RICHMOND, Va. (CN) — The Fourth Circuit appeared likely to keep Virginia officials on the hook in a lawsuit claiming the state Department of Corrections' use of solitary confinement violates a dozen inmates' constitutional rights.
The state argued the so-called Step Down program was updated to address unconstitutional prison segregation claims after the agency entered into a settlement with another inmate in late 2020.
But in a Tuesday hearing before the Richmond-based appeals court, U.S. Circuit Judge Roger Gregory pointed to policy language that he said could keep inmates in segregation indefinitely.
“It’s alleged VDOC policy requires ongoing solitary confinement for prisoners who exhibit mental health issues; it seems like the harm being caused is what keeps you [from getting] qualified to get out,” the Bill Clinton-appointed judge said, citing effects from solitary confinement including grooming issues, lethargy, attention deficit and mood-related issues one might suffer if kept in social isolation for more than 20 hours a day.
“It’s a vicious cycle,” Gregory said.
The dispute started back in May 2019 when William Thorpe and about a dozen other inmates filed suit in Western Virginia federal court claiming the Virginia Department of Corrections held them in solitary confinement for years, if not decades. Recent Fourth Circuit precedent on such treatment of inmates was on their side. After a settlement agreement was reached in another case, Step Down was applied in new ways.
But lawyers for the Virginia chapter of the American Civil Liberties Union said the state’s effort — which has since received national recognition — failed to meet agreed-upon benchmarks and continues to violate their clients' rights.
The state managed to get some of the inmates' claims thrown out, but U.S. District Judge James Jones ruled last year that the evidence presented so far was enough to meet the civil rights violation threshold to overcome the state officials' argument for qualified immunity.
“Plaintiffs have plausibly alleged the violation of two clearly established rights,” wrote Jones, referring to the plaintiffs' procedural due process and cruel and unusual punishment claims over a detainment method they say has "no legitimate penological purpose."
“That is enough at the motion to dismiss stage to deny the individual defendants’ claim of qualified immunity as to the remaining constitutional claims,” he wrote in his June 2021 ruling.
Virginia Assistant Attorney General Margaret A. O’Shea disputed the lower court's finding in Tuesday morning's Fourth Circuit hearing, arguing the evidence so far fails to overcome immunity. She pointed to the reduction of segregated inmates statewide, from 511 down to 37, as evidence of the program’s success.
“A reasonable official could have believed the program offered a meaningful way out of confinement,” she said before citing multiple review processes which she argued also supported immunity for state officials.
But this early in the process, the evidence is examined in favor of the plaintiffs. U.S. Circuit Judge Henry F. Floyd noted that principle requires the three-judge panel to take the inmates' claims, including that the reviews were often rubber-stamped and preordained, as true.
“The policy looks really good on paper,” the Barack Obama appointee said. “Was this policy followed and more than just checking a box?”
ACLU Attorney Vishal Agraharkar hammered the evidentiary standard.
“It’s about putting people in conditions you knew would harm them,” he argued, suggesting the state’s long history of legal battles and experimental programs related to inmate segregation should have shown continuing the program would amount to a violation of civil rights.
But Floyd gave room for the state's argument, asking if the standard the court should use when determining how aware the agency was is objective or subjective.
“Given the case law, when you’re violating the law with wrongful intent, then qualified immunity isn’t appropriate,” Agraharkar replied.
Andrei A. Popovici, an attorney with the Washington-based firm White & Case, also questioned the state’s statistics about the Step Down program.
When U.S. Circuit Judge Stephanie Thacker asked if the reduction of almost 500 segregated inmates showed the review process was working, Popovici called the numbers “misleading.”
“Several of our plaintiffs were moved to general population or moved out of state; another was only able to achieve progress after he filed this lawsuit,” he said.
Still, O’Shea stressed the inmates' evidence was simply not enough to deny state officials immunity. Add to that the recognition the Department of Corrections has gotten — including from the U.S. Department of Justice and Council of State Governments’ Southern Legislative Conference — and you get a system that meets constitutional muster, she said.
“VDOC has gone way above anything that’s been required by decisions from this court,” O’Shea said of civil rights cases that helped flesh out the modern Step Down program. “If you look at the policy, an objectively reasonable corrections official would not believe it did not afford meaningful progression out of segregation.”
“Five-hundred and eleven inmates to 37,” she added. “That fact speaks for itself.”
The appellate judges did not signal when they intended to rule.
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