A nationwide shift toward abolishing solitary confinement for juveniles, which began to take shape in 2016 after former President Barack Obama banned the practice in federal prisons, has surged ahead in recent months, with a half-dozen states either prohibiting or strictly limiting its use in their youth facilities.
In just the past year, a series of strongly worded federal court decisions, new state laws and policy changes in Wisconsin, Tennessee, New York, California, Colorado, Connecticut and North Carolina have nearly eliminated “punitive” solitary — holding youth in isolation for long periods of time rather than briefly for safety purposes — from the juvenile justice system. It was already largely prohibited in at least 29 states, according to a July 2016 survey of policies in all states and the District of Columbia.
The developments suggest that long-term isolation is rapidly losing ground as an accepted practice within the juvenile corrections profession, and that a child-specific definition of “cruel and unusual punishment” is now being established by courts across the country.
“These diverse courts seem to all at once be coming to the same conclusion: that solitary confinement of kids, who are our most vulnerable citizens, is unconstitutional,” said Amy Fettig, an expert on the issue for the ACLU.
But for youth advocates, ending juvenile solitary will take more work. Twenty-three percent of juvenile facilities nationally use some form of isolation, according to a 2014 study by the U.S. Department of Justice. And a new report out Wednesday from the Juvenile Law Center, a national legal advocacy organization based in Philadelphia, suggests that even though its prevalence is diminishing, 23-hours-a-day isolation continues to be a reality for hundreds if not thousands of incarcerated youth across America, mostly older teenagers.
The practice still has support from many, though not all, juvenile corrections administrators and officers, who are often underpaid, overworked and exhausted from double shifts and who believe solitary is the only disciplinary tool available to them without adequate mental health resources or alternative discipline options.
“The front-line staff, historically, they’ve been trained to use isolation as a means to control violent behavior and to keep themselves safe, and now we tell them, ‘Hey, there’s a different way to do things,’ ” said Mike Dempsey, executive director of the Council of Juvenile Correctional Administrators. “So there is pushback, resistance, fear — a fear that changes like these will basically create unsafe conditions.”
But the momentum for juvenile solitary reform continues, with the latest development coming just a month ago in Wisconsin, where a federal judge ruled that children at the Lincoln Hills and Copper Lake youth prison complex — one of the largest juvenile facilities in the nation and long the subject of litigation — have an age-specific “right to rehabilitation” and that “solitary confinement violates it.”
Under the preliminary injunction issued by Judge James Peterson of Federal District Court in Madison on July 10, Wisconsin officials must stop holding youths in solitary for longer than seven days, and must allow them outside their cells for at least 30 hours a week. (They had previously been held in isolation for periods of 60 days or longer, according to the underlying lawsuit by the ACLU and the Juvenile Law Center.) The youths must also be provided therapy, education and recreation, the judge said.
A spokesman for the Wisconsin Department of Corrections said that while the agency has moved to implement these changes, “The merits of the case have not been decided.”
The injunction echoes one in March by another federal judge, in Tennessee, who blocked a county from placing juveniles in solitary confinement. And in February, a third federal judge, in yet another preliminary injunction, ordered a Syracuse, N.Y., jail to immediately stop putting 16- and 17-year-olds in solitary, citing the Eighth Amendment protection against cruel and unusual punishment.
The Juvenile Law Center report, published today alongside a briefing on juvenile solitary on Capitol Hill, notes the recent court rulings, while also finding that juveniles in solitary are typically black or Latino, often do not receive a disciplinary hearing before they are placed in isolation, and can be deprived of medical treatment, showers, eating utensils, reading and writing materials, mattresses and sheets. It also points to jurisdictions such as Massachusetts and Ohio that have successfully implemented alternatives to the practice, including training staff in de-escalation tactics, bringing mental health workers into the disciplinary process, establishing a system of age-based rewards and penalties, and increasing the amount of scheduled activities in order to keep kids occupied.
The report and the rulings also come in the wake of — and perhaps as a result of — two events involving juvenile solitary that drew national attention.
The first was the death of Kalief Browder, the 16-year-old from the Bronx who, after being accused of stealing a backpack in 2010 — a charge he denied — was held at the Rikers Island jail for three years, about two of which he spent in solitary. In 2015, after finally having his case dismissed and gaining his release, he hanged himself in his own home.
It was an image that, for many, drove home the total and long-term damage that isolation can do to young people, a group that depends more than most on social contact, educational stimulus, and a sense of purpose. More than half of all suicides in juvenile facilities take place in solitary, according to the Justice Department.
Soon after, in January 2016, Obama banned the solitary confinement of juveniles in federal prisons and also wrote an op-ed article citing Browder’s case and calling the practice “an affront to our common humanity.” It was a largely symbolic move, given that only 26 juveniles were being held in the federal system at that time. But many advocates credit it as an act of policy leadership that has spurred the flurry of state and local reforms in the year since.
In the months following, both California and Colorado legislatively banned the use of punitive solitary in juvenile facilities for periods longer than four hours. (However, an ACLU report published this year notes that despite the new law, Colorado’s youth corrections department placed juveniles in solitary 2,240 times in 2016.)
And both North Carolina and Connecticut in 2016 limited the solitary confinement of teenagers held in adult facilities, a different but related policy change. Since youth in adult prisons must by federal law be segregated from adult prisoners, they are often held in isolation for no reason other than to keep them separate.
Yet despite the recent spurt of reforms, according to the Juvenile Law Center report, states like Nebraska are still regularly holding youth in isolation. And in New Mexico, Gov. Susana Martinez vetoed a bill this year that would have restricted solitary for juveniles in adult prisons. She said it would have put guards in danger and hampered their flexibility to choose the best disciplinary options for the most violent inmates and also to keep youths fully separated from adults.
Even in the places where reform has been enacted, the work of translating a judge’s order or a new piece of legislation into actual, sustained culture change remains to be done, according to the JLC report.
Indeed, many juvenile justice agencies, when challenged by litigation or legislation, simply re-name solitary confinement using one of a variety of well-worn euphemisms: “room confinement,” “special management unit,” “restricted engagement,” “administrative detention,” “time out,” or even “reflection cottage.” Other agencies just reclassify the type of isolation as “non-punitive” in their official statistics, calling it “temporary” or for the limited purpose of protecting the youth or those around him from harm.
“Anytime you’re talking about new or additional training,” said Dempsey, the executive director of the juvenile corrections administrators council, “it does cost money. It takes investment in alternative techniques, and that can be hard because in this line of work there’s always turnover and staff shortages.”
That’s why Dempsey’s organization and the Stop Solitary for Kids campaign, which aims to end juvenile solitary within three years, provide on-the-ground technical assistance to state and local agencies that might otherwise be inclined toward superficial reform. Juvenile justice officials from Kansas, for instance, were brought to a successful facility in Massachusetts to observe alternatives to solitary for themselves, said Mark Soler, executive director of the Center for Children’s Law and Policy and a leader of the campaign.
To Fettig, the ACLU advocate, the cause could not be more urgent. “Imagine if you left a kid locked in a small room for 70 days. Well, that same action is taken by state governments all over this country!” she said. “When you do this to children, they do not come back.”