A suit alleging Virginia failed to reduce the prison population or protect inmates against COVID-19, impinging on their constitutional protection against cruel and unusual punishment, has been settled and dismissed in federal court in Richmond.
The settlement agreement calls for the Virginia Department of Corrections to quickly review inmates eligible for early release under the governor’s budget amendment and creates a procedure for the Secretary of the Commonwealth to consider conditional pardons for prisoners with medical issues or concerns related to COVID-19, the ACLU said on Tuesday.
“The agreement also sets up mechanisms to ensure that incarcerated individuals are receiving prompt medical treatment, that prisons are clean, sanitized, and that appropriate protective equipment is provided to both residents and staff,” said Meredith Mason, a spokeswoman for the organization.
Lisa Kinney, spokeswoman for the Virginia Department of Corrections, wrote in an email that “we are pleased to see that after reviewing all that the DOC is doing regarding this pandemic, plaintiffs could find very little to ask for and the case will be dismissed.”
Kinney wrote that according to the agreement, in addition to what the department is already doing, it will now put the number of individuals released under the budget amendment on the public website and report to the plaintiffs’ lawyers on a weekly basis the number of inmates who were tested for COVID-19 in the preceding week.
It also requires reporting weekly on the number of inmates who were reviewed for possible release under the budget amendment, the number of inmates who were granted release and the number who were denied, she said.
The budget amendment, approved by the General Assembly last month, allows the Department of Corrections to release prisoners with a year or less remaining on their sentences who have a place to go, are not deemed public safety risks and who meet other qualifications.
The negotiations were mediated by U.S. District Judge David J. Novak and the settlement agreement approved Tuesday by U.S. District Judge Henry E. Hudson.
The 47-page suit was filed against Gov. Ralph Northam and other state officials on April 8 by Charlottesville lawyer Elliott Harding on behalf of 27 Virginia prison inmates in 12 prisons, and the ACLU later joined in.
It asked the federal court to “declare the defendants’ failure to enact polices to reduce the population density in VDOC prisons during the COVID-19 pandemic results in conditions of confinement that present such an imminent risk to the plaintiffs’ health that it violates their Eighth Amendment right to be free from cruel and unusual punishment.”
The inmates alleged that prisons are amplifiers of infectious diseases because practices that keep diseases from spreading, such as social distancing, are inherently more difficult to achieve in Virginia prisons, which “engage in high density, centrally housed confinement and therefore have infrastructural limitations on space, resource allocation and staff-to-inmate ratio.”
Eden Heilman, the legal director of the ACLU of Virginia, said in a prepared statement that “this settlement agreement will help advocates, people who are impacted by the criminal legal system, including our clients, and the public hold the state accountable for the way it treats people in prison during the COVID-19 pandemic.”
Harding said, “The Constitution protects all of us from cruel and unusual punishment, which includes being housed in unsafe conditions.”
“We will stay vigilant to make sure the Virginia Department of Corrections keeps its promises to decrease the prison populations, increase access to testing and medical care, and provide hygiene, sanitation and protective equipment,” he said.
Virginia Claire Guthrie Gastañaga executive director of the ACLU of Virginia, said the settlement will not end the organization’s advocacy and it will work with other members of the COVID-19 Justice Coalition to urge both the corrections department and the governor to move as quickly as possible to review and approve early release or conditional pardons for those who do not belong in prison.
Gastañaga added, “We will also continue to urge the governor to take action that will ensure a uniform response to the pandemic across our criminal legal system and not just with respect to the 7% of the people in VDOC’s custody who ‘fit’ the terms of his budget amendment.”
Advocates such as the ACLU and the Legal Aid Justice Center have been urging Northam to use his clemency power to release a significantly larger number of prisoners.
The proposals have not been without opposition. Also on Tuesday, Republican leaders in the General Assembly urged Northam to suspend early parole board releases of offenders with violent records. Northam rejected the proposal.
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