Court OKs automatic solitary for Virginia death row inmates

RICHMOND, Va. (AP) — Virginia can continue to automatically house death-row inmates in solitary confinement, even though a judge who ruled otherwise might have been correct in calling those conditions “dehumanizing,” a federal appeals court ruled Tuesday.

The 2-1 decision by the 4th U.S. Circuit Court of Appeals reversed U.S. District Judge Leonie Brinkema’s 2013 ruling that around-the-clock isolation of condemned inmates is so onerous that prison officials must assess its necessity on a case-by-case basis. Failure to do so, she said, violates the inmates’ due-process rights.

But the appeals court agreed with state attorneys who argued that prison officials are better equipped than judges to assess security risks and adopt appropriate safeguards.

Virginia’s policy was challenged by Alfredo Prieto, who was on California’s death row for raping and murdering a 15-year-old girl when a DNA sample connected him to the 1988 slayings of two George Washington University students in Reston. He also was sentenced to death in Virginia, where he has spent most of the past six years alone in a 71-square-foot cell at the Sussex I State Prison.

Virginia death-row inmates are allowed to leave their tiny cell three times a week for 10-minute showers and five times a week for an hour of solitary exercise in a separate and slightly larger cell that prisoners call “the dog cage.” They eat alone, are not eligible for work or education programs or congregational religious services, and are allowed strictly limited visitation. The inmates are allowed to purchase a small television and CD player for their cell.

“Prieto’s conditions of confinement are undeniably severe,” appeals court Judge Diana Gribbon Motz wrote in the majority opinion. “Indeed, the district court, perhaps correctly, described the isolation that characterizesVirginia’s death row as ‘dehumanizing.’ But the Supreme Court has long held … that state correctional officials have broad latitude to set prison conditions as they see fit.”

Judge James Wynn wrote in a dissenting opinion that Prieto is “entitled to at least some modicum of due process” before being automatically sent to solitary confinement. Prieto did not suggest that solitaryconfinement should be abolished, but that death-row inmates should get the same individual assessment afforded other prisoners in determining their security classification.

Nearly all of the 32 death-penalty states isolate condemned prisoners in some way, according to a survey compiled by the Virginia Department of Corrections that was included in court filings. However, the survey shows that most states offer death-row inmates more privileges than Virginia: communal exercise and worship, for example. It is unclear how many states automatically impose solitary confinement. Missouri is the only state that houses inmates who have been sentenced to death in the general prison population.

Virginia adopted automatic solitary confinement after a 1984 escape by six death-row inmates, who were quickly recaptured and have since been executed. Michael Kelly, a spokesman for state Attorney General Mark Herring, said Brinkema’s ruling “could have ended death row and put those inmates back into contact with other offenders, an arrangement that has proven to be dangerous for the public, staff and inmates.”

The American Civil Liberties Union of Virginia, which filed a friend-of-the-court brief supporting Prieto, said it was disappointed with the appeals court’s ruling.

“The effect that prolonged solitary confinement has is terrible in any case, but it is particularly offensive to subject people to this without even considering whether the person could be safely housed in a less damaging environment,” said Rebecca Glenberg, the organization’s legal director.

Prieto could appeal the panel’s decision to the full appeals court or the U.S. Supreme Court. His lawyer, Michael E. Bern, declined to comment.

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