Virginia Prisons Defy New State Law Against Solitary Confinement (2023), by Kevin “Rashid” Johnson

There was much fanfare about a new Virginia law that went into effect on Mach 23, 2023 that set specific limits on the use of solitary confinement in Virginia prisons. (1) Long before this law was enacted Va prison officials and politicians had been lying to the public claiming solitary confinement no longer existed in their prisons.

These lies came in response to public protests of the long standing use and abuse of solitary in the state’s prisons. (2) Which followed on the heels of the 2011 declaration by the United Nations that solitary confinement constitutes torture and its use should not exceed two weeks.

In February, 2012 I was transferred out of state after spending 18 years in solitary in Va’s prisons myself—14 years of which I’d spent in the state’s notoriously abusive and racist supermaxes Red Onion State Prison (ROSP) and Wallens Ridge State Prison (WRSP). Only months later in September 2012, Va created the “segregation reduction step-down program” at the very same prisons. The lie put to Va’s claims of not practicing solitary confinement by a federal class action lawsuit brought by 12 Va prisoners challenging the step-down program (3). In its 2020 and 2021 rulings the federal court explicitly found that the program constituted solitary confinement and went on in its rulings to find that the conditions of the program amounted to unconstitutional cruel and unusual punishment and violated the federal Americans with Disabilities Act, the Rehabilitation Act, and Constitutional due process. (4) The prison official defendants appealed and the federal appeals court upheld the lower court’s decision (5). The case is still pending.

But here’s the clincher: The new Va law passed earlier this year totally invalidates the authority for and existence of the so-called step down program, which exists solely at ROSP and WRSP under a secret local policy called the “ Restorative Housing Reduction Step-Down Program,” (6) created in these prisons and not by the director of the Virginia Department of corrections (sic!) [VDOC]. Under the new Va law, all policies governing ‘Restorative Housing’ (the euphemism Virginia officials use for segregation and solitary confinement) are to be created by the VDOC director and he shall incorporate the law into these policies. (7)

In violation of this new state law, the director hasn’t approved or signed any policies on the state’s restorative housing, and the ROSP/WRSP step-down program facially violates the law, not only because the law doesn’t allow for any so-called step down program all, but it requires the facility warden to transition prisoners from regular restorative housing directly back to the general population of the facility “as soon as safely possible” consistent with policies created by the director. Also the fake 30 day hearing processes by a “dual treatment team” in the step down procedure violates the law which requires weekly restorative housing reviews and the warden to oversee the transition directly back to general population. (8)

In fact the director specifically defied the new law by refusing to himself create a new statewide restorative housing unit policy, and allowed his colleagues to avoid applying this new law at all to the updated statewide “Restorative Housing Unit” policy which they signed and went into effect July 1, 2023—almost four months after enactment of the new restorative housing law. (9)

And there’s yet another layer to this lawlessness. In 1985 the VDOC entered into a settlement agreement with the ACLU and Va prisoners in connection with a class action lawsuit brought against a similar solitary confinement system then at Mecklenburg Correctional (sic!) Center (MCC). (10) That settlement agreement constituted a contract independent of the lawsuit itself in which the VDOC agreed to never create another solitary confinement phase program. This agreement was violated in the creation of the ROSP/WRSP step-down program which duplicates the old MCC phase program.
In fact, after officials violated their own policies in emergency transferring me to ROSP on Oct. 3, 2023 without a hearing, I was recommended on Nov. 20, 2023 for placement in the illegal ROSP/WRSP long term solitary confinement step-down program, and it’s clear this program has nothing to do with maintaining a safe prison environment, and is applied arbitrarily and abusively. The Chief of Housing Amy Duncan demonstrated this.

On Oct. 5, 2023, she had a prisoner, Vernon Jackson #1450266, who had distinguished himself for challenging abuses at the prison, removed from his general population cell and put in restorative housing for no reason. He received no disciplinary infractions, nothing. Yet, on Oct. 19, 2023, Duncan put him in for placement in the ROSP/WRSP step-down program.

Another example is Leon Johnson #1192355. Leon had been placed in the step-down program in 2021. After a year and a half in the program they and several other prisoners at ROSP were called out for interviews with lawyers and journalists interested in reporting on and litigating against the abuses of solitary at the prison. The very next week Leon and several others were suddenly released from the program without having completed it. Suddenly, with these prisoners, there was no concern about security and safety, the mechanically recited justification for the claimed need of the illegal step-down program.

ROSP and WRSP have been operating in the far southwestern region of Virginia since the late 1990s, free of oversight of VDOC central headquarter administrators. They were constructed at extensive taxpayer expense to prop up the sagging economy in the region of the state where coal mining jobs were lost to strip mining and mountain topping. There has never been a legitimate security need for these prisons, so every few years VDOC officials invent new justifications for them despite their design as solitary confinement prisons, because just as often the previous claimed need for these prisons is exposed to be a lie.

So, once again these remote supermaxes are operating lawlessly outside the orbit of public scrutiny. They should have been closed down long ago.

Dare to struggle Dare to win!
All power to the people!

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Endnotes:
1. See, Code of Virginia, section 53.1-39.2 (Restorative Housing, restrictions on use.) Rolynn Wilson, “Solitary Confinement Law Change Promises Better Conditions for Prisoners in Virginia” (WRIC—TV/Richmond, VA, June 5, 2023/5:34pm EDT)

2. See report “Activists Campaign to end Solitary Confinement in Virginia,” which aired several times on PBS https://vpm.org/news/articles/30403/activists-campaigns-to-end-solitary

3. See, Thorpe v Va Dept of Corr, Case #2:20-cv-00007 (U.S.District Court Western District of Virginia, Big Stone Gap Division)

4. Thorpe v Va Dept of Corr, 2021 U.S. District LEXIS 112284 (June 15, 2021).

5. Thorpe v. Carter, 2022 U.S. App. LEXIS 16351 (4th, Cir. Va, June 14, 2022)

6. Red Onion State Prison, Local Operating Procedure 830.A (Restorative Housing Reduction Step-Down Program, Updated Oct. 1, 2021) (not available to public)

7. Va Code Section 531—39.2 (D) and (F)

8. Va Code Section 53.1—39.2 (C)

9. VDOC Operating Procedure 841.1 (Restorative Housing Units, updated July 1, 2023)

10. Brown v Landon, Case #81-0853-R (E.D.Va)