SUSSEX PRISON (copy)

These buildings house inmates at the Sussex I maximum security state prison.

A divided three-judge appeals court panel Friday upheld a lower court ruling that prohibits the Virginia Department of Corrections from returning to unconstitutional conditions that once existed on death row.

Last year, U.S. District Judge Leonie M. Brinkema in Alexandria found that conditions on Virginia’s death row prior to 2015 violated the Eighth Amendment and barred the state from reinstating them. She ruled that the death row inmates’ long-term detention in conditions amounting to solitary confinement created a “substantial risk” of psychological and emotional harm.

In an opinion Friday, the Richmond-based 4th U.S. Circuit Court of Appeals agreed.

“The undisputed evidence established that that deprivation posed a substantial risk of serious psychological and emotional harm and that State Defendants were deliberately indifferent to that risk. Accordingly, we affirm the judgment of the district court,” wrote Judges Robert B. King and James A. Wynn Jr.

The judges noted that even the plaintiffs now concede that conditions on death row no longer violate the Eighth Amendment. However, the record supports each of the district court’s findings in prohibiting the state from returning to old conditions.

The Virginia Department of Corrections and the Virginia Attorney General’s Office did not immediately respond to a request for comment.

Judge Paul V. Niemeyer dissented. “In this case, Virginia death-row inmates are challenging conditions of confinement that have not existed for over three years.”

“Nonetheless, the district court sustained their challenge and ruled in February 2018 that pre-2015 death-row conditions violated the Eighth Amendment,” Niemeyer wrote.

He added, “In short, the majority’s Eighth Amendment ruling is unprecedented and runs the risk of interfering with the wide use of supermax-type prisons, including the federal supermax prisons in Colorado and Illinois where conditions are more restrictive than those that were imposed on Virginia’s death row prior to the 2015 charges.”

“Further, it entered an injunction prohibiting a return to those conditions,” Niemeyer wrote. “The record provides overwhelming evidence that VDOC made changes to the conditions of confinement on death row in the interest of both the inmates and the agency and that VDOC firmly believed that the changes were the right way to go.

Niemeyer wrote that, “There is simply no indication of any intent by VDOC officials to return to the previous conditions, which they had resolved to change even before this litigation began.”

In her 32-page opinion last year, Brinkema said the state’s change from the pre-2015 conditions was influenced, at least in part, by the death row inmates challenging the conditions. Also, she noted that there was no legal barrier to the state returning to the prior conditions and that officials declined to promise they would not reinstate them.

Robert Dunham, executive director of the Death Penalty Information Center, said Friday that, “In 2015 they did the right thing, and if they had agreed never to go back to the wrong thing, this part of the lawsuit would never have been necessary.”

The appeals court majority opinion Friday noted that, “More than a century ago, the Supreme Court recognized the adverse consequences to inmates’ mental health posed by prolonged detention in conditions akin to solitary confinement.

“The undisputed evidence established that that deprivation posed a substantial risk of serious psychological and emotional harm and that State Defendants were deliberately indifferent to that risk. Accordingly, we affirm the judgment of the district court,” the majority wrote.

Niemeyer concluded his dissent writing that, “It appears that the only reason for the district court’s injunction was some effort to punish (the department of corrections) for having previously had in place conditions that the district court believed had violated the 8th Amendment.

“And the majority’s opinion affirming is thus counterproductive and totally unnecessary. I would reverse the district court’s judgment and remand with instructions to dismiss the plaintiffs’ action,” Niemeyer wrote.

There are three inmates on Virginia’s death row — Thomas Porter, Mark Lawlor and Anthony Juniper — located at the Sussex I State Prison in Waverly.

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