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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.

Some State Laws Slow Resentencings Despite Miller v. Alabama Decision

While the man behind the landmark decision that ended mandatory life-without-parole sentences for juveniles waits for a new sentence, other inmates given the same term are getting a shot at eventual freedom.

Evan Miller went back before a judge in his hometown of Moulton, Alabama, for a three-day resentencing hearing March 13. Lawrence County Circuit Judge Mark Craig’s decision is still pending.

But the Supreme Court ruling that bears Miller’s name is already bearing fruit for other Alabama inmates serving life without parole for crimes they committed before they were 18. For them, the process can be difficult, slow and vary county by county. And thanks to a 2016 state law, they may have a long wait for a parole hearing even if they succeed.

For example, the July 31 decision declaring juvenile lifer Richard Kinder eligible for parole came nine months after a hearing before a judge in Birmingham, attorney Richard Jaffe said.

“The judge wanted to be thorough and know every inch of it — every document, every record, and there were thousands and thousands of pages,” said Jaffe, who defended Kinder in his 1984 trial and served as co-counsel in his resentencing.

Joy Patterson, a spokeswoman for the Alabama attorney general’s office, said about 70 other state inmates are eligible for new sentencing hearings under the 2012 Miller v. Alabama decision and its 2016 follow-up, Montgomery v. Louisiana, which declared the Miller ruling retroactive.

So far, 20 of them have been resentenced to life with a chance at parole, said Eddie Cook, a spokesman for the Alabama Board of Pardons and Paroles.

State Rep. Jim Hill, a former judge who pushed to bring Alabama’s capital sentencing law into line with the Miller decision, said he has urged his old colleagues to get on with the task at hand.

“I have certainly had judges call me and ask, ‘Do I need to have rehearings?’ And my answer to them is, ‘Sure. You must. Go ahead and schedule it and get it done,’” said Hill, a Republican who chairs the state House Judiciary Committee.

Alabama’s new capital sentencing law, passed in 2016, also requires that teens convicted of capital murder serve 30 years before becoming eligible for release. Since Kinder has been imprisoned more than 30 years, he now has the right to a parole hearing, Jaffe said.

But other juvenile lifers will face more years behind bars even if they succeed in getting their chance at parole. That would include Miller himself, who was convicted in 2006.

That 30-year requirement isn’t the most stringent, according to The Sentencing Project, a Washington-based research and advocacy organization. At least two states — Texas and Nebraska — require a 40-year minimum. But it’s tougher than others: West Virginia allows inmates to get a hearing after 15 years; Nevada, 20; and South Dakota leaves the issue entirely up to a judge.

And the Miller decision barred only the automatic imposition of a life-without-parole sentence for a teen killer. Judges can still hand down that term after weighing the evidence. But the justices required them to consider a teen’s "diminished culpability and heightened capacity for change," and the follow-up Montgomery decision limits the punishment to teens whose crimes show “permanent incorrigibility.”

“It’s going to apply to the rarest of the rare cases,” Jaffe said.

Kinder has served nearly 33 years of a life-without-parole sentence for a killing committed when he was 17.

Kinder, then 17, was convicted of capital murder in the 1983 killing of 16-year-old Kathleen Bedsole during a robbery and kidnapping. As an accomplice, Kinder was spared the death penalty, but got life without parole. The 21-year-old gunman, David Duren, went to the electric chair in 2000, having dropped his appeals after a religious conversion.

Jaffe called Kinder’s resentencing “excruciating” and “heart-wrenching.” It featured testimony from Bedsole’s boyfriend, who survived his wounds that night. But guards and teachers at the prison where Kinder has been locked up testified that he has been a model prisoner. His disciplinary record includes only one infraction, and he earned a high school equivalency diploma, an associate’s degree from a community college and a trade school diploma in furniture refinishing.

In addition, Duren’s attorney signed an affidavit recounting that his client had said he made the decision to shoot Bledsoe and her boyfriend without telling Kinder, and that Kinder had told him there “was no need to shoot.” Jaffe said Circuit Judge Teresa Pulliam found Kinder “was not only rehabilitatable, but had been rehabilitated.”

Pulliam has scheduled several other hearings for inmates convicted in Jefferson County, the state’s largest, said Michael Hanle, president of the Alabama Criminal Defense Lawyers Association. But for convicts in other counties, there’s little movement, he said.

“We’re not quick to the table,” said Hanle, who is also Jaffe’s law partner. Rural counties especially “are not moving as quickly as in some other jurisdictions, and they’re having a little more difficult time.”

Many judges aren’t eager to reduce sentences, and defense lawyers are often court-appointed and lack the resources to assemble their case. But the biggest obstacle is time, he said.

“Some of these guys have been in prison 20, 25, 30, 35 years, and a lot has happened during that time,” Hanle said. Finding witnesses becomes harder, and it’s more difficult to present testimony that would point toward a lighter term.

“And of course, a defendant has a lifetime literally in the Department of Corrections, which comes with its ups and downs,” he said. “Some of them have gone on to do great things as far as their education, training and rehabilitation. Others have had problems, and all those things are going to be brought back up during the resentencing.”

Hill said the judges he knows “all want to follow the law, whether they like it or don’t like it.”

“I think it’s a necessity that we do it,” he added. “It’s one of those things that when you see what the situation is, you need to address it. It took us a couple of years to address it, but we did, and I’m very glad that we did.”

Miller is represented by the Montgomery-based Equal Justice Initiative, which took his case to the U.S. Supreme Court. Bryan Stevenson, EJI’s executive director, did not respond to a request for comment.

Nationwide, about 2,500 inmates are eligible for new hearings under the Miller and Montgomery decisions. It’s not clear how many of them have had those hearings, but states well beyond Alabama have been slow to schedule them, said Josh Rovner, a juvenile justice advocacy associate at The Sentencing Project.  

“While there are certainly states that have sharp declines — sometimes because state supreme courts required it — in many cases, the states barely budged in the number of people serving life without parole for things they did as a juvenile,” Rovner said.

For example, Iowa has moved quickly to resentence inmates eligible for new hearings under Miller, and it has eliminated mandatory minimum sentences for crimes committed by juveniles altogether, Rovner said. But in Arkansas, a judge recently struck down the state’s new sentencing law because it failed to provide for individualized hearings. And the three states with the most juvenile life-without-parole sentences — Michigan, Louisiana and Pennsylvania — “really dragged their feet on this,” he said.

“The facts are rarely in question,” Rovner said. “The question is what is the juvenile’s maturity, involvement in the offense, what was his family life like — these are questions that are able to be answered.” Caseloads and procedures might move at different paces in some places, but he said waiting five years since the Miller decision “is preposterous.”  


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Across the Nation, State Legislatures Focused on Children in 2012

State legislatures across the United States have been busy this year with youth and juvenile justice-related legislation. While there have been some failures, such as the last-minute death in the Georgia General Assembly of a comprehensive juvenile code rewrite — a bill that many feared county governments couldn’t afford — other states are working on or have managed to pass significant measures.

A few of them are noted below.

Perhaps one of the biggest efforts is in California where Gov. Jerry Brown has announced plans to close all of his state’s remaining juvenile detention centers, transferring responsibility for the youth detained there to county parole departments and effectively eliminating the state’s Department of Juvenile Justice (DJJ). Consequently, most juveniles in the system would be referred to rehabilitation programs in their home communities. If the plan is implemented California would be the first state to eliminate its juvenile justice system entirely, according to San Francisco’s Bay Citizen,

In other states, new measures were aimed at strengthening juvenile justice and child welfare systems.

Last week, Pennsylvania Gov. Tom Corbett signed two major juvenile justice reform bills on the heels of the 2008 “Cash for Kids” scandal involving two judges who received millions in kickbacks for wrongfully incarcerating many juveniles in for-profit detention centers.

“Four years ago, Pennsylvanians witnessed a scandal that shocked the conscience,” Corbett said at the bill signing. “Now, we are taking action to prevent future injustice against our children.”

The new laws bring Pennsylvania into compliance with a state Supreme Court ruling requiring all juveniles under 14 to have legal representation at all delinquency hearings. Additionally, judges will be required to state on the record their reasons for the disposition of each juvenile case along with the intended goals of the incarceration.

While Pennsylvania worked to protect the interests of youth in contact with the juvenile justice system, Wisconsin’s Legislature passed a measure giving authorities greater access to juvenile records usually kept secret to allow young people a chance to move beyond the indiscretions of their past. Last week, Gov. Scott Walker signed the new bill. According to WUWM, Milwaukee Public Radio, the measure will give police greater access to information supporters of the law say will keep the public safe from young, violent offenders. In the past, a juvenile record would only show a referral to juvenile authorities and not the outcome of the case. The law is a response to the case of Markus Evans of Milwaukee whose crimes escalated from stabbing a teacher with a pencil when he was 7 to murdering a teenage girl walking home from school when he was 16.

“When we looked at the arrest histories, all we could see was that the kids were referred to juvenile authorities, so we didn’t know what the outcome was,” Mallory O’Brien, director of the Milwaukee Homicide Review Commission told WUWM. “It could have been that they were issued a citation. It could have been nothing happened. It could have been that they were sent to the delinquency center. So that really was information that the officers on the street needed to have access to.”

Not all of the new legislation concerning youth was directly juvenile justice-related. In Nebraska, Gov. Dave Heineman signed five bills into law, all aimed at fixing a child welfare system that has lost the public’s confidence after an experiment with privatization. According to a report by the Associated Press, two of the new measures would lower caseloads for child service providers and require the state Department of Health and Human Services (HHS) to develop plans to serve children more effectively, a move reinforced by the appointment of Thomas Pristow as director of the children and family services division of HHS. The remaining three bills provide for the creation of a state children’s commission, increased payments for foster care providers and the establishment of a web-based information system.

"Over the next six months, you will see action happen that looks at what the issues are and then resolves them," Pristow told The Omaha World-Herald. "We will be at a much different place a year from now than we are today."

Missouri lawmakers are still contemplating adding a new category to the state’s Amber Alert system created to notify the public of a child’s abduction and enlist their help in finding the missing child. Under the new measure, the Alert would also be activated if there were a fugitive at large, a change that some Missouri State Highway Patrol officers worry will cut into the alert’s effectiveness in child abduction cases, acccording to Kansas City’s KCTV 5.

Highway Patrol Sgt. Bill Lowe told KCTV the goal is to "have as many eyes out there as possible to locate that individual." But increasing the scope of the alert and increasing its use could lead to some people tuning it out.

"We don't want to dilute that,” Lowe said. “We want the public to know that when that Amber Alert goes off that information is vitally important.”

Child Advocacy Groups Criticize Proposed Reform Measures in Nebraska

This legislative session, Nebraska lawmakers are expected to sign a child welfare reform package that would ease caseloads for the state’s social workers as well as end privatized services in almost all of the state’s counties.

However, in an Associated Press story this week the National Coalition for Child Protection Reform said that the reform measures fall short. The advocacy group says they do not address the fact that Nebraska places children in foster care services at a rate double that of the national average, in addition to maintaining the nation’s highest proportion of children in foster care homes.

Richard Wexler, executive director of the coalition, told the AP that Nebraska’s child welfare system promotes a “take-the-child-and-run mentality,” which ultimately creates less safe environments for the state’s children.

“Not only does Nebraska’s obscene rate of removal do enormous harm to the children needlessly taken,” he said, “it also overloads caseworkers so they have even less time to find children in real danger.”

A recent National Coalition for Child Protection Reform report notes that in 2010, approximately 8 out of 1,000 children were placed in foster care within the state. The rate is easily twice the national average, the report said, which hovers at about 3.4 out of 1,000 across the country. Additionally, the report indicates discrepancies between the rates of white and minority children placed in foster care services, with African-American and Native-American children in Nebraska being removed from homes at a rate 3.4 and 6.8 percent higher than general population estimates.

According to Melanie Williams-Smotherman, Nebraska’s Family Advocacy Movement executive director, the state’s welfare offices are staffed by “career child savers” that are prone to using “safety laws” to place children in foster care.

“Their spirit is broken, their children have been harmed and alienated, and they have lost all necessary resources to remain stable and functioning,” she told the AP.

Vicki Maca, the head of Nebraska’s Division of Children and Family Services, defended the proposed reform measures, stating that the legislation’s “goal” is a reduction in the number of children placed under the state’s care.

The Nebraska Department of Health and Human Services currently plans on applying for a waiver that would allow the state to use federal child welfare dollars on “in-home” services, such as counseling and substance abuse treatment. Many child advocates and lawmakers have urged officials to request the waiver immediately, as multiple states are in competition for the funding exemption.

As states are generally required to spend the majority of the federal funding on “out-of-home” child welfare expenditures, many critics say the allocation of federal dollars gives states a “financial incentive” to keep children in foster care services. Maca said that, right now, the state is looking at ways to “maximize” the monetary value of the waiver.

“We want a system that allows parents the opportunity to have access to services in their own community without state involvement,” Maca told the AP. “That is what our reform is all about.”