ACLU of Virginia Sends Notice of Noncompliance in COVID-19 Lawsuit Against VDOC for Failure to Follow Court-Approved Settlement

The ACLU of Virginia sent a notice of noncompliance yesterday to the Office of the Attorney General alleging the state’s failure to follow the settlement agreement in Whorley v. Northam, a lawsuit brought against the Virginia Department of Corrections (VDOC), the governor and members of the governor’s administration on behalf of 27 people who are incarcerated in Virginia prisons. The notice outlines four areas of noncompliance:

• Failure to provide documents to assess compliance with the settlement. The settlement entitled the ACLU of Virginia to internal documents regarding policies, procedures and other issues regarding the handling of COVID-19 in VDOC facilities.
• Failure to review candidates for early release. VDOC agreed to make all reasonable efforts to review candidates eligible for early release and stated a capacity to review 20-30 cases each day. Its latest data report showed fewer than 30 candidates reviewed in a full week.
• Failure to accurately inform people of their eligibility for early release. The ACLU of Virginia has received multiple reports that officials are telling people who are incarcerated that they are no longer processing early release applications.
• Failure to provide any documents or information on conditional pardons. The settlement required the governor to expedite consideration of conditional pardons due to the COVID-19 pandemic. The administration has claimed executive privilege and refuses to produce any documents to show compliance with the agreement.

“Week after week, VDOC has slow-walked or refused to show evidence that they’re keeping people safe during this pandemic, and the evidence they do produce is alarming,” said Eden Heilman, legal director for the ACLU of Virginia. “They’ve released only a fraction of people who are eligible for early release. Meanwhile, people keep getting sick, and we aren’t getting the answers we need to make sure they’re taken care of.”

The attorney general’s office, which represents the defendants, has five calendar days to respond to the notice, and then an additional five calendar days to meet and confer to resolve these issues with the ACLU of Virginia and co-counsel Elliott Harding, the Charlottesville attorney who originally filed the lawsuit on April 8. If VDOC and opposing counsel continue to violate the agreement, the ACLU of Virginia will seek mediation as outlined in the settlement agreement for further enforcement. The agreement was approved by the court on May 12.

“Since we initially filed suit, nine more people have died in Virginia’s prisons from coronavirus. We had an understanding that the Northam administration and VDOC were acting in good faith when they claimed to care about release people who are incarcerated to stop needless deaths. We have yet to see them show it,” said Harding. “Our attempts to get confirmation that they’re living up to our agreement have been met with no sense of urgency. People who could have been released weeks ago are still sitting in their cell waiting for help as COVID-19 continues to spread.”

The ACLU of Virginia launched a web page to release the data from VDOC on its early release program and COVID-19 testing. Weekly data reports and other documents from VDOC are available here.