Backgrounders

Human Rights Watch Statement To The Virginia Crime Commission: Super-Maximum Security

Confinement In Virginia

Two months ago Human Rights Watch published a report, "Red Onion State Prison Super-Maximum Security Confinement in Virginia" that sets out human rights-based concerns about who is being confined in Red Onion State Prison, Virginia's first super-maximum security prison, and how they are being treated. That report drew on Human Rights Watch's long experience assessing prison conditions in the U.S. as well as overseas. We concluded that the Virginia Department of Corrections was sending to Red Onion men who could safely and securely be confined in less restrictive facilities, that it was wrongfully denying them productive activities, programs and opportunities and that it was permitting the unnecessary and excessive use of force, including the use of shotguns and electronic stun devices, against inmates who posed scant threat of serious injury or escape. These practices violate principles contained in international human rights treaties ratified by the United States and binding on state officials.

We would like to present the Crime Commission with a brief statement about developments since the report was published. While we are encouraged by the Department's recent willingness to share a certain amount of information and by certain changes it has made in policies at Red Onion, the assessment we made in April remains valid today.  
 
Public Debate about Red Onion  
 
We are gratified that the report has contributed to a public debate about conditions and policies at Red Onion and its twin, Wallens Ridge State Prison. Although notoriously reluctant to divulge information about the nature of and rationale for practices at Red Onion, the Department has recently taken limited but encouraging steps toward fulfilling its responsibility to report publicly on its work and to participate in constructive discussions about Red Onion. We strongly believe that an informed public, active oversight by the states' legislators, and openness to scrutiny and dialogue by Virginia's corrections authorities will help ensure sensible and humane confinement at Red Onion. This meeting of the Virginia Crime Commission and the appearance of the director of the Department of Corrections and members of the public represents an important moment in that dialogue.  
 
On June 10, members of the Public Safety Subcommittees of the Senate Finance Committee and House Appropriations Committees visited Red Onion. Unfortunately, they did not speak with inmates or view their housing accommodations, but they did discuss the facility's mission and operation with the director of the Department of Corrections and senior Department staff. The Department provided them with a document, "Review of Classification Procedures and Operations at Red Onion State Prison," that provides useful information about certain aspects of the facility. This review, however, fails to address forthrightly many of the questions that have been raised about Red Onion. We hope the Department will be willing to provide answers to those questions to the public, the legislature and the Crime Commission.  
 
Policies and Practices at Red Onion  
 
The Department has implemented changes in the operation of Red Onion that begin to ameliorate some of the problems we delineated in our report. Most important, inmates in general population are now out of their cells as much as eight hours per day, twice as much as when we conducted research early in 1999. Job opportunities for general population inmates have increased marginally and the Department has announced plans for increased educational and training activities. Inmates also cite reduced use of firearms as well as less frequent use of four and five point restraints and fewer cell extractions for minor offenses.  
 
Nevertheless, inmates continue to describe policies and practices that violate precepts of humane confinement and sound prison management. We have received over 275 letters from inmates at Red Onion and, more recently, several from Wallens Ridge. These letters document the assignment of infraction-free inmates to the state's most restrictive facilities and the Department's unjustified determination to place inmates in its harshest prisons simply because they have long sentences; the lack of vocational and educational programs; the absence of religious services; the unwarranted and unpredictable use of force by correctional officers; the tension, fear and humiliation generated by the routine deployment of shotguns and electronic stun devices inside the prison; strip searches and curtainless showers in front of female staff; racist and derogatory statements by staff; violence, including rapes, by inmates forced to share cells. Inmates also report long waits for poor medical care, an unresponsive grievance system, the difficulty of visiting with families who live far from the prison, undelivered mail or wrongfully opened legal mail, and excessively restricted and missing personal property among numerous other problems.  
 
Many of the individual letters are eloquent; all are cause for concern; cumulatively they depict a prison in which the basic humanity of inmates receives insufficient recognition.  
 
Who is Sent to Red Onion  
 
John Riley 1 is a thirty-four year old serving two life sentences. In prison since 1989, he has maintained a record free of violence or other dangerous behavior. He has never assaulted any inmate or staff member, tried to escape, or participated in disruptive activities. For the past eight years he held jobs in prison and he learned five trades. He had no disciplinary charges at all in the two years prior to being transferred to Red Onion. Despite this exemplary record he was sent to Red Onion because of his street convictions. Riley complains bitterly, understandably so, about the arbitrariness of his transfer to Red Onion, the isolation from his two young daughters who cannot continue their previous tradition of visits every other weekend because he is now eleven hours away, and the lack of work and program opportunities that he put to such good use previously. He writes, "If I had done something to have everything I've worked so hard for to be taken away from me to be moved here than I could see this but I've never assaulted anyone...I've showed for 10 years now that I could be housed in a less restrictive environment."  
 
The Department has acknowledged that it assigns inmates to its new super-maximum security facilities simply because they were convicted of violent offenses and/or have extremely lengthy sentences. Yet it has provided no information showing that prisoners with long sentences or who have been convicted of violent crimes are any more likely to engage in assaultive disruptive or escape-related behavior than prisoners with shorter sentences or nonviolent convictions. Indeed, it is widely recognized in the corrections community that men serving time for violent crimes frequently are model inmates. We have received many letters from inmates like Riley who have shown they can live without violence or trouble in less secure facilities yet they were shipped off to Red Onion when it opened simply because they had lengthy sentences. Others have been sent to Red Onion after entering prison. There is hardly any other state in the country which routinely sends men to super-maximum security prisons upon entering the prison system simply because they have been convicted of violent crimes and/or have extremely lengthy sentences.  
 
There appears little doubt that there are not enough predatory, assaultive, or escape prone inmates in Virginia to fill Red Onion, much less Wallens Ridge as well. Indeed, the Department's data on assaults shows that Virginia inmates have a remarkably low rate of institutional violence -- despite their long sentences. For example, in 1997, there were only 58 assaults on staff and 80 assaults on inmates in a prison population of 24,644.2 The rate in Virginia of inmate on staff assaults was thus 2.35 per 1,000; the rate of inmate on inmate assaults was 3.25 per 1,000. This is a low rate of violence, as evidenced by a comparison with the national averages in the same year: inmate on staff assault 12.60 per 1,000 and inmate on inmate assault 22.82 per 1,000. That extensive super-maximum security confinement is unnecessary in Virginia is also suggested by the fact that, according to the Department's figures, violence in the system declined markedly long before Red Onion and Wallens Ridge opened: there was a 20% decline in inmate on staff assaults and a 42% decline on inmate on inmate assaults between 1989 and 1998.  
 
From the dozens of letters and classification forms we have received from inmates, it would appear the Department is arbitrarily sending men to Red Onion regardless of their security level score. The Department has a sophisticated and careful classification system that incorporates various factors, such as length of sentence, seriousness of offense, institutional history and age, to determine the best level of custody and housing assignment for inmates. A score of 34 is required for assignment to a Level 6 facility. As reflected in the three attached classification score sheets and summary reports -- representative of the many we have received from inmates bewildered and angry about their assignment to Red Onion -- the Department is simply overriding the security score to make the Level 6 assignment.  
 
Discretionary overrides are, of course, a useful component of any sound classification system as it permits corrections officials the flexibility necessary to respond to key particularities of an individual case. For example, Virginia's security scoring system has no way of reflecting whether a person is responsible for dozens of murders or only one. But the Department is using discretionary overrides in a wholesale and wholly arbitrary manner to send to Red Onion and Wallens Ridge men who have not shown themselves to be the highly dangerous, assaultive, predatory, or escape prone inmates for whom super-maximum security confinement may be warranted. Moreover, it is using overrides to raise inmates security levels by two and even three levels; most of the cases we have seen involve raising a security level from Level 4 to 6. Even assuming security overrides were appropriate for some of the inmates, it is not clear why they were not sent to a Level 5 facility instead of Level 6.  
 
The Department rarely provides inmates with an explanation of the reasons for the override and assignment to a Level 6 facility. Failing to do so works against the goals of maintaining a safe and secure facility. The objectionable behavior that warrants Level 6 confinement should be clearly explained to inmates and documented. Only then will they be able to correct it.  
 
Restrictions on Non-violent, Non-disruptive Inmates  
 
The Department has acknowledged that a significant proportion of the population at Red Onion is comprised of inmates who do not engage in violent, disruptive behavior. Yet, each and every one of these prisoners is subjected to the same restrictions -- supposedly justified on security grounds -- as those who do. Although the Department asserts that prisoners with longer sentences in general population may have "unique programmatic needs," they do not specify what these needs are. They have provided no explanation, for example, for why such inmates should not be allowed to partake in activities together such as group religious services or group education classes. As an inmate stated in a grievance to the Department, "I along with several other prisoners were threatened with guns for assembling to pray ... if space and time is allocated for recreation, why are religious programs/services not provided for ... half of the prisoners here who want to participate in these services are not even classified as Level 6, so security for us should apply as our points do. If we were at our designated level institution we'd be allowed access to these religious services."  
 
Programming and Activities for Inmates  
 
The Department has apparently retreated from its earlier view that inmates at Red Onion do not need programs and productive activities because they have life sentences. It now acknowledges the importance of programming for Red Onion inmates and has stated that ten programs are currently operational at Red Onion (seven of which are comprised of library services, broadcast religious services, and five mental health services) and nine more are in various stages of planning. It has not, however, provided the specific data necessary to assess the extent to which general population and segregation inmates in fact are being offered adequate opportunity for productive activities.  
 
For example, the Department states that 40% of the general population have jobs, a figure that seems high in light of inmate comments about the paucity of work opportunities. The Department needs to indicate exactly how many inmates have jobs at any given moment and how many hours a day of work these jobs entail and the length of time an inmate can hold the job. Similar questions must be answered about the alleged educational and vocational opportunities for inmates. Inmate reports call into question the Department's commitment to ensuring that opportunities are available. For example, one inmate told Human Rights Watch that "out of 75+ inmates to a pod, there are only five or six inmates allowed to participate in the school program. The school program is only on the T.V.'s in the cell. Inmates who have T.V.'s in their cells, who want to participate, are not allowed to enroll. There are no teachers to assist the inmates (the teacher only enters the buildings' on Mondays to have the students sign their time cards)."  
 
Both current and planned educational and vocational programs at Red Onion appear to focus on individual activities rather than group classes. Indeed, as noted above, inmates are not even allowed group religious services. The opportunity to participate in group activities and interact with others is an important and productive dimension of prison and should not be denied inmates absent powerful security or safety reasons. Since general population inmates are allowed to engage in unstructured group recreation, it is difficult to understand why security concerns would preclude structured educational, religious or vocational activities, particularly for the many inmates at Red Onion have not engaged in any violence behind bars nor demonstrated a particular risk of doing so.  
 
Use of Force  
 
Critical questions remain about the Department's use of force policies and practices at Red Onion. The Department has stated that it does not condone the use of excessive force in controlling inmates, but available information, including the Department's own statements and descriptions of events, suggests otherwise. We remain convinced that an independent and impartial investigation must be undertaken of the Department's use of force policies and procedures.  
 
The Department defends the use of shotguns carrying rubber pellet "stinger rounds." The fact that shotguns with stinger rounds as ordinarily deployed are not lethal weapons does not relieve the Department of its responsibility to ensure that they are used carefully, only when reasonably necessary and only to the extent necessary. Stinger rounds can cause considerable pain and injury. Particularly when inmates are moving, e.g. during a fist fight, it is difficult to aim them in such a way as to avoid hitting faces or innocent bystanders. Inmates have reported multiple incidents of shots being fired to break up a fight and resulting in open wounds to the face and eyes.  
 
There may have been incidents in which the shotguns were fired justifiably, e.g. to prevent serious injury to someone. But, inmates have recounted instances in which shotguns were fired when there was no reasonable threat of imminent danger to anyone and verbal commands or the simple arrival of staff may well have sufficed. We recently received a report from an inmate that on May 2, 1999 two cellmates were fist fighting in their cell during in pod recreation time. As one inmate exited the cell, after the fight had ended, an officer fired three consecutive shots -- without first issuing a warning -- hitting the inmate in the face and causing him to bleed heavily. That same officer shot another inmate who was not even involved in the fight in the collar bone and arm. No nurse came to the pod to give either of the injured inmates medical attention.  
 
An inmate at Wallens Ridge described an incident he witnessed in May where another inmate was fired upon as the inmate was running up the steps to return to his cell from the shower. While he was lying on the steps, he was handcuffed. A lieutenant then "drove his knee into the back of the prisoner's neck several times" and "the prisoner was then lifted to his feet by his restraints," at which time he screamed, "'[p]lease give me a chance to stand up on my own.'" Another inmate at Red Onion reported being in the recreation yard where two other inmates began to fight. Shots were fired at and struck the bystander as well as the fighting inmates. The inmate noted that the first shot fired was live rounds instead of blanks. Another inmate recently summarized the reasons for which inmates are fired upon: "for a simple fist fight that two officers could easily breakup, for not walking fast enough, while sitting in their cells watching T.V., for stepping over a red line that leads to their cell, for not hanging up the inmate phone quick enough, for not coming out of the showers quick enough, for not eating our meals fast enough, for not seating with who the officer's instruct you to sit with in the dining hall, for refusing to roll your pants legs down when instructed, etc. The officers don't talk to the inmates, they just shoot the shotguns off, and sit there all day, with the shotguns pointed at us."  
 
An orientation packet given to inmates at Wallens Ridge has added to our concerns about unjustified use of force policies. It states that "anyone who attempts to run up on another inmate or staff in a threatening manner ... groups around another inmate or staff in a threatening manner ...[or] commits an aggressive act will be fired upon." Precise definitions of "threatening manners" and "aggressive acts" were not detailed for inmates. As one inmate commented, "the term 'aggressive behavior' ... is very vague and subject to be interpreted any way prison officials care to use it. I was told by staff here that aggressive behavior is considered to be anything at the discretion of the Gun Post officer to be threatening." We do not know whether correctional officers believe the policy requires them to fire in these situations even if they do not have a reasonable belief that use of shotguns is required to avoid injury or to secure compliance with a lawful order.  
 
Although the Department has attempted to justify its decision to use shotguns with stinger rounds, it has been silent about the use of electronic stun devices at Red Onion. These devices, which can inflict painful electric shocks, cause burns and leave scars, are routinely held against the body of inmates in segregation when they are escorted to and from their cells even though the inmates are also restrained with handcuffs and shackles. An inmate recently told Human Rights Watch that handcuffed and shackled inmates also have these devices held against their bodies during medical exams and that inmates are required to wear stun belts -- which inflict 50,000 volts -- when meeting with the institutional attorney.  
 
We have also received reports of incidents in which the devices were actually discharged against inmates in situations in which the inmates were controlled and not in a position to pose any danger or threat to staff or other inmates. Inmate descriptions of the incidents suggest electric shocks may be inflicted as a form of punishment -- a use of force which is strictly prohibited under constitutional as well as human rights standards. Our report includes several such incidents, e.g. in which an inmate in his cell was tasered because he made lewd comments to an officer and another in which an inmate who had been kicking his cell door was tasers after he had been secured and placed in handcuffs. In another case, an inmate was tasered by a captain in the presence of the warden, associate warden, a major and numerous correctional officers when he refused to spread his buttocks during a strip search upon his arrival at Red Onion. As noted in our report, in denying the inmate's grievance Department staff suggested the use of the taser was appropriate because the inmate had failed to obey instructions -- with no reference to whether he posed any possibility of imminent danger to anyone, or whether less violent efforts had been made to persuade the inmate to comply.  
 
We have continued to receive accounts of abusive use of stun guns. For example, we received a letter from an inmate who described the following incident of excessive use of force. After guards threatened to shoot into the recreation yard because inmates were not moving back into the building quickly enough, the inmate said to a guard, "you can't shoot a man for anything." He reported being taken to a cell, having his head slammed into the bars, then being secured in the shower and repeatedly beaten, kicked and shocked with a stun gun by a number of officers. Another inmate reported "being hit with the 'stun gun' 7 or 8 times for not talking" and being dragged by his restraints upon arrival at Red Onion. A third inmate reported that, also upon arrival at Red Onion, he was thrown to the ground and shocked repeatedly -- leaving burns and scars -- for "delaying and hindering" an officer in his duties. The inmate forwarded to us the Major Offense Report issued against him which stated that the inmate "attempt[ed] to pull away from my grip on his arm."  
 
The Department has a responsibility to disclose its use of force policy to the public and Virginia's legislatures. A complete use of force policy must clearly articulate what level of authorization is required for each type of force used, what procedures will be followed to attempt to defuse situations in which use of force may be necessary, how staff is to determine what level of force is required by the situation presented, and what protocols will be followed after the force has been used. A comprehensive use of force policy will also state how each incident is documented, reviewed, and followed up upon with staff involved, as well as how supervisors will ensure that officers are following procedures.  
 
RECOMMENDATIONS  
 
There is great potential for misuse of authority and abuse in super-maximum security facilities. Informed and principled leadership and oversight can mitigate these dangers. We call on Virginia to demonstrate its commitment to respect international human rights in the operation of Red Onion. Specifically, we recommend:  
 
1) Use of Force  
 
The governor should establish a committee of experts in the use of force in prisons who are independent of the DOC to review use of force at Red Onion and to make recommendations based on their findings. The review should include an assessment of existing use of force policies, including the advisability and need to have firearms within the prison perimeter; training received by staff in use of force policies; the existence of adequate guidance for staff in appropriate use of force; and the extent to which internal investigation and disciplinary procedures are effective in controlling improper use of force. The committee should also review each incident in which weapons were discharged at Red Onion to ascertain whether the use of force was justified. Results of the independent review should be provided to the DOC, the governor and the legislature and the public.  
 
2) Assignment to Red Onion  
 
The DOC should not subject inmates to more restrictive conditions than is reasonably necessary for their safe, secure and humane confinement. Inmates should not be assigned to Level 6 (super-maximum security confinement) unless they have demonstrated that they are chronically violent or assaultive, present a serious escape risk, have demonstrated a capacity to incite disturbances or otherwise pose a serious and present danger to the orderly operation of a less secure institution. Length of sentence alone should not be the basis for assignment to a Level 6 facility.  
 
Inmates who maintain good conduct for one year (or a shorter fixed period) should be eligible for transfer to a less secure facility absent particularized and serious security concerns. Decisions to retain inmates at Red Onion should be reviewed by central headquarters staff. If an inmate is retained at Red Onion, he should be given the reasons for that decision and told of specific steps he can take to secure a future transfer.  
 
3) Public Reporting  
 
The DOC should produce annually, and make available to the public, a statistical analysis of inmates at Red Onion and their security scores. For all inmates held at Red Onion who do not have the designated security score stipulated in DOC criteria for assignment to a Level 6 facility or for whom the discretionary overrides have increased their security level by more than one level, the DOC should provide a detailed explanation of the reasons for placement at Red Onion (with inmate names withheld for privacy reasons).  
 
4) Segregation  
 
Specific criteria for placement in segregation at Red Onion should be established and communicated to inmates. Decisions regarding placement in and release from segregation should be reviewed by central administration staff to minimize the potential for arbitrariness and abuse and to demonstrate the seriousness of such placements. After a fixed period of good conduct, e.g. six months, inmates should be released from administrative segregation unless there is a specific finding, based on objective factors and following a hearing, that the inmate continues to constitute a serious danger to prison safety and security.  
 
If inmates are segregated for their own safety, they should be provided the same privileges, programs and activities as general population inmates.  
 
5) Programs, Privileges and Security  
 
The DOC should carefully scrutinize policies regarding programs and privileges and routine security procedures for inmates to determine the extent to which the harsh regimen at Red Onion can be ameliorated without jeopardizing legitimate security considerations. It should implement a system of increased programs and privileges and diminished security controls for inmates who maintain good behavior.  
 
Programs should be implemented that will increase the humaneness of confinement at Red Onion and that will promote inmates' ability to be placed in a less restrictive facility and to adjust to prison life. Educational, vocational, behavioral, substance abuse, religious and other programming should be instituted consistent with legitimate security purposes.  
 
6) Mental Health  
 
The DOC should establish policies excluding from prolonged confinement in super-maximum security facilities inmates who suffer from serious mental illnesses. It should review the treatment of mentally ill inmates at Red Onion and take necessary steps to ensure they are provided adequate care and that all inmates receive the mental health screening and monitoring that is appropriate in extended control facilities.  
 
7) Staff Issues  
 
Red Onion staff should be trained in and continually reminded of the importance of proper, respectful treatment of inmates. Abusive conduct and displays of racism by staff, including derogatory remarks, should not be tolerated.  
 
8) Public Access  
 
Red Onion should be as accessible to the public as security permits. Policies should be established to grant the press, independent citizen groups and other members of the public ready access to Red Onion's warden to discuss conditions at the facility and should facilitate their ability to quickly secure interviews with inmates. Documents reflecting conditions at Red Onion should be readily available to the public, even if disclosure is not required under Virginia law. Information should be withheld only if its release would jeopardize security and with names deleted to protect privacy interests.  
 

 
[1] To protect inmate confidentiality and prevent any form of retaliation against the men who have cooperated in our research, all inmate names are fictitious. We note that the need to protect against such retaliation is not hypothetical. For example, we have received a report from one inmate that he was explicitly threatened by prison staff for writing to Human Rights Watch. He asked that we discontinue our correspondence.  
 
[2] Camille Graham Camp and George M. Camp, The Corrections Yearbook, (South Salem, NY: Criminal Justice Institute, Inc., 1998).