A landmark victory by Hogan Lovells pro bono lawyers marked the latest point in an ongoing legal battle over conditions on Virginia’s death row.
Working with Alexandria, Va., attorney Victor M. Glasberg, who initially filed the case, the win means the facility can’t revert to its formerly unlawful state.
Conditions there violated the Eighth Amendment’s ban on cruel and unusual punishment, U.S. District Court Judge Leonie M. Brinkema held Feb. 21. Though they improved during the litigation, Brinkema, sitting in the Eastern District of Virginia, issued an injunction preventing them from backsliding.
“As courts and corrections officers across the country have begun to recognize, the years-long isolation that the pre-2015 conditions of confinement forced on plaintiffs created, at the least, a significant risk of substantial psychological and emotional harm,” Brinkema wrote.
The decision broke new ground, Hogan senior associate Kathryn Ali told Bloomberg Law.
“No judge before this decision had ever squarely held that twenty-three hour solitary confinement was unconstitutional,” she said.
The ruling highlighted what Ali called the “common sense idea” that keeping people in isolation for years on end with very little human contact is bad, psychologically and physically.
It’s a form of torture, she said.
Ali hopes the decision will “pave the way for similar rulings in other places.”
She spent thousands of hours on the matter, taking the lead on most of the briefing and in arguing the case with Glasberg at the U.S. Court of Appeals for the Fourth Circuit during an earlier appeal in the case.
Death Row Client Meetings
For a commercial litigator, Ali has spent her fair share of time on death row.
Aside from this case, she had clocked “quite a bit of time” there for cases she worked on in Texas, Florida, and Mississippi.
Ali and other members of the team regularly went to death row in Virginia to meet their clients in this case—at least a dozen times, maybe a couple dozen, she said.
They toured the facility both at the beginning of the lawsuit and after reforms were made as a result of the suit.
This case was the first time she had been in any state’s physical death row space—"where my clients live,” as she put it.
Being there, “you really get a sense” of all the issues that were part of the lawsuit, she said.
Human Impact, Isolation
It’s “definitely different” from the work Ali normally does as a commercial litigator.
“To see the human impact that this case has had has been amazing,” she said.
Ali said “far and away the biggest factor” in the case was isolation—"the amount of time that these men spent alone.”
Virginia argued for years “not only that it was constitutional to house our clients in near total isolation, but that it was absolutely necessary for security purposes,” she noted.
Hogan used experts to help explain to the court why this is problematic.
That expertise surfaced in Judge Brinkema’s opinion, where she cited “the rapidly evolving information available about the potential harmful effects of solitary confinement.”
Heated, Hard Fought
“Litigation is often contentious,” Ali observed.
This case was no exception.
It was a “heated” three-year long litigation that’s been “hard fought on both sides” and is ongoing, she said.
The government never really retreated from its position “until after they made changes as a result of the lawsuit,” she said.
Ali credited her “really great team that stuck with the case all the way from the beginning.” The “core” of that team was Hogan’s Elizabeth C. Lockwood, Yuri Fuchs, W. David Maxwell, and Ryan Stephenson.
A spokesperson for the Virginia Attorney General said the state had filed a notice of appeal to the Fourth Circuit.
When asked if she’d continue to represent the inmates on appeal again, Ali quickly responded: “Oh yeah. Absolutely.”
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