January 19, 2021

Salvadoran Man Who Spent Years in Solitary Because He Didn’t Speak English Settles Case With Virginia Department of Corrections

On Friday, the ACLU of Virginia, the Roderick and Solange MacArthur Justice Center and a team of pro bono lawyers finalized a settlement agreement in Reyes v. Clarke et al., a federal case challenging the treatment by the Virginia Department of Corrections (VDOC) of a person with Limited English Proficiency (LEP) who had been held in solitary confinement for nearly 13 years at Red Onion State Prison, a supermax facility. Under the agreement, VDOC will adopt a comprehensive, department-wide policy to provide access to interpretation and translation services for people incarcerated in its facilities. In addition, the settlement provides relief for the plaintiff, Nicolas Reyes, as the only pathway out of solitary was inaccessible to him because he could not read, write or speak English.

“We hope that VDOC will view this as an opportunity to do right by Mr. Reyes and by so many others and create a language access policy that will be a model for other correctional agencies,” said Vishal Agraharkar, senior staff attorney for the ACLU of Virginia. Pro bono attorney Jaclyn Roeing added, “Before the settlement, Mr. Reyes and other people with limited English proficiency were unable to meaningfully access prison services because of language barriers that were routinely ignored. VDOC’s agreement to adopt a language access policy is vital to ensuring that all people are treated fairly.”

“Mr. Reyes has suffered unnecessarily for more than a decade in conditions no one should ever have to endure,” said Maggie Filler, an attorney with the MacArthur Justice Center. “He lived in a tiny room the size of a bathroom and ate meals in the same space where he used the toilet and slept at night, for 24 hours a day. On the few occasions when he left his cell to go to a recreation cell or to shower, he was forced to submit to a strip search and was marched out of his cell in shackles. All this despite the fact that he posed no threat to the safety of the prison. Mr. Reyes’ case is horrifying, and without this litigation there would have been no consequences for what was done to him,” Filler added. VDOC kept Mr. Reyes in solitary confinement for years simply because he had not completed the Step-Down Program, consisting largely of English-language self-reflection journals. As a monolingual Spanish speaker who cannot read or write in any language in a prison that provided virtually no accommodations to LEP individuals, Mr. Reyes’ social isolation was overwhelming. “Mr. Reyes’ experience exemplifies the potential harms of long-term solitary confinement,” said pro bono attorney Lauren Oppenheimer.

As part of the settlement, VDOC agreed to create and adopt a language access policy within five months of the settlement that will ensure all people with limited English skills are provided meaningful access to departmental facilities, programs and services. In developing its policy, VDOC agreed to consult a draft policy prepared by Mr. Reyes’ attorneys, and to provide them with additional opportunities to review the policy as it’s being developed. As part of the policy, VDOC will designate a system-wide LEP Coordinator and LEP monitors at each of its facilities to oversee the implementation of the policy.

In addition to the language access policy, other components of the agreement call for Mr. Reyes to receive:

-Restoration of good-time credits that were lost because of his extended stay in solitary confinement, so he may be released at an earlier date.

-A certified interpreter for all disciplinary hearings, classification hearings and scheduled mental health and medical visits.

-An expedited classification hearing within six months to determine whether Mr. Reyes can be transferred to a lower-level facility that is closer to family in Northern Virginia. Mr. Reyes was recently moved to Virginia’s other supermax prison, Wallens Ridge State Prison, and is no longer in solitary confinement.

-A single-cell housing assignment for at least one year to transition Mr. Reyes to a general population environment.

-Finally, Mr. Reyes will receive a monetary award of $115,000, as some compensation for the horrors of solitary confinement that he had to endure for over twelve years.

While this settlement closes the case for Mr. Reyes, it does not conclude the ACLU of Virginia’s efforts to end solitary confinement. The ACLU of Virginia and the law firm White & Case LLP have brought a federal class action suit against VDOC that alleges that its Step-Down Program has unnecessarily kept people in long-term solitary confinement for subjective and arbitrary reasons, or for behaviors related to mental illness. The MacArthur Justice Center continues to litigate cases involving the use of solitary confinement in prisons around the country as well.

“Solitary confinement remains overused in Virginia prisons and jails and causes serious and potentially lifelong psychological harm and trauma,” Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia said. “We hope that the governor and the attorney general will work together with VDOC to end the use of solitary confinement in all VDOC facilities without requiring the further expenditure of hundreds of thousands of taxpayer dollars on outside counsel to defend its continued use.” According to VDOC data, the agency placed more than 7,000 people in 2019 and 6,500 people in 2020 in some form of solitary confinement. Pro bono attorney Alejandro Guadarrama stated, “It is the responsibility of lawyers around the country to expose injustice and insist on reform. VDOC’s settlement with Mr. Reyes is a step in the right direction.”