By: Gracie Elliott

I started working at the Virginia Department of Corrections (VADOC) shortly after my 1L year came to an end. Originally, I was working with the Board of Local and Regional Jails (BOLRJ). “The role of the board is to establish standards and guidelines for local and regional jails that are designed to guarantee the health, safety, and welfare of staff and offenders under its jurisdiction.”^[1] As the summer progressed, I began working closely with the Administrative Compliance Unit. At one point, I was tasked with researching how states disciplined inmates who were incarcerated for drug offenses; in Virginia, Governor Glenn Youngkin has cracked down on illegal drugs both inside and outside of jails and prisons.^[2] After looking at other states’ policies, and hearing rumors that there is a push for Virginia to adopt sanctions that are far stricter than the norm around the country, I was shocked and concerned. While I have always viewed addiction and substance abuse disorder as just that – a medical disorder in need of treatment– it seemed to me that Virginia’s reliance on discipline rather than medical intervention would exacerbate rather than solve the problem at hand.^[3]

Governor Glenn Youngkin aims to “[strengthen] sustained efforts to get illegal drugs and illegal weapons off the streets, improving safety in [local] communities.”^[4] Working towards this goal does not stop at the prison gates, however, and neither does punishment. Inmates in Virginia’s jails and prisons are subject to enhanced sanctions for drug offenses committed while incarcerated.^[5] According to the VADOC’s Operating Procedures regarding inmate discipline, enhanced sanctions are defined as “[r]estrictions placed upon an inmate in addition to a normal penalty for cases when the accused has shown certain patterns of behavior that are proven to be disruptive, maladaptive, or dangerous.”^[6] Such sanctions often involve some type of restriction on the inmate’s communication with the outside world, whether it be by limiting contact and/or non-contact visits.^[7] Possessing, selling, distributing, or testing positive for illicit substances subjects prisoners to enhanced sanctions.

Disciplinary Process in Virginia Jails and Prisons

The inmate disciplinary process “is an administrative due process proceeding that is separate and independent from the criminal justice system.”^[8] Inmates are given a copy of the institution’s rules and regulations during orientation  and copies are located within the institution’s library, law library, and other locations.^[9] Upon being charged with a violation of the institution’s disciplinary code, the inmate receives a Disciplinary Offense Report that outlines the nature of the charge. The report includes a penalty offer that the inmate may accept, in lieu of proceeding with a disciplinary hearing, that usually includes a lowered penalty.^[10] If they do not accept the penalty offer, inmates can proceed with a disciplinary hearing where they have the opportunity to question the officer that reported the violation, as well as request documentary evidence or witnesses which the Hearings Officer can allow or prohibit at their discretion.^[11] Inmates are guaranteed the opportunity to have an inmate or staff advisor help them throughout the inmate disciplinary process.^[12] Even though there are no strict rules of evidence in these proceedings, staff members that appear at the disciplinary hearings must present enough evidence to support a finding of guilt based on the preponderance of the evidence.^[13] Inmates may be held accountable through the VADOC’s disciplinary code and may be criminally prosecuted for the same offense.^[14]

After the disciplinary hearing, copies of documentation produced throughout the disciplinary proceedings are provided to the inmate within twenty-five working days of the hearing. This documentation includes a written record of the decision made and reasoning supporting the decision.^[15] Inmates may appeal a finding of guilt, and/or degree of the penalty imposed, to the Facility Unit Head.^[16] In order to appeal, inmates must comply with various time limits and formatting requirements.^[17] The Facility Unit Head must provide a written response to the inmate within thirty working days; if they are not satisfied with the result of their initial appeal, the inmate may then make another appeal to the Regional Administrator.^[18] These appeals are assessed by employees in the Inmate Discipline Unit at the VADOC headquarters and are approved by the head of the unit as well as the Regional Administrator before being returned to the inmate.^[19]

 

Discipline for Drug Offense, Possible Penalties, and Substance Abuse Treatment

Drugs are brought into prisons by various means, including through mail, visitation, and even through Corrections Officers.^[20] From 2017 to 2019, the Virginia Department of Corrections administered an average of 201,421 drug tests per year to inmates within its facilities.^[21] However, due to factors associated with COVID-19, drug testing in VADOC facilities was reduced in the following years.^[22] From 2017 to 2022, there were 378 drug overdose incidents, a fraction of them resulting in the death of the inmate.^[23] While jails and prisons in Virginia do have substance abuse programs in place for individuals who are incarcerated, the VADOC lacks the personnel and financial resources to provide intensive intervention for inmates with substance abuse disorders.^[24] Perhaps this lack of resources is what drives the VADOC to address substance abuse issues with more punishment instead of costly and involved rehabilitative efforts.

Drug charges are considered a Category I Offense; Category I Offenses can be punished by one or more of the following penalties:

1. Reprimand;
2. Loss of one of the following privileges for up to 120 calendar days:
   1. Commissary
   2. Recreation and/or extracurricular activities
   3. Personal electronic device (not including tablets)
   4. Telephone
   5. Visitation
3. Loss of two of the following privileges for up to 120 calendar days:
   1. Commissary
   2. Recreation and/or extracurricular activities
   3. Personal electronic device (not including tablets)
   4. Telephone
   5. Visitation
4. A fine up of to $25.00;
5. Loss of personal property (not including authorized legal or religious materials) for up to thirty calendar days;
6. Loss of good time for up to 180 days good conduct allowance or equivalent earned sentence credits; and
7. Loss of good time of up to all accumulated good conduct allowance or earned sentence credits.^[25]

If specifically charged with a drug offense, inmates are subject to enhanced sanctions for their first and following violations. However, inmates are not required to participate in treatment. If an inmate participates in treatment, has no subsequent charges for a specific period of time, and complies with the other conditions laid out by the VADOC, enhanced sanctions can be halted/withdrawn.^[26] Programs and services for inmates with substance use disorders include monitoring and additional substance use testing at all institutions.^[27] “Inmates who voluntarily admit to a substance use problem or the possession of alcohol or other drugs for personal use, prior to notification of an alcohol or drug test or notification of a search and who have a minimum 12 months left on their sentence may request assignment to a [Voluntary Substance Use Disorder Treatment] program.”^[28] Additionally, when inmates request assignment to a treatment program, a staff member will send a referral to their counselor.^[29] Just because an inmate requests this transfer, and just because an inmate struggles with addiction, does not mean that they will actually be put into one of these programs, nor does it bar them from being removed from these programs.

 

Recommendation

Instead of increasing the enhanced sanctions that are currently on the table, I think that a smarter approach would be to provide more substance abuse treatment opportunities for inmates.  This would allow for the current enhanced sanctions to be left on the table (or lowered) and leave room for addressing the root of inmate behavior rather than finding a temporary solution. In order to do this, there may need to be a reallocation of resources or hiring of staff specifically trained in this area, but this may be difficult due to the current staff and resource shortages discussed earlier.^[30] However, shifting to a recovery-centric approach has the potential to lower recidivism rates for drug offenses in the long run, which would reduce future costs of incarcerating a continuous cycle of prisoners.

 

 

^[1]  Va. Bd. of Loc. & Reg’l Jails, https://bolrj.virginia.gov/ (last visited Feb. 23, 2024).

^[2] See, e.g., Christian Martinez, Governor Glenn Youngkin Celebrates Successes of Operation Bold Blue Line Partnership, Office of the Governor of Va. (July 31, 2023), https://www.governor.virginia.gov/newsroom/news-releases/2023/july/name-1010737-en.html.

^[3] See, e.g., Va. Dep’t of Corrections, Operating Procedure 861.1: Inmate Discipline (2023).

^[4] Martinez, supra note 3 (quoting Governor Youngkin).

^[5] Va. Dep’t of Corrections, supra note 4 at 31.

^[6] Id. at 3.

^[7] Id. at 31.

^[8] Va. Dep’t of Corrections, supra note 4 at 5.

^[9] Id.

^[10] Id. at 9, 11.

^[11] Id. at 8.

^[12] Id.

^[13] Id. at 5.

^[14] Id.

^[15] Id. at 23.

^[16] Id. at 24.

^[17] Id. at 25.

^[18] Id. at 26.

^[19] I have been working in this unit since around November of 2023. By the time an inmate’s appeal gets to us, we are only able to assess whether or not there were substantial procedural issues or violations of the inmate’s due process.

^[20] See, e.g., Ezra Hercyk, Virginia Department of Corrections Curbs Drug Smuggling Through Mail, Intercepts Over 100 Suspicious Packages in 2023, WSET (Oct. 20, 2023), https://wset.com/news/local/virginia-department-of-corrections-curbs-drug-smuggling-through-mail-intercepts-over-100-suspicious-packages-in-2023-vadoc-director-chadwick-dotson; Va. Dep’t of Corrections, supra note 5, at 3; Kyle Gibson, VADOC Employee Arrested After Intelligence Leads to Contraband Search, Va. Dep’t of Corrections. (Oct. 19, 2023), https://vadoc.virginia.gov/news-press-releases/2023/vadoc-employee-arrested-after-intelligence-leads-to-contraband-search/.

^[21] Va. Dep’t of Corrections, The Influence of Drugs in VADOC Facilities 1 (Mar. 2023), https://vadoc.virginia.gov/media/1833/vadoc-influence-of-drugs-in-facilities-march-2023.pdf.

^[22] Id.

^[23] Id. at 2.

^[24] See, e.g., Luca Powell, State Prisons Chief Starts Hiring Freeze, Says Budget Shortfall Looming, Rich. Times Dispatch (Dec. 2, 2023), https://richmond.com/news/local/government-politics/dotson-vadoc-overtime/article_bf994c60-906f-11ee-9e89-db5fbf180950.html; Jackie DeFusco, Virginia Department of Corrections Staff Shortage is Getting Worse and Causing Safety Concerns, WRIC (Aug. 25, 2021), https://www.wric.com/news/virginia-news/virginia-department-of-corrections-staff-shortage-is-getting-worse-and-causing-safety-concerns/.

^[25] Id. at 28-9.

^[26]  Va. Dep’t of Corrections, Operating Procedure 841.51: Substance Use Testing and Treatment Services 16 (2023).

^[27] Id. at 14

^[28] Id.

^[29] Id.

^[30] See, e.g. Powell supra note 24; DeFusco supra note 24