Imagine you are 16 years old and arrested for stealing a backpack. You wait 3 years in jail for a trial. You are in solitary confinement for over half of those 3 years, where you are locked alone in a cell for 23 hours of the day. On a daily basis, you cannot speak to anyone, are confined to a small space, and have no reading materials with you. What would you do?
Unfortunately, this story and others like it are not fiction. Kalief Browder was originally arrested in spring 2010 for allegedly stealing a backpack and finally released in May 2013, after all charges were dropped. Upon his release, Mr. Browder attempted to resume a normal life, taking classes at a community college in order to seek a better life. Sadly, Mr. Browder struggled to resume normality as a direct result of his juvenile solitary confinement, ultimately committing suicide in June 2015 after several prior attempts. This struggle is not unique for juveniles who are placed in solitary confinement during their incarcerations.
Solitary Confinement: A Brief History
The U.S. Department of Justice (DOJ) was tasked with reviewing the use of solitary confinement in the American prison system and issued a final report in January 2016, U.S. Department of Justice Report and Recommendations Concerning the Use of Restrictive Housing. The report uses the term “restrictive housing,” defined as a removal of an individual from the general prison population, whether voluntary or involuntary; placement of that individual in a single cell or with one other individual; and remaining locked in that cell for most of the day, typically 22 hours or more.
Solitary confinement has been used in furtherance of several objectives. “Investigative confinement” refers to the time when prison officials are determining whether an individual should be placed in solitary. Disciplinary confinement is for individuals who have violated a particular policy or rule, and solitary confinement is used as punishment. Preventive confinement is used when prison officials believe an individual is a threat to the general prison population or corrections officers. Protective confinement is used when there is a perceived threat against the individual within the prison and is designed to ensure the individual is not harmed.
Quakers in Pennsylvania began the practice of solitary confinement in the late eighteenth and early nineteenth centuries, believing it promoted repentance and rehabilitation when prisoners were left alone in their cells with a Bible. Its use quickly spread to other states and Europe. Soon, solitary confinement was abandoned in favor of solitary congregate labor. In 1890, the U.S. Supreme Court criticized the use of solitary confinement by noting that individuals often developed mental illnesses, attempted suicide, and were not able to contribute to society when returning to their community after release due to insufficient mental capacity.
At the turn of the twentieth century, the practice of solitary confinement began to decline, though it was still used as a form of control over prison populations. When prison populations increased and prisons became overcrowded in the 1970s and 1980s due, in part, to the “War on Drugs,” solitary confinement was increasingly used as a control tactic to crack down on riots and prison gangs, especially in prisons that were understaffed. Recent news stories like those about Mr. Browder and the Angola Three—Robert King, Albert Woodfox, and Herman Wallace, who received international attention after spending decades in solitary confinement—have begun highlighting the effects and devastation that solitary confinement can have on an individual.
The Impact of Solitary Confinement on Juveniles
Countless studies have explored the effects of solitary confinement on juveniles. We are constantly learning more about the development of the human brain, according to an article, “More than a Time Out,”18 U.C. Davis J. Juv. L. & Pol’y 244 (2014). We now know that the brains of children and juveniles are still developing and growing until they become young adults.
Specifically, the frontal lobe of the brain undergoes more changes during adolescent years than at any other stage of life. An American Bar Association Juvenile Justice Center article from January 2004, “Adolescence, Brain Development and Legal Culpability,” states that the frontal lobe development continues for juveniles until they are in their early 20s. The frontal lobe controls impulsivity, judgment, planning for the future, and foreseeing consequences of actions. This means that juveniles cannot reason as well as adults, and juveniles’ cognitive functioning is the last part of their brain to fully develop.
As a result, isolation in solitary confinement does more irreparable harm on a juvenile’s brain, which is still developing, than on an adult’s brain. Although isolation as a whole causes damage to both juveniles and adults, adults are more likely to possess the coping skills necessary to better handle the effects of isolation. Generally, studies recognize that juveniles in solitary confinement are more likely to develop mental health problems and that their existing mental health problems are more likely to be exacerbated. In addition, juveniles are more likely to exhibit antisocial behavior, self-harm, and attempt suicide while in solitary confinement.
Anecdotal evidence demonstrates the devastating effects of solitary confinement on juveniles. A 16-year-old girl in Florida began to cut herself after spending 4 months in solitary confinement. She started cutting “because it is the only release of my pain. . . . When I see the blood, it makes me want to keep going.” Ian M. Kysel, “Solitary confinement makes teenagers depressed and suicidal. We need to ban the practice,” Wash. Post, June 17, 2015. Other teenagers described how they wanted to die rather than continue feeling the despair of a life with no way out. Yet another individual described how he tried to break his finger just so he could get out of isolation. Id.
According to Alone and Afraid, a June 2014 report by the American Civil Liberties Union, effects can include “hypersensitivity to stimuli; perceptual distortions and hallucinations; increased anxiety and nervousness; revenge fantasies, rage, and irrational anger; fears of persecution; lack of impulse control; severe and chronic depression; appetite loss and weight loss; heart palpitations; withdrawal; blunting of affect and apathy; talking to oneself; headaches; problems sleeping; confusing thought processes; nightmares; dizziness; self-mutilation; and lower levels of brain function, including a decline in EEG activity after only seven days in solitary.”
The destructive impact of juvenile solitary confinement can be long-lasting. Many juveniles (who have sometimes become adults while incarcerated) struggle with re-acclimating to normal life, tragically demonstrated through the tale of Mr. Browder’s suicide. Further elaborating the strength of solitary confinement’s wrath, Mr. Browder had family support and access to therapy upon his release. He also had nationwide support, including an anonymous donation to pay his college tuition and gifts from celebrities, including a laptop to use while pursuing his higher education. The sad reality is that not many juveniles or adults who are reentering society have such support to cope with solitary confinement’s long reach.
Background on the DOJ’s January 2016 Final Report
Recent progress has been made in addressing juvenile solitary confinement. At the national convention of the National Association for the Advancement of Colored People on July 14, 2015, President Barack Obama announced that he had asked Attorney General Loretta Lynch and the DOJ to conduct a review of the solitary confinement policies in American prisons. He also asked that guidelines be developed to reduce the use of solitary confinement and provide a more consistent approach to how solitary confinement is used for prisoners.
A working group of high-level employees from the U.S. Marshall Service, the DOJ, the Executive Office of the U.S. Attorneys, and the Federal Bureau of Prisons was created. The result was a comprehensive report, U.S. Department of Justice Report and Recommendations Concerning the Use of Restrictive Housing (Jan. 2016). The final report, more than 100 pages long, details the history of the use of solitary confinement, compares its use among federal agencies and states, and outlines guiding principles and policies that should be implemented to reduce its use in the prison system.
In addition, the working group created an 11-page document that further breaks down and explains the guiding principles that should be used by prisons across the country when implementing policies regarding the use of solitary confinement. While the final report, and the guidelines based on it, is to be used by local, state, and federal prisons, it is simply a report. It has no enforcement capabilities, nor does it confer any kind of rights and responsibilities on prisons across the country.
Current Treatment of Juveniles in the Federal Prison System and State and County Prisons
The federal prison system recognizes two types of juveniles:
• those under the age of 18 and adjudicated as juveniles and
• those under the age of 18 but adjudicated as adults.
Juveniles adjudicated as juveniles are housed separately from adults until they are 21; juveniles adjudicated as adults are housed separately from adults until they are 18. At the beginning of December 2015, the Federal Bureau of Prisons was responsible for only 71 juvenile inmates, and 26 of those were under the supervision of the U.S. Probation Office.
None of the incarcerated juveniles are housed in federal prisons; rather, the Federal Bureau of Prisons holds contracts with facilities that house them. Part of the agreements requires that the juveniles receive 50 hours of programming per week, which includes different types of trainings, counseling services, and other opportunities designed to help a juvenile successfully reintegrate into society.
In the federal system, juveniles are hardly ever placed in solitary confinement, and if they are, there are guidelines that the facilities must follow. For a minor rule violation that requires a brief cooling-off period, the juvenile can be placed on a room restriction, but it must not exceed one hour, and the room must remain unlocked. For a major rule violation, there are additional notifications and protections for the juvenile. Staff must monitor the juvenile every 15 minutes.
If a juvenile is to be placed in solitary confinement, the Federal Bureau of Prisons must be notified, and within 24 hours of being placed, a written copy of the alleged rule violation must be given to the juvenile. Also, a licensed mental health professional must see the juvenile to ensure that the behavior was not a result of a mental illness or medical condition.
If a juvenile is to remain in solitary confinement beyond 24 hours, a facility administrator is required to review the confinement every 24 hours. If the confinement goes beyond five days, a licensed mental health professional must conduct another review and a “special behavior management program plan” must be developed and implemented by an interdisciplinary team.
In state and county prison systems, the use of solitary confinement for juveniles typically falls under protective confinement. Many juveniles are put in solitary confinement as a means to separate them from the adult population in an effort to prevent them from being preyed upon. Solitary confinement is also used when there is overcrowding in a prison and there are no other regular cells available. Policies vary widely regarding how solitary confinement is to be used, and there are mechanisms in place to provide oversight of the confinement.
Guiding Principles for Juveniles
The guiding principles of the DOJ’s report identify policies that prisons should implement to better regulate the use of solitary confinement in a more uniform manner that is consistently applied to individuals. Specifically, the principles state that restrictive housing should not be used for juveniles. The only exception to this rule is if the individual poses an immediate safety risk to himself or herself or to others. The guiding principles state that even in that rare circumstance, the confinement should be brief, only amounting to a cooling-off period for the juvenile.
For young adults (18–24), correction officials should receive training on brain development in young adults. The prisons should try to use wrap-around programming, which includes educational and vocational training, independent living preparation, specialized treatment goals and objectives, counseling and psychological services, structured recreational activities, religious and cultural services, financial responsibility classes, and opportunities for family visitation, to reduce incidents that would cause solitary confinement. In addition, individuals who are placed in solitary confinement should receive both educational and therapeutic services.
Effects of the Report
Although the DOJ’s report does not have the force of law, nor any enforcement capabilities, there are many changes afoot regarding the use of solitary confinement specifically for juveniles. The most prominent one is an executive order banning the use of solitary confinement for juveniles in the federal prison system, which President Obama announced on January 25, 2016, stating that the practice is overused and has devastating psychological consequences.
While the president’s executive order made headlines, it has little direct impact mainly due to the fact that there are fewer than 75 juveniles currently involved in the federal prison system. Although largely symbolic, the president’s ban has helped to spur other states and local and county jails to action.
In March 2016, a federal court approved a class action settlement involving New York’s punitive use of solitary confinement in its state prison system. The settlement included a detailed plan to overhaul the use of solitary confinement. On May 3, 2016, Los Angeles County announced policies that severely restrict the use of solitary confinement for juveniles. Many other states and counties have followed suit, instituting similar bans on juvenile solitary confinement.
While self-instituted bans sound like an instant call to action, change, and reform in the prison system, the sad reality is that there is no enforcement mechanism for these bans, just as the DOJ’s final report lacks an enforcement mechanism. The succeeding president, governor, or county official can easily eliminate or change the ban just as swiftly as it was implemented. There is also less likely to be media coverage or buzz if the ban or restrictions are lifted.
Further, while the president’s federal ban and a governor’s statewide ban are important first steps in eliminating the problem of juvenile confinement, the majority of all prisons do not fall under the purview of those bans. For example, county jails and juvenile detention facilities that are not run by a state do not have to adhere to the state or federal ban on the use of solitary confinement for juveniles. Thus, it is up to those individual facilities to determine whether a ban on solitary confinement for juveniles should be implemented.
The Future of Solitary Confinement for Juveniles
There appears to be a growing tide toward permanent elimination of solitary confinement for juveniles. Scientific research has demonstrated that the use of solitary confinement overall has devastating consequences, among them the impact on cognitive functioning development in a still-developing brain. The combination of the recent research on juvenile brain development, public awareness, and public opinion are coming together to eliminate the use of solitary confinement for juveniles. While the bans recently instituted by the president, state governors, and counties are welcome and assist with increasing public awareness, legislation is the only way to eliminate solitary confinement for juveniles once and for all.
Currently, Congress is considering the Sentencing Reform and Corrections Act, a bill that, among other things, would institute a permanent ban on the use of solitary confinement for juveniles involved in the federal prison system. Senator Cory Booker is a cosponsor of the bill and is hopeful that a federal legislative ban on juvenile solitary confinement will serve as a model for other states to legislate their own bans.
While there are many reforms being proposed to the criminal justice system, we should remain focused on reforming the juvenile prison system because the individuals within it are the most likely to return to society at a young age. If the United States truly wants prison to serve as a rehabilitative function and deterrent for future crime, then focusing on juveniles and how to rehabilitate them will in turn help to develop programming in the adult prison system that focuses on reentry. We have a responsibility to equip them with the tools necessary to be successful upon reintegration rather than leaving them with debilitating mental diseases or illnesses that stunt their growth and prevent them from achieving future success.
Keywords: litigation, children’s rights, solitary confinement, juvenile detention, mental health