RICHMOND, Va. —The Rutherford Institute, working in conjunction with the American Civil Liberties Union, has asked a federal appeals court to reinstate a lawsuit filed on behalf of Virginia death-row inmates held in “dehumanizing” conditions of isolation. In appealing to the Fourth Circuit Court of Appeals, the two civil liberties organizations argue that tactical policy changes adopted by the Virginia Department of Corrections (VDOC) in order to sidestep court-mandated legal obligations (the practice of “tactical mooting”) leave prisoners at greater risk of having harsh conditions re-imposed upon them.
“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 legislative and judicial branches: ideally, they are supposed to hold government officials accountable to abiding by the rule of law in this country,” 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,” attorneys for The Rutherford Institute and ACLU are asking the court to reinstate the lawsuit so that, in the absence of any binding court ruling, the VDOC is not free to return to the dehumanizing conditions that it had historically defended as necessary for security.
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.