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Youth Law Center Testimony Before Senate Judiciary on Solitary Confinement 2012

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~~outh law center

200 Pine Street, Suite 300
San Francisco, CA 94104






June 12,2012
Executive Director
Senior Director
Strategic hlilialives

Mal1<lging Director

Staff Attorneys


The Honorable Richard Durbin, Chairman
Senate Judiciary Subcommittee on the Constitution,
Civil Rights and Human Rights
224 Dirkson Senate Office Building
Washington, D.C. 20510



Administrative Assistant

Statement of the Youth Law Center
Reassessing Solitary Confinement: The Human Rights, Fiscal and Public
Safety Consequences; Hearing Before the Senate Judiciary Subcommittee
on the Constitution, Civil Rights, and Human Rights (June 19, 2012)


Dear Chairman Durbin and Members of the Subcommittee:
The Youth Law Center is grateful for the opportunity to offer our experience and
insight on the solitary confinement of juveniles in detention centers, training
schools, jails and other institutions around the country. I The Youth Law Center is
a national public interest law firm working on behalf of children and youth in the
juvenile justice and child welfare systems since 1978. Our attorneys are widely
recognized as experts on juvenile confinement law, and have been involved in
conditions work in approximately 40 states. Many of our conditions lawsuits have
involved solitary confinement issues. We have inspected or visited dozens of
juvenile facilities where solitary confinement is used, and have received numerous
complaints from youth and families of youth held in solitary confinement. For
many years, we have worked for stronger laws and institutional policies governing
solitary confinement, and better professional education about what it does to
children. This statement will provide examples of solitary confinement and its
impact on juveniles; rebut commonly used rationales for using solitary
confinement; and suggest ways that Congress may act to eliminate this
dehumanizing, damaging, and counter-productive practice,

Injuvenile facilities, solitary confinement is used for multiple purposes and .goes by many
names, including room time, room lock, 23 and I, "the box", isolation, suicide watch,
administrative segregation, and special program. It all comes down to the same thing: a young
person locked, alone, in a tiny room.


standing up for ch ildren at risk

The Honorable Richard Durbin, Chainnan
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights
Statement of Youth Law Center
June 12,2012
Page 2

Solitary Confinement is Especially Harmful to Jnveniles
While solitary confinement is harmful to all human beings, it is especially so for
children. For youth locked in a tiny room, a moment is an eternity, and it seems
that the confinement will never end. And because youth in such confinement lack
the maturity to put their current circumstances into a long term perspective, many
feel hopeless and depressed. Alternatively, they may feel that the system isn't fair
and that those in authority cannot be trusted. The message conveyed to them is
that they are worthless and beyond all help.
Many ofthe very youth who wind up in solitary confinement have already
experienced trauma or abuse and/or suffer from mental illness. Placing them in
solitary confinement exacerbates already fragile psychological conditions,
sometimes with devastating results. A national study of juvenile institutional
suicides found that 75% involved youth confined to single occupant rooms, and
50% of those were youth being subjected to disciplinary confinement. 2
Even brief periods of solitary confinement may have a lasting impact on a young
person. 3 This is especially so for the many youth who have already experienced
abuse, neglect, or previous institutionalization. Locking them away subjects them
to re-traumatization. This is a cruel outcome for those who depend on the system
to recognize and help them work through the horrifying events they have already
experienced in their young lives.
Youth subjected to solitary confinement are unable to do the very things that may
reduce the length of confinement and ensure success in the community. Most are
deprived of access to educational services, or are given worksheets or packets that
do not help to advance them academically. They are unable to participate in group
activities that would help them to present themselves in a positive light and move
away from delinquency. They leave custody in worse condition than when they
entered. Because of solitary confinement, the youth who need the most attention,
receive the least. 4

2 Lindsay M. Hayes, "Characteristics of Juvenile Suicides in Confinement," OJJDP Juvenile
Justice Bulletin (Feb. 2009).
3 Sandra Simkins, Marty Beyer, Lisa M. Geis, "The Harmful Use ofIsolation in Juvenile
Detention Facilities: The need for Post-Disposition representation," 38 Washington University
Journal ofLaw & Policy 241 (2012).
4 See Michelle Deitch, Anna Lipton Galbraith, and Jordan Pollock, Conditions for Certified
Juveniles in Texas County Jails, University of Texas at Austin, LBJ School of Public Affairs

The Honorable Richard Durbin, Chairman
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights
Statement of Youth Law Center
June 12, 2012
Page 3

The Systemic Impact of Solitary Confinement
The harm caused by solitary confinement has broader ramifications. Deteriorating
mental and physical health translate into added costs to the justice system because
youth are harder to place, and this results in additional costs of confinement.
There are also costs for staff. Use of solitary confinement contributes to stress and
work dissatisfaction, which in turn results in costly absenteeism, workers
compensation claims and job turnover.
When something bad happens to a youth in solitary confinement - a suicide or a
serious attempt - there are enormous additional costs from the inevitable litigation.
In California, the family of a girl who suffered permanent brain damage after
hanging herself in solitary confinement recently settled the case for more than two
million dollars.
To the extent that use of solitary confinement interferes with the ability of the
system to provide education, recreation, social interaction and emotional support
to the child, there are even greater costs. For every minute a youth spends locked
in a cell, opportunities are missed to provide much needed interventions that could
change the course of the young person's life. For every youth the system fails to
rehabilitate, there may be additional costs to the community in future criminality,
victimization, court costs and dependence on public benefits.

Routine Use of Solitary is Pervasive in Juvenile facilities
While the United State Supreme Court has repeatedly recognized that juveniles are
different from adults, and that their immaturity requires different interventions and
sanctions, 5 our correctional system has yet to catch Up.6 Despite the serious short
and long term consequences of solitary confinement, it is routinely used for
5 Roper v. Simmons, 543 U.S. 551 (2005); Safford Unified School District v. Redding (2009) 557
U.S. 364; Graham v. Florida (2010) 560 U.S.
,130 S.Ct 2011; J.D.B. v. North Carolina
, 131 S.Ct. 2394.
6 Intemationallaw also prohibits the use of solitary confinement for juveniles. The United
Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by the General
Assembly in Resolution 451113, Alticle 67 (December 1990), prohibits "closed or solitary
confinement or any other punishment that may compromise the physical or mental health of the
juvenile concemed." The Convention on the Rights of the Child (CRe), Article 37, also prohibits
cruel, inhuman or degrading treatment or punishment, and comments to that section reference
"closed or solitary confinement."

~ youth law


The Honorable Richard Durbin, Chainnan
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights
Statement of Youth Law Center
June 12,2012
Page 4

punishment, administrative convenience, or the misguided belief that it is needed
to protect youth. The use of solitary confinement is found, for example, in
facilities that:

Impose disciplinary sanctions calling for multiple days in room
confinement for violation of facility rules (for example, possession of a


Place youth perceived to be vulnerable (for example youth with
developmental disabilities) in solitary confinement for their own protection;


Feature "special programs" that consist of20 or more hours oflockdown a
day and no programs;


Isolate suicidal youth for their own protection;


Lock youth in their rooms for extended periods because staff called in sick
and there are insufficient on-call staff;


Keep youth considered to be high security locked in their rooms, even
though they are in a discrete living unit;


"Treat" youth with mental illness or behavioral issues primarily with locked
room time;


Require youth who do not receive visits to remain locked in their room
during visiting hours;


Lock youth in their room while staff do paperwork;


Impose institutionallockdowns that extend long after security dangers have
subsided; or


Allow juveniles to be held in adult institutions, and then place them in
solitary confinement for their own protection.

While it surely may be necessary to isolate youth for brief periods to address
safety issues or quell disturbances, the foregoing list reflects a system that does not
treat solitary confinement as the rarely used crisis intervention it should be.

;;.. 'r ,.
~ )'outh"law


The Honorable Richard Durbin, Chairman
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights
Statement of Youth Law Center
June 12,2012
Page 5

Solitary Confinement is Unnecessary and Alternative Models Already Exist
The pervasive use of solitary confinement on juveniles is often related to
understaffing, inadequate staff training, and lack of professional mental health
support. For example, facilities with large youth to staff ratios resort more quickly
to solitary confinement because staff do not know the youth as well; are less able
to head off escalating situations; do not have the time to work through alternative
approaches that could prevent the need for solitary confinement; and are less able
to supervise youth who cannot program with the rest ofthe youth. Similarly, in
facilities that do not provide good training in behavioral interventions, staff are
less likely to see alternative ways to handle situations that currently result in
solitary confinement. Further, in facilities with meaningful mental health staffing,
youth at risk of suicide and youth with behavioral issues are more likely to be
dealt with in more normalized settings.
Solitary confinement also persists because "this is how we have always done it."
Many facilities have historically relied on solitary confinement as their sole
response to disciplinary issues, and have never explored other ways to handle
misbehavior. In fact, a number of jurisdictions have moved in a different
direction. Missouri had only one isolation cell for its entire state facility system
when we visited. It avoids the need for solitary by having good staffing ratios (2
to 11), lots of programs, and positive support systems for youth. A number of
other jurisdictions have drastically reduced their use of solitary confinement by
replacing punitive discipline systems with positive behavior support systems.
Finally, and perhaps, most disturbingly, a number of forms of solitary confinement
are justified as "for the protection of the child." Thus, in many facilities around
the country, youth spend days and weeks in solitary confinement because they are
at risk of suicide or other self harm. This practice persists despite the fact that
experts urge facilities not to isolate youth on suicide watch. 7 Similarly, in the
mental health community, the harm to juveniles caused by "seclusion" is wellrecognized. The Substance Abuse and Mental Health Services Administration
(SAMSHA) has noted the particular dangers of seclusion for children, and has a
national project aimed at eliminating seclusion and restraint. s Federal regulations
now strictly limit the practice in treatment facilities, and require intensive
involvement by mental health professionals in its use for even those brief periods. 9

See Lindsay Hayes, supra, note 2.
8 See matrix.aspx; and "Promoting Alternatives to
the Use of Seclusion and Restraint," SAMSHA Issue Brief #1 (March 2010), B.pdf.
9 42 C.F.R. § 482.13, et seq.

The Honorable Richard Durbin, Chainnan
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights
Statement of Youth Law Center
June 12,2012
Page 6

What Congress Should Do

The recent promulgation of the Prison Rape Elimination Act stands as a testament
to the fact that Congress can effectively intervene to address institutional abuses.
The SAMSHA work on seclusion and restraint also provides a strong model that
includes standards, professional education, and technical assistance in developing
alternative interventions. Eliminating juvenile solitary confinement calls for the
same kind of multi-faceted approach, including standards, fiscal incentives, and
technical assistance. Here are some of the specific things Congress should do to


). ... >
~~outh'law cenler


Reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA)
and condition funding to the States on elimination of solitary confinement;
provide incentive grants and technical assistance to jurisdictions to assist in
this process. Also, eliminate the loopholes that currently permit juveniles
to be held in adult jails and status offenders to be held in secure detention
for violation of court orders - both of which frequently result in solitary
confinement of youth;


Enact legislation requiring the promulgation of national standards that
eliminate solitary confinement for discipline, mental healthlbehavioral
purposes, and administrative convenience. Because eliminating solitary
confinement requires attention to many other areas of institutional
operation (staffing, training, mental health resources, oversight), consider
dusting off and updating the outstanding National Advisory Commission
for Juvenile Justice and Delinquency Prevention Standards for the
Administration ofJuvenile Justice (July 1980), and formally adopting them;


Require juvenile facilities to adhere to the strict requirements for
"seclusion" now imposed by federal statute for treatment facilities; 10


Support diversion programs and wraparound services for youth who are
incompetent to stand trial or have mental health issues that frequently result
in solitary confinement in juvenile facilities;


Provide support to advocates to monitor and respond to complaints about
solitary confinement; and


Provide additional support for Department of Justice investigations into
solitary confinement.


The Honorable Richard Durbin, Chairman
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights
Statement of Youth Law Center
June 12,2012
Page 7


The rampant use of solitary confinement on juveniles is antithetical to our values
about the treatment of young people. It hurts rather than helps youth in their
journey toward rehabilitation. In today's world of evidence-based practices, there
is no place for this medieval holdover. There are effective, more humane ways to
address the issues that result in solitary confinement. We urge the Subcommittee
to take action to respond to these issues. Thank you for your consideration, and
please count on us to assist in any we can as your efforts move forward.


Sue Burrell, Staff Attorney