by Daniel A. Rosen

Virginia recently settled two outstanding lawsuits alleging the abuse of solitary confinement.

Taken together, the payouts cost the state’s taxpayers over $250,000. At a time when Virginia’s General Assembly made progress on other justice issues — abolishing the death penalty, legalizing marijuana and restoring felon voting rights — the continuing misuse of solitary stands out as a black mark on the state’s incrementally improving justice system.

On January 15, 2021, Virginia agreed to pay Nicolas Reyes $115,000 for the 12 years he spent in solitary confinement. He was stuck in what Virginia officials call “restrictive housing” as a result of being unable to speak or write in English and complete program requirements that would have let him transfer to a lower security level.

Reyes is serving a 47-year prison sentence for killing his pregnant girlfriend in 1991. The 55-year-old grew up in El Salvador and can’t understand English or read in any language. The settlement requires Virginia to set up a system that ensures non-English-speakers aren’t isolated because of language limitations, providing interpreters and translation services.

Vishal Agraharkar, an ACLU attorney who worked on the case, says that “this policy can really transform how people with limited English proficiency are treated in Virginia prisons.”

Reyes was placed into solitary confinement at Virginia’s notorious Red Onion State Prison after a fight with a prisoner at a different facility.

In time, he was placed in a step-down program that required keeping a journal in English — which was virtually impossible for him. No interpretation service was provided to Reyes to participate in the step-down program. The lawsuit, filed by the ACLU and the MacArthur Justice Center, alleged that Reyes was effectively unable to work his way down to less restrictive housing, as was available to other inmates, without interpretation services.

Over the years, he also missed out on phone calls to family, outdoor recreation time, meals, showers, and other activities due to his inability to communicate with guards or understand their instructions. He was only moved to less restrictive housing after the ACLU’s suit was filed.

In the 12 years spent in solitary, Reyes began having psychological problems like depression and delusions. When he was diagnosed by a mental health professional as having serious mental illness, prison officials blamed his difficulties on the language barrier.

Reyes’ attorney Agraharkar said: “Mr. Reyes was in solitary for more than a decade for no legitimate reason — even after [the department] determined he posed no significant threat to security — and his mental illness was evident.”

Virginia’s Department of Corrections argues that prisoners at Red Onion aren’t held in “solitary” because they have access to staff and reading material. VADOC spokesman Greg Carter also noted that “Many VADOC policies are already printed and made available in Spanish.” Virginia also admitted no liability or breaking state or federal laws in its treatment of Reyes.

Agraharkar says the case demonstrates that Virginia needs to eliminate solitary confinement altogether. In fact, state Senator Joe Morrissey proposed a bill to do just that during Virginia’s 2021 General Assembly session, but the bill never made it out of committee. Solitary “has an extreme mental and physical debilitating effect on individuals and mental health that carries over once they get out,” Senator Morrissey said. (See Reyes v. Clarke, Civil Action No. 3:18-CV-611, U.S.D.C. (E.D. Va.).

In the second solitary confinement case, settled on November 12, 2020, Virginia paid $150,000 to a mentally ill prisoner held for 600 days in restrictive housing. The settlement also includes the transfer of Tyquine Rahmer Lee, 28, to New Jersey, to be closer to his mother.

Maggie Filler, of the MacArthur Justice Center, which represented Lee, said that “as a result of this settlement, Tyquine should never again be subjected to the damaging solitary confinement conditions he endured” at Virginia’s Red Onion State Prison. The law firm of Williams & Connolly in Washington, D.C., also represented Lee.

Lee’s federal lawsuit, filed in 2019, says his 600 days in solitary led to a “complete mental and physical collapse.” He’d lost the capacity for language and “when he spoke at all, he used an unintelligible string of numbers and nonsense words,” according to the suit.

The lawsuit was filed by his mother, Takesha Brown, after she was unable to make sense of his disordered speaking on the phone. Brown asked DOC officials to remove her son from solitary but was told he’d have to comply with step-down program requirements — which he was no longer capable of performing due to the damage caused by his confinement.

The lawsuit alleges that over those 600 days Lee “lost the ability to handle the most basic self-care. His teeth were badly decayed, he was filthy and had terrible body odor, and he had lost nearly 30 pounds.” He also failed to recognize his own mother during a visit around that time.

Lee was convicted in 2012 in several Virginia jurisdictions on charges including burglary, armed robbery, conspiracy, use of a firearm, malicious wounding, assault and battery, and credit card larceny. He’d been held at several other Virginia facilities prior to his stay in solitary at Red Onion, according to the state’s corrections agency.

The Virginia DOC declined to comment on the Lee settlement to the Richmond Times-Dispatch. In settling this case, the department again admitted no liability or that it broke federal or state law, according to the agreement. (See Lee v. Va. Dep’t of Corr., Case No. 2:20-cv-00006, U.S.D.C. (W.D. Va.). 

Additional sources: washingtonpost.com, Richmond Times-Dispatch

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