Physical conditions and policies at Red Onion were ostensibly designed with superpredators in mind violent, incorrigible inmates who cannot be safely confined in less secure facilities. Yet it appears that the DOC has diluted the concept of who requires assignment to Red Onion. The DOC is in fact willing to send men there who could and should be housed in less restrictive environments. Every indication is that this trend will accelerate now that the state is also trying to fill Wallens Ridge. Governor James Gilmore stated on April 9, 1999 that felons caught with guns who qualify for a five-year mandatory sentence would be eligible for incarceration in Red Onion or Wallens Ridge. Public officials in Virginia thus appear to be adjusting supermax housing criteria not to reflect genuine security and management needs but simply to fill what would otherwise be half emptybut very expensivefacilities.
A basic premise of contemporary corrections is that every prisoner should be housed in the lowest security and custody level suitable for adequate supervision and the protection of staff, other inmates and the community. Indeed, the DOC operating procedures provide that no inmate will be maintained in a more secure status than thatwhich his behavior, risk potential and treatment needs indicate.27 Ensuring that inmates are not subjected to restrictions that are not reasonably necessary for safety or security is cost-efficient and consistent with common sense and legitimate correctional objectives. It is counterproductive to use supermax facilities for inmates for whom lesser levels of control may be satisfactory [when to do so] may deprive them of freedoms, education, treatment, and work opportunities from which they could reap significant benefits and which may subject them to pressures detrimental to their physical and psychological health.28
Avoiding the unnecessary use of supermax confinement is also dictated by fundamental human rights principles. As stated in the Standard Minimum Rules, prisons should be operated with no more restriction than is necessary for safe custody and well-ordered community life.29 To subject inmates to extremely harsh conditions depriving them of freedoms and privileges ordinarily available in prison without adequate justification constitutes treatment that violates the basic dignity of inmates and their right to be free of cruel, inhuman or degrading treatment. We do not consider the DOCs desire to fill expensive prisons a sufficient justification for sending men to Red Onion (or Wallens Ridge, for that matter) if they do not otherwise require stringent controls.
The DOC instituted a new six-tiered classification system in November 1998 and is currently reclassifying inmates under the new system.30 Level 6 facilitiesRed Onion and Wallens Ridgeare the most restrictive and secure. Inmate custody levels are determined through a scoring system that assigns points for such factors as history of institutional violence, severity of current commitment offense, escape history, length of time remaining to serve, and age, among others. According to the new classification procedures, assignment to Red Onion requires a score of thirty-four points or more. A discretionary override for certain factors is permissible that would increase (or decrease) the security level. (According to classification experts, discretionary overrides should only increase/decrease a security level by one class.) According to the DOCs Institutional Assignment Criteria, the profile of an inmate classified for a Level 6 facility is disruptive, assaultive; severe behavior problems; predatory-type behavior; escape risks.31
Once an inmate has been sent to Red Onion he can be confined there indefinitely. DOC classification criteria provide that inmates must maintain at least twenty-four months with no disruptive behavior prior to consideration for a transfer to a less secure facility.32 There is no guarantee, however, that even maintaining clear conduct will enable an inmate to be reclassified to a lower security level facility and to be transferred from Red Onion. The decision is at the discretion of the warden.
The DOC has not publicly released information on the statistical profile of the men who have been sent to Red Onion. We have not seen, for example, any summary of the classification results or other data on the institutional history and security and custody requirements of Red Onions inmates. The DOC has stated that approximately 50 percent are there because of their behavior. We do not know whether those inmates have in fact accumulated the thirty-four points required in the classification system or have demonstrated that behind bars they are chronically violent or assaultive or otherwise severely threatening to the orderly operation of less secure institutions.33 The DOC has not indicated, for example, how many have assaulted staff or inmates.
Several dozen men were sent to Red Onion when the facility opened to serve as a work cadre providing inmate labor. Although these inmates did not require Level 6 security, they have nevertheless been subjected to the same restrictions as all other inmates at Red Onion, and they do not have the privileges, freedoms, activities and freedom of movement they had at their previous facilities. The DOC told Human Rights Watch that it did not have a definite timetable for removing these men from Red Onion and returning them to more appropriate facilities, although this could possibly occur in the next few months.34
Based on Mr. Angelones comments as reported in the press, it appears that about half the population at Red Onion has been sent there simply on the basis of a lengthy (eighty-five or more years) sentence. We understand that men who enter the custody of the DOC with lengthy sentences are being sent directly to Red Onion from the receiving facility regardless of their security score.35 We consider this practice indefensible, particularly in a state in which lengthy sentences are commonplace.
Mr. Angelone has stated, [F]or such an inmate you dont need to find out if his behavior is good or bad.36 This view is not shared by most of his profession. Indeed, corrections professionals know that manyperhaps mostinmates who have been sentenced to long prison terms even for violent crimes are not management problems. (Indeed, most inmates in prison systems are well-behaved; they want to do their time and get on with their lives.) The usual practice in many jurisdictions is to place inmates in the general population of maximum security facilities if they have been convicted, for example, of murder and have life sentences. They are then reclassified after a year or so, and depending on their behavior may be transferred to less restrictive facilities.
The decision to use length of sentence as a basis for assignment to Red Onion is particularly difficult to justify in the case of inmates who were already behind bars before Red Onion opened and who have demonstrated by their actual behavior that they are not violent or difficult inmates requiring the extensive controls of a supermax. Yet we have received various complaints from inmates in just this situation. One inmate with a life sentence, for example, had spent six infraction-free years in prison only to be transferred to Red Onion. One inmate told HRW that he was sent to Red Onion even though he had a classification score of eighteen and had gone years without any infractions. Another said he had been behind bars for twenty years on a life sentence and had no record of violent conduct, yet he too was sent to Red Onion. Another inmate told HRW he was sent to Red Onion even though he had animpeccable institutional record. When he asked DOC personnel why he had been transferred they merely told me because of the length of my sentence (life plus fifty years) and also because I was an in-fill inmate. In other words, they did not have enough assaultive disruptive inmates in the prison system to fill Red Onion. They have lied to the public about the need for these prisons in Virginia.
That Virginia does not have enough inmates who have displayed dangerous conduct to fill Red Onion and Wallens Ridge should come as no surprise. Virginia has never had a particularly violent inmate population. In fiscal year 1997, the DOC had only 72 assaults on staff and 86 on inmates out of a total prison population of 28,034.37 The total beds at Red Onion and Wallens Ridge constitute 6 to 8 percent of Virginias projected prison population. 38 We are not aware of any DOC analysis that indicated such a high percentage of the state prison population could reasonably be expected to need super-maximum security confinement. On January 1, 1997, for example, Virginia had 852 inmates in administrative segregation, or 3.5 percent of its total prison population.39
Before Red Onion opened, the DOC retained a national expert in classification systems, James Austin, to undertake a classification review of its prison population. The study analyzed such factors as history of institutional violence, severity of current and prior offenses, escape history, and institutional disciplinary records.40 The study showed that while a relatively large number of Virginia inmates have been convicted of crimes that earn long sentences (in large part because of the abolition of parole), few engage in institutional violence or escapes. According to Mr. Austin, Virginia does not have a prison population with high levels of assaultive behavior. It is the length of sentences that gives Virginia its high proportion of maximum security inmates.41 Austins analysis showed that only .9 percent of male inmates who had been in prison a year or longer had prison histories of assault and battery with a weapon; only .7 percent had escape histories. Only 1.6 percent would be reclassified to maximum security because of institutional misconduct (as opposed to other factors such as severity of commitment offense).27 VA DOC, DOP 823-4.0. 28 NIC, Supermax Prisons, p. 6. 29 Standard Minimum Rules, Article 27. 30 Most jurisdictions today have adopted objective classification systems by which prison authorities determine, based on an inmates prior behavior and other relevant factors, the level of supervision and control the inmate requires. Length of sentence and even nature of commitment offense are factors that are considered, but they are by no means the sole factors. Indeed, although the public often is unaware of this fact, many persons who have committed serious crimes and who have long sentences are not dangerous or problem inmates, e.g., inmates who assault or prey upon other inmates or staff. 31 VA DOC, Institutional Assignment Criteria, October 1998. 32 Disruptive is defined as conviction for the most serious disciplinary offenses, an attempt at one of these violations or a pattern of convictions that indicate significant suitability. Ibid. 33 We have noted a tendency in other jurisdictions with supermax facilities for prison officials to use them for nuisance inmates, for inmates who commit frequent but minor disciplinary infractions or others who do not reasonably require such extensive restrictions on their movement and activities. 34 HRW meeting with Gene Johnson at the DOC on February 24, 1999. 35 The security-level classification procedures and criteria issued in October and November of 1998 contain a requirement that any inmate with more than twenty years to serve must be classified to at least a Level 3 facility. DOP 823 823-7.1. They do not provide the for the automatic designation of persons with long sentences to a Level 6 facility. VA DOC, DOP 823. 36 Laurence Hammack, ACLU Questions Inmate Placement at Red Onion, The Roanoke Times, Jan 3, 1999. 37 VA DOC, Offender Statistical Summary FY 97. 38 At one point, officials were predicting a total prison population of 40,000. Thirty thousand is now considered a more reasonable estimate. 39 Camille Graham Camp and George M. Camp, The Corrections Yearbook, (South Salem, NY: Criminal Justice Institute, Inc., 1997) Virginia had the tenth-highest percentage of inmates in administrative segregation. The national average was 2.8 percent. 40 The DOC provided a copy of the classification analysis to Human Rights Watch in response to our request. 41 Telephone conversation with James Austin, professor, Institute on Crime, Justice and Corrections, George Washington University, Washington, D.C. on April 14, 1999. According to the DOCs Offender Statistical Survey FY 1997, as of June 30, 1997 Virginia had a maximum security population of 34 percent of the prison system. The national average was 12.3 percent. The percentage of Virginias inmate population in maximum security was the third-highest in the country. Camille and George Camp, Corrections Yearbook, p.16.