by Dick Hall-Sizemore
The Washington Post recently ran an article that demonstrates that there is still hope for bipartisan cooperation in a hyper-partisan environment on an important issue.
The legislators involved were Del. Glenn Davis (R-Virginia Beach), former candidate for Lieutenant Governor, chair of the House Committee on Education, and carrier of many of the Youngkin administration education bills in the General Assembly this year, and Del. Don Scott, House minority leader and often-outspoken critic of the Youngkin administration. The issue was limiting the use of solitary confinement in Virginia’s prisons.
Background
Solitary confinement, or isolation, is a basic tool in prison management. It is used to separate inmates from the general population for one or more of the following reasons:
- For the protection of the inmate, sometimes at his request;
- To prevent physical harm to other persons; or
- As punishment for the offender’s behavior.
The use of isolation for punishment is probably the most notorious and the most used reason. The behavior can include assaults on corrections officers or other inmates, escape or attempted escape, chronic possession of contraband, gang activity, or being generally disruptive.
The Virginia Department of Corrections (DOC) has a fondness for euphemisms. At least in the last 25 years, it has not used the terms “solitary confinement” or “isolation.” For many years, it used “segregated housing.” In recent years, the term was “restrictive housing.” Currently, it is termed “restorative housing.”
Until recent years, all Virginia correctional units had segregation or restrictive housing. In the lower-security institutions, there were only a few cells which were used for short-term stays, primarily for infraction of prison rules. The higher-security level facilities had more such cells, with Red Onion and Wallens Ridge correctional facilities in Southwest Virginia being comprised almost entirely of segregated housing. Inmates placed in either of the latter two facilities, especially Red Onion, had committed major, violent acts against corrections officers or other inmates, had escaped or attempted to escape, or had proven extraordinarily unmanageable.
Inmates placed in segregation were generally allowed out of their cells one hour a day for outdoor recreation, in “pens,” one inmate to a pen. They were also allowed to be taken to the shower one or two days per week. They never were truly in isolation or solitary confinement, cut off from all human contact. They could talk to corrections officers on the floor, talk through their doors to other inmates on the segregation wing, and were checked on periodically by medical personnel and counselors.
In prior years, some Democrats in the General Assembly have tried in vain to limit the use of solitary confinement. Del. Patrick Hope (D-Arlington) and Sen. Joe Morrisey (D-Petersburg) were the major advocates of such a change. For examples, see Hope’s HB 795 introduced in the 2018 Session and Morrissey’s SB 1301 in the 2021 Session.
Over the last decade, DOC has gradually relaxed the conditions applicable to what is now termed “restorative housing.” In 2020, these efforts culminated with a systemwide policy of allowing inmates in restorative housing to leave their cells for at least four hours a day and engage in congregative activity, including recreation and participation in programs. For a brief history, from DOC’s perspective, of this evolution, see this report.
Current legislation
Last fall, Davis, who is also on the House Public Safety Committee, began thinking about how to deal with this issue and decided to give Scott a call. Scott jumped at the chance and suggested they visit a prison firsthand to learn about the issue. A trip to Sussex I, a high-security facility in Sussex County not too far from them, was arranged. They spent time in the facility meeting with prison officials, corrections officers, and inmates. “Their input was invaluable,” Davis said, referring to the inmates and prison officials. “I would never have been able to help draft this legislation or speak to it if I hadn’t seen, if I hadn’t had a chance to visit the jail with Delegate Scott.”
The bill (HB 2487), in its final form, would require that all inmates assigned to “restorative housing” be allowed a minimum of four hours out of their cells per day to participate in congregate activities, including recreation. There is a waiver from this requirement for “exceptional circumstances [that] mean that doing so would create significant and unreasonable risk to the safety and security of other incarcerated persons, the staff, or the faculty.”
Because the bill’s provisions largely reflect DOC’s current policy, it would not result in any change in the agency’s operations. However, setting out those requirements in statute would prevent any future DOC or administration from tightening up restricted housing (or whatever term is used).
The bill passed the House unanimously. Scott wryly commented that he let Davis do all the talking on the bill. “I know if I go and speak,” Scott said, “some [Republicans] will vote against it.”
A Senate bill (SB 887), introduced by Morrissey, would a take a somewhat different approach. It defines “isolated confinement” as confinement to a cell for 17 hours or more per day. Rather than requiring a minimum amount of out-of-cell time for inmates in isolated confinement, it would prohibit anyone being placed in isolated confinement for longer than 15 consecutive days in any one 60-day period.
The House bill has no limit on how long an inmate can be kept in isolation or restorative housing. Inmate advocates have pushed for the Senate approach of limiting the number of days in which an inmate can be held out of the general population without his consent.
Morrissey’s bill passed the Senate on a vote of 24-16, with all the opposition being Republican. Both chambers are in the process of substituting their bill for the other chamber’s bill. The issue will end up in conference.
Regardless of how the legislation turns out, the process has had a broader side effect. Scott and Davis, who could hardly be more different, have developed a friendship. They happen to be staying in the same hotel during the current session and usually have coffee in the morning before heading for Capitol Hill and sometimes a “beverage” at night. They have found out that, “We may disagree on a lot, but we also agree on a lot. And the great thing is we’re also kind of, you know, detail nerds. So we know that this is the art of the possible,” Davis said. Scott agreed, saying, “We definitely have a much stronger and more direct relationship where we can have tough conversations.” That is the ideal for a legislative body—an environment in which members are comfortable having “tough conversations” without vilifying the other side. During those tough conservations, they are likely to discover that they agree on more than they had thought.
Appendix
The issue of eliminating or limiting solitary confinement is not new on this blog. Four years ago, our esteemed founder, Jim Bacon, took issue with legislation that would require DOC to “report data on the age, sex, race, ethnicity, mental health status, and security level of each inmate held in solitary confinement, along with the number of days spent there, and their disciplinary offense history.” Jim made his concern clear: “Call me a cynic, but here’s how I see this issue playing out: The study will show that certain groups (African-Americans and prisoners with mental health issues, most likely) are locked up in solitary confinement in numbers disproportionate to their prison population. Ergo, discrimination will be assumed, and curtailment of solitary confinement will become the latest rallying cry of the Social Justice movement.”
I am happy to report that Jim’s dire prediction did not come about. The DOC reports consist mostly of a rendition by DOC of how it has decreased the usage of restrictive housing in recent years, while also making it less harsh. Following the narrative are various charts laying out the raw data required by the statute, without any commentary. As far as I know, a prediction that I made in a rejoinder to Jim’s article, i.e. that the report would suffer the fate of most agency reports required by the General Assembly and be ignored, did come true. For a more detailed description of DOC’s practice of solitary confinement or use of restrictive housing, see my rejoinder to Jim here. For a response to my article by an inmate in solitary confinement in Red Onion Correctional Center, see here.
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