LARRY O’DELL
Associated Press

RICHMOND, Va. (AP) — Virginia’s practice of automatically holding death row inmates in solitary confinement will be reviewed by a federal appeals court in a case that experts say could have repercussions beyond the state’s borders.

U.S. District Judge Leonie Brinkema in Alexandria ruled last year that around-the-clock isolation of condemned inmates is so onerous that the Virginia Department of Corrections must assess its necessity on a case-by-case basis. Failure to do so, she said, violates the inmates’ due process rights.

The state appealed, arguing that the courts should defer to the judgment of prison officials on safety issues. A three-judge panel of the 4th U.S. Circuit Court of Appeals will hear arguments Tuesday.

The lawsuit was filed by Alfredo Prieto, who was on California’s death row for raping and murdering a 15-year-old girl when a DNA sample connected him to the 1988 slayings of George Washington University students Rachel Raver and Warren Fulton III in Reston. He also was sentenced to death in Virginia, where he has spent most of the last six years alone in a 71-square-foot cell at the Sussex I State Prison.

Some capital punishment experts say a victory by Prieto could prompt similar lawsuits by death row inmates elsewhere.

“It gives them a road map,” said northern Virginia defense attorney Jonathan Sheldon, who noted that the due process claim succeeded where allegations of cruel and unusual punishment have routinely failed. “It’s not that common to challenge conditions of confinement on due process grounds.”

Even the state says in court papers that Brinkema’s ruling “would do away with death row as it is currently operated in Virginia and numerous other states.”

Andrea Lyon, a death penalty lawyer and dean of the Valparaiso University Law School in Indiana, agreed that the case could have a ripple effect nationally but said prisons would not become more dangerous as a result.

“This is not stepping on the right of prisons to make their own determination of whether or not someone needs this level of confinement,” she said. “Just don’t do it if there’s no reason.”

Lyon, who has represented 138 murder defendants, co-authored a 2005 report on Missouri’s policy of “mainstreaming” death row inmates into the general prison population. She said a study of 11 years of data from that state’s prison system disproves the “mythology” that death row inmates are more dangerous than other prisoners.

But where Lyon sees mythology, Virginia prison officials see sound judgment rooted in common sense and years of experience dealing with death row inmates.

“They’re segregated because we see those individuals as potentially the most desperate of all offenders,” state prisons chief Harold C. Clarke said in a deposition in the Prieto lawsuit. “Again, they have been sentenced to die. They have nothing to lose.”

He pointed to the 1984 escape by six death row inmates who had been allowed to congregate at the since-closed maximum security prison in Mecklenburg, saying the jailbreak “could have been catastrophic” had the convicted killers not been quickly apprehended. Virginia was not automatically isolating death row inmates at the time.

Prieto is not arguing that solitary confinement should be abolished — just that the decision should be based on the same risk factors that are used to determine the security classification for the approximately 39,000 prisoners who are not facing execution. His lawyers say Prieto “likely would be assigned to less harsh conditions” if death row inmates were assessed in the same manner as other prisoners.

Under the current policy, death row inmates are allowed to leave their tiny cell only three times a week for 10-minute showers and five times a week for an hour of solitary exercise in a separate and slightly larger cell, devoid of workout equipment, that prisoners call “the dog cage.” They eat every meal alone, are not eligible for work or education programs or congregational religious services, and are allowed strictly limited visitation. The inmates are allowed to purchase a small television and CD player for their cell.

Sheldon, who represents three of Prieto’s fellow death row inmates, said prison officials have made some modest adjustments to Prieto’s visitation and exercise privileges in response to Brinkema’s ruling.

Department of Corrections spokeswoman Lisa Kinney said prison officials have “taken steps in cooperation with the plaintiff’s counsel to address the judge’s order, pending appeal,” but she declined to provide specifics. Prieto’s lawyers declined to comment.

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