The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
“Research suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences. It has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior. Some studies indicate that it can worsen existing mental illnesses and even trigger new ones. Prisoners in solitary are more likely to commit suicide, especially juveniles and people with mental illnesses.”
—President Barack Obama, “Why we must rethink solitary confinement,” The Washington Post, January 25, 2016
“Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. . . Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.”
Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
In January, the Supreme Court issued an important ruling on life without parole sentences for children and President Obama adopted Department of Justice recommendations forbidding solitary confinement for juveniles in federal prisons. These victories for young people are the latest in a recent wave of good news for kids involved with the justice system. With a growing national consensus that “children are different” and strong bipartisan support for juvenile and criminal justice reform, we are poised for even greater progress for justice-involved young people.
Any stay in juvenile detention, adult jail, or prison has profound effects, including increased risk of mental and physical health problems, poor educational, and career outcomes and negative impacts on families and communities. But solitary confinement is particularly dangerous—as President Obama said, solitary confinement has been linked to mental health issues, including suicide.
The Supreme Court decision, Montgomery v. Louisiana, took a previous Supreme Court decision, Miller v. Alabama (which said that life without parole was only appropriate for crimes committed by juveniles in the rarest cases), a step further by determining that Miller was retroactively effective. This means thousands of people in states that were not already re-examining cases decided before Miller are now eligible to have their cases reviewed.
Both of these developments are major wins for child advocates, and each has specific implications for courtroom advocacy in juvenile delinquency cases. They also represent a larger sea change in how the nation, and its government, understand and respond to young people who come into contact with the courts.
Solitary Confinement is Not Appropriate for Young People
As President Obama noted in his op-ed in the Washington Post on January 25, solitary confinement has devastating and permanent effects on youth. President Obama began with the story of 16-year-old Kalief Browder, who endured two years of solitary confinement at the Rikers Island jail in New York City while awaiting trial for allegedly stealing a backpack. Kalief was released after the charge against him was dismissed, but suffered continuing traumatic stress from his experiences at Rikers and committed suicide at age 22.
President Obama also made it clear that solitary confinement does not make facilities safer or deter dangerous behavior.2 The President banned solitary confinement for juveniles in federal custody, and enacted several reforms related to solitary confinement in federal facilities based on recommendations from the Department of Justice. Although it may be referred to by various names—segregation, separation, exclusion, seclusion, or room confinement—solitary confinement is a widespread practice, affecting thousands of youth in the justice system. In light of widespread opposition to using solitary confinement on young people, advocates in these systems may have new tools at their disposal to help clients.
Even short periods of solitary confinement can have serious, life-threatening effects on youth, including trauma, psychosis, depression, anxiety, increased risk of suicide and self-harm, and increases in problematic behavior. Many youth in solitary do not receive appropriate education, mental health services, or drug treatment. Facilities often use solitary confinement for vulnerable youth with unaddressed mental health, behavioral, or developmental needs. Research shows that more than half of all suicides in juvenile facilities occurred while young people were held in isolation.3
Both the President’s ban and the Department of Justice’s Report and Recommendations Concerning the Use of Restrictive Housing highlight a growing national consensus that we must eliminate solitary confinement for children, and that such a result is possible. Recently, a bipartisan group of senators introduced federal legislation limiting use of solitary confinement for youth in federal custody to situations in which the youth poses a serious and immediate threat of physical harm, and then only for periods of no more than three hours.4 Leading professional standards, including those developed by advocates5 and correctional administrators,6 provide that isolation or confinement of a youth to his or her room should be used only to protect the youth from harming himself or others and, if used, should be supervised and last only until the youth is no longer an immediate threat.
In addition to the Justice Department, professional organizations, including the American Academy of Adolescent and Child Psychiatry, the American Psychiatric Association, the American Public Health Association, and the American Bar Association, all support ending use of solitary confinement for youth. Many states have also taken legislative or policy action to eliminate the use of solitary confinement for youth, including Ohio, Massachusetts, Indiana, Pennsylvania, Mississippi, California, Nebraska, and Virginia (see State Efforts to Limit Solitary Confinement for Juveniles).
Attorneys representing young clients can incorporate these national developments into practice in several ways:
Identify youth who are in solitary confinement. One of the most basic steps is to learn if clients are being subjected to solitary. Advocates should regularly visit their clients at facilities and ask about conditions of confinement. Attorneys should recognize that young people may not readily volunteer information about being in solitary, or even refer to it as “solitary confinement.” Advocates can also ask courts to order facilities to provide regular information about a youth’s progress, including information about any use of isolation. If the facility does not comply, advocates can seek judicial enforcement of the disposition order by filing a motion for a post-disposition review.
Apply laws, regulations and policies. Another strategy for advocates is to understand and apply the applicable statutes, regulations, and policies that govern solitary confinement in facilities that house youth.7 If an agency or facility violates its own policy on the use of solitary confinement, advocates can seek relief by contacting the agency or facility directly, or filing a motion before the court. Likewise, since solitary confinement disrupts treatment and education, attorneys can hold facilities accountable for denying youth these basic rights.
Seek assistance from federal agencies. Advocates can also contact outside agencies to address solitary confinement. Advocates can contact the Special Litigation Division of the U.S. Department of Justice or the Office of Civil Rights of the U.S. Department of Education, especially as youth in solitary confinement are denied education or treatment. Another source of assistance is Protection and Advocacy (P & A) programs, which are mandated and funded by federal law. P & A programs exist in every state to provide representation and protect the rights of people with disabilities, which includes many youth held in solitary confinement. Attorneys can find their local P & A program through the National Disability Rights Network.
Montgomery v. Louisiana Affirms Life without Parole for Children Must Be Rare
The Supreme Court has affirmed what children’s rights advocates already know: children are fundamentally different from adults. Four times in just over a decade, the U.S. Supreme Court has held that children are constitutionally different from adults for sentencing purposes in light of children’s diminished culpability and heightened capacity for change. The most recent of the Court’s youth sentencing decisions--Montgomery v. Louisiana8 —held as retroactive its 2012 decision in Miller v. Alabama, which banned mandatory life without parole sentences for children as cruel and unusual punishment under the Eighth Amendment.9
Montgomery means thousands of people sentenced to life without parole as children are now eligible to be resentenced. And because Montgomery is clear that “the penological justifications for life without parole collapse in light of the distinctive attributes of youth,”10 life without parole must be reserved for the rare—if not impossible—circumstance in which a child’s crime reflects “permanent incorrigibility.”11 Montgomery creates a strong presumption against life without parole for children, even children who commit serious crimes.
Henry Montgomery, the petitioner in Montgomery, has spent more than 50 years in prison for a crime he committed at age 17. Yet at trial, because his life without parole sentence was statutorily mandated, he was precluded from presenting mitigating evidence to the sentencing court that his crime reflected “transient immaturity.”12
Therefore his punishment was “disproportionate under the Eighth Amendment.”13 As the Court highlighted in its opinion, mitigating “evidence might have included Montgomery’s young age at the time of the crime; expert testimony regarding his limited capacity for foresight, self-discipline, and judgment; and his potential for rehabilitation.”14 Mitigating evidence is central to a sentencing court’s analysis of the constitutionality of a life without parole sentence imposed for an offense committed by a child, because a “lifetime in prison is a disproportionate sentence for all but the rarest of children.”15
Specialized Representation Needed for Children Facing Life in Prison
Montgomery stresses Miller’s call for specialized representation of children facing life in prison. Last year, the Campaign for the Fair Sentencing of Youth published the Trial Defense Guidelines: Representing a Child Client Facing Life in Prison (“Guidelines”).16 The Guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital punishment context and the NJDC National Juvenile Defense Standards in the juvenile court context. The Guidelines, endorsed by over 50 national and state organizations, are rooted in the understanding that representing a child in adult court facing a life sentence is a specialized practice.
Representing a child facing life in prison requires experience investigating and presenting mitigating evidence at sentencing, and experience working with child clients. The Guidelines outline a team approach, calling for a minimum of four qualified defense team members: two attorneys, one investigator, and one mitigation specialist. At least one attorney must have relevant substantive experience representing child clients, and at least one attorney must have experience investigating and presenting sentencing mitigation evidence.
Any attorney who represents a client facing life in prison for a crime committed as a child should assemble a qualified team, consistent with the Guidelines, to conduct a robust mitigation investigation into who that child was at the time of the crime. The mitigation investigation will serve as the factual foundation for why the client’s crime reflects transient immaturity and therefore the imposition of life without parole would violate the Eighth Amendment under Miller and Montgomery. Trial proceedings must “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”17
January’s developments are part of a larger wave of reform in how communities and the justice system view and treat young people, and a growing recognition that some past practices and policies were ineffective. There is cause for optimism in juvenile justice beyond the President’s action and the Supreme Court decision in Montgomery.
The U.S. Senate is now closer than it has been in almost a decade to reauthorizing (with much-needed updates) the federal Juvenile Justice and Delinquency Prevention Act (JJDPA), our nation’s flagship legislation that sets baseline—and some aspirational —standards for how all young people who come into contact with the justice system should be treated. Thanks to bipartisan leadership from Judiciary Committee Chairman Senator Charles Grassley (R-IA) and Ranking Member Senator Sheldon Whitehouse (D-RI), the JJDPA is closer than it has been in a long time to aligning itself with the most current science and knowledge about what works in juvenile justice.
There are other new, bold efforts afoot that respond to what’s happening in the field and across the country. For instance, the Office of Juvenile Justice and Delinquency Prevention recently launched the “Police and Youth Engagement: Supporting the Role of Law Enforcement in Juvenile Justice Reform” program (with the International Association of Chiefs of Police and the Coalition for Juvenile Justice). This program seeks to improve relations between young people and law enforcement.
In his editorial for the Washington Post, President Obama said the “United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance.” Many child advocates would agree the President’s words could be applied to juvenile justice in general, Along with many other exciting developments in the field, the recent wins for children can lead to second chances for many more young people in the juvenile justice system. While there is still much work to do, we hold great hope for what comes tomorrow.
Jennifer Lutz, is a staff attorney at the Center for Children’s Law and Policy, Washington, DC.
Lisa Pilnik, JD, MS, is deputy executive director at the Coalition for Juvenile Justice, Washington, DC.
Heather Renwick is co-legal director at the Campaign for the Fair Sentencing of Youth, Washington, DC.
1 Note: This article was adapted from: Pilnik, Lisa and Marie Williams “Yesterday Was a Huge Day for Youth Justice. Tomorrow Could Be Even Better.” Huffington Post, January 26, 2016.
2 Experience in youth corrections systems like Ohio, Indiana, Massachusetts, and Oregon shows reducing use of isolation improves the safety of facilities and decreases violence involving youth and staff. The director of the Ohio Department of Youth Services, which dramatically reduced use of solitary confinement in 2015, stated that solitary confinement “does not make facilities safer. It does not prevent violence or reduce assaults on staff and youth; instead, as the department’s data showed, it increases violence. Reed, Harvey J. “Ohio Implements Path to Safer Facilities.” Corrections Today (77)55, September/October 2015, 26 .
3 Hayes, Lindsay M. Juvenile Suicide in Confinement: A National Survey 2009.
4 The Sentencing Reform and Corrections Act of 2015, S.B. 2123.
5 Juvenile Detention Alternatives Initiative. Juvenile Detention Facility Assessment Standards Instrument 2014 Update, December 2014.
6 The Performance-based Standards were created by the Council of Juvenile Correctional Administrators, an association of the directors of state juvenile justice agencies in all states. PbS Learning Institute. Reducing Isolation and Room Confinement, September 2012, 2.; See also Council of Juvenile Correctional Administrators Toolkit: Reducing the Use of Isolation, March 2015.
7 A recent survey of state laws, regulations, and policies on juvenile solitary confinement by the Lowenstein-Sandler Center for the Public Interest reviews relevant laws and policies in all states. Kraner, Natalie et al.. 51- Jurisdiction Survey of Juvenile Solitary Confinement Rules in Juvenile Justice Systems, October 2015, 2.
8 Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
9 Miller v. Alabama, 132 S. Ct. 2455 (2012).
10 Montgomery, 136 S. Ct. at 734 (internal citations omitted).
12 Id. (internal citations omitted).
13 Id. at 735.
14 Id. at 726.
15 Id. (internal citations omitted).
16 Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence. Washington, DC: The Campaign for the Fair Sentencing of Youth, available at www.fairsentencingofyouth.org/defense-guidelines/.
17 Miller, 132 S. Ct. at 2469.