51-Jurisdiction Survey of Juvenile Solitary Confinement Rules, Lowenstein, 2015
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51 – Jurisdiction Survey of Juvenile Solitary Confinement Rules in Juvenile Justice Systems October 2015 Authors Natalie J. Kraner Pro Bono Counsel, Lowenstein Center for the Public Interest Naomi D. Barrowclough Nari Wang Associates, Lowenstein Sandler LLP Catherine Weiss Partner and Chair, Lowenstein Center for the Public Interest Jacob “Mendy” Fisch Summer Associate, 2013 Lowenstein Sandler LLP INTRODUCTION What follows is the only nationwide survey known to us on the laws and policies governing the use of solitary confinement in juvenile detention facilities. In addition to canvassing every state’s governing rules, the authors interviewed a number of practitioners and the administrators of juvenile facilities about the actual use of solitary confinement in their home jurisdictions in an effort to identify how the states’ practices deviate (if at all) from their written rules and policies. This survey, which is an updated and expanded version of one released by the Lowenstein Center for the Public Interest at Lowenstein Sandler in 2013, also undertakes a more detailed review of the permitted uses of solitary confinement for reasons other than punishment. The updated survey allows the reader to understand each state’s approach to imposing solitary confinement, with a particular focus on the purposes of confinement (punitive or other purposes, such as safety concerns), the length and conditions of such confinement, and the due process protections in place (if any) for a juvenile entering or leaving solitary confinement. This introduction discusses the trends that emerge from the survey, caveats to keep in mind while reading the survey, and lessons learned from states’ laws and practices. 1 Key Findings on the Use of Punitive Solitary Confinement1 21 jurisdictions prohibit the use of punitive solitary confinement in juvenile facilities by law or practice. Some states allow confinement for only a few hours a day; those states that allow it for a maximum of 4 hours per day are counted among the states that have banned punitive solitary confinement. 20 more states impose time-limits on the use of punitive solitary confinement, ranging from 6 hours2 to 90 days.3 Among states that allow punitive confinement, the most common limits on the amount of time that juveniles may spend in isolation are 3 to 5 days. 10 states either place no limit on the amount of time a juvenile may spend in punitive solitary confinement or allow indefinite extensions of their time limits through administrative approval. These results show that the states are moving away from the use of punitive solitary confinement in juvenile detention facilities. Indeed, much progress has occurred in the two years since this survey was first released in 2013. Several states, including New Jersey, Illinois, and Ohio, have recently banned the use of punitive isolation in juvenile facilities; and others, such as California, have pending legislation that, if passed, will eliminate the use of punitive solitary confinement in line with the growing national trend. The ill-effects and overuse of solitary confinement have likewise been a growing area of concern in all three branches of the Federal government. Recognizing that “[s]ocial science shows that [solitary confinement] is often more likely to make inmates more alienated, more hostile, potentially more violent” and “[t]hat is not going to make us safer” and it is “not going to make us stronger,” President Obama recently called for a “review of the overuse of solitary 1 See generally Attachments 1 and 2 (categorizing jurisdictions according to their use of punitive solitary confinement). 2 9 DEL. ADMIN. CODE §105-18.104.22.168. 3 CAL. CODE REGS. tit. 15, § 4634. 2 confinement across American prisons.”4 Data from the Department of Justice indicate that approximately “70,000 young people are held daily in state, county, private and federal juvenile residential facilities across the United States and that the use of isolation, including solitary confinement, in these facilities is widespread.”5 In 2014, the Department of Justice, through Attorney General Holder, highlighted the dangers of solitary confinement to juveniles and criticized its overuse in juvenile facilities, in particular: Across the country, far too many juvenile detention centers see isolation and solitary confinement as an appropriate way to handle challenging youth, in particular youth with disabilities. But solitary confinement can be dangerous, and a serious impediment to the ability of juveniles to succeed once released. In a study released last year by the Office of Juvenile Justice and Delinquency Prevention, 47 percent of juvenile detention centers reported locking youth in some type of isolation for more than four hours at a time. We have received reports of young people who have been held in solitary confinement for up to 23 hours a day, often with no human interaction at all. In some cases, children were held in small rooms with windows that were barely the width of their own hands. This is, to say the least, excessive. And these episodes are all too common.6 Bipartisan legislation was introduced in Congress in 2015 that would ban punitive solitary confinement for juveniles in federal custody.7 And Justice Kennedy in a powerful 4 See Remarks by the President at the NAACP Conference, July 14, 2015, https://www.whitehouse.gov/the-pressoffice/2015/07/14/remarks-president-naacp-conference. 5 Council of Juvenile Correctional Administrators Toolkit: Reducing the Use of Isolation , March 2015, http://cjca.net/index.php/resources/cjca-publications/107-toolkit/751-cjca-toolkit-for-reducing-the-use-of-isolation at 2. 6 Attorney General Holder Criticizes Excessive Use of Solitary Confinement for Juveniles with Mental Illness, May 14, 2014, http://www.justice.gov/opa/pr/attorney-general-holder-criticizes-excessive-use-solitary-confinementjuveniles-mental. 7 See Sentencing Reform and Corrections Act, S. 2123, 114th Cong. § 212 (2015), introduced by U.S. Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Senators Richard Durbin (D-IL), Mike Lee (R-UT), John Cornyn (R-TX), Sheldon Whitehouse (D-RI), Lindsey Graham (R-SC), Chuck Schumer (D-NY), Patrick Leahy (D-VT), and Cory Booker (D-NJ); MERCY Act, S. 1965, 114th Cong. § 5043 (2015), introduced by Senators Cory Booker (D-NJ), Richard Durbin (D-IL), Rand Paul (R-KY), and Mike Lee (R-UT). 3 concurrence in Davis v. Ayala, 135 S. Ct. 2187, 2208-2210 (2015), criticized the widespread use of solitary confinement in American prisons, citing to the tragic death of Kalief Browder, a young New York City man who killed himself after being held at Rikers Island as a teenager and spending nearly two years in solitary confinement.8 “[R]esearch still confirms what this court suggested over a century ago: Years on end of near-total isolation exact a terrible price,” Kennedy wrote, adding that the “common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.”9 Experts agree that the harms identified by Justice Kennedy are even more pronounced for juveniles. Solitary confinement “has a distinct and particularly profound impact on young people, often doing serious damage to their development and psychological and physical wellbeing. Because of the special vulnerability and needs of adolescents, solitary confinement can be a particularly cruel and harmful practice when applied to them.”10 While there are no studies that “look specifically at the effects of prolonged solitary confinement on adolescents . . . many experts on child and adolescent psychology . . . [contend that solitary confinement] can cause or exacerbate mental disabilities or other serious mental health problems.”11 As Attorney General Holder noted during his remarks on May 14, 2014, “one national study found that half of the victims of suicides in juvenile facilities were in isolation at the time they took their own lives, and 62 percent of victims had a history of solitary confinement.”12 Such findings have led the 8 Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, p. 26 (detailing multiyear solitary confinement of Kalief Browder, who was held—but never tried—for stealing a backpack); Schwirtz & Winerip, Man, Held at Rikers for 3 Years Without Trial, Kills Himself, N.Y. Times, June 9, 2015, p. A18. 9 Davis, 135 S. Ct. at 2210 (Kennedy, J., concurring) (quoting Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U.J.L. & Pol'y 325 (2006)). 10 Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States, report of Human Rights Watch and the American Civil Liberties Union, 22 (2012), available at: http://www.hrw.org/sites/default/files/reports/us1012ForUpload.pdf. 11 Id. at 24. 12 Attorney General Holder, supra note 6. 4 American Academy of Child and Adolescent Psychiatry to “oppose the use of solitary confinement in correctional facilities for juveniles.”13 The Council for Juvenile Corrections Administrators (“CJCA”), which is comprised of juvenile justice administrators and directors across the United States, published a report in March 2015 denouncing the use of punitive solitary confinement and issuing a toolkit and recommendations for reducing the use of solitary confinement.14 The CJCA explained that “[a]cademic research continues to show that placing incarcerated youths in isolation has negative public safety consequences, does not reduce violence and likely increases recidivism,” while the research confirms that this practice “can cause serious psychological, physical, and developmental harm, resulting in persistent mental health problems, or worse, suicide.”15 In light of this background, it is no surprise that there is a national movement aimed at reforming the use of solitary confinement in juvenile facilities. As legislators, advocates, and courts address this issue, the focus has been primarily on the elimination of punitive solitary confinement. While the elimination of punitive solitary confinement significantly reduces the risk of serious harm to juveniles in secure facilities, it is only a first step towards eliminating the practice because solitary confinement continues to be used for non-punitive purposes. The overwhelming majority of states continue to lock young people up alone, potentially for long periods, based on a perceived threat to themselves, others, or the security of the facility. Policies that permit the overbroad and prolonged use of non-punitive solitary may expose juveniles to the 13 Solitary Confinement of Juvenile Offenders, Policy Statement, Academy of Child and Adolescent Psychiatry (April 2012), available at http://www.aacap.org/cs/root/policy_statements/solitary_confinement_of_juvenile_offenders 14 Council of Juvenile Correctional Administrators Toolkit: Reducing the Use of Isolation , March 2015, http://cjca.net/index.php/resources/cjca-publications/107-toolkit/751-cjca-toolkit-for-reducing-the-use-of-isolation. 15 Id. at 2. 5 very same physical and psychological harms that the abolition of punitive isolation is meant to prevent. Key Findings on the Use of Non-Punitive Solitary Confinement16 Of the 21 states that ban punitive solitary confinement, at least 19 continue to use solitary confinement for other purposes, such as safety concerns. Only 7 of the 19 set limits on the maximum time a juvenile can spend in nonpunitive solitary confinement, and the majority of those limits range from 3 to 5 days, which is a long time for youth to be in isolation. 7 of the 19 provide that the juvenile should be released when he/she regains self-control, irrespective of the time limit, but those decisions are often left to the discretion of the corrections officer. Thus, juveniles can spend prolonged periods in solitary confinement even in those states that ban this practice as a form of punishment. In reality, the difference between punitive and nonpunitive confinement may be blurred, as juvenile facility staff may loosely interpret the requirement that confinement be a direct response to threats – especially in an institutional culture where the default for decades has been to send youth who are acting out to solitary confinement. Close monitoring of the amount of time juveniles are spending in solitary confinement, the events that are leading to such placement, and the decision-makers responsible for placing youth in or releasing them from isolation is necessary to prevent prolonged solitary confinement and the harms associated with it. This can only be achieved through laws or policies that 16 See Attachment 3 (bar graph setting forth the time limits on non-punitive solitary confinement that are in effect in states that prohibit punitive solitary confinement). 6 mandate strict data collection and the regular publication of de-identified, aggregate data, along with vigilant monitoring of the data to ensure accountability and reform where necessary. We prepared the updated survey with the goal of distilling best practices from those states that have not only eliminated punitive isolation, but also closely regulate the non-punitive use of isolation by imposing safeguards such as meaningful time-limits, supervisory approval, the early intervention of mental health professionals, and continued access to education and social services. For example, litigation in Illinois recently led to reforms in 6 state-run juvenile facilities and much can be learned from the new policies adopted by the Illinois Department of Juvenile Justice. The policies abolish punitive isolation and also safeguard against the abuse of nonpunitive confinement by: limiting it to 24 hours in most cases and requiring 8 daily out-of-room hours for confinements that are 24 hours or longer; requiring early intervention and continued review by a licensed mental health professional; requiring safety checks every 5-15 minutes; ensuring the continuation of ordinarily provided mental health and educational services; permitting access to reading and writing materials, as well as visits from family, attorneys, and clergy; requiring documentation and cumulative data collection of all confinement decisions; and requiring supervisory approval for confinement decisions with escalating oversight based upon the length of the confinement.17 In Colorado, juveniles placed in seclusion are afforded access to medical services, education, and other basic necessities available to the general population, e.g., the use of toilet facilities, mail, and the same meals as the general population.18 In Connecticut, confinement over 24 hours requires authorization from the head of the institution, and staff 17 New IDJJ Policies that Prohibit Juvenile Solitary Confinement, ACLU of Illinois Summary of April 2015, available at http://www.aclu-il.org/wp-content/uploads/2015/04/Summary-of-new-IDJJ-confinement-policy-4-2715-2.pdf. 18 COLORADO DEP’T OF HUMAN SERVS. DIV. OF YOUTH CORRS. POLICY 14.3B(III)(D)(1) (Sept. 15, 2014 ), available at http://cdn.colorado.gov/cdhsdyc/SPolicies/S-14-3B.pdf. 7 members must visually check on the juvenile’s well-being at least once every 30 minutes.19 In Vermont, seclusion lasting over 10 minutes requires approval from the supervisor and administrative or clinical approval must be obtained if it lasts over 30 minutes; youth in seclusion must be constantly supervised by staff.20 In New Jersey, room restriction cannot be imposed until all other less-restrictive options have been exhausted. The New Jersey facilities must also document and publish, in aggregate: the dates and duration of each occurrence of room restriction; the reason for the placement; race, age, and gender of the juvenile; and any reliance on health or mental health clinical evaluations in the placement decision.21 Some states, such as Florida and Arizona, require a due process hearing for prolonged confinement for safety concerns.22 These are just a few examples of the approaches that states have taken with respect to non-punitive solitary confinement. Our hope is that this survey will assist states in passing rules and policies that have the appropriate protections in place, and we offer the following recommendations based upon our review of each jurisdiction’s practices and the recommendations set forth in the CJCA’s toolkit for reducing the use of solitary confinement. Sample Best Practices Prohibit punitive solitary confinement. Non-punitive confinement, if permitted, should be for narrow and clearly defined circumstances. Broad and vague definitions lend themselves to abuse and may make non-punitive isolation an inappropriate proxy for punitive solitary confinement. 19 CONN. AGENCIES REGS. § 17a-16-11 (1994). 20 12-3-508 VT. CODE R. §§ 659-664 (current through May 2015). 21 S2003/A4299, which was signed into law on August 10, 2015, see P.L. 2015, c. 89. 22 FLA. ADMIN. CODE R. 63G-2.012(4)(J)(2006); ARIZONA DEPT. OF CORRS. POLICY 4061 SEPARATION, at Procedures (2)(b) (effective Mar. 17, 2015). 8 Last Resort: Solitary should not be used until all other less-restrictive options and de-escalation techniques have been exhausted. All facility staff should be trained in the use of the solitary confinement policy and in appropriate de-escalation techniques. Short Term: Solitary should only be imposed for the minimum time necessary to address the safety risk and for a period that does not compromise the mental and physical health of the juvenile. Set time limits should apply and isolation should not exceed a few hours unless absolutely necessary for the safety of the juvenile. If a juvenile is in solitary confinement for more than 24-hours, he should receive at least 8 daily out-of-room hours during every subsequent 24hour period, including at least one hour of large muscle exercise. Seek Permission: Staff should seek supervisory approval as soon as possible. The amount of time in which it is feasible to seek approval will depend on the facility and the nature of the risk to be addressed. Oversight should escalate with the increased length of confinement. No juvenile should be in solitary confinement longer than eight hours without approval from a licensed mental health professional and the head of the institution, or his/her deputy. A due process hearing should be required to keep a juvenile in confinement for more than 24 hours. Early Intervention: Licensed mental health professionals should be consulted and involved in the initial placement decision, if possible; involved in the immediate and continued monitoring of the juvenile while in isolation; and consulted as to the appropriate time to release the juvenile. Constant Monitoring: Safety Checks should occur frequently, at least every 30 minutes, and should involve interacting with the juvenile. Maintain services: A juvenile’s access to regular educational services, programming, and mental health and medical services should not be disrupted. Avoid complete isolation: A juvenile should have access to reading and writing material, be able to communicate with staff on a frequent basis, and be permitted visits from family, attorneys, and clergy. Data collection and publication: Every facility should, at minimum, document and publish, in aggregate, information on: the dates and duration of each occurrence of solitary confinement; the reason for the placement; the decision makers and approvals obtained; and the race, age, and gender of the juvenile. 9 METHODOLOGICAL CONSIDERATIONS When reviewing the survey and the charts, readers should consider the following: • The phrase “solitary confinement” has no universal definition, but is commonly used to mean “the physical isolation of individuals who are confined in their cells/rooms for twenty-two to twenty-four hours a day.”23 States use several different names for solitary confinement, such as room restriction, segregation, isolation, room lock, lockdown, seclusion, behavior modification unit, and others. This survey does not seek to adopt a universal definition or term to refer to the practice of solitary confinement; rather, we set forth the nomenclature used by each jurisdiction and include a definition and/or description (where available) of the conditions of confinement to allow the reader to make appropriate comparisons. • The survey focuses only on confinement in juvenile facilities. Many states permit juveniles to be incarcerated in adult facilities, which are often governed by different regulations and employ harsher solitary confinement practices. More research is required to further categorize states based on their treatment of juveniles in adult facilities. • Juvenile detention facilities can vary greatly within a state: some are run by the state, while others can be run by counties, cities, or private operators; some facilities are for pre-trial detention, while others serve as post-disposition secure facilities for youth. Thus, individual facilities within the same state may be governed by different laws and policies relating to the use of solitary confinement. Although the survey attempts to capture statewide practices, there are a number of juvenile facilities that are not operated by the state and whose policies on solitary confinement are not publicly available through online resources; this lack of information on the practices of all juvenile detention facilities may diminish the accuracy of the survey. • States’ confinement polices vary in their level of restrictiveness. When examining confinement practices, it is important to consider the amount of time during waking hours that a juvenile is permitted to leave his or her cell, as well as the juvenile’s ability to access educational services, treatment, and programming that is comparable to what the juvenile would receive when in the general population. • When the survey refers to “punitive” solitary confinement, it is referring to the practice of placing juveniles in solitary confinement as a form of punishment – usually in response to a behavioral infraction. Solitary confinement can also be imposed for non-punitive purposes, such as to protect against a perceived threat to the juvenile, others, or the security of the 23 Interim rep. of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 18, 23 U.N. Doc. A/63/175 (July 28, 2008). 10 facility, or for administrative reasons such as a staff shortage. The purpose for placing the juvenile in solitary confinement will govern which rules and policies apply. • A number of states had conflicting policies on their use of punitive solitary confinement. We note the conflicts in the survey and did our best to reconcile the conflicts (where possible) through conversations with practitioners and/or administrators in the state. 11 51-Jurisdiction Survey of Juvenile Solitary Confinement Rules The “long summary” column contains notes on the jurisdiction’s rules; the “short summary” column provides the highlights and the source of the law (i.e. regulation, statute, policy). Due to space constraints, the “short summary” focuses on type of confinement allowed, length of time, and due process protections in place. For a complete understanding of the conditions of confinement, such as the services juveniles can access and the frequency of safety checks, readers should review the “long summary.” State Alabama Long summary A juvenile may be confined for punitive reasons. Room restriction may be imposed as a consequence for major rule violations: • Administrative authorization required for room restriction to exceed eight hours. • Staff must check on youth in isolation every 15 minutes unless the youth is suicidal, in which case the youth is observed continuously. • Before room restriction is imposed, the juvenile must have an opportunity to explain his/her behavior. • The juvenile has the opportunity to have the alleged violation reviewed by an uninvolved supervisor within 24 hours. ALA. ADMIN. CODE r. 950-1-6-.05(3)(d)-(h)(2005). Alaska Short summary Punitive confinement allowed. Administrative authorization required for confinement over 8 hours. By regulation A juvenile may not be confined for punitive reasons. No punitive confinement allowed. It is the responsibility of the court to ensure proper confinement conditions. AK Delinquency Rules, Rule 13 (Supreme Court Order 845 effective August 15, 1987). Non-punitive confinement for up to five 24-hour periods allowed to ensure safety of juvenile, others, or security of facility. Confinement for non-punitive reasons: • Juvenile may be confined to ensure the safety of the juvenile or others, or to ensure the security of the facility, up to 24 hours. • Confinement for over 24 hours must be reviewed every 24 hours by the superintendent or designee. • Juvenile may not be confined for more than five 24-hour periods. ALASKA ADMIN CODE tit. 7, §52.310(b) (1980). 12 By court rule & regulation Arizona The Arizona Department of Juvenile Corrections (ADJC) policy manual disallows punitive confinement. ARIZONA DEP’T OF JUVENILE CORRS. POLICY 4061 SEPARATION (effective Mar. 17, 2015). However, a juvenile may be referred to separation for the following reasons: • Danger to self; • Danger to others; or • Self-referral. Id. at Procedures (2)(b); (5)(a)(ii). Due Process Protections • Referring employee must complete incident report as soon as possible following juvenile’s referral to separation. Id. at (2)(C). • Confinement beyond 24 hours requires due process hearing. Id. at (12)(a)(i). • An advocate (any employee the juvenile selects) may serve as the juvenile’s advocate if the employee has received annual hearing training. Id. at (12)(b)(iv.)-(v.). • Confinement beyond 48 hours and up to 72 hours requires approval of Secure Care Programs Chief Administrator. Id. at (13). • Confinement beyond 72 hours and up to 120 hours requires approval of Secure Care Bureau Administrator. Id. • Confinement beyond 120 hours requires approval of the ADJC Director or designee. Id. • Juveniles in separation continue to receive visitation and phone privileges. Id. at 22-23. • Large muscle group exercise must be provided for 1 hour daily for those juveniles in separation for longer than 24 hours. Id. at 25. Arkansas No punitive confinement allowed. Non-punitive segregation (imposed when juvenile poses danger to self or others) permitted up to 24 hours without a hearing; hearing required for confinement beyond 24 hours; tiered level of approval required for confinement beyond 48 hours. By policy and consent decree A juvenile may not be confined for punitive reasons. No punitive confinement allowed. However, a juvenile may be confined for nonpunitive reasons when the juveniles present a danger to himself or others. Room restriction is permitted when juvenile poses danger to himself or others. 13 California Conditions for non-punitive room restriction: • Requires administrative authorization for room restriction to exceed eight hours. • Must explain reasons for restriction to juvenile and give juvenile an opportunity to explain his or her behavior. • Must check on juvenile in isolation every 30 minutes. • Must keep records of room restriction. ARK. ADMIN. CODE 016.01.9-3-C (current through May 2015). Administrative authorization required for room restriction over 8 hours. A juvenile may be confined for punitive reasons. Punitive confinement allowed. California’s Disciplinary Decision-Making System (“DDMS”) allows for two types of confinement: room restriction and ward lock-up. CAL. CODE REGS. tit. 15, § 4634 (current through May 8, 2015). The differences in conditions between “room restriction” and “ward lock-up” are not described in the California Code of Regulations. By regulation Punitive room restriction allowed up to 90 days, with a hearing required for confinement over 24 hours. By regulation Room Restriction: A juvenile may be placed in room restriction for up to 90 days for a “Level A” rule violation. Id. Ward lock-up: A juvenile may be placed in ward lock-up for up to 24 hours for a “Level A” violation, and up to 10 days for a “Level B” violation. Id. • • Level A violations are violations that do not require an extension of the youth’s parole consideration date. Id. Level B violations are violations that delay the youth’s parole consideration date and include: − Physical attack − Nonconsensual sexual act − Possession/manufacturing of weapons − Possession/manufacturing of drugs − Escape from facility by force − Holding a person against his/her will to compel the person to take certain actions 14 Id. at § 4961. Confinement may not exceed 24 hours without a hearing at which the youth may present evidence and testimony. Id. at § 1391. A juvenile may not be confined for punitive No punitive reasons. confinement allowed. • Colorado Types of seclusion used in Colorado juvenile detention facilities include: • Administrative seclusion; • Self-initiated timeout; and • Staff-directed timeout, not exceeding 30 minutes. COLORADO DEP’T OF HUMAN SERVS. DIV. OF YOUTH CORRS. POLICY 14.8 (Sept. 15, 2014), available at http://www.colorado.gov/cdhsdyc/SPolicies/S-148.pdf (hereinafter “Policy 14.8”); COLORADO DEP’T OF HUMAN SERVS. DIV. OF YOUTH CORRS. POLICY 14.3B (Sept. 15, 2014 ), available at http://cdn.colorado.gov/cdhsdyc/SPolicies/S-143B.pdf (hereinafter “Policy 14.3B”). Seclusion • Seclusion cannot be used as a form of punishment. Id. at 14.3B(III)(A)(2). • Seclusion may be used: − During an emergency, which occurs when a juvenile is determined to be a serious, probable, and imminent danger of bodily harm to himself or others and where there is the present ability to effect such bodily harm, and less restrictive alternatives have failed, or; − There is a court order mandating that a juvenile be kept separate from the general population. Id. at 14.3B (III)(A)(1). • Only an administrator, shift supervisor, or lead worker may authorize the use of seclusion. Id. at 14.3A(4). • As soon as the emergency ceases or the court order is abandoned or vacated, the juvenile shall be removed from seclusion. Id. at 15 Seclusion is allowed when juvenile poses a danger to himself or others, but he must be removed as soon as emergency ceases. Time outs cannot exceed 60 minutes if selfinitiated or 30 minutes if directed by staff. By policy and regulation • • • 14.3A(5). Rules governing documentation of seclusion and conditions for seclusion can be found in Policy 14.3B (III)(C)(3)-(4). Any juvenile placed on seclusion shall be afforded access to medical services, education, living conditions and other basic rights available to the general population, e.g., the use of toilet facilities, mail and the same meals as the general population. Id. at 14.3B(III)(D)(1). Any exceptions to or denial of these rights shall be justified by clear evidence of risk and shall be appropriately documented. Id. at 14.3B(III)(D)(2). Self-Initiated Time-Out • Juveniles may be placed in a room during a self-initiated time-out for purposes of safety and security upon the juvenile’s request. As soon as the juvenile requests egress the door shall be unlocked. A self-initiated time-out shall not exceed 60 minutes. Policy 14.8(III)(4)(a); (III)(6). Staff-Directed Time-Out • Juveniles may be placed in a room during a staff-directed time-out for purposes of safety and security only. As soon as the juvenile requests egress the door shall be unlocked. Staff-directed time-outs shall not exceed 30 minutes. Policy 14.8(III)(C)(3), (5). Rules governing documentation of time-outs can be found in Policy 14.8(III)(E). A juvenile who poses a danger to himself or others may be transferred to another facility for up to 60 days. A juvenile may not be held in isolation or segregation in an adult facility for longer than 60 consecutive days without action by the sentencing court. COLO. REV. STAT. ANN. § 18-1.3-407(5) (West amended 2015). 16 Connecticut A juvenile may not be confined for punitive reasons. No punitive confinement allowed. Punitive solitary confinement is banned in juvenile Seclusion is permitted to detention facilities. address threats to safety, CONN. AGENCIES REGS. § 17a-16-11 (1994). property, or order; head of institution must Non-punitive seclusion is permitted if: authorize if exceeds 24 hours. • there is reasonable cause to believe that the juvenile may injure another person; By statute and • to prevent the juvenile from inflicting regulation property damage; or • the juvenile is engaging in uncontrollable disruptive behavior. Id. at § 17a-16-11(a). • Authorization of head of institution required before seclusion exceeds 24 hours. Id. at § 17a-16-11(c). • Staff members must visually check on youth’s well-being at least once every 30 minutes. Id. at § 17a-16-11(d). • Room conditions are specified at § 17a-1611(e). Pre-adjudication, “[a]ny child confined in a community correctional center or lockup shall be held in an area separate and apart from any adult detainee, except in the case of a nursing infant, and no child shall at any time be held in solitary confinement.” CONN. GEN. STAT. ANN. § 46b-133(e)(6) (2011). Delaware A juvenile may be confined for punitive reasons. “Locked isolation” is defined as “the involuntary and time-limited confinement of a child in a locked room for the purpose of behavior management.” 9 DEL. ADMIN. CODE § 105-1.4 (current with 2015). Punitive confinement allowed. Confinement not to exceed 2 consecutive hours with max of 6 hours a day. By regulation A licensee shall utilize locked isolation only: • When a child’s behavior is so violent or disruptive as to present a high risk of physical or emotional harm to the child or others; • When other less restrictive and less punitive physical interventions have been applied 17 without success; and For a duration of time that does not exceed two consecutive hours or a total of 6 nonconsecutive hours within any 24-hour period. Id. at § 22.214.171.124-126.96.36.199. • “Exclusion” is defined as involuntary confinement in an unlocked room under continuous monitoring. Id. at § 105-1.4. • Exclusion can only last for 1 hour at a time with administrative review if the child is excluded more than 10 times or for more than 6 hours in a day. Id. at § 105-188.8.131.52-2. Other safeguards: • 10 minutes of release for each 2 consecutive hours of restriction. Id. at § 105-9.4.1. • Standards for the quality of the isolation room can be found in section 105-9.6.7 • Restrictive procedures may not be used in a “punitive, retributive, harsh or abusive manner.” Id. at § 105-9.4.2. A bill was introduced on January 29, 2015, that would ban the use of solitary confinement “on a juvenile for management or discipline.” H.B. 36, 2015 Gen. Assemb., Reg. Sess. (Del. 2015). Florida A juvenile may be confined for punitive reasons. Confinement may be used to punish youth for violation of facility rules and as a non-punitive method of behavior management. Use of confinement must be monitored closely by superintendent or designee. FLA. ADMIN. CODE r. 63G-2.012(4)(a)(2006). Confinement up to 24 hours may be implemented by on-duty supervisor who must document the continued need for confinement every 3 hours. Confinement beyond 24 hours (and every 24 period thereafter) must be approved by superintendent or designee. Id. at § (4)(e). Confinement may not exceed 5 days unless the release of the youth into the general population 18 Punitive confinement allowed. Punitive confinement allowed up to 5 days; need approval from superintendent or designee if beyond 24 hours and every 24 hours thereafter. After a hearing, confinement can exceed 5 days if juvenile’s release would harm safety and security of facility. would jeopardize the safety and security of the facility as documented by the superintendent. No youth shall be held in confinement beyond 5 days without a confinement hearing. Id. at § (4)(j). By regulation Mandatory confinement for certain rule violations: • Physical attack; • Possession of weapon; • Attempted escape; • Gang-related activities; • Property damage; and • Attempt to resist staff. Id. at § (4)(g). The length of time of confinement shall be 3 days for first occurrence and up to 5 days for third occurrence. Id. at § (4)(h). Standards for confinement rooms, observation, and reporting requirements are found in id. at (4)(b)(c). Georgia A juvenile may be confined for punitive reasons. Punitive room confinement is ordinarily allowed for up to 72 hours. • Requires a hearing • Confinement can be up to 120 hours (with written approval) for the following rule violations: youth on youth sexual contact, youth on staff sexual assault, any physical assault, riot, attempted escape, and possession of dangerous contraband. • Extending room confinement over 120 hours requires authorization by 6 administrators, including the Deputy Commissioner of Youth Services. GEORGIA DEP’T OF JUVENILE JUSTICE POLICY at 16.5(III)(I)(3)-(4) and (L), available at http://www.djj.state.ga.us/Policies/BrowseSearch.a sp. “Cooling-off” is a non-punitive measure that requires separation of youth for 60 minutes. Id. at 16.3. Pre-hearing confinement allowed for up to 72 19 Punitive confinement allowed. Punitive confinement requires a hearing and allowed up to 120 hours for certain rule violations; can be extended with appropriate authorization. Pre-hearing confinement allowed up to 72 hours if youth poses imminent threat. By policy hours if the youth poses imminent threat to others or the safety/security of the facility. Id. at 16.4. Standards for room confinement are specified in Policy 16.6. Hawaii A juvenile may be confined for punitive reasons in Hawaii’s detention facilities, according to a selfassessment by Hawaii’s juvenile detention facility. However, Hawaii’s juvenile correctional facility uses non-punitive confinement under certain criteria (see below). Neither Hawaii’s statutes nor regulations discuss solitary confinement. However, Hawaii’s Hale Ho`omalu Juvenile Detention Facility has “committed to operationalize” the “core strategies” of the Juvenile Detention Alternatives Initiative (“JDAI”), which publishes standards on juvenile confinement. A Self-Assessment of the Conditions of Confinement, HALE HO’OMALU JUVENILE DETENTION FACILITY 3-4 (Jan. 2012), http://www.courts.state.hi.us/docs/news_and_repo rts_docs/2012_Self_Assessment_Report.pdf. Among other things, the JDAI standards allow for punitive room confinement up to 72 hours. Id. at 94. Although Hawaii does not treat the standards as definitive, a 2012 Self-Assessment Report found that Hawaii conforms to 88% of the standards. Id. at 6. The report further concluded that: • There has been improvement in minimizing use of isolation to only the amount of time necessary for the youth to regain control. Id. at 16. • Youth are given notice of their misbehavior, a hearing, and an opportunity to appeal – all of which appear to be clearly explained and understood by youth and staff. Id. • Due process hearings are provided if staff is available and not necessarily before the youth serves the room confinement. The youth handbook does not inform youth that have a 20 Punitive confinement allowed in detention facility only. In Hawaii’s Youth Correctional Facility, segregation may only be used for safety, destruction of property, or to prevent escape, and only up to 4 hours. According to selfassessment report compiled by the Hale Ho`omalu Juvenile Detention Facility and policy. right to a due process hearing prior to serving the room confinement. Id. at 17. Hawaii’s Youth Correctional Facility is governed by a “security and control” policy that uses a “Security Program” (segregation from the general population and placement in a cell or holding unit) that cannot be used for “retribution” and only in the following instances: • Youth is a serious and immediate physical danger to others • Youth is a serious and immediate danger to himself or herself • Youth is a serious threat to the safety and orderly running of the facility • Youth is committing a substantial destruction of property (defined as damage over $150.00) • Youth is an imminent escape risk HAWAII YOUTH CORR. FACILITY POLICY NO. 17.19 SECURITY PROGRAM (Feb. 11, 2009). The Security Program is considered a last resort to control behavior and the length of time in Security Program placement is determined by the length of time required to help the youth gain control, but never beyond 4 hours. Id. • If the youth is “highly agitated,” a Qualified Mental Health Professional or the Youth Facility Administrator or designee must be contacted immediately. • Once a youth is placed in a cell or holding unit, the Deputy Youth Facility Administrator (Deputy YFA) or the Youth Facility Administrator (YFA) must be notified immediately and the Deputy YFA or the YFA must determine whether the request meets the criteria for continued segregation. • All Security Program admissions require ongoing de-escalation and counseling of youth to help him or her gain self-control. • Staff must visually monitor and document the monitoring. • As soon as clinically appropriate, medical staff must assess the youth to check for mental or medical illness that could be exacerbated by the use of segregation. 21 Idaho A juvenile may be confined for punitive reasons. The administrative code defines two types of confinement: • Room confinement – Juvenile confined to room in which he normally sleeps. • Separation or isolation – Juvenile is confined alone for over 15 minutes in a room other than the room in which he or she usually sleeps. IDAHO ADMIN. CODE r. 05.02.01.010 (current through September 2, 2015). Punitive confinement allowed. Room confinement may be used punitively, but may only be used in an unlocked area and may not exceed 8 hours in a 24-hour period. By regulation The rules for contractor providers state: • Youth assigned to room confinement must be kept in an unlocked area. Id. at § 05.02.02.222. • Room restriction may not exceed 8 hours in a 24 hour period. Id. • Staff must check on juvenile once every 15 minutes. Id. • Contract providers must ensure that a juvenile offender with a history of depression or suicidal ideation and those who have exhibited these behaviors while in care, are checked at least every five (5) minutes in order to ensure safety. • Separation or isolation under 2 hours is not required to be reported to department; separation over 2 hours must be reported. Id. at § 05.02.01.241. • Separation or isolation must be noted in an incident report. Id. Illinois A juvenile may not be confined for punitive reasons. No punitive confinement allowed. In April 2015, the ACLU of Illinois and the Illinois Department of Juvenile Justice (IDJJ) entered into a court settlement whereby the IDJJ agreed to new policies which prohibit punitive confinement and closely regulate six forms of authorized confinement: Confinement for safety concerns: limited to 24 hours or when youth regains self-control, whichever is sooner; early mental health professional intervention. • “Confinement” – may be used when a youth exhibits violent, aggressive or uncontrolled behavior and poses threat to self/others, or security of facility. Limited to 24 hours or 22 For all non-punitive confinement: safety when youth regains self-control, whichever is sooner. At the 4th hour and every 2 hours after that, a mental health professional (or staff trained in crisis response) must meet with youth to assist them in regaining self-control. • “Crisis confinement” – may be used when a youth exhibits behavior indicating mental or emotional disorder to suicidal ideation. • “Behavioral hold” – may be used as a consequence for a rule violation, disobedience of staff, or other disruptive behavior. Limited to 4 hours or when supervisor deems youth ready to return, whichever is sooner. May take place in youth’s own room or other area, but not confinement unit. • “Medical hold” – may be used for “medical quarantine, recovery, or observation.” • “Administrative hold” – may be initiated by facility’s Chief Administrative Officer only. May be used for administrative or security purposes to separate youth from other youths. May be used for a total of 3 business days if youth is awaiting transfer to IDOC or other safety or security reasons warrant continued confinement. • “Investigative status” – may be initiated by IDJJ’s Deputy Director of Operations only. May be used when youth is alleged to have committed a major offense. May be used up to 4 days. Rules Applicable to all Forms of Confinement • All confinement decisions shall be documented in writing. • Chief Administrator Officer must review documentation justifying confinement as soon as possible • Safety checks every 5-15 minutes (depending on level of risk). • Family and clergy visits allowed. • Reading materials shall be provided. 23 checks at least every 15 minutes; regular education and mental health services provided; reading material, family, and clergy visits allowed; if confined for more than 24 hours, provided with a minimum of 8 hours out-of-room time for every 24-hour period; strict reporting and data collection requirements By consent decree • • • • • • • Youth shall continue to receive ordinary mental health services. Youth shall continue to receive ordinary educational services. Youth confined for 24 hours or more shall be provided a minimum of 8 hours of out-ofroom time for every 24 hour period, including at least one hour of large-muscle exercise. Youth confined for more than 24 hours shall be interviewed daily by a mental health professional. Parents or guardian must be notified if youth under 18 years of age is confined for 24 hours or more. Anytime youth is confined for 18 consecutive hours or on more than 10 occasions in any 30 day period, Deputy Director of Operations shall be notified immediately and documentation provided. Department shall maintain cumulative data on all confinement decisions. ACLU, New IDJJ policies that prohibit juvenile solitary confinement (April 2015), available at http://www.aclu-il.org/wpcontent/uploads/2015/04/Summary-of-new-IDJJconfinement-policy-4-27-15-2.pdf; R.J. v. Jones, No. 12-cv-07289 (N.D. Ill. April 24, 2014) (Order Approving Certain Policies) (Dkt. No. 135). Indiana A juvenile may be confined for punitive reasons. Indiana permits the following types of confinement: • Isolation: when youth is confined alone for cause or punishment for 15 minutes or more in a room other than a sleeping room. • Room confinement: when youth is confined for cause or punishment for 15 minutes or more in sleeping room. • Segregation: separation from general population. Includes placement in an isolation dorm but can include placement with other juveniles. INDIANA DEP’T OF CORR. CODE OF CONDUCT FOR STUDENTS NO. 03-02-101 at III(D), (F), and (H). 24 Punitive confinement allowed. Segregation (imposed for major rule violations) allowed 3 days per offense and extended to 5 days if additional violation committed while in segregation. Hearing required if over 24 hours; may be placed in pre-hearing segregation for major violations with time Minor Violations • Isolation and room confinement are used for minor violations. Id. at VI(B)(1). • Room confinement or isolation shall not exceed 60 minutes. Id. at VI(B)(1). • During confinement staff must make visual contact with juvenile once every 15 minutes. Id. at VI(B)(3). credited. By policy Major Violations • A juvenile may be punished with segregation for a major conduct violation. • 3 days segregation per offense but may be extended up to 5 days if student is charged with a rule violation while in segregation. • Student must have 2 hours of recreation per day, with at least 1 hour of exercise. Id. at V(C)(2). • Must be allowed clothing, bedding, mail, visitation, reading/writing materials, and use of hygienic facilities. Id. at V(C)(4). • Administrative hearing required before segregation over 24 hours. Id. at IV(B)(7). • May be placed in pre-hearing segregation for any major violations where pre-hearing segregation time is credited toward any punitive segregation time imposed. Id. at VIII. • List of violations that count as major violations are in Appendix 2. Iowa A juvenile may be confined for punitive reasons. Juvenile detention home may have a locked “control room” used to isolate or seclude juvenile. IOWA ADMIN. CODE r. 441-105.1 (2011). The home must specify behaviors resulting in control room placement. Id. at 441-105.10(1)(a). Time Limitations: • Placement in control room longer than 1 hour requires approval by supervisor. • Confinement over 12 hours in any 24 hour period requires consultation with referring agency or court. • No confinement over 24 hours. 25 Punitive confinement allowed. Isolation allowed up to 24 hours, with check-in every 15 minutes. Approval needed from supervisor if more than 1 hour; 12-24 hours requires consultation with referring agency or court. By regulation Id. at 441-105.10(3)(g). Reporting/notification requirements: • Document time in control room, reasons for control and any reasons for time extension. • Notify juvenile’s parents, referring worker, and attorney if control room used for more than 30 minutes in a 24-hour period. Id. at 441-105.10(3)(g)-(h). Safety requirements: • Required to check on juvenile every 15 minutes. Id. at 441-105.10(3)(f). • For physical requirements of control room, see id. at 441-105.10(2). • More safety requirements in id. at 441105.10(3). Kansas A juvenile may be confined for punitive reasons. Disciplinary segregation up to 30 days or restriction to living quarters for up to 10 days may be a penalty for a class I offense (worst kind of offense). KAN. ADMIN. REGS. § 123-12-1301(b)(1) and (4) (2005). Disciplinary segregation up to 15 days or restriction to living quarters up to 7 days for a class II offense. Id. at § 123-12-1302(b)(1) and (4). Disciplinary restriction to living quarters for up to 3 days for a class III offense. Id. at § 123-121303(b)(1). Confinement beyond 30 days requires superintendent’s approval. Id. at § 123-12-1308. Article 12 (“Defender Conduct and Penalties”) describes the range of offenses and each offense’s corresponding “class.” Id. at §123-12-101 to 1308. The Kansas Juvenile Justice Authority Internal Management Policy & Procedure 14-101 specifies 26 Punitive confinement allowed. Disciplinary segregation allowed up to 30 days and room restriction up to 10 days as a penalty for a Class I offense; superintendent’s approval required for confinement beyond 30 days. By regulation and policy conditions of disciplinary segregation: • Requirements for room and food quality are listed in id. at § III(A)(1)-(6). • Youth can send and receive mail, read softcover books and primary religious texts, and participate in educational programs. Id. at § III(A)(7), (9), (13). • Visits up to an hour may be allowed, depending on youth’s behavior. Similarly, telephone privileges may be granted if doing so would not pose a security risk. Id. at § III(A)(8). • Juveniles are allowed outside room for 1 hour a day, plus 1 hour a day of exercise. Id. at § III(A)(10)-(11). Kansas also employs what it terms “Administrative Segregation” which it defines as “the non-punitive separation of a youth from the general population.” Juvenile Justice Authority Internal Mgmt. Policy & Procedure 14-101, available at https://www.doc.ks.gov/kdocpolicies/juvenile-impp/segregation/14101.pdf/view. Kentucky A juvenile may be confined for punitive reasons. The Kentucky Department of Juvenile Justice is responsible for the operation of several juvenile residential facilities located across the state. Detention Centers • At Detention Centers, a “time-out” period not to exceed 1 hour may be imposed for minor misbehavior. DEPARTMENT OF JUVENILE JUSTICE POLICY AND PROCEDURES, NO. 717(IV)(D)(5) (Dec. 5, 2014), available at http://djj.ky.gov/Pages/Policy-Manual.aspx (hereinafter “DJJ”); see also 505 KY. ADMIN. REGS. 2:120(6)(a) (2000). • “Room restriction,” not to exceed 24 hours, is used as a disciplinary intervention or as a consequence for excessive disruption or physical infractions. DJJ 717(IV)(D)(6); see also 505 KY. ADMIN. REGS. 2:120(8). 27 Punitive confinement allowed. Punitive confinement for major rule violations allowed up to 5 days; can be extended for highly assaultive youth. In detention centers, authorization required to exceed 24 hours; in development centers, disciplinary review hearing precedes confinement. By regulation and policy • “Isolation” may be used for up to 5 days for major rule violations, but special instances may occur where highly assaultive youth may be confined for more than 5 days. Authorization required for confinement exceeding 24 hours. Youth must be visited at least once daily, given comparable living conditions and privileges to general population. DJJ 717(IV)(D)(9); see also 505 KY. ADMIN. REGS. 2:120(8). Youth Development Centers • Disciplinary confinement may be imposed for up to 5 days for a major rule violation, following a disciplinary review hearing. DJJ 318.3(IV)(H). • Room confinement for up to 4 hours may be used for “a youth who is showing or expressing a behavior that is a safety or security threat.” Id. at 318.3(IV)(F). Louisiana A juvenile may be confined for punitive reasons. Administrative Segregation/Confinement (formerly referred to as Room Confinement) is used for both punitive and non-punitive reasons. LA. ADMIN. CODE tit. 22, pt. 1§§ 785, 787 (1994). • • • • • Punitive confinement allowed. Punitive segregation/confinement limited to 5 days, but can be extended beyond 5 days with Pre-hearing administrative segregation /confinement normally cannot exceed 24 hours. proper authorization; youth observed every 15 Id. at § 787(A)(1). minutes. Schedule B offenders can be placed in administrative segregation/confinement for up Superintendent/ to 5 days. Id. at § 787(A)(3). This can be designee reviews time extended beyond 5 days with appropriate exceeding 24 hours. authority. Id. at § 787(A)(5); see also id. at § 793(A). Types of Schedule B offenses are By regulation listed in section 795. Time exceeding 24 hours must be reviewed by superintendent or designee. Id. at § 787(A)(4). Youth must be observed every 15 minutes and documented. Id. at § 787(A)(6). Must be able to receive/send correspondence and visits, and provided clean clothing, toothbrush/toothpaste, toilet, sufficient heat, light, ventilation, and same meals as other offenders. Id. at § 787(A)(8). 28 Maine A juvenile may not be confined for punitive reasons. No punitive confinement allowed. Punitive confinement and segregation at juvenile correctional facilities are disallowed by statute. ME. REV. STAT. ANN. tit. 34-A,§3032(5) (2006). Statute disallows punitive confinement but administrative code allows for punitive “room restriction” (during which the juvenile is permitted to leave his room for programming, visits, and meals) up to 30 hours. However, the administrative code allows for punitive “room restriction” in juvenile facilities. “Room restriction” means that the resident is confined to his/her room, but can leave for “normal educational and treatment programs” as well as “regularly scheduled visits and meals.” Staff must also check on the resident at least once every 15 minutes. 03-201 ME. CODE R. Ch. 12 §IV (Procedure B)(1)(i) (current through 2015). • Room restriction up to 30 hours may be imposed for “major misconduct” or 2 hours for “minor misconduct.” Id. at § VI (Procedure C)(Procedure D). • Major and minor misconduct are defined in § VI (Procedure A)(4). • The formal disciplinary process by which a juvenile might receive a punishment of room restriction is defined in § VI (Procedure F). A juvenile may not be confined for punitive reasons. • Maryland Using “locked door seclusion” as punishment is prohibited. MD. CODE ANN., § 9-227(b)(2)(i) (2014); MD. CODE REGS. 16.18.02.03 (current through 2015). However, locked door seclusion may be used (1) “when it is clearly necessary to protect the youth or other individuals or to prevent escape,” or (2) “after less restrictive methods have been tried or cannot reasonably be tried.” • Locked door seclusion is defined as “the placement of a youth in a locked individual room, separate from the youth’s room, where the youth is kept for a period of time.” MD. CODE REGS. 16.18.02.01(B)(6). • Locked door seclusion over 24 hours must be 29 By statute and regulation No punitive confinement allowed. Locked door seclusion allowed when necessary to protect youth or others, or to prevent escape. Limited to 72 hours except in an emergency; if over 24 hours, must be approved by superintendent or duty officer; youth seen at least once every 12 hours. reviewed and approved by the superintendent or duty officer. Youth must be seen at least once every 12 hours if the decision is to keep the youth in seclusion for more than 24 hours. Locked door seclusion should not exceed 72 hours except in an emergency. Id. at 16.18.02.03(C). • Each facility’s policy must address a youth’s right to a hearing. Id. at 16.18.02.05. Massachusetts A juvenile may not be confined for punitive reasons. By statute, the Department of Youth Services may order a youth’s “confinement under such conditions as it believes best designed for the protection of the public.” Mass. Gen. Laws ch. 120, § 6(b) (current through 2015). Title 109, Chapter 5 of the Code of Massachusetts Regulations (“Room Confinement of Juveniles Detained by or Committed to the Department of Youth Services”) establishes rules and procedures for room confinement of juveniles and is applicable to all facilities housing juveniles. 109 MASS. CODE REGS. 5.00 (current through May 8, 2015). • • • • Room confinement is defined as “the placing of a juvenile in a room from which he or she cannot leave.” Id. at 5.03. Each facility must develop guidelines for behavior that results in room confinement. Id. at 5.01. Room confinement is allowed “as a means for controlling seriously disruptive or dangerous behavior in a facility.” Id. The regulation does not specify that confinement must be non-punitive, but policy (see below) provides that it cannot be punitive. Limitations on room confinement: • The regulation contains a tiered approval schedule for room confinement, with confinement over 24 hours requiring the verbal approval of the Assistant Commissioner for 30 By statute and regulation No punitive confinement allowed. Room confinement permitted “as a means for controlling seriously disruptive or dangerous behavior in a facility;” youth has opportunity to challenge through a mediator; youth observed at least every 15 minutes and visited every 3 hours after the 12th hour. Tiered approval schedule; confinement over 24 hours requires approval of the Assistant Commissioner for Facility Operations/ designee. By regulation and policy • • • Facility Operations or a designee. Id. at 5.06(4). Juveniles confined to a room shall be given notice of the alleged infraction, access to the room confinement mediator and the opportunity to respond to the allegations before the confinement exceeds 2 hours. Id. at 5.06(6). The youth must be observed every 15 minutes, and a juvenile confined for more than 12 hours must be visited once every 3 hours. Id. at 5.07.08. The regulation also contains reporting requirements. Id. at 5.09. Department of Youth Services Policy 03.03.01(a) similarly provides that youth may be kept involuntarily in a room for the following reasons: to calm a youth who is exhibiting seriously disruptive or dangerous behavior; for population management; for the safety and security of a youth; and for investigation of an incident. DEP’T OF YOUTH SERVICES POLICY 03.03.01(a) (Mar. 15, 2013), available at http://www.mass.gov/eohhs/docs/dys/policies/030 301-involuntary-room-confine.doc. If a youth is confined for exhibiting seriously disruptive or dangerous behavior, the facility must also show that: a. less restrictive crisis intervention techniques have failed; and b. staff obtains proper authorization, as described in Section F of this policy. Id. However, a youth may not be confined in a room for the following reasons: as a consequence for non-compliance; punishment; harassment; or in retaliation for any youth conduct. Id. Conditions of Confinement • Authorization required before placing youth in individual room confinement. Tiered approval is required for varying periods of confinement. Id. • Staff must conduct 4 minute room checks during the first hour of room confinement. Id. 31 • • Michigan After the first hour of room confinement, staff shall monitor youths every 10-15 minutes. Id. For individual room confinement, staff must attempt to engage the youth in a release strategy at least once every 30 minutes. Id. A juvenile may be confined for punitive reasons. Under the administrative code, confinement is allowed for both punitive and non-punitive reasons. MICH. ADMIN. CODE r. 400.10171 (current through May 1, 2015). Punitive confinement allowed. Confinement over 72 hours requires written approval of chief administrator; youth has Each facility must have a written discipline policy an opportunity to and procedure specifying acts which are prohibited challenge. and the penalties that may be imposed for minor and major misconduct. Id. at 400.10169(2). By regulation • Confinement over 72 hours may be used when a resident has been charged with a major rule violation. Requires the written approval of the chief administrator. Id. at 400.10176(3)-(4). • The resident must have the restriction explained to him and an opportunity to explain either before his confinement or as soon as possible thereafter. Id. at 400.10176(2). • Staff must maintain a record of the confinement and for any instances where confinement exceeds 2 hours, it must be approved and record taken of the reason for its continued use. Id. at 400.10175(4)-(5). • Staff must visually observe the resident at least once every 15 minutes. Id. at 400.10175(6). • When confinement exceeds 12 hours, the chief administrator or a designee must review the appropriateness and necessity for the confinement every 12 hours. Id. at 400.10175(7). Confinement must not result in the resident being subjected to: • Corporal or cruel punishment; • Humiliation; • Mental abuse; or • Punitive interference with daily physiological functions. Id. at 400.10169. 32 Minnesota A juvenile may be confined for punitive reasons. Detention facilities may seek certification to use seclusion or “disciplinary room time” (“DRT”). MINN. R. 2960.0410 (current through May 13, 2015); MINN. R. 2960.0710, subp. 4; MINN. R. 2960.0050, subp. 1(R) (disciplinary room time permitted in accordance with facility’s discipline plan). Punitive confinement allowed. Disciplinary segregation allowed up to 5 days for major infractions; due process hearing within 24 hours of placement in DRT; status reviewed by administrator at least every 8 hours after Disciplinary Room Time (“DRT”) Disciplinary room time (“DRT”) is defined in Rule hearing. 2960.0020 subp. 30 as when the resident is “placed in a room from which the resident is not permitted to exit, and which must be issued By regulation and according to the facility’s due process system[.]” policy The status of a resident placed in DRT after a dueprocess hearing must be reviewed by an administrator at least once every 8 hours. A resident placed in DRT prior to a due process hearing must have a hearing within 24 hours. Id. at 2960.0270 subp. 6(D). Seclusion MINN. R. 2960.0710, subp.6 provides that facilities may use seclusion to address imminent threats. The use of seclusion must end when the threat of harm ends. Red Wing Policy Minnesota Department of Corrections Policy 303.010RW (“Discipline Plan and Rules of Conduct”) provides rules and procedures for the Red Wing Facility, Minnesota’s only long-term juvenile correctional facility. (The other youth correctional facility is a wilderness camp that hosts youth for up to three months, and does not have policies on segregation.) MINNESOTA DEP’T OF CORRS. POLICY 303.010RW (Mar. 4, 2014), available at http://www.doc.state.mn.us/DocPolicy2/html/DP W_DisplayINS.asp?Opt=303.010RW.htm (hereinafter “Red Wing Policy”). The Red Wing Policy provides: • A “major rule violation” carries a penalty of up 33 to 5 days of DRT. Id. at Definitions. Examples of major rule violations include abuse/harassment, assault, threatening others, and tampering with security/safety devices. Id. • A hearing must be held within 24 hours of placement in DRT. Id. at Procedures (F). • Consecutive penalties may be imposed for more than one major rule violation. Id. at Procedures (I). • Resident must continue to receive services including recreation and leisure activities, visiting, telephone, and mail communication. Id. at Procedures (F). A juvenile may be confined for punitive reasons. • Mississippi A 2012 consent decree governs the placement of male youth in punitive solitary confinement. C.B. v. Walnut Grove Corr. Auth., No. 3:10cv663 (S.D. Miss. 2012) (ECF No. 75-1) (hereinafter Consent Decree). Solitary confinement, defined as confining youth in a cell for more than 20 hours a day, is forbidden. Consent Decree at 9. “Disciplinary Cell Confinement” is permitted for violation of a major rule. Id. The consent decree specifies limits on use of disciplinary cell confinement: • May only last up to 72 hours. Id. at 9-10 • Any confinement longer than 2 hours requires permission from the Warden and documentation stating the reason for the confinement and justification for any extensions. Id. at 10. The Deputy Commissioner or a designee may approve confinement beyond 72 hours, but only when the youth “presents a continuous and direct threat to the safety of others.” This extension must only be used “in “extraordinary circumstances.” The Deputy Commissioner must review the extension every 72 hours. Id. at 10-11. • Youth must receive at least 4 hours of out-ofcell activity, including 1 hour of exercise. The 34 Punitive confinement allowed. Youth placed in disciplinary confinement for up to 3 days for major rule violations; can exceed 72 hours in “extraordinary circumstances” with approval of Deputy Commissioner/ designee – to be revisited every additional 72 hours. Non-punitive “emergency confinement” for “immediate, serious threat to safety of others” not to exceed 24 hours. By consent decree • • • • youth may also be permitted to make weekly phone calls and to visit with family at least twice a month. Id. at 5. Juveniles receive same access to meals, clothing, etc. as youth in the rest of the facility. Id. at 10. Placement of youth in confinement must be documented. Id. at 10. Youth may not be placed in confinement without due process protections. Id. at 10-11. Staff must check on youth at least 4 times an hour, and must and speak to the youth during those checks. Id. at 11. “Emergency confinement” may also be used: • If youth presents immediate, serious threat to safety of others. • Youth must be released once he/she has regained self-control. • Not to exceed 24 hours. Id. at 9-10. Missouri A juvenile may be confined for punitive reasons, however, in practice, punitive confinement is rarely used. Punitive confinement allowed, but is not used in practice. Juveniles are housed in two types of facilities in Missouri: 1. Juvenile detention facilities used pre-trial 2. Division of Youth Services (DYS) facilities used post-disposition. Usually, isolation is used for a cooling off period of 1-2 hours. Juvenile Detention Facilities Missouri Supreme Court Rule 129 states that each secure juvenile detention facility shall have a policy regarding room restriction or confinement. Mo. Sup. Ct. R. 129 Appx. A at 9.6. (current through Mar. 15, 2015). That policy must include the following requirements: • Staff will observe and interact with the juvenile at least every 15 minutes. Id. at 9.6. • Staff will be immediately available to juvenile at all times. Id. • Records of imposed confinements must be maintained. Id. 35 By court rule and regulation. Division of Youth Services Facilities • Juvenile must be within calling distance of at least one (1) adult staff member at all times MO. CODE REGS. tit. 13, § 110-2.120(1)(C) (current through April 30, 2015). • Rules regarding education, clothing, hygiene, and reading material are also found in § 1102.120(1)(C). • A juvenile is entitled to a hearing for confinement over 24 hours with a threeperson panel of staff members not involved in the original offense. Id. at § 110-2.120(1)(A). However, a 2010 report by the Annie E. Casey foundation found: • None of the Department of Youth Services facilities have recently used isolation punitively. • Usually, isolation is used for a cooling off period of 1-2 hours. • Isolation cells are used fewer than 25 times a year statewide. Richard Mendel, The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders, ANNIE E. CASEY FOUNDATION (2010), available at http://www.aecf.org/~/media/Pubs/Initiatives/Juve nile%20Detention%20Alternatives%20Initiative/ MOModel/MO_Fullreport_webfinal.pdf. Montana A juvenile may be confined for punitive reasons. Montana allows disciplinary detention as well as non-punitive administrative segregation. • Disciplinary detention may be used as a punishment for a “serious rule violation” as identified by facility policy. • Disciplinary detention limited to 23 hours a day, for a maximum of 4 consecutive days. • Youth must be provided with 1 hour of large muscle exercise per day. • Youth must be provided with a due process hearing within 48 hours of being placed in disciplinary detention. • Must keep records of use of disciplinary detention. • Non-punitive administrative segregation may 36 Punitive confinement allowed. Disciplinary detention limited to 4 consecutive days; due process hearing within 48 hours of placement. By regulation be used to control serious threats to “life, property, self, staff, or other youth.” MONT. ADMIN. R. 20.9.629 (current through Dec. 24, 2014). Nebraska A juvenile may be confined for punitive reasons. Nebraska maintains multiple types of juvenile correctional facilities. Nebraska Correctional Youth Facility The Nebraska Correctional Youth Facility is run by the Nebraska Department of Correctional Services and houses youth who have been committed to the department by the court system. The facility is a maximum, medium, and minimum-security facility. Nebraska Correctional Youth Facility, NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, http://www.corrections.state.ne.us/ncyf.html (last visited May 27, 2015). “Solitary confinement” for disciplinary reasons is not allowed in any correctional facility run by the Department of Correctional Services. However, “solitary confinement” is narrowly defined. In solitary confinement: • the individual is confined in an individual cell; • the cell has solid, soundproof doors; and • the individual is deprived of all visual and auditory contact with other persons. 68 NEB. ADMIN. CODE §6-017 (current through May 5, 2015). “Disciplinary segregation” is confinement in a cell separated from the general population. Id. at § 016. “Room restriction” is restriction from certain privileges granted to the general inmate population, but does not include total separation. Id. at § 018. 37 Punitive confinement allowed. In Youth Rehabilitation and Treatment Centers, disciplinary segregation allowed for up to 5 days per offense; receive hearing within 7 days of allegation. In Juvenile Detention Facilities, disciplinary segregation is allowed for up to 7 days (or longer in cases involving violence); hearing occurs in 96 hours; pre-hearing confinement allowed for safety reasons. In either type of facility, confinement over 24 hours requires administrative review. By regulation Youth Rehabilitation and Treatment Centers The Nebraska Department of Health and Human Services runs two Youth Rehabilitation and Treatment Centers. One facility is for males and another is for females. Youth may also be committed to these facilities by the court system. As compared to the Nebraska Correctional Youth Facility, these facilities provide a lower-security environment. See Youth Rehabilitation and Treatment Center Geneva, NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, http://dhhs.ne.gov/children_family_services/Pages /children_family_services.aspx (last visited May 27, 2015). • “Disciplinary segregation” means the confinement of a juvenile to an individual room that is separated from the general population as a sanction for a serious rule violation. 401 NEB. ADMIN. CODE § 1-009. • “Room Restriction” means the temporary placement of a juvenile within his or her own sleeping room for a brief cool-down period or as an informal sanction for rule violation. Id. • Room restriction of 15 to 60 minutes may be imposed for minor misbehavior. Id. at § 7007. • Disciplinary segregation may be imposed for up to 24 hours for a major rule violation. Id. • Confinement for any period over 24 hours requires administrative review. Id. • Maximum of 5 days of confinement per offense. Id. • Youth must be visually observed by staff at least once every 15 minutes and visited at least once a day. Id. • Living conditions and privileges must approximate those of the general population. Id. • Staff must keep records of confinement. Id. at § 7-006-007. • Youth scheduled for hearing within 7 days after the alleged violation. Other details about the disciplinary procedure can be found at 401 NEB. ADMIN. CODE § 7-006. 38 Juvenile Detention Facilities (it is unclear what department runs Nebraska’s detention facilities, however at least one facility is county-run). The section of the code applicable to disciplinary segregation in juvenile detention facilities states: • Youth may be confined for a maximum of seven 7 days for a major rule violation, or longer in cases involving violence. • Confinement for periods of over 24 hours must be reviewed daily by the facility administrator or designee to determine need for further confinement. • Hearing must be held within 96 hours. • Pre-hearing confinement is permitted only when necessary to ensure safety of the juvenile or facility. 83 NEB. ADMIN. CODE § 13-005; see also id. at § 1-008.60 and 008.96. • • • Nevada When in confinement, juveniles are afforded living conditions and access to basic programs and services comparable to those available to general population, unless restriction is necessary for safety reasons. Id. at § 13007.01. Staff must visually check the juvenile every 30 minutes and visit (actual entry into room and conversing to assess well-being) at least once each shift. Id. at § 13-007.02. Room restriction for up to 1 hour is permitted for juveniles to “cool off” and is used to informally resolve minor misbehavior. Id. at § 13-003. A juvenile may be confined for punitive reasons. “Corrective Room Restriction” (which includes, without limitation, administrative seclusion, behavioral room confinement, corrective room rest, and room confinement) may be used to: • Modify negative behavior • Hold child accountable for violation of facility rules • Ensure safety of children, staff or others NEV. REV. STAT. ANN. § 63.505(1) (West 2013). 39 Punitive confinement allowed. Room restriction allowed up to 72 hours; requires approval from supervisor if over 2 hours; status reviewed every 24 hours. By statute Time limits on corrective room restriction: • Any action resulting in room restriction over 2 hours must be documented and approved by a supervisor. • Staff must conduct a “safety and well-being check” at least once every 10 minutes. • Any child subjected to restriction for more than 24 hours must be provided: − at least 1 hour of large muscle exercise daily, access to same meals and medical/mental health treatment, same access to parents/legal guardians, and same access to legal services and educational services as those provided to the general population. − A review of the status at least once every 24 hours. • Restriction may never exceed 72 consecutive hours. Id. at § 63.505(2)-(6). New Hampshire A juvenile may not be confined for punitive reasons. No punitive confinement allowed. New Hampshire’s Juvenile Justice Institutional Services is comprised of two major programs: 1. The Youth Services Center (youth may be committed here post-adjudication); and 2. The Youth Detention Services Unit (youth detained here pre-adjudication). N.H. Dep’t of Health and Human Servs., Institutional Services, (last visited June 3, 2015), http://www.dhhs.state.nh.us/djjs/institutional/. Seclusion is allowed when child poses a danger to himself or others and cannot continue once danger has dissipated; continuous visual and auditory monitoring. By regulation • • • Seclusion may not be used as a form of punishment or discipline. N.H. REV. STAT. ANN. § 126-U:5-a (2014). Seclusion may be used when a child’s behavior poses a substantial and imminent risk of physical harm to the child or to others, and may only continue until that danger has dissipated. Id. Each use of seclusion shall be directly and continuously visually and auditorially monitored by a person trained in the safe use 40 of seclusion. Id. at § 126-U:5-b. The youth development center may confine children in their rooms when such confinement is part of a routine practice applicable to substantial portions of the population at the center and not imposed as a consequence in response to the behavior of one or more children. Id. at § 126-U:5-c. A juvenile may not be confined for punitive reasons. • New Jersey S2003/A4299, which was signed into law on August 10, 2015, see L. 2015, c. 89, eliminated the practice of punitive solitary confinement. • • A juvenile is not subject to “room restriction” unless the juvenile poses an immediate and substantial risk of harm to others or the security of the facility, and all other lessrestrictive options have been exhausted. May only be imposed for the minimum time required to address the safety risk and for a period that does not compromise the mental and physical health of the juvenile. No punitive confinement allowed. Room restriction imposed for safety of others or the security of facility; should only be imposed for minimum time needed to address safety risk; graduated time limits apply based upon age of juvenile. Data collection and publication requirements in place. • By Statute Time limits: − Cannot be held in room restriction for more than 8 consecutive waking hours without being released for at least 2 hours for recreation and exercise. − No more than 2 consecutive days in room restriction for juveniles 15 years of age or younger. − No more than 3 consecutive days in room restriction for juveniles 16 – 18 years of age. − No more than 5 consecutive days in room restriction for juveniles 18 years of age and older. − Cannot be subject to room restriction for more than 10 days in a calendar month. • Juveniles shall continue to receive health, mental health, and educational services. 41 • Each facility is required to document and publish, in aggregate: the dates and duration of each occurrence of room restriction; the reason for placement; race, age, and gender of juvenile; and the reliance of health or mental health clinical evaluations in placement decision. As of the date of this survey, implementing regulations have not been proposed for this new legislation. New Mexico A juvenile may not be confined for punitive reasons. However, under the regulations, confinement may be imposed in response to a major rule violation if it is necessary for safety reasons. The administrative code allows for “room restriction” and “confinement.” “Room restriction” serves a “cooling-off purpose” and “confinement” may be used only “for the safety of the juvenile or other juveniles, or to maintain the security of the facility[.]” N.M. CODE R. § 184.108.40.206(B) (current through May 16, 2015). Room restriction: • May only be imposed for minor misbehavior. • Must only serve a cooling off purpose. • Staff must check on juvenile once every 15 minutes. • Facility must record reason for keeping juvenile in isolation. Id. Confinement: • May be imposed for a major rule violation. • May only be imposed to protect the safety of the juvenile or others, or to maintain security of the facility. • Limited to 72 hours. • Status must be reviewed every 24 hours by administrator or designee. • Staff must check on juvenile once every 5 42 No punitive confinement allowed. Confinement (imposed for safety of juvenile or other juveniles, or security of facility) allowed up to 72 hours; status reviewed every 24 hours by administrator or designee; frequent safety checks (every 5 minutes) and daily visits from staff while in confinement. By regulation minutes. Juvenile must be visited by staff each day. Juvenile must be provided with 2 hours of recreation each day. • Facility must record each confinement. Id. at 220.127.116.11(B)(3); Id. at 18.104.22.168(E). • • New York A juvenile may not be confined for punitive reasons. No punitive confinement allowed. Room confinement is non-punitive. • Room confinement is defined as confinement of a child in a room when the room is locked or when the child is authoritatively told not to leave. • Room confinement shall not be used as punishment; it may be used only when child constitutes a “serious and evident” danger to himself/others. • Confinement must be authorized in writing by head of institution or designee. • Child must be visited once every 24 hours by staff. • Review of necessity for continued confinement of child must be conducted every 24 hours. • Reporting of confinement is required. • Requirements for room conditions are listed in § 180.9(c)(11)(iv)-(v). N.Y. COMP. CODES R. & REGS. tit. 9, § 180.9(c)(11) (current through May 27, 2015). Confinement is permitted when juvenile presents danger to himself or others; must be authorized in writing by head of institution/designee. The administrative code references “solitary confinement” of youth only to say that it is a prohibited form of discipline. Id. at § 180.9(c)(10). Non-punitive room confinement is also permitted in “state schools or centers.” These non-secure facilities also receive committed juveniles. Confinement exceeding 24 hours must be approved by the deputy director for rehabilitation services or designee. The superintendent or director of the facility must review the necessity for confinement every 24 hours. Id. at § 168.2(a), (b), (f), (l). 43 Although the need for continued confinement is reviewed once every 24 hours, there is no limit on the total time in confinement. By regulation North Carolina A juvenile may be confined for punitive reasons. North Carolina has two types of detention facilities, Youth Development Centers and Juvenile Detention Centers. Juvenile Detention Centers house youth temporarily while the youth await adjudication, before they are placed in a Youth Development Center. Detention Centers Confinement in a Juvenile Detention Center is controlled by a North Carolina Division of Juvenile Justice policy: • Disciplinary segregation may be used as a punishment for a major rule violation. NORTH CAROLINA DIV. OF JUVENILE JUSTICE POLICY: DETENTION CTRS. JUVENILE SERVS. at 2.3.15 (July 26, 2012). • Major rule violations, including arson, assault, damaging property, and gang-related activity, are listed in § 2.3.6. • Major rule violations may result in no more than 72 hours of room confinement, but may be extended under special circumstances. Id. at 2.3.15(b). • Center director shall review all confinements every 24 hours. Id. • Any “special circumstance” requiring extension beyond 72 hours shall be in writing, justified by clear and convincing evidence, and approved by the Center Director and the Director of Detention Services. Id. Juvenile Detention Centers also employ two types of confinement for non-punitive purposes, temporary confinement (id. at 2.3.13), and administrative restriction (id. at 2.3.14). The juvenile must not stay in these types of confinement longer than needed to regain control and return to the general population. Id. at 2.3.13(b); 2.3.14(b). Youth Development Centers Confinement in a Youth Development Center is controlled by North Carolina Department of Juvenile Justice and Delinquency Prevention 44 Punitive confinement allowed. In Juvenile Detention Centers, disciplinary segregation is limited to 72 hours, but may be extended in “special circumstances” with written approval from Center Director and Director of Detention Services; Center Director reviews status every 24 hours. Certain Youth Development Centers also permit disciplinary segregation up to 10 days. By policy Policy Nos. PS/YC MOC 3.0 and PS/YC 3.0. Policy No. PS/YC MOC 3.0 governs Model of Care facilities practicing a treatment model with “facility based programming that promotes prosocial skills development within the context of a therapeutic environment.” NORTH CAROLINA DEP’T OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION POLICY NO. PS/YC MOC 3.0 at (I)(J) (Aug. 12, 2008). • Punitive confinement is not used in Model of Care facilities and instead, juveniles are placed on “Special Circumstance Status.” Id. at 3.0(II)(D). This status “identifies the skills in need of extra practice, the number of extra rehearsals needed per day, and the duration, in days” to address the juvenile’s prohibited or dangerous behavior. Id. • Temporary confinement is used only if the juvenile “demonstrate[s] a threat to themselves, other people, property, or the security of the facility.” Id. at 3.0(I)(W). In these instances, confinement cannot exceed 12 hours without “clear and convincing evidence” to justify an exception and requires written approval by the Facility Director or his designee. Id. at (II)(F)(3). • Administrative restriction may also be used as an extension of temporary confinement if the juvenile’s behavior threatens the facility’s safety or security. Id. at (II)(G). Policy No. PS/YC 3.0 governs all other Youth Development Center facilities. NORTH CAROLINA DEP’T OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION POLICY NO. PS/YC 3.0 (April 15, 2007). • Disciplinary segregation is used for certain infractions, see id. at 3.0(II)(F), and can range anywhere between 0-10 days depending on the type of infraction. Infractions with a potential segregation timeframe of 10 days include arson, assault, escape/attempted escape, inciting and/or participating in a 45 riot/disturbance, and sexual offenses. Temporary confinement and administrative restriction may also be employed. Id. A juvenile may not be confined for punitive reasons. • North Dakota There are no statutes or regulations pertaining to solitary confinement in youth correctional facilities. However, North Dakota Youth Correctional Center Policy and Procedure No. 3C2 (Rules and Discipline) provides that room confinement may be used to “control behavior that is a clear and present threat to the safety of the juvenile, others or property or is posing a threat to the security of the facility.” POLICY AND PROCEDURES NORTH DAKOTA YOUTH CORR. CTR., NORTH DAKOTA DEP’T OF CORR. AND REHAB. No. 3C-2 at (3)(M) (Jan. 7, 2011). • A juvenile who is non-compliant with the conditions of 24-hour restrictions (resulting from rule violations) is placed in room confinement. Id. at (5)(B). • Confinement cannot exceed 24 hours. Id. • An incident report is written when a juvenile is placed in the room for more than 15 minutes. Id. • Face to face communication must occur at least every 15 minutes. Id. • Documentation related to rule violations is reviewed by the Director. Id. at (5)(C)(2). • A disciplinary hearing is conducted as soon as possible, but at least within 8 waking hours of the completed incident report. Id. at (5)(C)(3). • Juvenile may be confined to control behavior prior to disciplinary action if presenting an immediate threat to safety or security. • Confinement over eight waking hours requires a disciplinary hearing. The juvenile may be released from confinement pending a hearing if it is determined that he no longer poses an immediate safety or security threat. Id. at (5)(C)(1). In 2011, the North Dakota Department of Corrections and Rehabilitation reported that the 46 No punitive confinement allowed. Non-punitive confinement may be used to control behavior that is a threat to safety of juvenile, others, property, or security of facility; cannot exceed 24 hours; hearing required if confinement is more than 8 waking hours. But confinement is no longer used in practice; at most, juveniles are placed in time-out for up to 4 hours to allow them to “cool off.” By policy facility was reducing its use of isolation and that there were no instances of isolation in April 2011. Casey Traynor, Barbara Allen-Hagan Award, THE INSIDER, January 2012, at 1, available at http://www.nd.gov/docr/media/newsletter/archive/ Jan2012.pdf. According to a 2013 Performance Based Standards (PbS) report available on North Dakota’s government website, staff at North Dakota’s Youth Correctional Center, as well as its Youth Detention Center and Youth Assessment Center reported that they have continued to not practice confinement but still employ a 4 hour cooling-off period. Performance Based Standards 2013 Year End Report 7-8 (Dec. 31, 2013), available at http://www.nd.gov/docr/prea/docs/YCC_Performa nce_Based_Standards_2013_year_end_report.pdf. In an interview with Ron Crouse, the director of the North Dakota Youth Correctional Center, North Dakota’s only juvenile correctional facility, he confirmed that: • Isolation is no longer practiced in the facility. • Juveniles may be placed in time-out for up to 4 hours, in order to allow juveniles to “cool off,” and anything exceeding the 4 hour time period requires staff review and approval. • Since the facility ended confinement of juveniles, in-house crime has dropped 6080%, and they have reduced the use of physical restraints by 80% as well. Telephone interview with Ron Crouse, Director of the North Dakota Youth Correctional Center (June 1, 2015). 47 Ohio Ohio operates a number of youth correctional facilities. Juvenile Correctional Facilities (run by Ohio’s Department of Youth Services (“DYS”)) Pursuant to a May 2014 consent agreement between the state of Ohio and the U.S. Justice Department, Ohio agreed to substantially reduce and eventually eliminate completely the use of “disciplinary seclusion” (defined as seclusion imposed as punishment following a disciplinary hearing) in DYS facilities, which include the Juvenile Correctional Facilities only. See S.H. v. Reed, No. 2:08-cv-00475 (S.D. Ohio) at Docket No. 148, effective September 1, 2014 (“Consent Decree”). • Since entry of the Consent Decree, the use of “disciplinary seclusion” (seclusion imposed following a hearing) has been eliminated completely in Juvenile Correctional Facilities. Telephone Interview with Kimberly Brooks Tandy, Executive Director, Children’s Law Center, Inc. (June 9, 2015). • However, pre-hearing seclusion, also known as “intervention seclusion,” continues to be permitted up to 24 hours. Id.; see also Consent Decree at ECF 148-1. • Youth placed in seclusion are checked visually by staff at least every 15 minutes and are visited daily by various staff. Consent Decree at ECF 148-1. • To impose more than 72 hours of seclusion in a 30-day period requires treatment plan review and approval from Bureau Chief for Facilities or the Deputy Director. Id. • Although the use of pre-hearing seclusion is still permitted, its use has been dramatically reduced according to a report by the Correctional Institution Inspection Committee of Ohio. Correctional Institution Inspection Committee of Ohio, DYS Seclusion Hours (Feb. 11, 2015), available at http://www.ciic.state.oh.us/systemic-issuereport?category=DYS&orderedBy=ReportDat e&order=Descending 48 Punitive confinement allowed in limited circumstances. DYS facilities have eliminated disciplinary seclusion but still allow up to 24 hours of prehearing seclusion. Ohio Detention Centers allow room restriction to be imposed on youth charged with a major rule violation if necessary for the safety of the juvenile, staff, other juveniles, or safety or security; no maximum time limit; must be reviewed every 24 hours by an administrator. By consent agreement and regulation Detention Centers The regulations applicable to Ohio’s Detention Centers, (where juveniles are held preadjudication), recommend the following standards: • Time-outs may be used as a consequence for minor rule violations. • When a child has been charged with a major rule violation, room restriction may be imposed for the safety of the juvenile, staff, other juveniles, or safety or security – to be reviewed every 24 hours by an administrator. Because room restriction is triggered by a major rule violation, we consider this to be punitive confinement. • There is no time limit on room restriction. • Children in isolation must be observed every 15 minutes. OHIO ADMIN. CODE 5139-37-16 (current through May 8, 2015). Community Correctional Facilities Ohio also operates lesser security Community Corrections Facilities, described as providing “a dispositional alternative to Juvenile and Family Court Judges when committing youth adjudicated of a felony offense.” See Community Correctional Facilities, OHIO DEPARTMENT OF YOUTH SERVICES, http://www.dys.ohio.gov/dnn/Community/Commu nityCorrectionsFacilities/tabid/130/Default.aspx (last visited May 29, 2015). Isolation may be used at Community Correctional Facilities. OHIO ADMIN. CODE 5139-36-16(M) (current through May 8, 2015). Oklahoma A juvenile may not be confined for punitive reasons. No punitive confinement allowed. Punitive solitary confinement is disallowed by statute and regulation. OKLA. STAT. Ann. tit. 10A, § 2-7-603(B)(1)(West current through 2015); OKLA. ADMIN. CODE § 377:35-11-4(b) (current through April 15, 2015). Non-punitive solitary confinement is allowed when the juvenile is out of control, a danger to self/others, and has failed to respond to less restrictive methods of However, solitary confinement is used in juvenile 49 detention facilities as a non-punitive emergency measure. It may only be used when a juvenile is: • out of control; • a serious an immediate physical danger to himself or others; and • has failed to respond to less restrictive methods of control. OKLA. ADMIN. CODE § 377:35-11-4(a). No juvenile shall be confined for more than 3 hours. Id. at § 377:35-11-4(b). Oregon control, and may only be used for up to 3 hours. Non-punitive room confinement, a lesssevere form of confinement, is also employed. It must be re-authorized every 3 hours. Room confinement in excess of 24 hours must be reviewed by the administrator. Other, less restrictive forms of separation may be used in Secure Juvenile Detention Centers. • Segregation from general population can be used, not in excess of 60 minutes, and requires By statute and regulation continual line of sight and sound of juvenile. Id. at § 377:3-13-44(c)(12). • Room restriction may be used to informally resolve minor misbehavior, serves a “cooling off” purpose and cannot exceed 60 minutes. Id. at§ 377:3-13-44(c)(13). • Room confinement may also be used when the juvenile has been charged with a major rule violation requiring confinement to protect his/her safety or the safety of others, or to ensure the security of the facility. Room confinement must be re-authorized every 3 hours. Room confinement in excess of 24 hours requires review by the administrator. Id. at 377:3-13-44(c)(14). • Juvenile in room confinement or room restriction must be observed every 15 minutes. Id. at 377:3-13-44(c)(15). • Living conditions and services in confinement must approximate those available to the general population. Id. • Documentation of room restriction also required. Id. A juvenile may be confined for punitive reasons. Punitive confinement allowed in the form of Pre-Adjudication Detention Facilities “roomlock” A juvenile may not be placed in “isolation” for punitive reasons. Punitive “roomlock” is allowed by statute for an However, a juvenile may be placed in punitive unspecified period of 50 “roomlock” for an unspecified period of time, with time, with a hearing a hearing required after 12 hours. required after 12 hours; one detention center Isolation (by statute) stated in an interview that “roomlock” never • Defined as the “confinement of a juvenile in exceeds 12 hours in that any room which lacks toilet facilities, institution. furniture, reading and recreation materials or access to light and air comparable to that in “Isolation,” a more other rooms used for the detention of severe form of juveniles.” OR. REV. STAT. ANN. § 169.730 confinement, may be (West 2015). used to prevent escape, • Isolation may not be imposed for punitive harm to self/others, or purposes, but may be used only when destruction of property “reasonably necessary and justified” to and may not exceed 5 prevent escape, harm to self or others, or consecutive days. destruction of property, and cannot be used for a period in excess of 6 hours. Id. at § By statute and 169.750(1)-(2). regulation • The facility must contact the attorney and parent or guardian of a juvenile after the use of any isolation both as soon as reasonable after the use of isolation and via mail within 24 hours after the use of isolation. Id. at § 169.740(2)(j). Roomlock • The “confinement of a juvenile in any sleeping room, other than an isolation room, except during regular sleeping periods[.]” Id. at § 169.730. • Roomlock may be used as a punishment for violation of a rule of conduct or behavior of the facility or for criminal conduct. Id. at § 169.750(3). • Must not be used for over 12 hours for more than 1 day except after advising the juvenile in writing of the offensive behavior and providing the juvenile with a hearing, as well as the opportunity to testify and produce and cross-examine witnesses. Id. at § 169.750(7). • The Multnomah County Detention Center, the largest in the state, advised that its policy limits roomlock to 6 hours, which can be extended with administrative approval, but under no circumstance is to exceed 12 hours. MULTNOMAH COUNTY DEP’T OF COMMUNITY 51 JUSTICE JUVENILE SERVS. DIV. ROOM LOCK POLICY (effective Dec. 2009). Oregon Youth Authority Facilities (postadjudication) The Oregon Youth Authority (OYA) is responsible for youth offenders post-adjudication. Punitive isolation is not permitted in OYA facilities. See generally OR. ADMIN. R. 416-490 (current through April 1, 2015). Isolation (by regulation) • Any instance when an offender is confined alone in a locked room because of the offender's behavior or conduct. Id. at 416490-0010. • May only be used when the offender is a danger to himself or others, or an immediate threat to safety, security, and order of the facility. Id. at. 416-490-0030(2) and 416-4900032(1). • Isolation must not be used as a substitute for treatment, as punishment, or for staff convenience. Id. at 416-490-0030(12) and 416-490-0032(2). • Staff must monitor the offender every 15 minutes and monitoring must be documented in writing. Id. at 416-490-0032(3). • Isolation must only be used until the offender regains self-control and can return to a less restrictive setting. Id. at 416-490-0032(4). An incident of isolation must not exceed 5 consecutive days. Id. • Isolation for more than 24 consecutive hours requires review by the superintendent, camp director, or designee, and the option of a hearing, and daily visits from the offender’s treatment team. Id. at 416-490-0032(6). • Offenders in isolation are given the “same opportunity to maintain health and dignity” as offenders in the general population, with certain exceptions such as the offender’s abuse or misuse of items (e.g., bedding, hygiene supplies, mail, reading material, and article of clothing). Id. at 416-490-0032(8) 52 and (10). Oregon Youth Authority facilities may also use “time-outs” – when the youth is separated from the general population due to the offender’s behavior until he regains self-control – and this occurs in an unlocked room, or area, within sight of the general population. See generally id. at 416-490-0031. Pennsylvania A juvenile may not be confined for punitive reasons. No punitive confinement allowed. Seclusion, defined as placing a child in a locked room, is permitted in juvenile facilities that provide secure care. 55 PA. CODE §§ 3800.206 and 3800.273 (2000). However, it may only be used to prevent a child from injuring himself or others. Id. at § 3800.202. • Oral or written authorization by supervisory staff is required prior to each use of seclusion. • Seclusion may not exceed 4 hours, unless a licensed clinician examines the child and orders continued use of seclusion. Reexamination and new orders are required for each 4-hour period the seclusion is continued. If seclusion is interrupted and reused within 24 hours after the initial use of seclusion, it is considered continuation of the initial seclusion period. • A staff person must observe a child in seclusion at least every 5 minutes. • An additional supervisory staff person must check and observe the child at least every 2 hours. • Physical needs of the child must be met promptly. • The use of seclusion for any child may not exceed 8 hours in any 48-hour period without written court order. Id. at § 3800.274(17). • Before seclusion is used, every attempt must be made to anticipate and de-escalate the behavior using other methods of intervention, and seclusion may not be used unless less intrusive techniques and resources have been attempted. • Seclusion must be discontinued when child Seclusion is permitted in 4-hour periods and may be extended by a clinician’s written order, however it may not exceed 8 hours in any 48-hour period without court order. 53 Another confinement measure called exclusion may be used for punitive reasons for up to a total of four hours a day. By regulation regains self-control. Id. at § 3800.202. Exclusion, however, may be used in a punitive matter. Id. at § 3800.202. Exclusion is defined as the removal of a child from the child’s immediate environment and restricting the child alone to a room or area. If a staff person remains in the exclusion area with the child, it is not exclusion. Limits on exclusion: • May not be used for over 60 minutes in a 2hour period. • May only be used up to four times within a 24-hour period. • Staff person should observe child in exclusion every 5 minutes. • The exclusion room must contain an open door or window for observation. Id. at § 3800.212. Rhode Island A juvenile may be confined for punitive reasons. Rhode Island prohibits the use of punitive seclusion in most state facilities that house children, see R.I. GEN. LAWS 42-72.9-5 (current through 2014); however, that same statute exempts the Rhode Island Training School, which provides the State’s juvenile correctional services. Id. at § 42-72.9-3. The Division of Juvenile Correctional Services which maintains the Rhode Island Training School permits “lock up” as a disciplinary measure “only after all other means of discipline have been taken” and pursuant to a discipline review known as a Major Discipline Review. 14-2 R.I. CODE R. §1200.1307 (current through April 30, 2015). • A resident may be placed in his/her room up to one hour as discipline for minor offenses. Id. at § 1200.1305(C)(4) • A resident may be remanded to his/her room up to 3 days for more serious infractions. Id. at § 1200.1306 and .1307 • Details on the conduct that can lead to a Major Discipline Review process are set forth within § 1200.1306. 54 Punitive confinement allowed. Punitive lock-up allowed for up to 3 days. Juvenile has right to a disciplinary hearing with many due process protections; pre-hearing lock-up imposed if juvenile deemed to be at risk for harm to himself or others, and hearing must then occur within 24 hours (absent an extension sought for counsel). By regulation • • Resident is entitled to notice and a hearing with many due process protections that must occur within five work days of the incident. Id. at § 1200.1306. If the Superintendent determines the resident is “at risk for imminent harm to him/herself or others, the resident may be remanded to his/her room” prior to the hearing, which must then occur within twenty-four hours of the incident unless the resident requests an extension to allow his/her attorney to be present at the hearing. Id. When in “Lock Up” status: • Residents must be monitored by staff every 15 minutes. • Residents must be seen every day by clinical social worker or other clinical staff. • Residents must be provided with daily showers, medical care, hot meals served outside of the room, exercise, visitation, religious observance, mail privileges, and access to phones to contact attorneys and parents/guardians, among other requirements. Id. at § 1200.1307(E)-(K). South Carolina A juvenile may not be confined for punitive reasons. Punitive confinement not allowed. The South Carolina Department of Juvenile Justice’s (DJJ) Policy and Procedures governing the “Isolation of Youth” expressly provides that “Isolation is never to be used as punishment.” However, we note that certain policies, discussed infra, do allow a youth to be placed in isolation as a consequence of committing a major rule violation. STATE OF SOUTH CAROLINA DEP’T OF JUVENILE JUSTICE POLICY AND PROCEDURES No. G-3.4 (Oct. 2, 2014). • Isolation is defined as “[a]ny instance when a youth is confined alone for over 15 minutes in a room other than the room or cell in which he or she usually sleeps. Isolation can occur in locked or unlocked rooms.” Id. • A Shift Supervisor or higher level manager may temporarily place a juvenile that has Isolation in response to a major rule violation cannot exceed 4 hours unless it is determined that releasing the juvenile poses a threat to safety and/or security of the facility; any extensions require approval from Captain of Security or higher level manager. 55 In practice, isolation is used solely to “neutraliz[e] out-ofcontrol behavior” and the use of isolation has committed a major rule violation in isolation. Within 2 hours of the juvenile being placed in isolation, the Shift Supervisor must complete a review process and provide the juvenile an opportunity to be heard to determine whether the juvenile will remain in isolation or be released. Id. • When in isolation, staff must conduct visual checks at least every 15 minutes and document it and a social worker must meet with juvenile within 1 hour of being placed in isolation. Id. • Isolation cannot exceed 4 hours unless it is determined that releasing juvenile poses a threat to safety and/or security of the facility. Id. • Isolation time can be extended by the Captain of Security or higher level manager and requires documented justification. Id. See also STATE OF SOUTH CAROLINA DEP’T OF JUVENILE JUSTICE POLICY AND PROCEDURES No. G-9.19 at E.3 (Dec. 31, 2014). According to one state publication, after the State settled a federal law suit in 2003 which had challenged the conditions of confinement of juveniles housed in facilities operated by the Department of Juvenile Justice, see Alexander S. By & Through Bowers v. Boyd, 876 F. Supp. 773, 785 (D.S.C. 1995), as modified on denial of reh'g (Feb. 17, 1995), the number of juveniles held in solitary confinement and “secure lockup” has declined: • There was a 70% decline in the number of youth held in “lockdown” between 2006 and 2012. • One of two “lockdown facilities” was closed because lockdown was so rare it was no longer needed. Margaret Barber, Change is Possible, PERSPECTIVES, AMERICAN PROBATION AND PAROLE ASSOC. 85 (Fall 2012), available at http://www.state.sc.us/djj/pdfs/change-is-possiblearticle.pdf. Additionally, between 2011 and 2014, the average duration of isolation dropped from 216.80 hours to 56 declined 70% between 2006 and 2012. By policy .78 hours. Fiscal Year 2013-2014 Accountability Report, SOUTH CAROLINA DEP’T OF JUVENILE JUSTICE A-3 (2014), available at http://www.state.sc.us/djj/pdfs/2014Accountability-Report.pdf. DJJ facilities may also use separation, which serves a “cooling off” purpose. • Staff places a juvenile away for his/her peers in a quiet area/location for less than 15 minutes to provide him/her the opportunity to regain self-control. • Staff must be able to hear or see the juvenile, e.g., juvenile may be in a staff member’s office STATE OF SOUTH CAROLINA DEP’T OF JUVENILE JUSTICE POLICY AND PROCEDURES No. G-9.16 at H.3 (Dec. 31, 2014). Segregation may also be used in DJJ’s maximum security units. • Juvenile is placed in a cell with the door remaining open and with limited access to the open area of the wing. STATE OF SOUTH CAROLINA DEP’T OF JUVENILE JUSTICE POLICY AND PROCEDURES No. G-9.20 at A.3 (May 28, 2015). South Dakota A juvenile may be confined for punitive reasons. South Dakota’s Juvenile Corrections System consists of various juvenile programs known as the State Treatment and Rehabilitation Program (STAR) Academy. The STAR Academy’s policy permits punitive confinement as a response to a violation of a major “Prohibited Act” (as provided in the facility’s Student Handbook). Punitive Confinement • May be imposed for the violation of a major Prohibited Act following a disciplinary hearing (prior to the disciplinary hearing the youth may be placed in Administrative Detention, see below). • Placement in punitive confinement may not exceed 5 consecutive days, excluding days 57 Punitive confinement allowed. Punitive confinement allowed for up to 5 days, following a disciplinary hearing. Administrative detention imposed when the juvenile poses a threat to life, property, security, or disciplined operation of the facility; not to exceed 24 hours without approval from Superintendent; reviewed every 24 hours spent in Administrative Detention. for continued use. Juveniles in punitive confinement receive at least 1 hour per 24 hour period outside the cell By policy for exercise/recreation and showering. • Juvenile must receive appropriate educational services. • Staff must check on juveniles once every 15 minutes. SOUTH DAKOTA DEPARTMENT OF CORRS. POLICY 1.3.C.3 (III) and (IV)(3), (10) (Aug. 18, 2014), available at http://doc.sd.gov/documents/about/policies/Juvenil e%20Discipline%20System.pdf. • Administrative Detention • A temporary form of separation from the general population used when the juvenile poses a threat to life, property, security, or disciplined operation of the facility, not to exceed 24 hours, excluding weekends and holidays. Detention beyond 24 hours requires approval by the Superintendent. • Reviewed every 24 hours to determine the need for continued use. • May be used when the juvenile is charged with committing a major Prohibited Act but has not yet had a disciplinary hearing. • May be used when an investigation is being conducted and staff has reason to believe juvenile has violated a major Prohibited Act and/or juvenile is suspected of being involved in, or having committed a criminal offense. • May be used when the juvenile is about to be transferred to another facility because of an increase in risk level. • Staff must check on juveniles once every 15 minutes. • Must receive at least 1 hour per 24 hour period outside cell for exercise/recreation and showering. • Juvenile must receive appropriate educational services. Id. at (III) and (IV)(5). For additional reporting on confinement and isolation percentages in South Dakota’s juvenile 58 facilities, see DOUG HERRMANN AND TONYA WRIGHT-COOK, SOUTH DAKOTA DEP’T OF CORRS., SOUTH DAKOTA’S PERFORMANCE BASED STANDARDS (PBS) REPORT 34-38 (2014), available at http://doc.sd.gov/documents/juvenile/2013PbSPub licReport.pdf. Tennessee A juvenile may be confined for punitive reasons. Punitive confinement allowed. Tennessee’s Department of Children’s Services (DCS) Administrative Policies and Procedures 25.5-DOE governs the use of confinement in Tennessee’s three Youth Development Centers which are its “hardware-secure” residential facilities for the most serious offenders. STATE OF TENNESSEE, DEP’T OF CHILDREN’S SERVS., ADMIN. POLICIES AND PROCEDURES 25.5DOE (July 1, 2008), available at https://files.dcs.tn.gov/policies/chap25/25.5DOE.p df • Confinement for Control: confinement may be used when a youth is determined to be “out of control” in which case, it is used only for the time necessary for the youth to regain control. − Cannot exceed 3 hours without authorization. − One extension of confinement for up to 3 hours may be authorized only by the Superintendent or highest ranking available treatment staff, psychologist, Youth Services Manager of Treatment, Correction Counselor Manager. − Any additional extensions may only be authorized by the psychologist, or if unavailable, the Superintendent. − The authorizing staff member must reexamine the youth at least once every 3 hours • Disciplinary Confinement: confinement may be used as a sanction of the offenses delineated in the Disciplinary Punishment Guidelines Policy (see STATE OF TENNESSEE DEP’T OF CHILDREN’S SERVS. ADMIN. POLICIES AND PROCEDURES 25.40-DOE (July 1, 2008), available at Disciplinary confinement up to 5 days; subject to 24- hour pre-hearing confinement only if deemed necessary for the safety of the facility; confinement more than 24 hours requires approval. 59 Extended non-punitive confinement requires continuous review and/or approval from a psychologist and high ranking administrators. By policy • • • https://files.dcs.tn.gov/policies/chap25/25.4D OE.pdf) − Cannot exceed 5 consecutive days. Youth must return to regular programming for at least 48 hours before any further disciplinary confinement is imposed. − Superintendent may authorize pre-hearing confinement up to 24 hours when a youth is charged with a major rule violation whose maximum confinement could be 5 days and immediate confinement is necessary for the safety of the facility. − Confinement for periods of over 24 hours is reviewed and approved every 24 hours by the Assistant Commissioner of Residential Services or Central Office designee − Pre-hearing confinement will be credited towards the final disciplinary disposition Emergency Confinement: − Youth may be placed in confinement by authorization from Superintendent or designee and only if the youth advocates to other youth that they act in a concerted effort and there is clear and present danger that such actions would cause harm to others, take control of any part of the institution, cause destruction of property, or jeopardize security of facility. − Confinement continues as long as security problem exists and only under case-bycase direction of superintendent or designee. − Use must be documented within 24 hours. − Confinement over 24 hours must be authorized by the Assistant Commissioner of Residential Services. − Youth must be reviewed by psychologist or physician after 72 hours of confinement and again each 48 hours. Protective Confinement: may be authorized if a youth voluntarily requests confinement due to a legitimate fear for his/her safety. Medical Confinement: must be authorized by physician or other authorized person acting under medical protocol. 60 STATE OF TENNESSEE, DEP’T OF CHILDREN’S SERVS., ADMIN. POLICIES AND PROCEDURES 25.5DOE (July 1, 2008), available at https://files.dcs.tn.gov/policies/chap25/25.5DOE.p df Requirements of Confinement: • Youth in confinement must be visually checked by staff every 15 minutes and visited at least once a day by personnel. • Must be permitted at least 1 hour of exercise every 24 hours. • Youth is provided the opportunity to engage in activities (including counseling, academic and recreational) outside the confinement room, but inside the confinement unit for at least 3 hours per day. • Confinement must be reviewed by a psychologist or physician after 72 hours. • Requires reporting procedures including documentation of confinement. Id. In January 2015, the Tennessee Commission on Children and Youth issued a Policy Brief entitled “A Therapeutic Approach to Juvenile Justice,” which recommended a “[s]hift toward a therapeutic rather than a correctional approach to juvenile justice, which is more effective, costefficient and beneficial for all groups involved.” TENNESSEE COMMISSION ON CHILDREN AND YOUTH, POLICY BRIEF: A THERAPEUTIC APPROACH TO JUVENILE JUSTICE (2015), available at http://www.tn.gov/tccy/pb-jj-ta-0215.pdf. Texas A juvenile may be confined for punitive reasons. Punitive confinement allowed. The Texas Administrative Code offers a number of confinement options, depending on the facility at Disciplinary seclusion which the youth is held and the circumstances allowed up to 24 hours, (pre-adjudication vs. post-adjudication). but may be extended with administrative Disciplinary Seclusion approval; Youth secluded more than 24 • Disciplinary seclusion is defined as “the hours must receive a separation of a resident from other residents formal disciplinary for disciplinary reasons and the placement of review no later than his the resident alone in an area from which 61 • • • • • • egress is prevented for more than 90 minutes.” 37 TEX. ADMIN. CODE § 343.100(13) (current through May 2015). May be used as a consequence of a major rule violation (defined as “serious behavior against persons or property” or “behavior that poses a serious threat to institutional order and safety” Id. at § 343.100(30)) or when a resident poses a threat to self or others. Id. at § 343.288(a). Residents that receive a major rule violation or sanction are eligible to request a formal disciplinary review within 10 calendar days of making such a request. Id. at 343.276. Disciplinary seclusion over 24 hours must be approved in writing by the program administrator. Id. at § 343.288(c). Each subsequent 24 hour period shall require approval. Id. Youth shall be observed every 15 minutes. Id. at § 343.288(e). Youth shall be provided with a disciplinary review process. If the resident is secluded for less than 24 hours, the resident must receive an informal disciplinary review. If the resident is secluded for a period beyond 24 hours, he must receive a formal disciplinary review no later than his 72nd hour of seclusion. Id. at §§ 343.288(f) and 343.278. Room restriction • Room restriction is defined as “the separation of a resident from other residents for behavior modification and the placement of the resident alone in an area from which egress is prevented for 90 minutes or less.” Id. at § 343.100(57). • May be used by pre-adjudication and postadjudication secure facilities. Id. at § 343.286. • Staff must also observe the resident at least every 15 minutes. Id. at § 343.286. Isolation • Isolation is defined as “the separation of a resident from other residents for assessment, medical, or protective reasons and the 62 72nd hour of seclusion. Isolation (separation for assessment, medical, or protective reasons) that exceeds 72 hours requires administrator review and an alternative service delivery plan for all required program services. Youth may be confined to a “security program” for non-punitive reasons for up to 8 days with appropriate approvals. By regulation • • placement of the resident alone in an area from which egress is prevented.” Id. at § 343.100(27). Protective isolation may be ordered when a resident is physically threatened by others. Isolation exceeding 72 hours requires review by a facility administrator or designee and an alternative service delivery plan must be in place to ensure access to all required program services. Id. at § 343.290. Security Units Texas operates security programs at its high restriction facilities in order to temporarily remove youth who engage in certain dangerous or disruptive behaviors from the general campus population. Id. at § 380.9740(a). • Youth transferred to a “security program” are restricted to a secure building with individual rooms. Id. at § 380.9740(c). • Confinement in the security program cannot be used as punishment, however, youth may be admitted to security program when there is a reasonable belief that youth committed a major or minor rule violation requiring referral to the security unit and the youth is an escape risk, poses a danger to himself, others or the facility, disruptive to programming, or likely to interfere with an ongoing investigation or due progress hearing. Id. at § 380.9740(d)-(e). • May be held up to 24 hours but facility staff may authorize four 24 hour extensions. Extensions (up to 72 hours) beyond the fifth day of confinement requires approval from the division director over residential services or designee and may be approved when there is no less restrictive placement suitable for managing the youth’s behavior and the youth continues to present an immediate physical danger to others or the youth continues to likely interfere with a pending or ongoing investigation/hearing. Id. at § 380.9740(f)(g). • Staff must visually check youth at least every 15 minutes. Id. at § 380.9740(j). 63 • • • • Utah Program must adhere to standard schedule approximating that of the general population, and includes at least 4 hours outside of the locked room if the youth’s behavior permits. Id. Staff from administrative, clinical and/or religious departments must visit at least once a day. Id. Nurse and case manager must visit at least once a day. Id. Youth must be provided medical services, access to restrooms, showers, same food as others, access to education services, and 1 hour of large muscle exercise out of the room. Id. A juvenile may not be confined for punitive reasons. No punitive confinement allowed. Confinement (which includes both isolation and room confinement) is only used when necessary to prevent harm to another person, prevent damage to property, prevent the youth from escaping, or to prevent a youth from persistently disrupting program operations or committing rule infractions. DEPARTMENT OF HUMAN SERVICES DIVISION OF JUVENILE JUSTICE SERVICES POLICY AND PROCEDURES, Use of Confinement, Policy No. 0505(IV)(B) (revised February 6, 2013), available at http://hspolicy.utah.gov/Files/JJS/Section%2005% 20-%20Safety,%20Security,%20Supervision/0505%20Use%20of%20Confinement.pdf. Juvenile must be released from nonpunitive confinement once he or she demonstrates a sufficient level of selfcontrol. Note: Although the policy’s stated “Rationale” states that confinement may not be used for the purpose of punishment, the policy does allow confinement of a juvenile who engages in “continued rule infractions.” • • • “Room Confinement” is confinement in juvenile’s normally assigned sleeping room. Id. at (IV)(C). “Isolation” is confinement in a room other than the juvenile’s sleeping room. Id. Staff shall visually monitor juveniles placed in confinement at least once every 15 minutes. Id. at (IV)(E). 64 Confinement exceeding 1 hour requires supervisory approval; if in excess of 3 hours, requires authorization from facility Director/ designee. By policy • • • • Vermont The juvenile must be released from confinement once he or she demonstrates a sufficient level of self-control. Confinement shall only be used to manage problematic behavior. Id. at (IV)(D). Periods of confinement lasting longer than 15 minutes require an incident report. Id. at (IV)(E). Supervisor or designee must approve confinement exceeding 1 hour. Id. Exigent circumstances may require confinement to exceed 3 hours, which requires authorization by facility Director or designee. Id. A juvenile may not be confined for punitive reasons. No punitive confinement allowed. The only secure juvenile facility in Vermont is the Woodside Juvenile Rehabilitation Center and it does not employ punitive solitary confinement. E-mail from Jay Simon, Director, Woodside Juvenile Rehabilitation Center, to author (June 12, 2015, 10:31 EST) (on file with author). Seclusion only used to ensure immediate safety of youth or others, and seclusion for longer than 30 minutes requires administrative or clinical approval. The regulations concerning residential treatment programs for juveniles, which are applicable to Woodside, specify: • Seclusion may only be used to ensure the “immediate safety” of the youth or others, when no other intervention is effective in averting danger. • Youth in seclusion must be constantly supervised by staff. • Seclusion may not be used as a form of punishment or as a means of discipline. • Seclusion lasting over 10 minutes requires approval from the supervisor. • Seclusion lasting over 30 minutes requires administrative or clinical approval. • Circumstances under which seclusion may be used are listed in written policies and procedures. 12-3-508 VT. CODE R. §§ 659-664 (current through May 2015). 65 By regulation Requirements for reporting and documentation of seclusion are specified in §§ 667-669. Virginia A juvenile may be confined for punitive reasons. Room Confinement (punitive) • Room confinement, including isolation or administrative confinement, shall not exceed 5 consecutive days. 6 VA. ADMIN. CODE § 35101-1100(F) (current through April 20, 2015). • Superintendent or designee must be notified if confinement exceeds 24 hours. Id. at § 35101-1100(D). • Director or designee must be notified if confinement exceeds 72 hours. Id.at § 35101-1100(E). • A disciplinary report shall be completed when it is alleged that a resident has violated a rule of conduct for which room confinement may be imposed as a sanction. Id. at § 35-1011080(B). Resident may be placed in his or her room for a “cooling off” period not to exceed 60 minutes without need for disciplinary report. Id. Washington A juvenile may be confined for punitive reasons. Washington uses both punitive and non-punitive room confinement. Room Confinement (punitive): • Room confinement may be used as a consequence for maladaptive or negative behavior. WASHINGTON JUVENILE REHAB. ADMIN. POLICY 22, Assigning Isolation and Room Confinement at (II)(4) (Mar. 20, 2014). • Staff may confine a juvenile for up to an hour, upon their discretion. Id. at (II)(33). • Juvenile may be placed in room confinement beyond one hour for: − Attempted escape/assisting in an escape, − Repeated violation of rules, − Repeated refusal to follow staff directives, − Illegal behavior, and 66 Punitive confinement allowed. Punitive confinement allowed for up to five consecutive days. By regulation Punitive confinement allowed. Punitive room confinement allowed up to 72 hours; “programmed room confinement” in which juvenile is confined for only half of waking hours, is allowed up to 14 days (or longer with approval of the division director). Staff must periodically assess and remove youth from non-punitive confinement (isolation) when the purposes of confinement have been met; longer periods of • • • − Any reason for which isolation is allowed. Id. at 22(II)(34). Youth must be provided with an opportunity to respond to charges for confinement beyond one hour. Id. at 22(II)(35). Supervisory staff must review cumulative room confinement beyond 5 hours during one day. Id. at 22(II)(37). A Superintendent, regional administrator, or administrative officer may extend room confinement up to 72 hours. Id. at 22(II)(36(2). Programmed Room Confinement (punitive): • Imposed on a youth who has become a serious management problem due to repeated escape attempts or rule violations. Id. at 22(II)(38). • Youth must not spend more than half of their waking hours on programmed room confinement. Id. at 22(II)(41). • Superintendent, regional administrator or designee must approve initial confinement (up to 7 days), and may approve additional confinement up to 14 days. Id. at 22(II)(43)-(44). • Division director must approve confinement beyond 14 days. Id. at 22(II)(44.1). Isolation (non-punitive): • May be used when youth presents (1) an immediate threat of harm to self, others or property; (2) an immediate escape threat; or (3) a continuing disturbance disruptive to sleep or programming of other residents. Id. at (II)(17). • Staff must remove youth from isolation when the purposes of confinement have been met. Id. at (II)(3). • Residents in isolation must be reviewed periodically to assess readiness for release. Longer periods of isolation are reviewed by higher-level administrative staff. Id. at (II)(20). 67 isolation are reviewed by higher-level administrative staff. By policy Confinement Conditions: • Youth placed in isolation or room confinement must have access to a minimum of 1 hour of supervised release time every 24 hours, including the opportunity for physical exercise. Id. at (II)(11.6). • Youth has right to regular visitation, telephone calls, and mail. Id. at (II)(11.7). • Youth must have access to reading and writing material. Id. at (II)(11.11), (12). • Youth must be visually observed at least every 30 minutes. Id. at (II)(14). • Staff will attempt to provide youth with counseling at least once a day. Id. at (II)(15). Washington D.C. A juvenile may be not confined for punitive reasons. No punitive confinement allowed Non-punitive administrative segregation is allowed at secure juvenile institutions. D.C. MUN. REGS. Tit. 28, § 521 (current through June 5, 2015). Non-punitive confinement allowed up to three days without a hearing when youth poses risk to self/others or is an escape risk. Section 521.4 provides that before a resident is placed in any cell of the maximum security facility, or in a control cell of the central facility, or a control center at Youth Center II, there shall be a finding made that: (a) There is a clear and present threat to the safety of the resident; (b) The resident poses a clear and present threat to the safety of others; or (c) The resident poses a definite escape risk. See also §531.2 (Administrative Segregation Prior to a Hearing). Section 521.5 further provides, “In order to place a resident in the adjustment unit of Youth Center I, there shall be a finding that the resident poses a clear and present danger to the safety of others or is a definite escape risk.” Limitations on Administrative Segregation • No resident shall be held in administrative segregation for more than 3 days without a hearing. Id. at §§ 521.7 and 531.11. • A resident shall be provided with at least 2 68 By regulation • West Virginia hours per week out-of-cell recreation while placed in administrative segregation, provided that recreation may be restricted because of extraordinary safety and security risks. Id. at § 521.8. A resident in administrative segregation is also entitled to visitation 1 hour per day, 5 days a week, reading material, work assignments, educational programming (except for residents held in pre-hearing administrative segregation), and other rights, provided they do not pose an extraordinary safety or security risk. Id. at § 521.9. By statute, solitary confinement may not be used as punishment, however by court order and policy, punitive confinement is permitted up to ten (10) days. W. Va. Code Ann. § 49-4-721 (effective May 17, 2015); WEST VIRGINIA DIV. OF JUVENILE SERVS. POLICY 330.00 (Oct. 9, 2014). Punitive confinement allowed. Room confinement can never exceed 10 consecutive days; can be imposed for up to 3 days per offense after a due In 2012, a lawsuit was filed against West process hearing; a Virginia’s Division of Juvenile Services alleging violent offense can incur that juveniles at the West Virginia Industrial Home up to 10 days for Youth in Salem were using extended periods of confinement. isolation as a sanction and confining residents to their rooms as a matter of routine. The court By statute and consent found that the facility was in violation of state law decree and imposed various limits on the use of room confinement: • All instances of room confinement shall be documented. • Youth in confinement shall have daily access to large muscle exercise, education, and a nurse or mental health clinician. • If a youth is not in control, “time-outs” may be used for a brief period not to exceed 4 hours. Timeouts lasting more than 4 hours must be approved by the superintendent/facility director, but in no case shall exceed 8 hours. • Room confinement imposed as a consequence for a rule violation shall last no longer than 3 days. • Room confinement shall only occur after a 69 due process hearing. Administrative segregation may be used up 10 days, but may be extended with proper authorization. State ex rel. D.L. and K.P. v. Humphreys, No. 12misc-312 (Cir. Ct. W. Va. Nov. 27, 2012) (order implementing general policies re: confinement and programming). • The Division of Juvenile Services’ current discipline policy dated October 9, 2014, reflects the Court’s 2012 and 2013 Orders. • Room confinement may be imposed up to 3 days per offense. • A violent offense can incur up to 10 days of room confinement, however confinement may never exceed 10 consecutive days. WEST VIRGINIA DIV. OF JUVENILE SERVS. POLICY 330.00 (Oct. 9, 2014). Wisconsin A juvenile may be confined for punitive reasons. Wisconsin permits two forms of confinement: • Close confinement – restriction to the youth’s room with a minimum of 1 hour out-of-room per day. • Modified confinement – restriction to the youth’s room with a minimum of 4 hours of out-of-room per day. WIS. ADMIN. CODE DOC § 373.03(3 and 22) (current through April 27, 2015). Wisconsin has two types of correctional facilities: • Juvenile correctional facilities are long-term facilities for holding delinquent youth; • Juvenile detention facilities are for secure, temporary holding of juveniles. WIS. STAT. ANN. § 938.02 (West current through May 21, 2015). Juvenile Correctional Facilities In a type 1 secured juvenile correctional facility, penalties for major conduct rule violations may include: • Up to 3 days of close confinement and 40 days of modified confinement for first violation within 60 days. WIS. ADMIN. CODE 70 Punitive confinement allowed. Youth in long-term facilities may be placed in close confinement (1 hour a day out of cell) for up to 6 days and modified confinement (4 hours a day out of cell) for up to 60 days. A hearing is required. Youth in detention facilities may also be placed in cell confinement (no time limit specified); confinement over 6 hours requires a hearing. By regulation • • • • DOC § 373.80(3). Up to 4 days of close confinement and 50 days of modified confinement for second violation within 60 days. Id. Up to 6 days of close confinement and 60 days of modified confinement for third violation within 60 days. Id. Major conduct rule violations are specified in § 373.11. Disciplinary hearing required for youth alleged to have committed major rule violation. Id. at § 373.73. Procedures for disciplinary hearings in type 1 secured juvenile correctional facilities are described in § 373.73. Youth may also be disciplined summarily for a minor conduct rule violation and placed in room confinement for up to 10 hours. Id. at § 373.68(10). Juvenile Detention Facilities • In a juvenile detention facility, a juvenile may be placed in “cell confinement” as a form of discipline. Id. at § 346.47(5)(a). • Cell confinement over 6 hours requires a disciplinary hearing. Id. • Procedures for disciplinary hearings in juvenile detention facilities are specified in § 346.48. Wyoming A juvenile may be confined for punitive reasons. Wyoming’s statute regarding secure juvenile detention facilities direct that sheriffs, in consultation with other operators of juvenile detention facilities, shall develop and implement uniform standards for secure juvenile detention facilities, but do not provide any guidance as to what those standards should include. WYO. STAT. ANN. § 14-4-117 (Mar. 31, 2013). Those standards permit “extended periods of punitive isolation” as a penalty for a major disciplinary action. STATE OF WYOMING JUVENILE DETENTION STANDARDS at JUV.11.10 (adopted Nov. 12, 71 Punitive confinement allowed. Permits “extended periods of punitive isolation,” with no apparent time limit. Non-punitive confinement permitted if juvenile is a danger to self/others, or if juvenile is beyond control and all other means to control juvenile have failed. 2012). In private juvenile detention centers, room/cell confinement is non-punitive. Juvenile may be confined if at least one of the following conditions is met: • When it is necessary to observe the juvenile upon intake into the facility, prior to classification. • Juvenile is a danger to himself/herself or others. • Juvenile is beyond control and all other means to control the juvenile have failed. Ch.11. WYO. CODE R. § 9(c) (current through May 15, 2015) (found within rules for Dep’t of Family Servs.). For juveniles placed in room confinement, the following conditions must be met: • Juvenile shall be afforded living conditions and privileges approximating those of general population. • Juvenile must have reasons for confinement explained and be provided an opportunity to explain behavior. • Juvenile must be checked visually every 15 minutes. • Juvenile must be visited at least once a day by personnel. • Confinement log shall be maintained. Id. at ch. 11, § 9(c)(iii) (current through May 10, 2015). 72 By regulation, statute, and policy ATTACHMENT 1 JURISDICTIONS PROHIBITING THE USE OF JURISDICTIONS LIMITING THE AMOUNT OF TIME A PUNITIVE SOLITARY CONFINEMENT BY LAW OR PRACTICE IN JUVENILE FACILITIES (21) JUVENILE MAY SPEND IN PUNITIVE SOLITARY CONFINEMENT (20) Alaska Arizona Arkansas Colorado Connecticut Illinois (although “behavioral hold,” during which youth is confined to sleeping room or other area, is allowed up to 4 hours for major rule violations) Maine (although punitive “room restriction” is Maximum Time Allowed Jurisdiction 8 Hours Delaware (maximum of 6 hours in a 24-hour period) Idaho (maximum of 8 hours in a 24-hour period) 24 Hours allowed for up to 30 hours during which juvenile is permitted to leave cell for programming, visits, and meals) Missouri (although regulations permit it, reports state that confinement is rarely used in practice) Maryland Massachusetts New Hampshire New Jersey New Mexico New York North Dakota Oklahoma Pennsylvania South Carolina Utah Vermont Washington, D.C. 3 Days 4 Days 5 Days Iowa Ohio (24-hour limit on pre-hearing punitive seclusion in Department of Youth Services facilities; no limit on punitive confinement in pre-adjudication detention centers) Hawaii Mississippi (cannot exceed 20 hours per day) Nevada Rhode Island Washington Alabama (8 hours, but can be extended indefinitely with administrative approval) Georgia (5 days, but can be extended indefinitely with administrative approval) Kansas (30 days, but can be extended indefinitely with administrative approval) Kentucky (5 days, but can be extended indefinitely for highly assaultive youth) Louisiana (5 days, but can be extended indefinitely with administrative approval) Michigan (3 days, but can be extended indefinitely with administrative approval) Oregon (prohibits punitive solitary confinement by statute, but permits unlimited “roomlock” in sleeping room) Tennessee Texas (24 hours, but can be extended indefinitely Montana with administrative approval) Florida Indiana Minnesota (5 days per offense) South Dakota (not counting the time spent in Wyoming administrative detention before hearing) Virginia California (up to 90 days) Nebraska (up to 7 days; longer if the offense involved violence) More than 5 Days JURISDICTIONS PLACING NO LIMIT OR ALLOWING INDEFINITE EXTENSION OF THE AMOUNT OF TIME A JUVENILE MAY SPEND IN PUNITIVE SOLITARY CONFINEMENT (10) North Carolina (72 hour maximum in preadjudication facilities; up to 10 days in certain facilities) West Virginia (up to 10 days for violent offense) Wisconsin (up to 60 days) ATTACHMENT 2 ATTACHMENT 3 Time Limits on Non-Punitive Solitary Confinement in States that Prohibit Punitive Solitary Confinement*** No Time Limit** 7 6 Time in Days 5 4 3 2 1 0 AK * AZ AR CO* CT IL* MD MA NH* NJ* NM NY ND* OK PA* SC UT* VT Irrespective of the time limit, these states provide that the juvenile should be released when he/she regains self-control. ** States designated as having "No Time Limit" include those that allow indefinite extension of a stated limit, as well as those with no limit. *** Maine and Missouri are not included due to lack of information on their use (if any) of non-punitive confinement. DC