BIG STONE GAP, Va. (WRIC) — A lawsuit against the Virginia Department of Corrections (VADOC) and several senior prison officials alleges that for over 20 years, the state has violated prisoners’ constitutional rights by keeping them in solitary confinement with no due process.

The 12 plaintiffs, some former inmates and some currently incarcerated, all spent time in solitary confinement at one of Virginia’s two “super-max” prisons, Wallens Ridge and Red Onion. Now, they’re seeking to jump-start a class action that, if accepted by a federal judge, could include everyone who has been held in solitary under the Virginia Department of Correction’s (VADOC) “Step-Down Program.”

Solitary

VADOC’s step-down program was supposed to be an end to solitary confinement in the state’s prisons, but advocates and the families of those imprisoned said it was little more than a semantic game.

Prison officials claimed that because inmates were offered a minimum of four hours a day out of their cells, VADOC “no longer operates anything that meets the American Correctional Association definition of restrictive housing.”

Now, the twelve plaintiffs allege that the step-down program, which was lauded by prison officials as a way to provide prisoners a path out of restrictive lockdowns, is an unconstitutional and arbitrary process designed to keep prisoners in inhumane conditions at the whims of corrections officers.

Documents turned over by VADOC as part of the lawsuit show that prisoners held in solitary confinement undergo a lengthy process, with their timeline for release back into the general population determined by which “pathway” they’re placed in.

But the plaintiffs write that the criteria for who gets placed in each category are vague and opaque — and can have a huge impact on how long they spend in solitary.

“While an SM prisoner can complete his Pathway after a minimum of 15 months in solitary confinement, it takes an IM prisoner a minimum of 30 months,” they write.

A Long Road

Over the course of the prisoners’ lawsuit — which has now lasted over three years — several of their claims have been dismissed.

For instance, the first count of the original complaint alleged that VADOC breached the terms of a 1985 court settlement in which the state promised to end unconstitutional practices around solitary confinement. But a federal judge ruled that because the contract fell under Virginia law, the federal court had no say over it.

But other, more serious claims have been allowed to move forward. One central claim made is that the prisons routinely violate the Fourteenth Amendment’s due process clause, because they can force prisoners to restart the program for arbitrary reasons, leading to ever-lengthening confinement.

“VADOC locks a prisoner in a solitary cell for several months, cites him with an infraction when he eventually violates a rule, and then uses that infraction to keep the prisoner in solitary confinement—despite that prisoner posing no substantial security risk to the general population,” they wrote.

In their response, VADOC admitted that hearings were frequently conducted at the door of prisoners’ solitary cells and that prisoners were allowed to present neither evidence nor witnesses during their evaluation, but denied that they had violated anyone’s constitutional rights.

Making a Class

In addition to broad claims of unconstitutional treatment, the plaintiffs also allege that VADOC violated the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) by failing to outline accommodations for prisoners with mental disabilities who might face difficulties completing the step-down process.

“Neither [prison procedures], nor the Step-Down Program Manual provide—or even discuss the possibility of providing—accommodations to individuals with disabilities,” they wrote.

But VADOC responded that prisoners labeled under their own criteria, called “Serious Mental Illness (SMI),” aren’t held in solitary at all. They added that the plaintiffs lacked evidence to prove that there were enough prisoners with mental health disabilities to form a class.

They also leaned on semantics, claiming that because the ADA and RA do not use the specific phrase “mental health disability,” plaintiffs should not be allowed to include in their claim prisoners suffering from “cognitive, intellectual, developmental, and learning disabilities.”

In response, the plaintiffs filed a motion to compel the department to turn over “documents regarding VADOC’s assessments of prisoners with mental health disabilities, accommodations of the Step-Down Program for identified mental health disabilities and information concerning employee-training on making mental health disability determinations and accommodations.”

In other words, the documents that would substantiate — or invalidate — the plaintiffs’ class claims, which VADOC has routinely refused to turn over.

For now, the case is at a standstill until these disputes can be resolved, which will likely happen at a hearing on January 9, 2023.