On The Front Lines


Concluding That Prison Officials Cannot Be Trusted to Maintain Humane Conditions, Appeals Court Reinstates Lawsuit Mandating Change



March 31, 2017

RICHMOND, Va. — Finding that the Virginia Department of Corrections (VDOC) could not be trusted to permanently change “dehumanizing” conditions at its “Death Row” prison, a federal appeals court has reinstated a lawsuit by prisoners who claim their confinement in oppressive isolation constitutes cruel and unusual punishment. In asking the Fourth Circuit Court of Appeals to overturn a lower court’s dismissal of the lawsuit, attorneys for The Rutherford Institute, working in conjunction with the American Civil Liberties Union, argued that tactical policy changes adopted by VDOC in order to sidestep court-mandated legal obligations (the practice of “tactical mooting”) would leave prisoners at greater risk of having harsh conditions re-imposed upon them.

Affiliate attorneys David W. DeBruin, Carrie F. Apfel, Kelly M. Morrison, and Jeffrey A. Atteberry, of Jenner & Block, LLP, in Washington, DC, and Los Angeles, CA, assisted The Rutherford Institute and The ACLU in advancing the arguments in the Porter brief.

“As we have learned the hard way, government officials have become experts at saying all the right things while doing all the wrong things. That’s why we have a Constitution and a system of checks and balances: ideally, to hold government officials accountable to abiding by the rule of law,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This case reminds us that there is no room for trust in the relationship between the citizenry and the government. As Thomas Jefferson warned, ‘In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.’”

Virginia prisoners awaiting execution are housed in a segregated area of Sussex I State Prison. “Death Row” at the prison consists of 44 cells that are less than half the size of a parking space, with minimal natural light and artificial light which remains on at all hours. Prisoners are separated by at least one empty cell, making communication between prisoners nearly impossible amidst near-isolation. Moreover, prisoners are held alone in these cells for 23 hours per day – often all day on weekends. Prisoners eat all of their meals alone in their cells and are denied any opportunity for group religious activity or recreation. These Death Row conditions have been characterized by the courts in previous litigation as “dehumanizing” and “undeniably severe.”

In November 2014, four Death Row inmates, represented by pro bono attorneys, filed a lawsuit in the federal district court asserting that the conditions of their confinement violated the Eighth Amendment to the U.S. Constitution’s prohibition on “cruel and unusual punishment.” VDOC officials defended the Death Row conditions as constitutional and necessary to preserve prison security. However, 20 months later, in the midst of the lawsuit, VDOC contradicted its own legal assertions and enacted regulations allowing for Death Row prisoners to have contact visits with close family, engage in recreational group activities, and access a kiosk where they could purchase books and movies and send email.

In July 2016, the district court ruled that the improved conditions rendered the case moot and dismissed the lawsuit. In warning that the VDOC may be engaging in “tactical mooting” in order to “avoid a major legal issue,” The Rutherford Institute and ACLU asked the court to reinstate the lawsuit because, in the absence of any binding court ruling, VDOC would be free to return to the dehumanizing conditions that it had historically defended as necessary for security.

Case History

January 25, 2017 • In Arguments Before Fourth Circuit Court of Appeals, The Rutherford Institute & ACLU Join Forces to Challenge Conditions in Virginia Prisons

Press Contact

Nisha Whitehead
(434) 978-3888 ext. 604
nisha@rutherford.org