Restricting solitary confinement not a done deal, despite bipartisan support

RICHMOND, Va. (WRIC)–Legislation to restrict solitary confinement in state prisons is winning bipartisan support after years of failed efforts. 

Different versions of the bill have passed in the Republican-led House of Delegates and the Democrat-controlled state Senate, a rare exception to often conflicting criminal justice reform agendas. 

Now, lawmakers need to cut a deal during closed door negotiations, but one major sticking point may be their downfall. 

For returning citizen Willie Brown, the push to ban solitary confinement is personal. He said he was isolated in a small cell for two years after a disciplinary infraction. 

“You can feel helpless. You can feel a sense of depression and anxiety. You go through all of those emotions,” Brown said. “If I’m having a meeting with someone and the space is kind of closed in, those memories come back and so I still deal with that. Many of us are home and we’re still dealing with the psychological trauma.” 

The United Nations considers prolonged solitary confinement torture and contrary to the goal of rehabilitation. 

A bill from Senator Joe Morrissey (D-Richmond), which passed in the Senate on a bipartisan 24-16 vote, would prohibit isolation for more than 15 days during a 60-day period. The bill carves out some exceptions, like when an incarcerated person is considered a danger to themselves or others, or involvement in illegal activity like drug distribution behind bars, according to Morrissey.

In an interview on Tuesday, Morrissey said he is unwilling to compromise on the cap. 

“Part of this process is you have to compromise but here is what I’m not willing to compromise on, allowing someone to remain in solitary confinement for more than 15 consecutive days. That is written in stone. I will not agree to that because it is archaic, antiquated, barbaric and inhumane,” Morrissey said. 

Del. Glenn Davis (R-Virginia Beach) said his version, which passed in the House of Delegates with unanimous support, removed that limit after concerns were raised about possible lawsuits stemming from exceptions.

“The Attorney General’s office came in and said, unless you can list every potential scenario, it opens up to potential litigation,” Davis said. “If Senator Morrissey wants the cap, we won’t have a bill.” 

Both approaches would solidify other guardrails into state law, such as generally requiring a minimum of four hours of out-of-cell time.

“It’s huge strides for Virginia. Actually, Virginia leads the way in prison reform with this bill,” Davis said.

The Virginia Department of Corrections has said state prisons ended the use of solitary confinement in 2021.

“We began the practice of restorative housing in 2021. We offer four hours of out of cell time daily to those inmates in that status. The bill is still active and we have no further comment,” said VADOC spokesperson Carla Lemons in an email on Tuesday. 

But Brown said those steps don’t go far enough.

“I get calls from the brothers and sisters that are incarcerated and they let me know things have gotten worse since I’ve gotten out in 2018, so it hasn’t gotten better,” Brown said. 

The ACLU of Virginia contests that state prisons are no longer using solitary confinement. Advocates there say they continue to receive reports to the contrary from both incarcerated people and staff. They say there is no way to verify that information without independent oversight of VADOC–a proposal that was rejected this week despite getting unanimous support in the Senate earlier this session. 

In a joint statement on Tuesday, the Coalition on Solitary Confinement condemned the House version of the bill. 

“Any bill that purports to strengthen protections for people held in solitary confinement – much less end solitary in Virginia – must include provisions limiting the amount of time and on what grounds someone can be held there,” said ACLU of Virginia Policy Director Ashna Khanna. “No bill is better than a bad bill, especially a compromise that threatens to exacerbate the very conditions it purports to solve. We urge lawmakers not to pass legislation that fails to meaningfully reform solitary in the Commonwealth.”