Federal judge rules ACLU of Virginia class action lawsuit against VDOC’s use of solitary confinement can go to trial

RICHMOND, Va. – This week a federal judge in the Western District of Virginia ruled that Thorpe et al. v. VDOC et al., the class action lawsuit filed by the ACLU of Virginia on behalf of hundreds of people held in long-term solitary confinement at Red Onion State Prison, has merit and can proceed to trial.

At trial, a judge will hear evidence showing that Virginia Department of Correction (VDOC)’s “Step-Down Program” violates the Eighth and Fourteenth Amendments of the U.S. Constitution. People held in Virginia’s Step-Down Program spend the vast majority of every day in isolation locked in a cell roughly half the size of a parking space. The little time they get out of their cells is also mostly spent alone in small, empty outdoor cages caked in feces and is conditional on submitting to dehumanizing cavity searches.

“VDOC has held hundreds of people in agonizing solitary confinement conditions indefinitely – despite the fact that officials knew they were inflicting suffering and despite the fact that these conditions are unconstitutional,” said ACLU-VA Senior Supervising Attorney Vishal Agraharkar. “It will be an enormous victory for our clients to finally get their day in court when we go to trial.”

Plaintiffs describe retaliatory discipline that has included being physically beaten, verbally degraded with racist epithets, and routinely being denied food, showers, and exercise.

The court’s ruling this week recognizes that plaintiffs have presented evidence that the Step-Down Program’s indefinite nature and lack of meaningful or transparent reviews violate Fourteenth Amendment due process protections. Because the committee of prison staff that reviews their conduct meets in secret and does not document the rationale for its decisions, people in the program are not given the opportunity to know why they are kept in the Step-Down Program, much less respond or adjust their behavior.

“People in the Step-Down Program at Red Onion State Prison don’t have a viable way to challenge whether their solitary confinement is necessary – so they end up trapped in isolation for months or even years," said Covington & Burling’s Jared Frisch. “We believe our class action lawsuit will prove VDOC has acted unconstitutionally and in violation of federal law by holding people for so long in such inhumane conditions.”

International standards known as the Mandela Rules designate solitary confinement longer than 15 days as torture. When it was filed in 2019, the lawsuit’s original plaintiffs had spent between two and 24 years in solitary confinement each.

The court’s ruling this week recognizes that plaintiffs have presented evidence that Step-Down's harsh conditions exacerbate mental illness; result in trouble sleeping, significant weight loss, heart palpitations, disorientation, depression, anxiety, hallucinations, psychotic episodes, self-harm, and suicidal ideation; and violate Eighth Amendment protections against cruel and unusual punishment.

Approximately a third of the people in VDOC custody have been diagnosed with a mental illness, but an incredible 70 percent of the people in the Step-Down Program have been diagnosed with mental illnesses according to VDOC’s own reporting. Nonetheless, people in the Step-Down Program report being denied access to mental health care for years at a time, including being kept in the Step-Down program even against a mental health professional’s explicit recommendation that they be removed from it.

“We're not only seeking damages for the people who have suffered in the Step-Down Program; we’re also seeking an immediate end to the program as we know it,” said Ali & Lockwood’s Katie Ali. “Far from helping people work their way out of solitary, as VDOC has claimed, this program has kept many people there longer in violation of their rights under the U.S. Constitution. That has to stop.”

Despite the fact that this lawsuit has been pending for nearly seven years, VDOC has not made any meaningful changes to the program addressing any of its numerous violations of the law.

At trial, plaintiffs will seek monetary damages and an injunction permanently ending the Step-Down program in Virginia. ACLU of Virginia filed this case in May of 2019 and was appointed as class counsel in 2023 along with the law firms Covington & Burling LLP and Ali & Lockwood LLP. Attorney Max Kalmann is also counsel for the plaintiffs.