Fluvanna Correctional Center for Women

The Fluvanna Correctional Center for Women

Virginia’s failure to reduce the prison population or protect inmates against COVID-19 impinges on their constitutional protection against cruel and unusual punishment, according to a lawsuit filed Wednesday in federal court in Richmond.

Elliott M. Harding, a Charlottesville lawyer, filed the suit on behalf of 27 inmates at 12 prisons. The suit alleges violations of the Eighth Amendment and names as defendants Gov. Ralph Northam, Secretary of Public Safety Brian Moran and other state officials.

Reached by telephone Wednesday, Harding said that under normal conditions, Virginia’s 30,000 inmates in more than 40 facilities is acceptable. “But due to COVID-19, at the heart of the matter, there’s no way for them to engage in any type of spacial distancing. That makes it inherently a tinder box, the risk is so high.”

“One of my clients has already tested positive in the Goochland women’s prison and I’ve got some clients with compromised respiratory issues they’re in areas that have had positive tests in their prisons,” he said.

In a prepared statement Friday, Harding said his clients “weren’t sentenced to death or torture. In fact, many are just a few months from getting out for nonviolent crimes.”

The 47-page suit asks 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 suit alleges 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.”

“Increasing spatial distance between individuals and limiting the number of individuals in close quarters are practices that are not only widely accepted societal norms during COVID-19 pandemic, they have been publicly encouraged via officials at all levels of government, commercial enterprise, and American culture. In Virginia, these practices have been enacted into law in most settings via executive orders promulgated by Governor Northam.”

The plaintiffs contend that Virginia prisons are not adhering to any real form of social distancing policies. Some inmates sleep in open-air dormitories that house as few as 12 and as many as 90 other adults on beds, cots, or foam mattresses that are as close as two feet apart.

According to the suit, “multiple jails throughout the commonwealth of Virginia have ordered the early release of select prisoners as well as the release and continued incarceration of inmates via home electronic GPS monitoring.”

The suit asks that the state be ordered to immediately implement policies to decrease the number of inmates housing areas and increase the space between inmates sleeping and recreational areas.

Unlike Virginia jails or prison systems in other states, the Virginia system is limited in the action it can take to reduce prison population, Harding complains.

Parole has nearly been eliminated and alternatives to types of confinement such as home electronic monitoring are not permitted under Virginia law, he said.

“Our goal is to have the federal courts intervene and alleviate the pressure of overcrowding we now face in light of the virus,” Harding said in a prepared statement Wednesday.

He added, he hopes the Virginia attorney general’s office and the Northam administration will see the suit “as an opportunity to concede there are inhumane conditions and we can then work together to use a settlement agreement with the force of a federal court to bypass these state limitations on release.

“The Constitution requires it,” Harding contends. “My clients’ lives depend on it.”

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