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Court considers challenge to solitary for Va. death-row inmates

RICHMOND, Va. — The fundamental nature of Virginia’s death row will be altered if a judge’s decision striking down automatic solitary confinement of condemned inmates is allowed to stand, an attorney for the state told a federal appeals court Tuesday.

State Solicitor General Stuart A. Raphael told a three-judge panel of the 4th U.S. Circuit Court of Appeals that it should defer to the expertise of prison officials who consider death row inmates so dangerous and such an escape risk that they should be all be isolated. He said the Department of Corrections adopted that policy after a 1984 escape by six death row inmates, who were quickly recaptured and have since been executed.

Michael Bern, an attorney for death row inmate Alfredo Prieto, argued that solitary confinement is a hardship that should be imposed only if proven necessary after an individual assessment akin to the one prison officials use to determine the security classification of inmates in the general population. U.S. District Judge Leonie Brinkema in Alexandria agreed with Prieto, ruling in January that automatic solitary confinement violates death row inmates’ due process rights. The state appealed.

Judge Dennis Shedd questioned whether Prieto really wants an individual assessment or expanded privileges. Death row inmates are housed alone at least 23 hours a day in a 71-square-foot cell, leaving only for brief showers and solitary exercise in a slightly larger cell that prisoners call the “dog cage.” They have limited visitation privileges and eat all meals alone.

Bern said an individual assessment based on the same criteria used for general population inmates would result in a lower security classification for Prieto, and that’s the procedure he wants for Virginia’s eight death row inmates.

Shedd suggested Virginia could expand the assessment protocol to include death row inmates but assign such a high value for a capital murder conviction that solitary confinement would always be the result. Bern said an assessment that can only produce one outcome would not be valid.

The appeals court typically rules a few weeks after hearing arguments.