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Recent Rulings in 6 States Signal New Momentum for Ending Solitary for Juveniles

This story was written for The Marshall Project.

A nationwide shift toward abolishing solitary confinement for juveniles, which began to take shape in 2016 after former President Barack Obama banned the practice in federal prisons, has surged ahead in recent months, with a half-dozen states either prohibiting or strictly limiting its use in their youth facilities.

In just the past year, a series of strongly worded federal court decisions, new state laws and policy changes in Wisconsin, Tennessee, New York, California, Colorado, Connecticut and North Carolina have nearly eliminated “punitive” solitary — holding youth in isolation for long periods of time rather than briefly for safety purposes — from the juvenile justice system. It was already largely prohibited in at least 29 states, according to a July 2016 survey of policies in all states and the District of Columbia.

The developments suggest that long-term isolation is rapidly losing ground as an accepted practice within the juvenile corrections profession, and that a child-specific definition of “cruel and unusual punishment” is now being established by courts across the country.

“These diverse courts seem to all at once be coming to the same conclusion: that solitary confinement of kids, who are our most vulnerable citizens, is unconstitutional,” said Amy Fettig, an expert on the issue for the ACLU.

But for youth advocates, ending juvenile solitary will take more work. Twenty-three percent of juvenile facilities nationally use some form of isolation, according to a 2014 study by the U.S. Department of Justice.

The practice still has support from many, though not all, juvenile corrections administrators and officers, who are often underpaid, overworked and exhausted from double shifts and who believe solitary is the only disciplinary tool available to them without adequate mental health resources or alternative discipline options.

“The front-line staff, historically, they’ve been trained to use isolation as a means to control violent behavior and to keep themselves safe, and now we tell them, ‘Hey, there’s a different way to do things,’” said Mike Dempsey, executive director of the Council of Juvenile Correctional Administrators. “So there is pushback, resistance, fear — a fear that changes like these will basically create unsafe conditions.”

But the momentum for juvenile solitary reform continues, with the latest development coming in July in Wisconsin, where a federal judge ruled that children at the Lincoln Hills and Copper Lake youth prison complex — one of the largest juvenile facilities in the nation and long the subject of litigation — have an age-specific “right to rehabilitation” and that “solitary confinement violates it.”

Under the preliminary injunction issued by Judge James Peterson of Federal District Court in Madison on July 10, Wisconsin officials must stop holding youths in solitary for longer than seven days, and must allow them outside their cells for at least 30 hours a week. (They had previously been held in isolation for periods of 60 days or longer, according to the underlying lawsuit by the ACLU and the Juvenile Law Center.) The youths must also be provided therapy, education and recreation, the judge said.

A spokesman for the Wisconsin Department of Corrections said that while the agency has moved to implement these changes, “The merits of the case have not been decided.”

The injunction echoes one in March by another federal judge, in Tennessee, who blocked a county from placing juveniles in solitary confinement. And in February, a third federal judge, in yet another preliminary injunction, ordered a Syracuse, N.Y., jail to immediately stop putting 16- and 17-year-olds in solitary, citing the Eighth Amendment protection against cruel and unusual punishment.

The rulings also come in the wake of — and perhaps as a result of — two events involving juvenile solitary that drew national attention. The first was the death of Kalief Browder, the 16-year-old from the Bronx who, after being accused of stealing a backpack in 2010 — a charge he denied — was held at the Rikers Island jail for three years, about two of which he spent in solitary. In 2015, after finally having his case dismissed and gaining his release, he hanged himself in his own home.

It was an image that, for many, drove home the total and long-term damage that isolation can do to young people, a group that depends more than most on social contact, educational stimulus, and a sense of purpose. More than half of all suicides in juvenile facilities take place in solitary, according to the Justice Department.

Soon after, in January 2016, Obama banned the solitary confinement of juveniles in federal prisons and also wrote an op-ed article citing Browder’s case and calling the practice “an affront to our common humanity.” It was a largely symbolic move, given that only 26 juveniles were being held in the federal system at that time. But many advocates credit it as an act of policy leadership that has spurred the flurry of state and local reforms in the year since.

In the months following, both California and Colorado legislatively banned the use of punitive solitary in juvenile facilities for periods longer than four hours. (However, an ACLU report published this year notes that despite the new law, Colorado’s youth corrections department placed juveniles in solitary 2,240 times in 2016.) And both North Carolina and Connecticut in 2016 limited the solitary confinement of teenagers held in adult facilities, a different but related policy change. Since youth in adult prisons must by federal law be segregated from adult prisoners, they are often held in isolation for no reason other than to keep them separate.

Yet despite the recent spurt of reforms, according to a Juvenile Law Center report, states like Nebraska are still regularly holding youth in isolation. And in New Mexico, Gov. Susana Martinez vetoed a bill this year that would have restricted solitary for juveniles in adult prisons. She said it would have put guards in danger and hampered their flexibility to choose the best disciplinary options for the most violent inmates and also to keep youths fully separated from adults.

Even in the places where reform has been enacted, the work of translating a judge’s order or a new piece of legislation into actual, sustained culture change remains to be done, according to a report from the Juvenile Law Center.

Indeed, many juvenile justice agencies, when challenged by litigation or legislation, simply rename solitary confinement using one of a variety of well-worn euphemisms: “room confinement,” “special management unit,” “restricted engagement,” “administrative detention,” “time out,” or even “reflection cottage.” Other agencies just reclassify the type of isolation as “nonpunitive” in their official statistics, calling it “temporary” or for the limited purpose of protecting the youth or those around him from harm.

“Anytime you’re talking about new or additional training,” said Dempsey, the executive director of the juvenile corrections administrators council, “it does cost money. It takes investment in alternative techniques, and that can be hard because in this line of work there’s always turnover and staff shortages.”

That’s why Dempsey’s organization and the Stop Solitary for Kids campaign, which aims to end juvenile solitary within three years, provide on-the-ground technical assistance to state and local agencies that might otherwise be inclined toward superficial reform. Juvenile justice officials from Kansas, for instance, were brought to a successful facility in Massachusetts to observe alternatives to solitary for themselves, said Mark Soler, executive director of the Center for Children’s Law and Policy and a leader of the campaign.

To Fettig, the ACLU advocate, the cause could not be more urgent. “Imagine if you left a kid locked in a small room for 70 days. Well, that same action is taken by state governments all over this country!” she said. “When you do this to children, they do not come back.”

This story originally appeared in The Marshall Project.

Kansas Cuts Out Food Stamps for Many Children of Illegal Immigrants

A new formula for calculating who receives food stamps in Kansas has left many U.S.-born children of illegal immigrants without aid. The change affects the Supplemental Nutrition and Assistance Program (SNAP), a federal program administered individually by the states.

By law, illegal immigrants are not eligible for food stamps but their U.S.-born children are, according to The Kansas City Star. Previously, Kansas excluded illegal immigrants as members of the household in the formula but adjusted the family’s income proportionately. The new rule doesn’t adjust the income, so a family’s earnings are spread over fewer people in the calculation. This has lead many families to lose their food stamp eligibility.

Only three other states calculate eligibility in this way: Arizona, Utah and Nebraska.

“This is not a time, with this economy, when we should be withdrawing help from struggling families with children,” Stacy Dean, vice president for food assistance policy at the Center on Budget and Policy Priorities in Washington, told The Star. “We have a demonstrated problem of food insecurity in this country and, in Kansas, this policy takes you further away from being able to solve the problem. It exacerbates the problem.”

Benefits for more than 1,000 families were eliminated after the change in policy took effect Oct. 1, 2011, but the state agency in charge of running SNAP, the Department of  Social and Rehabilitation Services, doesn’t know how many families with U.S.-citizen children were affected.

“These food stamps were making a difference for families to be able to provide nutritional food for their children, or food at all,” Elena Morales of El Centro, an anti-poverty agency in Kansas City, Kan., told The Star. “This policy not only hurts these families, it hurts us, too, especially because we’re talking about U.S. citizen children.”

Me My Sister and the Bully

At age 12 we moved from a small town in Kansas to a suburb of Albany, .N.Y. Over the summer, I befriended another boy named Dean. On the first day of school, while at the bus stop in front of my house, a group of boys approached. When Dean saw them, he became visibly upset.

"What's wrong," I asked.

"That's Jeff and his gang." he said. "They're trouble."

It was not their bus stop. "This could not be good," I thought.

When they arrived, Jeff said something I couldn't make out, but I knew from his tone and body language that he wanted to pick a fight with Dean.

Having been raised to be chivalrous -- or some would say "stupid" -- I stepped between Dean and the gang and said something foolish that went something like "You will have to go through me."

They just looked at each other and laughed. I thought their laughter to be incredulous but at the same time praying my mother would look out the window and rescue me.

She didn't and I was contemplating, "Do I run toward the house or stay and get pummeled to death?"

Just before I turned to look at Dean, I was thinking, "At least I have my friend Dean."

But there was no Dean. He opted to do what I was just thinking, he ran!

I turned back around facing Jeff. He says to me, "What are you going to do now?"

Just as I was about to run, I heard a loud motherly voice. In that split second, I thought of my Mom -- but it wasn't her -- it was Dean's mom. He ran to get help.

"You leave now before I call the police," she hollered.

Jeff and his gang of thugs left, but they didn't forget.

A week later, I was standing in the back of a crowded bus. I felt a tap on my shoulder, I looked around and there Jeff stood with a hateful stare.

He slapped me across the face. I stood there and didn't move. His friends were standing around waiting for me to do something. I didn't. I was too scared.

They soon discovered I had a sister. She rode the same bus. It wasn’t long before they attacked her.  That’s when my personality changed forever. I became a fighter.

I got into a lot of fights that year protecting my sister. The gang of bullies made sure to attack when adults were not around.

I took a beating physically and emotionally until it dawned on me that I could start my own gang. If Jeff can bully in numbers, I can defend in numbers.

My friends Mike, Louie, and John soon had my back. It didn't take long for Jeff to figure out that I wasn't worth his trouble. You see -- my friends were bigger and smarter.

I fought off my bullies because I was resourceful. Most victims are not resourceful. The research shows that many teachers are not aware of the frequency of bullying in the school. Much of it has to do with the bully's covert approach to harming others coupled with the victim’s failure to report the incidents of bullying.

Studies show that most don't tell on their attackers for a number of reasons. In a survey of post-secondary students, most students believed that teachers are not helpful and may make the problem worse by drawing more attention to the bully without taking effective steps to prevent further abuse. The bully is now aggravated and the attacks occur more frequently and with greater intensity.

Other reasons given include fearing retaliation, feeling shame at not being able to stand up for themselves, fearing they would not be believed, not wanting to worry their parents, having no confidence that anything would change as a result, thinking their parents' or a teacher's advice would make the problem worse, fearing their teacher would tell the bully who told on him or her and thinking it was worse to be thought of as a snitch.

What should we expect from kids who are under neurological construction? Their frontal lobe -- the part of the brain that translates emotion into logic -- is not developed until age 25.

For my sister and I, we didnt want our parents to worry. It’s an interesting paradox the love between a parent and child. My parents were nurturers. They were protective -- not overly so -- but always hugging, asking questions, and in our business.

Here is the rub -- knowing the extent of their love also meant knowing the anguish and pain they would experience if they knew our pain. They always told us we could talk to them and share problems, but we didn't always do that. Not because we didn't trust them, but because we loved them, in our cognitively short-sighted way.

In hindsight, my adolescent male ego was bigger than my immature frontal lobe. I didn’t want the bullies and others to witness my Mom in action to save me and my sister. I trusted my Mom to fix things but I didn’t want the embarrassment of being labeled a "momma's boy."

Ironically, my selfless chivalry was in part driven by my selfish need to avoid humiliation. Sadly, this irony placed my sister in harm’s way. I am sure she wasn’t concerned about mommy coming to the rescue.  My emotions were not getting filtered through an objective lens to reach logical decisions. That's the nature of adolescence.

As I cull through the evidence-based approaches to combat bullying and look back on those dark days, I am convinced that the best approach is not zero tolerance, it's teaching the teachers to identify bullies coupled with programs designed specifically to assess and respond to their need to bully.

Otherwise, kids will continue to be traumatized. They will find their own way to deal with it.  Some are resourceful -- most aren't.

The effects can be long lasting.  Others simply try to take their own life -- and some succeed.