In re Medley, 134 U.S. 160 (1890)). The court acknowledged that, in recent years, advances in psychology and empirical methods allowed researchers to better understand the nature and severity of the effects of solitary confinement. The court described numerous studies that reported adverse effects such as psychotic symptoms, depression, suicidal ideation, anxiety, mood lability, aggression, impulse control difficulties, reduced concentration, psychosomatic symptoms, nightmares, and others. In fact, they cited the leading survey of the literature on this topic that found there was not a single study of non-voluntary solitary confinement lasting more than 10 days that failed to result in negative psychological effects (referencing Haney C: Mental health issues in long-term solitary and “supermax” confinement. Crime & Delinq 49:124-156, 2003). The state defendants did not offer evidence to refute the plaintiffs' expert evidence. Accordingly, the court agreed that the conditions on Virginia's death row posed a substantial risk of serious psychological and emotional harm.

State defendants argued that several other courts had upheld conditions of confinement similar to those on Virginia's death row, citing Sweet v. South Carolina Department of Correction, 529 F.2d 854 (4th Cir. 1975), and Mickle v. Moore, 174 F.3d 464 (4th Cir. 1999). The court disagreed; the other cases did not draw on evidence about the serious risks of harm of solitary confinement, and one of the other cases involved inmates' placement in confinement because of their in-prison conduct. The court acknowledged the conflicting evidence as to whether these particular plaintiffs were in fact psychologically affected by confinement, but death row undisputedly created substantial risk of such harm.

The court also considered whether the state defendants acted with deliberate indifference, a requirement for inmates challenging their conditions of confinement. This standard may be satisfied if plaintiffs can prove by circumstantial evidence that a risk was so obvious that it had to have been known. The court affirmed that the state defendants acted with deliberate indifference, drawing on testimony by state defendants, Corrections Department procedures prohibiting prolonged confinement for non-death row inmates, and the extensive scholarly literature detailing the effects of confinement. The court acknowledged that legitimate penological considerations could justify the conditions on death row, but this did not change their ruling.

The state defendants argued that the district court's prohibition of the challenged death row conditions was wrongful because the conditions no longer existed and would not realistically recur. On August 6, 2015, a year after the original lawsuit was filed, the Corrections Department implemented new procedures to provide death row inmates with new privileges, such as additional recreation, contact visits, and time outside their cells. Despite these changes, however, the plaintiffs demonstrated that there existed a “cognizable danger of recurrent violation” (Porter, p 365), as the state defendants repeatedly denied that the conditions actually violated the Eighth Amendment.