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Criminal Practice — Solitary Confinement on Death Row Upheld

Prieto v. Clarke, Director (Lawyers Weekly No. 15-01-0227, 35 pp.) (Motz, J.) No. 13-8021, March 10, 2015; USDC at Alexandria, Va. (Brinkema, J.) 4th Cir.

Holding: The 4th Circuit reverses a district court decision and says that Virginia’s policy of holding death-row prisoners in a single cell with minimal visitation and recreation prior to execution does not violate the prisoner’s procedural due process rights.

The district court issued an injunction ordering Virginia prison officials either to improve the prisoner’s conditions of confinement or provide him with an individualized classification determination for his prison housing, like the classification procedure afforded by state law to non-capital offenders. The court also awarded the prisoner all costs and attorney’s fees.

The record is clear that, under Virginia law, a capital offender has no expectation or interest in avoiding confinement on death row. State policy forecloses any due process expectation or right on the part of Virginia capital offenders to any other housing assignment. A court cannot conclude that death row inmates have a state-created interest in consideration for non-solitary confinement when the state’s established written policy expressly precludes such consideration.

Nor can plaintiff establish that the conditions of his confinement impose an atypical and significant hardship in relation to the ordinary incidents of prison life. We do not in any way minimize the harshness of Virginia’s regime. Plaintiff’s conditions of confinement are undeniably severe. The district court, perhaps correctly, described the isolation that characterizes Virginia’s death row as “dehumanizing.” But the Supreme Court has long held that state correctional officials have broad latitude to set prison conditions as they see fit, since prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the state’s interest. Unless and until the Supreme Court retreats from existing precedent, including Wilkinson v. Austin, 545 U.S. 209 (2005), a procedural due process claim like that offered by plaintiff fails.

Judgment reversed.


Wynn, J.: In my view, the majority opinion reads Wilkinson v. Austin, 545 U.S. 209 (2005), unnecessarily narrowly in signing off on plaintiff’s automatic, permanent and unreviewable placement in the highly restrictive conditions of Virginia’s death row. I respectfully dissent.

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