Va. prisons will begin reporting solitary confinement data, but some worry new law was ‘watered down’

Legislation passed by the General Assembly this year will require the Department of Corrections to provide an annual report on its use of solitary confinement, which is facing growing scrutiny around the country.

Lawmakers and advocates called it an important first step to understanding a practice that, confusingly, the state says it has already eliminated. But they worry changes to the legislation aimed at reducing the cost of implementing it mean the value of the new information will be limited.

“We didn’t have enough money to get the kind of data we wanted,” said Sen. David Marsden, D-Fairfax, one of several lawmakers who sponsored the legislation. “This bill has been watered down to a certain extent.”

As passed, the legislation requires the Department of Corrections to submit an annual report detailing the age, sex, race, ethnicity, mental health status, medical status and security level of each inmate held in solitary confinement along with the number of days they spent there and the “disciplinary offense history” that preceded their placement.

Initially, lawmakers also wanted to require the reports bi-weekly with additional information, including the number of suicide attempts and more detailed mental health information. The changes also eliminated a requirement that the data be reported for each of the state’s 35 prisons with solitary confinement units, rather than the system as a whole.

The Department of Corrections told lawmakers that the approach would cost about $2 million because many of the records are kept in paper forms only, according to a fiscal impact statement, which said the department would need to hire more than 30 new employees to collect the information. A spokeswoman for the department didn’t immediately respond to a request for comment on Monday afternoon.

Advocates say the information cut from the reporting requirements is important.

Mental health issues and suicide attempts are a major factor that’s led other states to reconsider their use of solitary confinement to house inmates for long periods of time — a relatively new practice that spread when states began constructing “supermax” prisons about 25 years ago. (Virginia has two such facilities.)

“People would get thrown in ‘the hole’ for a couple days at a time, maybe a couple weeks at a time,” Craig Haney, PhD, a social psychologist at the University of California, Santa Cruz, told the American Psychological Association in 2012. His research found inmates held in such conditions commonly suffered from mental health problems. “Now they’re in the hole for years at a time.”

Watchdog groups like the ACLU of Virginia also questioned the logic of eliminating the requirement that data be broken out by prison.

“We do not believe that collecting information by facility would be an increased cost to the state,” communications director Bill Farrar told lawmakers last month. “It makes no sense they would be collecting this information at the facility level and then (compiling). It would lead us to question what the department is trying to keep the public from knowing.”

They are also concerned about the way solitary confinement is defined in the legislation, which they worry is too vague. As passed, it refers indirectly to American Correctional Association guidelines, which define it as “ a placement that requires an inmate to be confined to a cell at least 22 hours per day for the safe and secure operation of the facility.”

A coalition of 16 groups, including the ACLU of Virginia, Amnesty International and Interfaith Action for Human Rights, have asked Gov. Ralph Northam to amend the legislation to address those points.

A spokeswoman for Northam said he’s still reviewing the legislation, but based on comments to lawmakers last month by his secretary for public safety, Brian Moran, it sounds unlikely that he’ll intervene. Moran said at the time that the administration wanted to help accommodate the data request while eliminating “any substantial fiscal impact.”

Marsden, speaking last month on the floor of the Senate, said he’d continue working on the issue.

“Dealing with folks in the administration on this issue, it is as if no problems currently exist — everything has been solved,” he said. “Any anytime you hear that, it’s something to perk your ears up.”