24th August 2017
Stop Solitary for Kids is a website that highlights developments in particular States within the United States of America (USA) that have passed legislation that aim to limit the use of solitary confinement for children in detention. Currently 18 out of the 51 States in the U.S.A have either developed or are currently developing legislation reducing the use of solitary confinement for children.
The California Attorney General Kamala Harris states that isolation “undermines the goal of helping this vulnerable population become healthy and productive members of society.” According to the legislation isolation can only be used for up to four hours generally and can only be used after all other alternatives have been exhausted. It cannot be used to the extent that it “compromises the mental and physical health of the youth.” In Los Angles solitary confinement can only be used for a limited time when a person poses a danger to themselves or others in all other circumstances there is a total ban.
Solitary confinement can only be used in situations deemed as emergencies which are defined as “serious, probable, imminent threat of bodily harm to self or others where there is the present ability to effect such bodily harm.” Approval must be acquired from a qualified mental health professional as well as the Director of the Division of Youth Corrections for a child to remain on solitary confinement for more than four hours and a court order must be obtained for a period up to eight hours.
Following this legislation compliance was not immediate and a year after the legislation was passed, practices of isolation were still being carried out. In May 2017 further legislation was enacted that will overhaul the Department of Youth Corrections in favour of a more rehabilitative, therapeutic and age-appropriate policies and practices. This new legislation aims to eliminate the use of disciplinary practices such as isolation. The law will also require independent evaluation and public disclosure of data regarding use of force against youth, and injury to youth and staff.
The use of solitary confinement is limited to threats of physical harm to a correctional officer or other child. Periods in isolation cannot exceed eight consecutive hours or 24 hours within a seven-day period. Any perceived need for further intervention after the eight consecutive hours or 24 hours in a seven-day period must be evaluated by a mental health professional to assess the need for further assistance at a mental health facility. All staff are required to be trained in de-escalation and trauma.
The Illinois Department of Juvenile Justice created a policy that limits the use of isolation for Illinois’s six state-run juvenile facilities. Under the policy, isolation is not permitted as punishment. Young people who are isolated must be provided regular access to education and mental health services and, if in isolation for more than 24 hours, they must be out of their rooms interacting with staff for at least 8 hours each day.
The State of Massachusetts requires children detained by the Department of Youth Services to engage in programming and treatment. It was found that those confined to their rooms where not receiving such engagement. A major shift in policies meant the use of room confinement gradually decreased. By April, 2016, the average time youth spent in isolation in DYS facilities was less than 1.25 hours. The new policies prohibit the use of room confinement as a form of discipline. The agency does permit limited periods of isolation when a young person exhibits dangerous and disruptive behaviour and less restrictive alternatives to control the behaviour have failed. However, staff must obtain authorization from agency administrators to use isolation for periods longer than 15 minutes, and staff must secure approvals from more senior officials outside of the facility as the requested time increases. Staff are trained to use alternative measures – including de-escalation, behaviour management, and conflict resolution techniques – and to assist young people who are placed in isolation to develop an “Exit Strategy” to get out of isolation quickly and transition back into regular programming.
Following a report by The American Civil Liberties Union (ACLU) Growing Up Locked Down on Nebraskan places of youth detention Nebraska passed a law regarding solitary confinement. The law requires all facilities that house young people to gather and report detailed data on all instances of room confinement that exceed one hour. Facilities must submit quarterly reports to the Legislature and the Inspector General of Child Welfare must review this data and prepare annual reports to the legislature.
Following the findings of a study by The ACLU of Nevada, in conjunction with Solitary Watch and the Nevada Disability Advocacy and Law Center, on Nevada’s use of solitary confinement issues relating to length (average length of 2.5 years) as well as issues relating to access to healthcare. Nevada proposes to prohibit facilities using solitary confinement on children as punishment. It also proposes the use of solitary confinement on a child only in instances where there is a threat of harm to themselves or others limiting its use of a maximum of 15 days.
Legislation was proposed to restrict the use of solitary confinement and to prohibit the use of solitary confinement on children as punishment (House Bill 175 and Senate Bill 185). This bill was met with resistance by prison officers and was over vetoed by the Governor of the State. The bill was vetoed despite there being several cases taken and a considerable quantity of money paid out to those who were found to have been subjected to harsh conditions in isolation.
NEW YORK & NYC
The New York Civil Liberties Union (NYCLU) and the Legal Services of Central New York (LSCNY) sued Onondaga County (New York) in relation to the use of solitary confinement on children of up to 23-hours a day. They won their case and subject to the case 16-17 year olds will not be placed in solitary confinement save for the need to separate for security reasons for a limited period of time.
North Carolina passed legislation (House Bill 280) that will raise the age of jurisdiction of 16 and 17 year olds to 18. This law will not come into effect until 2019. Until June 2017, North Carolina was the only state that automatically charges 16 and 17 year olds as adults. In fact, youth will still be charged as adults until a recent law goes into effect in 2019. A national study by the Justice Policy Institute shows that when states charge youth in as juveniles, they see reductions in crime and better outcomes for youth. Under a new program being implemented by DPS, youth in modified housing should be out of their rooms for 45 hours per week for programming.
Ohio Department of Youth Services (ODYS) abolished the use of seclusion for disciplinary sanctions, created alternatives to the use of seclusion, and instituted increased oversight into the use of seclusion. In the months following the implementation of these changes between 2014 and 2016, the vast majority of seclusion episodes ended within 4 hours, with the average length of seclusion being 2.83 hours.
Philadelphia County regularly puts children as young as fifteen in solitary confinement inside adult jails despite assurances in 2016 from jail officials that the practice would stop. Pennsylvania law allows some young people to be charged as adults, and Philadelphia houses those young people inside one of its adult jails, the Philadelphia Industrial Detention Center (PICC). Children are put in solitary confinement for an average of 32 consecutive days. In 2017, State Representative Joanna McClinton, a former Philadelphia public defender, announced her intent to introduce legislation that would prevent young people from being housed in adult jails before trial unless charged with homicide.
According to South Carolina’s Protection and Advocacy Organization’s Report, on any given day in 2016, an average of 16.8 percent of all children housed at DJJ’s Broad River Road Complex were in segregation. At times that number is as high as 20%. In DJJ, children in segregation are kept either in a “crisis management unit,” where children are typically kept in individual cells for up to twenty-three hours each day, or in the “intensive treatment unit.” The median length of time spent in the “crisis management unit” is ten days, while stays in the “intensive treatment unit” ranged up to forty-seven days, with a me¬dian of eighteen days.
Several cases, but most notably Frazier v. Hommrich, were taken in relation to the use of solitary confinement especially on those with mental health issues as well as those that are vulnerable. Court granted preliminary injunction from placing any child in solitary until the cases are resolved.
Legislation to limit solitary confinement was proposed (Senate Bill 215) but was not passed. Following the defeat of the legislation a study was undertaken in which the recommendations suggest that decisions on the use of solitary confinement must be approved by a mental health professional and that facilities must keep abreast of all developments and recommendations in this area from the Department of Juvenile Justice.
Law suits have been taken in relation to the amount of time children are subjected to solitary confinement and the conditions they are being held.
A federal judge in the case of J.J. v. Litscher has issued a preliminary injunction that banned the use of solitary confinement for minor or non-violent offences and significantly limited solitary for youth with mental health conditions. The injunction also reduced the maximum allowable period of solitary confinement and required the two facilities, that were the subject of federal class action lawsuits on their treatment of children on solitary confinement, to provide children in solitary with education, rehabilitative programming, health services, and meaningful time out of their cells.
Legislation passed (Comprehensive Youth Justice Amendment Act of 2016) a outlines limitations that ban solitary confinement as punishment, require staff to try less restrictive options first, require facilities to collect and report detailed data about how they are using solitary, and cap solitary confinement at six hours.