Cops, Courts & Prisons

WHAT’S REALLY GOING ON INSIDE VIRGINIA’S PRISONS?

Originally published in the Autumn 2022 edition of the Virginia Defender, issue 70, printed December 14. Reproduced here for accessibility and archival purposes. To find other stories in the Autumn 2022 issue or to download the full PDF, see this post. For other issues dating back to 2012, see the Full Issues page.

Photo of Augusta Correctional Center.
The Augusta Correctional Center near Craigsville in Augusta County is one of 40 prisons administered by the Virginia Department of Corrections. The system confines some 24,000 women and men. Photo by Phil Wilayto.

On Saturday, Jan. 14, the Virginia Prison Justice Network will hold its 6th Annual Virginia Prison Justice Rally, when prisoners, their families and supporters will raise issues that need to be addressed by the 2023 Virginia General Assembly. This edition of The Virginia Defender is dedicated to educating the public about those issues. And plan to join us at the rally!

Virginia Defenders Charles Brown and Kat McNeal hold the VAPJN banner at the 2020 Virginia Prison Justice Rally, held outside the Virginia Capitol in Richmond. Photo by Phil Wilayto.

Join us at the

6th Annual

Virginia Prison Justice Rally

1 pm – Sat., Jan. 14 – Richmond’s Monroe Park

You can see additional details, and RSVP, via the Facebook event page here.

These are the 4 main demands:

BRING BACK PAROLE!

“Parole” refers to the release of a prisoner before the completion of their sentence. There are two types: “mandatory,” when a person is released after they have served a set amount of their sentence, and “discretionary,” when a person is granted release by a panel known as a Parole Board. Discretionary is what most people mean when they use the word parole.

Virginia created parole in 1942. The thinking, supposedly, was that the possibility of an early release would be an incentive for good behavior and self-rehabilitation in prison. That assumed that people were capable of improving themselves. And this was during World War II, when men were needed to be drafted into the military, so that also may have been a factor. (Puerto Ricans were “granted” U.S. citizenship in 1917, just in time to be drafted for World War I.)

But Virginia abolished parole in 1995, instituting “Truth in Sentencing” as part of a wave of tough-on-crime measures that rightwing politicians were promoting as a way to get votes. This time, the thinking was that the only effective incentive for good behavior, in or out of prison, was the possibility of harsh punishments. The hope of early release was replaced by the fear of longer sentences.

The system got even crueler after 1995, when judges were not telling juries that parole had been abolished. As a result, juries continued to recommend long sentences, thinking that prisoners wouldn’t be serving the entire sentence. Over the next five years, 549 people, around 2 percent of the state’s prison population, were given these longer sentences.

Then, in 2000, in a case brought by a prisoner named Richard David Fishback, the Virginia Supreme Court ruled that juries must be told that parole had been abolished. That was an important improvement, but it didn’t affect the hundreds who had been sentenced in the previous five years.

Then, in 2015, the Governor’s Commission on Parole Review recommended that the so-called “Fishback” prisoners get an opportunity for discretionary parole.

But it took another five years, until April 2020, for a bill to be passed providing for the possibility of parole for the Fishback prisoners. That session of the General Assembly also expanded parole eligibility to people who had been convicted of crimes committed as juveniles and who had served more than 20 years of their sentences

So today, only the following prisoners are eligible for parole:

  • those sentenced before 1995;
  • those sentenced between 1995 and 2000 – the “Fishback” prisoners;
  • those who were sentenced for crimes committed as juveniles and who have served more than 20 years of their sentence;
  • those who qualify for geriatric (old age) parole.

In practice, very few people up for parole actually get it. Of the more than 17,000 Virginia cases considered from 2013 to 2019, only about 6 percent received parole.

Why bring back parole?

First of all, it would be a recognition that all prisoners are human beings and, as such, deserve the right to second chances.

And if that simple humanitarian concern is too much for the politicians to wrap their heads around, try this:

The projected VADOC budget for 2023 is $1,500,668,914.00. That’s $1.5 billion, plus.

As of March 2022, the average number of people incarcerated by the VADOC was 23,730, including 46 prisoners from other states. (VADOC figures.)

Divide the VADOC budget by the number of prisoners and you get $63,362.14 per prisoner.

Bringing back parole would allow for more prisoners being released, thus saving Virginia taxpayers a lot of money. It would provide some hope for those who have had many years and even decades to turn their lives around. It would help reconnect families, return mothers and fathers to their children, women and men to their elderly parents and (the money, again) turn dependent wards of the state into productive, tax-paying Virginians.

But for whatever reason moves you, it’s way past time for Virginia to do the right thing, and bring back parole.

REINSTATE THE EXPANDED EARNED SENTENCE CREDIT!

Earned Sentence Credit is “enhanced good time” that a prisoner can earn by showing “good behavior” and participating in rehabilitation programs. The credit can then be applied to the person’s sentence, thus reducing their time. In the past, prisoners could earn up to 4.5 days per month.

In 2020, the Virginia General Assembly passed a law that expanded this provision, allowing prisoners to earn credits for up to 15 days per month. The good time would only apply to sentences for nonviolent crimes, but those convicted of both violent and nonviolent crimes could still earn credit to reduce their sentences for the nonviolent offenses. The law was important, because in Virginia very few prisoners are eligible for parole.

The new law took effect on July 1 of this year, and about 560 prisoners were told they were going to be released in the first 60 days of the program. Thousands more would eventually benefit.

But then the good Gov. Glenn Youngkin proposed an amendment to the state budget that would eliminate any prisoners from the program who had both violent and nonviolent offenses. The amendment was adopted by the General Assembly, mostly by Republicans, but with some Democrats supporting it.

According to The Virginian-Pilot, “A spokesman for the Department of Corrections confirmed that about 8,000 inmates will now be ineligible for the expanded credits.”

The effect of the amendment was devastating, especially for the prisoners who were told they were going to be released. Many reported suffering severe depression. Families were traumatized.

The United States is notorious for imposing longer prison sentences than most other countries in the world. That’s a major reason why, with less than 5 percent of the global population, the U.S. holds more than 20 percent of the world’s prisoners, according to the ACLU.

Simple common sense would dictate that providing a means for prisoners to reduce their sentences through “good behavior” and rehabilitative programs would make for both more effective rehabilitation and less violent prisons. And that applies to ALL prisoners.

The General Assembly needs to reinstate the enhanced earned sentence credit, now, for everyone.

END SOLITARY CONFINEMENT!

Here’s how the Code of Virginia defines solitary confinement: “… isolation of a prisoner from the general population through confinement to a cell or other place for 22 or more hours within a 24-hour period.”

VADOC claims it no longer uses solitary confinement, but that’s because it now calls it by another name: “Restorative Housing.” But whatever you call it, it still means keeping someone in a cell for 22 or more hours a day.

VADOC calls its solitary “restorative” because it has what it calls a “Step-Down” program, in which participants “… have the opportunity to progress to a general population setting with the use of interactive journaling, therapeutic modules, and programming that is done individually and in group settings.” (Adoption of Restorative Housing in the Virginia Department of Corrections, FY2022 Report, by Harold W. Clarke, VADOC Director.)

Sounds promising, right? So here’s how it worked out for a prisoner named Nicolas Reyes.

Reyes, from El Salvador, was held in solitary confinement at Virginia’s Red Onion supermax prison. The Step-Down program was available to him, but it required him to be able to read and write in English. Reyes wasn’t even able to read and write in his native Spanish. He also suffered from mental illness, which got worse the longer he was held in solitary.

He was held in solitary confinement for 12 years.

Twelve years.

According to a lawsuit filed in 2018 by the MacArthur Justice Center, Reyes deteriorated to the point where he would suffer hallucinations and often couldn’t even identify the prison he was in.

Twelve years.

In January 2021, “Virginia agreed to pay Reyes $115,000 and set up a system for ensuring that non-English-speakers in the prison system are not isolated for lack of ability to communicate,” according to the Washington Post.

Another lawsuit settled in 2021 involved Tyquine Lee, a Black prisoner from Portsmouth, also with a history of mental illness, who was placed in solitary at Red Onion on May 26, 2016.

He was released 600 days later.

By that time, according to the lawsuit, he had lost more than 30 pounds, the ability to speak, recognize his mother or even remember his own name.

He had been spending more than 22 hours a day in an 80-square-foot concrete cell behind a steel door. “His only regular time outside of the cell was for showers three times a week and an hour of recreation each day alone in a cage the size of a parking space,” according to the lawsuit.

That case was settled with a $150,000 settlement and a transfer to a New Jersey prison so he could be closer to his mother.

By way of context, the United Nations and various human rights organizations consider the use of solitary confinement for any period longer than 15 consecutive days to be torture.

And remember, the same people in charge of VADOC during these cases are still in charge of it now.

End this inhuman practice, NOW!

INDEPENDENT OUTSIDE OVERSIGHT OF THE DOC!

When an entity doesn’t follow its own rules and regulations, it becomes a law unto itself, without any checks or balances.

The Virginia Department of Corrections, VADOC, is in need of an Independent Oversight Committee that is separate from the Virginia Ombudsman Department or the Special Investigations Unit (S.I.U.) and has its own autonomy; its own research and investigative powers and capabilities; its own access to the VADOC’s internal policies and operating procedures; and security clearance that allows it to do “on-site” inspections when receiving complaints of abuses or complaints about conditions of confinement or non-compliance with the Virginia Code, statutes of the Commonwealth and policies or Operating Procedures of the VADOC.

This security clearance should clear the path for any committee members to have unfettered access to be able to interview any inmate confined within the VADOC as it pertains to any complaint filed or investigative matter that is being pursued within the context and boundaries of the Oversight Committee.

An Oversight Committee provides an extra layer of protection to safeguarding the human and constitutional rights of prisoners, while also cutting costs and providing an actual layer of protection for VADOC personnel and staff against false or frivolous complaints and lawsuits that take up valuable or limited resources to investigate or litigate.

Currently, we believe that the mechanisms that have been put in place by the VADOC, such as the Ombudsman Bureau, the S.I.U., etc,. are inadequate for enforcing certain rules, regulations and policies and have in fact acted as buffers in preventing more thorough and serious independent investigations into serious abuses, such as: allegations of use of excessive force; outright beatings of inmates or targeted/orchestrated assaults; improper use of K-9 attack dogs where they have been allowed to bite and maim inmates in non-life-threatening situations; racially motivated attacks; bribing or manipulating prisoner-on-prisoner assaults against jailhouse lawyers, alleged sex offenders or so-called informants who expose or file complaints about conditions or unconstitutional treatment of the inmate population.

While this committee may have no outright enforcement powers, it should be allowed to give testimony and make recommendations to various legislative committees responsible for providing funding to the VADOC that are responsible for regulating the policies and operating procedures of the VADOC. This committee should be able to annually submit a fact-finding investigative report that existing bodies within the department should be required to respond to in front of a legislative fact-finding body/committee, with suggested changes, corrections and resolutions submitted before this same body.

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