Herring defends use of solitary confinement on death row
Herring's office filed papers Monday with the 4th U.S. Circuit Court of Appeals in Richmond, seeking to overturn the decision of a federal judge who ruled that automatically banishing death-row inmates to solitary confinement violates their constitutional rights.
U.S. District Judge Leonie Brinkema in Alexandria ruled last year that the practice of solitary confinement is so onerous that the Department of Corrections must justify its use for each inmate on death row. Failing to do so violates their due process rights, she said in her ruling.
As it stands now, the state's eight death-row inmates are automatically placed in solitary.
Herring's office says in its appeal that the judiciary should not second-guess prison wardens on issues of safety.
"The District Court's ruling is unprecedented," the AG's office wrote in its brief. "It would do away with death row as it is currently operated in Virginia and numerous other States. ... The decision is monumentally wrong and intrudes into the core professional judgment of State corrections officials."
The use of solitary confinement has come under increasing scrutiny in recent years. In Colorado, the state's Corrections Department director, Rick Raemisch, spent a day in solitary confinement himself and vowed to minimize the practice after saying the experiment left him "feeling twitchy and paranoid."
Last year, the American Civil Liberties Union reported that the overwhelming majority of states with the death penalty house death-row inmates in solitary confinement, and said that the problem is exacerbated as the pace of executions slows and more inmates are held in solitary indefinitely.
"Solitary confinement can have very deleterious effects on inmates. No prisoner should be subjected to those conditions without any penological reason," said Rebecca Glenberg, executive director of the ACLU's Virginia chapter.
In the Virginia case, Brinkema took up the issue after inmate Alfredo Prieto -- who was sent to death row in 2008 for the 1988 murder of two George Washington University students -- sued over the conditions of his confinement. Brinkema tossed out Prieto's self-filed complaint that solitary confinement amounted to cruel and unusual punishment, but she appointed lawyers to help him with his argument that solitary confinement as administered by Virginia infringes his constitutional due process rights.
Jon Sheldon, a lawyer who has represented several capital murder defendants in Virginia, said Brinkema's ruling is significant.
"Finally a judge has said enough is enough, and we're not going to defer to the executive branch in its `No amount of punishment is enough' approach," Sheldon said.
In January, Brinkema denied the state's request to temporarily delay her ruling while the state appeals. But corrections officials have done nothing of significance to implement the changes demanded by Brinkema, Sheldon said.
The only change that has actually occurred, Sheldon said, is that Prieto is now allowed an hour of exercise once a day in the gym rather than the small pen that inmates refer to as the "dog cage." Prieto is still kept in solitary, even during his exercise, and no other inmates have seen any changes, Sheldon said.
The Department of Corrections said in January that it was "reviewing its options" in light of Brinkema's order, but declined to comment further.
Sheldon said the effects of solitary confinement are hard to comprehend if you haven't experienced it. The lack of human contact takes its toll in unexpected ways.
"When you hear a noise, you don't know whether the noise is something in your head or something that is actually happening," Sheldon said.
One of Sheldon's clients, William Burns, is Virginia's longest-serving death-row inmate, having been there since 2000. Sheldon has said in court papers that the prolonged solitary confinement has exacerbated his client's mental illness. A judge has barred Burns' execution from going forward, citing his competence to understand the legal proceedings.
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