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EDVA: Solitary confinement was cruel and unusual

The Department of Corrections was enjoined from reverting back to solitary-confinement conditions for Virginia death-row inmates prior to 2015, as such conditions violate the Eighth Amendment.


Plaintiffs Thomas Porter, Anthony Juniper, and Mark Lawlor have been convicted of capital murder and sentenced to death. They are confined in a single unit, “death row,” at Virginia’s Sussex I State Prison while their sentences are litigated. Their confinement prior to 2015 was restrictive, with 23 hours per day spent in a solitary cell and limited visitation.

After the Plaintiffs initiated this action to challenge their confinement conditions as cruel and unusual under the Eighth Amendment, Defendant Harold Clarke, director of the Virginia Department of Corrections, began to move forward with planned changes to death-row confinement policies, including increased visitation with family members and increased outdoor recreation time. Some of the changes took effect immediately; others implemented plans for new facilities for death-row inmates to congregate together.

Based on the Department’s current and expected policy changes, the court held that the Plaintiffs’ claims were moot. However, on the Plaintiffs’ appeal, the 4th Circuit reversed that decision, holding that under the voluntary-cessation doctrine, the Plaintiffs’ action was not constitutionally moot. On remand, the parties’ renewed motions arguing the merits of the Plaintiffs’ Eighth Amendment claims are now before the court.

Substantial risk of harm

This court previously found that the 71-square-foot cells measure less than half the size of a parking space, that the window is a window “in name only,” and that the rudimentary privileges provided to death-row inmates did not mitigate the overwhelming fact of isolation. The limited communication, stimulation, and contact provided to the Plaintiffs before 2015 does not overcome their showing that the vast majority of their time – almost every hour of the day – was spent alone, in a small, practically windowless cell. When they were outdoors for five hours per week, they remained alone in an outdoor cage. Although they had access to television, music, and books, they had no access to congregate religious, educational, or social programming.

Although different sources provide different definitions for the term “solitary confinement,” to the extent that the Plaintiffs in this case can show that they were sufficiently deprived of a basic human need such as human interaction, and that the deprivation caused a significant harm or risk of harm, they have made out at least the objective prong of an Eighth Amendment claim.

Given the rapidly evolving information available about the potential harmful effects of solitary confinement – and the explicit incorporation of contemporary standards of decency into the Eighth Amendment standard – it is clear that this court is not bound by decades-old determinations made by the 4th Circuit or the U.S. Supreme Court.

To demonstrate the significant psychological and emotional harm that their solitary confinement has caused, the Plaintiffs rely primarily on a group of expert reports. One such report found that each Plaintiff has developed serious psychological and/or physical distress and impairment in functioning that exceeds any distress and impairment evident prior to each man’s arrival on death row. In particular, prolonged isolation has led to clinical levels of depression that include dysphoric mood, constricted affect, hopelessness, feelings of worthlessness, anhedonia, anergia, and suicidal ideation. The restrictive confinement has substantially reduced the Plaintiffs’ initiative and motivation to maintain contact with family members and other loved ones, reduced their motivation to stay healthy, and created a profound disturbance in sleep patterns and quantities. The same report explains that, according to scientific literature, extended periods of isolation lead to adverse mental health, and sometimes physical health, consequences in even previously healthy individuals.

In rebuttal, the Defendants have offered an expert report from a licensed psychiatrist who interviewed each Plaintiff, performed psychological testing, and reviewed the conditions on death row as well as the Plaintiffs’ institutional files. While these dueling experts create a genuine dispute of fact about the actual effects the death-row housing conditions have had on the Plaintiffs’ emotional and psychological health, there is no genuine dispute about the significant risk that these conditions created. The objective prong of the Eighth Amendment standard does not require the actual infliction of a serious or significant injury, but only conditions producing a substantial risk of such injury.

This commonsense conclusion about the risks of isolation is not only supported by scientific research and the Plaintiffs’ expert reports, but has also begun to achieve recognition in legal circles. U.S. Supreme Court Justice Kennedy has recognized the impact that solitary or segregated confinement exerts on an inmate, and the 4th Circuit recognized his opinion in Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015). As courts and corrections officers across the country have begun to recognize, the years-long isolation that the pre-2015 conditions of confinement forced on the Plaintiffs created, at the least, a significant risk of substantial psychological and emotional harm. Therefore, the Plaintiffs have met the objective prong of the Eighth Amendment test.

Deliberate indifference

As already discussed, there is a large and growing body of literature discussing the potentially devastating effects of prolonged periods of isolation. Given that the Defendants are corrections professionals, it would defy logic to suggest that they were unaware of the potential harm that the lack of human interaction on death row could cause.

In fact, the Defendants’ policies demonstrate their full awareness of this harm. Department procedures do not allow non-death row prisoners to stay in disciplinary segregation for longer than 30 consecutive days. And constant checks by medical and mental-health personnel evinces the Defendants’ awareness that those conditions create a significant risk of harm for the death-row inmates.

Therefore, the Plaintiffs have demonstrated that the Defendants acted with deliberate indifference to a substantial risk of harm when imposing the pre-2015 conditions of confinement and, in conjunction with the objective-prong analysis, that those conditions violated the Eighth Amendment.

Injunctive relief

Because they have shown that the pre-2015 conditions of confinement violated their Eighth Amendment rights, they have also satisfied the requirement necessary for injunctive relief to show that they would be irreparably harmed if the conditions were to be re-imposed, such that there would be no adequate remedies at law.

Further, given the minimally intrusive nature of the requested injunction, the negligible hardship state officials might have to endure in complying cannot outweigh the hardships the Plaintiffs would suffer if forced to endure unconstitutional conditions of confinement. Moreover, although the citizens of Virginia certainly have an interest in their prison officials being able to exercise their professional discretion in setting policies, the injunction requested here barely intrudes on that discretion and, thus, barely offends the public interest. When this intrusion is weighed against the strong public interest in vindicating constitutional rights and preventing future violations, it’s clear that an injunction would not disserve the public interest.

Therefore, the Plaintiffs have made the requisite showing and are entitled to an injunction.

Prison Litigation Reform Act

Congress has demonstrated that it knows how to give courts a clear command not to grant equitable relief except in cases of an ongoing violation, because it did exactly that elsewhere in the statute’s termination provision. By contrast, in the PLRA provision governing whether a court may grant prospective relief in the first instance, Congress mandated the need-narrowness-intrusiveness test. That Congress explicitly included an “ongoing violation” requirement in the termination provision and omitted it from the initial relief provision implies that it did not intend courts to be bound by the “ongoing violation” requirement when determining whether equitable relief is initially available.

As such, the court finds that an ongoing violation of a constitutional right is not a prerequisite for the initial entry of injunctive relief under the PLRA.

The Plaintiffs seek to enjoin a specific set of conditions on death row – namely, their solitary confinement, as characterized by the combination of: (1) 23 hours per day alone in cells; (2) no contact visitation; (3) no congregate recreation or programming; and (4) only five hours per week of outdoor recreation in separate cages. This explanation shows that the relief sought is both narrow and minimally intrusive: Rather than ordering specific affirmative steps, it leaves the Defendants free to craft any other set of policies relating to cell time, visitation, and recreation that the Defendants, in their professional expertise, believe satisfy both the Eighth Amendment and the prison’s need for security.

Finally, the requested injunction will only remain in effect for two years absent a court finding that prospective relief remains necessary to correct a current and ongoing violation.

Equitable mootness

The Plaintiffs have established a cognizable danger of recurrent violation in the absence of injunctive relief because many different changed circumstances could lead the Department to revert to its pre-2015 conditions. In particular, the Department’s consistent refusal to represent to the court that it will not revert to these conditions, and there being no way for the Plaintiffs to adequately and timely challenge a future reversal, support the need for an injunction.

Further, as amici ACLU of Virginia and the Rutherford Institute have argued, the use of equitable mootness to avoid reaching the merits of the Plaintiffs’ claim would undermine the system established by Congress and the U.S. Supreme Court to ensure that important civil rights are properly vindicated. Amici explain that the Supreme Court has interpreted numerous fee-shifting statutes to allow for recovery of attorneys’ fees only when they have obtained a judgment or other court order cementing their victory. This interpretation specifically considered the possibility of tactical mooting, where defendants might be encouraged by a lawsuit to make structural changes that vindicate plaintiffs’ rights but, to avoid fee awards, to do so before a court decides the case. The high standard for mootness ensures that this is unlikely to occur frequently. Applying equitable mootness here would undercut this logic, lowering the bar for mootness and allowing the Defendants in this action – and future defendants – to moot a case to avoid paying attorneys’ fees. This outcome would undermine the structure of private civil-rights enforcement that Congress has established, predicated on the ability of private litigants to recover their fees.

Taken together, these prudential considerations do not convince the court to stay its hand. At this point, discovery is complete, the constitutional issues are fully framed, the legal standard is clear, and the injunction the Plaintiffs request would require extremely little affirmative action from the Defendants. Therefore, the court rejects the Defendants’ argument that this action should be dismissed on prudential mootness grounds.

Plaintiffs’ motion for summary judgment granted.

Porter v. Clarke, Case No. 1:14cv1588, Feb. 21, 2018. EDVA at Alexandria (Brinkema). VLW No. 018-3-059, 37 pp.

VLW 018-3-059