ACLU of Virginia accuses state of violating agreement to release more inmates, provide documents

Virginia News

File photo of Augusta Correctional Center (photo taken by 8News)

RICHMOND, Va. (WRIC) — The American Civil Liberties Union of Virginia sent Attorney General Mark Herring’s office a notice of noncompliance Wednesday, claiming the state has failed to adhere to terms of the settlement agreement in a lawsuit brought on behalf of inmates seeking to decrease the number of people incarcerated amid the coronavirus pandemic.

In its notice, the ACLU of Virginia alleges that documents have not been provided to the organization in order for them to assess the state’s compliance and that the department of corrections has not reviewed nearly enough candidates for early release and have failed to inform inmates if they are eligible.

“Week after week, VDOC has slow-walked or refused to show evidence that they’re keeping people safe during this pandemic, and the evidence they do produce is alarming,” Eden Heilman, legal director for the ACLU of Virginia, said in a statement.

The notice provided to the state lays out five areas of noncompliance, which are listed below:

  • Failure to provide documents to assess compliance with the settlement. The settlement entitled the ACLU of Virginia to internal documents regarding policies, procedures and other issues regarding the handling of COVID-19 in VDOC facilities.
  • Failure to review candidates for early release. VDOC agreed to make all reasonable efforts to review candidates eligible for early release and stated a capacity to review 20-30 cases each day. Its latest data report showed fewer than 30 candidates reviewed in a full week.
  • Failure to accurately inform people of their eligibility for early release. The ACLU of Virginia has received multiple reports that officials are telling people who are incarcerated that they are no longer processing early release applications.
  • Failure to provide any documents or information on conditional pardons. The settlement required the governor to expedite consideration of conditional pardons due to the COVID-19 pandemic. The administration has claimed executive privilege and refuses to produce any documents to show compliance with the agreement.
  • Failure to accommodate confidential legal phone calls. Attorneys report that arranging one phone call can take between 10 and 30 days, calls are routinely limited to only 20 minutes, and facilities are recording the calls between attorneys and their clients.

A Virginia Department of Corrections spokeswoman responded to the notice in a statement shared with 8News that reads, in part:

It’s unfortunate to see the Virginia branch of the ACLU struggle to remain relevant by attacking what by any objective measure has been amazing work. As the Virginia ACLU knows, the DOC is under no legal obligation to release any certain number of people pursuant to the budget amendment passed by the General Assembly on April 22. Each case must be carefully and substantively scrutinized to ensure that VDOC only approves the early discharge of offenders whose release is compatible with the overall public interest. The DOC didn’t receive additional staff or funding with the budget amendment, so the same staff who process regular offender releases on a full-time basis are now also processing the additional early releases. Nonetheless, to date, 765 offenders have been reviewed for early release, and a great deal of work has gone into this in order to do it responsibly. To be considered for early release, offenders’ files must be audited, their home plans approved, and the Early Release Plan criteria met. Simply opening the doors and letting offenders out would be the easiest thing to do, but it would also fly in the face of our duty to safeguard the well-being of our offenders, and that of all Virginians. For example, we’ve reviewed many offenders who have extensive violent offenses, including violent sex offense histories, and those offenders will not be released early. If the Virginia ACLU wants the state’s prisons emptied, they must take that up with the legislature. We, however, must follow the law.” 

Virginia Department of Corrections Director of Communications Lisa Kinney

In a tweet sent out Thursday, the ACLU of Virginia said they are “ready to go back to court” if the state continues to violate the agreement.

“They’ve released only a fraction of people who are eligible for early release,” Heilman continued. “Meanwhile, people keep getting sick, and we aren’t getting the answers we need to make sure they’re taken care of.”

The attorney general’s office did not immediately respond to 8News’ requests for comment.

This story is developing. Check back for updates.

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