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The Effects of Solitary Confinement on Children: Cruel and Unusual Punishment?

Perkins, Duane. “Sweat box” used for solitary confinement at the Florida State Prison – Raiford, Florida. 1957 or 1958. Black & white photoprint, 10 x 8 in. State Archives of Florida, Florida Memory. <https://www.floridamemory.com/items/show/29042>, accessed 16 March 2017.

 

By Sarah Krantz, Esq.

 

History of Solitary Confinement

The modern practice of solitary confinement in the United States began in 1829 at Eastern State Penitentiary in Philadelphia.[1] While its use began with good intentions, it was soon discovered that many inmates who were subjected to solitary confinement had committed suicide, gone insane, or become unable to re-enter society and function normally.[2]

Nonetheless, the 20th century brought solitary confinement to the mainstream in prisons across the country. In 1934, the infamous Alcatraz Federal Penitentiary officially opened with a designated solitary confinement hallway called D Block. Alcatraz also used what was colloquially called “The Hole,” a room of bare concrete that contained a hole in the floor to be used as a toilet. The cell, which contained no light, housed inmates naked, and bread and water was given only by shoving through a small hole in the door.[3] Although most inmates only spent a few days in the Hole, some spent years on D Block.[4]

In 1983, two correctional officers were murdered by two prisoners at United States Penitentiary, Marion (USP Marion), prompting a “permanent lockdown” that lasted for 23 years. In effect, USP Marion was transformed into the country’s first super-maximum (supermax) security prison, with inmates held in isolation for 23 hours a day.[5] By the early 1990s, 23-hour lockdowns were in standard use at supermax facilities in over 36 other states.[6]

 Juvenile Offenders in Adult Jails

Human Rights Watch and the American Civil Liberties Union (ACLU) estimate that from the period of 2007 to 2012, over 93,000 youths were held in adult jails and that over 2,200 youths held in adult prisons every year.[7] Some states require that juveniles under the age of 18 be kept separate from adults; other states allow individual facilities the discretion to determine where to house the youth population in adult jails and prisons.[8]

According to the California Alliance for Youth and Community Justice’s publication titled Treat Kids as Kids: Why Youth Should Be Kept in the Juvenile System, youths incarcerated in adult facilities are 26 times more like to commit suicide, five times more likely to be sexually assaulted, and twice as likely to be physically abused by staff.[9] Treating juveniles as adults is ineffective and particularly damaging to them. Juveniles sentenced as adults are 2.3 times more likely to be rearrested and 4.9 times more likely to recidivate than are youths who are processed through the juvenile system.[10]

Use and Effects of Solitary Confinement on Juvenile Offenders

Juveniles placed in adult facilities usually end up in solitary confinement. There are four types of segregation that can used to isolate juvenile prisoners:

  1. Disciplinary segregation, which is used to punish prisoners for infractions;
  2. Administrative segregation, which is used to manage inmates based on their classifications;
  3. Protective custody, which is used when certain inmates are considered at increased risk for abuse by other inmates;
  4. Seclusion, which is used to “treat” prisoners who have threatened or attempted suicide. [11]

Solitary confinement involves isolating an inmate to a small, confined space for 22 to 24 hours a day. Such conditions can result in significant neurological and psychological damage, causing “depression, hallucinations, panic attacks, cognitive deficits, obsessive thinking, paranoia, anxiety, and anger.”[12]

Solitary confinement can be especially harmful to youth because the frontal lobe—the region of the brain responsible for cognitive processing, behavior, and learning—is still in the process of development during adolescence. A section of the frontal lobe, called the dorsolateral prefrontal cortex, continues to develop through the mid-20s—a process known as post-adolescent brain maturation—and is linked to the “inhibition of impulses and the consideration of consequences.”[13] In the words of Craig Haney, a University of California-Santa Cruz professor who has studied the impact of youth solitary for over 30 years, the “frightening, traumatizing and stressful” experience of solitary confinement “can interfere with and damage these essential developmental processes, and the damage may be irreparable.[14]

Solitary confinement also places an unusual amount of stress on a juvenile, which causes significant levels of anxiety and discomfort. Because juveniles have less ability to adequately manage stress, they are not well-equipped to cope with these conditions. Juveniles who already suffer from preexisting mental health issues are at an even greater risk for serious mental illness and suicidality, as are juveniles who have suffered trauma, abuse, and neglect in the past. [15] The U.S. Department of Justice (DOJ) has found that more than half of the suicides committed in juvenile facilities occurred while youths were in isolation, and that more than 60 percent of the youths who committed suicide also had a history of being held in solitary confinement.[16]

Josh’s Story[17]

Josh was detained for burglary before he turned 18 years old. He was placed at five different juvenile facilities in Oregon and spent time in isolation in each.[18] Josh reports that it was his “smart mouth” that got him placed in isolation and describes solitary confinement as a “dark, dark place” and a “profoundly lonely experience.” [19] Now almost 19 years later, he still experiences “delirious dreams, often waking in cold sweats, panicked and disoriented.”[20] Josh describes these episodes as reminiscent of the time that he spent in solitary confinement while incarcerated.[21] Josh struggles every day with what the system did to him by placing him in solitary confinement, and he believes that these traumatic memories will be with him for the rest of his life.

Kalief’s Story

Kalief Browder was a 16-year-old from the Bronx who was accused of stealing a backpack in 2010 and subsequently incarcerated at Rikers Island while awaiting trial.[22] Even though he was only a teenage, Kalief was locked alone in a cell for 23 hours a day for nearly two of his three years at Rikers.[23] While in solitary, Kalief unsuccessfully attempted suicide four times. After three years of incarceration and just before his 20th birthday, Kalief’s case was dismissed and he was finally able to go home.

However, there is no happy ending to Kalief’s story. The extreme isolation and victimization that he suffered in solitary confinement caused him to have frequent, traumatic flashbacks, causing him to become severely depressed. He also suffered from paranoia and hallucinations that involved him being violently victimized by both staff and others inmates.[24] Two years later, at the age of 22, Kalief Browder committed suicide.

President Obama’s Order Banning Juvenile Solitary Confinement

When President Obama heard of Kalief Browder’s story, he was inspired to make a change in the criminal justice system. In 2016, the President wrote an op-ed piece in The Washington Post that announced his intention, via executive order, to ban the use of juvenile solitary confinement as punishment for low-level infractions.[25] President Obama made an appeal to Congress in his op-ed with the hope that it would “send legislation as soon as possible that makes our criminal justice system smarter, fairer, less expensive, and more effective.”[26] Although President Obama’s order was largely symbolic—because it only applied to federal prisons, less than 30 juveniles were directly impacted—it set a precedent for state and local governments to follow.[27]

Unfortunately, however, executive orders do not have the same effect under the law as congressionally-approved legislation. Executive orders have the “force and effect of the law” and have “almost no legally enforceable procedural requirements that the president must satisfy before issuing (or repealing) […] which makes them easier to implement efficiently.”[28] However, executive orders are vulnerable because they can be overturned by the U.S. Supreme Court, negated by Congressional legislation, or rescinded by a presidential successor. Thus, it is vital that both the Supreme Court and Congress recognize that juvenile solitary confinement is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.[29] This would entail the prohibition of the use of long-term solitary confinement on any juvenile inmate.

Supreme Court Review of Solitary Confinement

Currently, the Supreme Court does not have a case considering whether solitary confinement is a violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause. However, Justice Anthony Kennedy and Justice Stephen Breyer have both commented on the injustice of solitary confinement in separate opinions.

In Ruiz v. Texas, No. 16-7792  (U.S. Mar. 7, 2017), the Court denied Rolando Ruiz’s application for a stay of execution.[30] Justice Breyer dissented with majority’s opinion and agreed with Ruiz’s argument that his 22 years on death row—most of which he spent solitary confinement—was violation of the Eighth Amendment.[31] Justice Breyer cited In re Medley, 134 U. S. 160 (1890), a 19th-century opinion in which the court recognized that solitary confinement is “one of the most horrible feelings to which [one] can be subjected.”[32] Additionally, the 1890 opinion noted that “[a] considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system,” as “its main feature of solitary confinement was found to be too severe.”[33] Justice Breyer applied this reasoning as to why he believed that a stay of execution should be granted in Ruiz: “if extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.”[34]

Justice Kennedy also cited to the 1890 case in his concurring opinion in the 2015 case of Davis v. Ayala, No. 13–1428 (U.S. June 18, 2015). While the legal issue before the Court was not specifically a challenge the constitutionality of solitary confinement, it was clear from the oral argument that the practice of prisoner isolation was on the mind of Justice Kennedy.[35] In his concurring opinion, Justice Kennedy went through a long history of arguments against solitary confinement, including those from Charles Dickens, The Oxford History of the Prison: The Practice of Punishment in Western Society (1995), the story of Kalief Browder, relevant case law, and reports issued by various psychologists.[36] He also argued, “[If] a case […] presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”[37] It has been posited that Justice Kennedy’s opinion was a call to action that came at a time when reform efforts about solitary confinement were making headlines.[38]

Current Reform in the Use of Juvenile Solitary Confinement

President Obama’s executive order and commentary by Supreme Court justices are just a few of the steps towards the elimination of long-term juvenile solitary confinement that have occurred in the last few years. The issue has been drawing the attention of the public because of civil liberties and human rights groups, such as the ACLU, Amnesty International, and Solitary Watch, who publish the stories of formerly incarcerated youths that experienced solitary confinement.[39] The issue has since become a part of the domestic human rights agenda, which has prompted policymakers and the public to start paying attention.[40]

In April of 2016, Stop Solitary for Kids was launched in Washington, D.C. with the goal of ending juvenile solitary confinement within three years. Jennifer Lutz, a Staff Attorney with the Center for Children’s Law and Policy (CCLP), defined solitary confinement as a juvenile being held in isolation “against their will for any reason other than that they are posing a threat to self or other.”[41] The campaign—which is a joint effort by CCLP, the Center for Juvenile Justice Reform, the Council of Juvenile Correctional Administrators, and the Justice Policy Institute—is focused on both a change in policy and a change in the attitudes of mid-level management officials in correctional facilities. In an interview with Solitary Watch, Lutz also called for “mental health workers to be better integrated into daily policy, and that all staff be adequately trained in cultural competence, motivational interviewing, conflict-resolution skills, non-violent de-escalation techniques and trauma-informed care.”[42]

Some states are also making progress. In February of 2014, New York established new guidelines that limit the use of prisoner segregation for vulnerable populations and that decrease the allowed amount of hours that can be spent in isolation.[43] The guidelines also allow inmates under the age of 18 to receive programming and exercise five days a week for at least five hours.[44] The Massachusetts Department of Youth Services also made news when it enforced “a complete statewide ban on isolation of children for punitive or disciplinary reasons, and require[d] that any isolation used in emergencies be approved by high-level supervisors.”[45] Other states, such as Missouri, have reformed their entire juvenile justice systems by utilizing more “compassionate and well-rounded policies and treatments that eliminate the need for isolation.”[46]

Nationwide, a study was conducted with a focus on how states are using punitive juvenile solitary confinement, and its results being published in July of 2016. Key findings from the report show that 29 jurisdictions prohibit the use of punitive isolation in juvenile correctional facilities by either law or practice.[47] Some states allow short-term solitary confinement for only a few hours a day. For the purposes of the above-referenced study, states that limit the maximum to four hours a day are counted among states that have banned the use of punitive isolation.[48] Fifteen states “impose time-limits on the use of punitive solitary confinement, ranging from 6 hours to 90 days,” with the most common limits being three to five days.[49] Seven states place no limit on the amount of time or allow indefinite extensions of their time limits via administrative approval.[50]

Conclusion     

It is common for juveniles, especially teenagers, to act out and rebel against authority; however, this does not warrant the use of long-term solitary confinement.

Internationally, there have been numerous calls for the abolition of long-term juvenile solitary confinement on the basis that it violates international human rights laws prohibiting cruel, inhuman or degrading treatment, such as the United Nations’ Guidelines for the Prevention of Juvenile Delinquency,[51] its Committee on the Rights of the Child,[52] and its Rules for the Protection of Juveniles Deprived of their Liberty,[53] as well as the Inter-American Commission on Human.[54] The UN’s Office of the Special Rapporteur on Torture has also repeatedly called for the “abolition of solitary confinement of persons under age 18.”[55]

While the international conversation has expanded, the United States continues to lag behind. It is necessary for criminal justice reformers and child advocates to push for a ban on both a state and county level.

Worldwide there may be talk of the harms; but hopefully there will be more of a push on a state and local level in the United States to ban the use of juvenile solitary confinement by a combination of “agency policy reform, statewide legislation, litigation, and pressure from human rights and prison reform organizations.”[56] As long as this practice remains in use, children kept in isolation will continue to suffer the short-term and long-term psychological, physical, and developmentally-damaging effects.

 

[1] Carina Muir, Protecting America’s Children: Why an Executive Order Banning Juvenile Solitary Confinement Is Not Enough, 44 Pepp. L. Rev. Iss. 1, 154 (2017)
Available at: http://digitalcommons.pepperdine.edu/plr/vol44/iss1/4.

[2] Id. at 154-155.

[3] Laura Sullivan, Timeline Solitary Confinement in U.S. Prisons, NPR (July 2006). Accessed at http://www.npr.org/templates/story/story.php?storyId=5579901.

[4] Id.

[5] Muir at 155.

[6] Id. at 156.

[7] ACLU & Human Rights Watch, Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States at 16. (2012). Accessed at https://www.aclu.org/files/assets/us1012webwcover.pdf.

[8] Id. at 16-17.

[9] Estivaliz Castro, David Muhammad, and Pat Arthur, Treat Kids as Kids Why Youth Should Be Kept in the Juvenile System, California Alliance for Youth and Community Justice (October 2014). Accessed at http://jjustice.org/wordpress/wp-content/uploads/CAYCJ-treat-kids-as-kids-Oct-2014.pdf.

[10] Id.

[11] ACLU & HRW at 20.

[12] Laura Dimon, How Solitary Confinement Hurts the Teenage Brain, The Atlantic, (June 2014).  Accessed at https://www.theatlantic.com/health/archive/2014/06/how-solitary-confinement-hurts-the-teenage-brain/373002/.

[13] Id.

[14] Id.

[15] ACLU & HRW at 24.

[16] Lindsay M. Hayes, Juvenile Suicide in Confinement, Department of Justice Office of Juvenile Justice an Delinquency Prevention, (2009). Accessed at https://www.ncjrs.gov/pdffiles1/ojjdp/213691.pdf.

[17] Josh’s last name was not provided in the article from which his stories summary was prepared. See Laura Dimon, How Solitary Confinement Hurts the Teenage Brain, The Atlantic (June 30, 2014). Accessed at https://www.theatlantic.com/health/archive/2014/06/how-solitary-confinement-hurts-the-teenage-brain/373002/.

[18] Laura Dimon, How Solitary Confinement Hurts the Teenage Brain, The Atlantic (June 2014).

[19] Id.

[20] Id.

[21] Id.

[22] Mary Read, Movement to End Juvenile Solitary Confinement Gains Ground, But Hundreds of Kids Remain in Isolation, Solitary Watch (January 5, 2017) .

[23] Id.

[24] Jennifer Gonnerman, Exclusive Video: Violence Inside Rikers, The New Yorker (April 23, 2015). Accessed at http://www.newyorker.com/news/news-desk/exclusive-video-violence-inside-rikers.

[25] Muir at 158-59.

[26] Barack Obama, Why We Must Rethink Solitary Confinement, The Washington Post (January 25, 2016). https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html?utm_term=.433e7ecc04b7.

[27] Mary Read, Movement to End Juvenile Solitary Confinement Gains Ground, But Hundreds of Kids Remain in Isolation, Solitary Watch (January 5, 2017).

[28] Muir at 161.

[29] Id. at 160.

[30] Ruiz v. Texas, No. 16-7792  (U.S. Mar. 7, 2017). Accessed at https://www.supremecourt.gov/orders/courtorders/030717zr_g204.pdf.

[31] Id.

[32] In re Medley, 134 U. S. 160, 172 (1890).

[33] Id. at 168.

[34] Ruiz, No. 16-7792 at 1.

[35] Tamar Brickhead, Prisoners in Isolation: In Davis v. Ayala, Justice Anthony Kennedy issues a call to action in his discussion of Solitary Confinement, Juvenile Justice Blog, (July 8, 2015). Accessed at http://juvenilejusticeblog.web.unc.edu/2015/07/08/prisoners-in-isolation-in-davis-v-ayala-justice-anthony-kennedy-issues-a-call-to-action-in-his-discussion-of-solitary-confinement/ citing Davis v. Ayala oral argument oyez.org accessed at https://www.oyez.org/cases/2014/13-1428 (“Justice Anthony Kennedy: Has he [Hector Ayala] spent time in solitary confinement, and, if so, how much? Anthony J. Dain: He has spent his entire time in what’s called administrative segregation.  When I visit him, I visit him through glass and wire bars. Justice Anthony Kennedy: Is that a single cell? Anthony J. Dain: It is a single cell.  They’re all single cells.  Well, San Quentin is on the most — it’s on Heaven’s land in Marin County. It’s a 150-year-old prison and their administrative segregation is single cells, a very old system, very small, and — and —Justice Anthony Kennedy: Is it the same thing as solitary confinement? Anthony J. Dain: No, it’s 23 hours out of the day, that probably is the same.  They generally — administrative segregation you’re not allowed in the general yard anymore.  But you are allowed an hour a day. Justice Anthony Kennedy: One hour. Anthony J. Dain: — of activity.”

[36] Ayala, No. 13–1428 (U.S. June 18, 2015).

[37] Id. at 4.

[38] Tamar Brickhead, Prisoners in Isolation: In Davis v. Ayala, Justice Anthony Kennedy issues a call to action in his discussion of Solitary Confinement, Juvenile Justice Blog, (July 8, 2015). Accessed at http://juvenilejusticeblog.web.unc.edu/2015/07/08/prisoners-in-isolation-in-davis-v-ayala-justice-anthony-kennedy-issues-a-call-to-action-in-his-discussion-of-solitary-confinement/.

[39] Mary Read, Movement to End Juvenile Solitary Confinement Gains Ground, But Hundreds of Kids Remain in Isolation, Solitary Watch (January 5, 2017)

[40] Id.

[41] Id.

[42] Id.

[43] Laura Dimon, How Solitary Confinement Hurts the Teenage Brain, The Atlantic (June 30, 2014).

[44] Id.

[45] Massachusetts Department of Health & Human Services, Policies, § 3.03 Room Confinement, available at http://www.mass.gov/eohhs/gov/laws-regs/dys/policies/chapter-03-daily-living-policies.html.

[46] ACLU, Alone & Afraid: Children Held in Solitary Confinement and Isolation in Juvenile Detention and Correctional Facilities at 8. (2014). Accessed at https://www.aclu.org/files/assets/Alone%20and%20Afraid%20COMPLETE%20FINAL.pdf.

[47] Natalie J Kraner, Naomi D. Barrowclough, Catherine Weiss, Jacob “Mendy” Fisch, 51-Jurisdictional Survey Juvenile Solitary confinement Rules in Juvenile Justice Systems at 2, Lowenstein Center for the Public Interest (July 2016). Accessed at https://www.lowenstein.com/files/upload/51-Jurisdiction%20Survey%20of%20Juvenile%20Solitary%20Confinement%20Rules.PDF.

[48] Id.

[49] Id.

[50] Id.

[51] U.N. Guidelines for the Prevention of Juvenile Delinquency, G.A. Res. 45/112, Annex, 45 U.N. GAOR Supp. (No. 49A), U.N. Doc. A/45/49, at 201 (Dec. 14, 1990) (“The Riyadh Guidelines”). Accessed at http://www.un.org/documents/ga/res/45/a45r112.htm.

[52] U.N. Comm. on the Rights of the Child, 44th Sess., General Comment No. 10, Children’s rights in juvenile justice, U.N. Doc. CRC/C/GC/10 (2007). Accessed at http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf.

[53] U.N. Rules for the Protection of Juveniles Deprived of their Liberty, G.A. Res. 45/113, Annex, 45 U.N. GAOR Supp. (No. 49A), U.N. Doc. A/45/49, ¶ 67 (Dec. 14, 1990) (“The Beijing Rules”). Accessed at http://www.un.org/documents/ga/res/45/a45r113.htm.

[54] Press Release, Inter-American Commission on Human Rights, Annex to the Press Release Issued at the Close of the 147th Session, (April 5, 2013). Accessed at http://www.oas.org/en/iachr/media_center/PReleases/2013/023A.asp.

[55] ACLU at 10.

[56] Mary Read, Movement to End Juvenile Solitary Confinement Gains Ground, But Hundreds of Kids Remain in Isolation, Solitary Watch (January 5, 2017).

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