Perhaps no story captures the injustice and horror of juvenile solitary confinement more than that of Kalief Browder, the Bronx sixteen-year-old who was wrongfully accused of stealing a backpack in 2010 and spent three years on Rikers Island awaiting trial. Two of his three years on Rikers were spent in solitary confinement, where Kalief was locked in a cell for twenty-three hours per day. During his third stay in solitary, he attempted to hang himself from a light fixture by crafting a noose out of bed sheets, and cut himself with a sharpened shard of the plastic bucket in his cell.
Just before his twentieth birthday, after four suicide attempts, Kalief was released, his case dismissed by the courts. When he returned home he was a changed person, severely traumatized by repeated exposure to extreme isolation, violent victimization by staff and other incarcerated people, and food deprivation. While working hard to piece his life back together, Kalief suffered ongoing flashbacks, depression, paranoia and hallucinations—all common symptoms of post-traumatic stress disorder, and typical responses to solitary confinement. On June 6, 2015, at age twenty-two, Kalief Browder ended his life.
The tragedy wrought by Kalief’s imprisonment and isolation did not end there. On October 14, his mother, Venida Browder, who had shown up for all 31 of his court dates and struggled unsuccessfully to raise his bail, died of a heart attack at age 63. Loved ones said she had “died of a broken heart,” unable to recover from the death of her youngest child.
Yet Kalief Browder’s life and death have resonated in other ways as well—including ways that offer some hope to the hundreds, and perhaps thousands, of other children who suffer the torture of solitary confinement in U.S. prisons, jails, and juvenile detention facilities. Kalief has become an archetypal figure in the growing movement to end youth solitary confinement, in part due to the notoriety his case gained when it became the subject of a feature by Jennifer Gonnerman in The New Yorker in 2014 (with a follow-up story eight months later, the day after his death). Several social-justice oriented celebrities also took interest: Jay Z met Kalief before his death, and is currently producing a six-part documentary series for Spike TV about his story.
Hearing what Kalief suffered reportedly influenced New York City mayor Bill Di Blasio to ban solitary confinement for Rikers Island detainees aged 21 and younger (though his directive has yet to be fully implemented). In January 2016, President Obama invoked Kalief’s story when, in a Washington Post op-ed, he announced his decision to ban solitary confinement for juveniles in the federal prison system, referring to the practice as “an affront to our common humanity.” Though Obama’s ruling was largely symbolic, given that less than thirty children were directly impacted, it was designed to set a precedent for state and local governments.
In fact, in a number of states and jurisdictions, the movement to ban or restrict youth solitary confinement was already well under way. In general, changes at the state and county level occur as a result of some combination of agency policy reform, statewide legislation, litigation, and pressure from human rights and prison reform organizations. And while this gathering momentum is encouraging to advocates, the struggle to end the solitary confinement of children is far from won.
The Scope and Impact of Youth Solitary
It is impossible to know how many young people under the age of 18 are suffering in solitary confinement as Kalief did, since neither state nor federal governments have reliable data on the total number of youth placed solitary confinement each year. The practice is known to be widespread, but it occurs differently in different types of settings and is referred to by a range of innocuous euphemisms, making it difficult to quantify or track. Facilities are generally reluctant to record or report how often they rely on isolation as a behavioral control tactic, and in most cases they are not required to.
According to 2012 data released from the Campaign for Youth Justice, U.S. courts handle roughly 1.7 million juvenile delinquency cases per year, or 4,600 cases per day, and 21 percent of these cases result in youth detainment. On any given day, of the 50,000 youth held in court-mandated out-of-home placements, such as juvenile halls, group homes, treatment programs, and work camps, 17,000 are detained in large, state-run institutions, or “training schools.” In juvenile settings, solitary confinement is referred to as “time out,” “room confinement,” “restricted engagement,” or a “reflection cottage.”
When children are placed in solitary, which happens frequently as a form of discipline, behavioral control, and administrative convenience, they are deprived of the rehabilitative programming that is mandated by law in youth facilities. According to the American Civil Liberties Union’s “No Child Left Alone” toolkit, more than 50 percent of suicides in juvenile facilities were committed by youth being held in isolation, and more than 60 percent of all youth who commit suicide have been subject to institutional isolation at some point in their past.
But not all minors are treated as such in our criminal justice system. Data from the Vera Institute Center for Youth Justice indicates that roughly 250,000 youth are tried, sentenced, or incarcerated in the adult system every year. On a daily basis, 2,700 youth are held in adult prisons and 7,500 are held in adult jails. Half of youth held in adult jails for pre-trial detainment will ultimately have their cases dismissed or sent back to juvenile courts, at which point 20 percent will have already spent at least six months detained. And while the juvenile justice system is designed (in theory) to rehabilitate “delinquent” youth, the adult system is designed to punish criminals.
Kids placed in adult facilities frequently end up in solitary confinement. Despite the known dangers of long-term isolation, facilities often place young people in “protective” solitary to limit their risk of physical and sexual violence by adult detainees and guards. The Prison Rape Elimination Act (PREA, originally passed in 2003) dictates that, “A youthful inmate shall not be placed in a housing unit in which the youthful inmate will have sight, sound, or physical contact with any adult inmate through use of a shared dayroom or other common space, shower area, or sleeping quarters.” PREA suggests that facilities find ways of separating youth without the use of isolation, but many lack the infrastructure and staff to do so, so they resort to long-term solitary confinement. According to CFYJ, kids prosecuted in the adult system are not granted protection by laws these laws designed to protect youth in adult jails and prisons.
According to The California Alliance for Youth and Community Justice’s publication titled “Treat Kids as Kids,” when youth are incarcerated in adult jails rather than juvenile facilities, they are 36 times more likely to commit suicide, five times as likely to be sexually assaulted, and two times as likely to be beaten by staff. Treating kids as adults is not only damaging, it is also ineffective. Youth who receive adult sentences are 2.3 times more likely to be arrested and 4.9 times more likely to recidivate than those who are processed through the juvenile system.
Brain research demonstrates that human brains are not fully developed until the early twenties. The dorsolateral prefrontal cortex, the part of the brain responsible for inhibiting impulses, weighing consequences of decisions, prioritizing and strategizing, is the last region of the brain to develop. Without mature prefrontal cortex functioning in place, the subcortical region dominates the decision making process, which means that novelty seeking and emotion-based reactions take precedence over rational self-control. And, the limbic system, responsible for processing and managing emotions, is still developing in adolescence. All this is to say that it is developmentally appropriate for teenagers to act out, exhibit poor judgement, test rules and rebel against authority, but when teens in the justice system act out, they are punished with severe, often life altering consequences, the most damaging of which is solitary confinement.
Normal brain development is at stake when kids are placed in solitary confinement. In the words of Craig Haney, a professor at UC Santa Cruz who has studied the impact of youth solitary for over thirty years, the “frightening, traumatizing and stressful” experience of solitary confinement “can interfere with and damage these essential developmental processes, and the damage may be irreparable.” According to an informational toolkit prepared by the Council of Juvenile Correctional Administrators (CJCA) in partnership with the Office of Juvenile Justice and Delinquency Prevention (OJJDP), youth solitary confinement can cause “serious mental health trauma, re-traumatization, depression, anxiety, psychosis, suicide, self- harm, and violence [while] negatively [impacting] education, rehabilitation, physical health, family involvement and social development.”
A Disproportionate Impact on Low-Income, Minority Youth
Justice-involved youth are disproportionately youth of color from underserved, over-policed, low-income neighborhoods with underfunded, overcrowded schools. When youth of color enter the system, they are treated more harshly than White youth at every key decision point. According to the Campaign for Youth Justice, Black youth make up 17 percent of the general population, but represent 30 percent of youth arrests and 62 percent of youth prosecuted in adult courts. Black youth are nine times more likely than their white counterparts to be sentenced to adult prison. Similarly, Latino youth are 43 percent more likely than White youth to be tried as adults, and 40 percent more likely to serve time in adult prisons.
As was demonstrated by Kalief Browder’s story, youth without financial resources are held for months or years pre-trial because their families cannot afford bail; they are also often deprived access to quality counsel and are sentenced to more severe punishments. These statistics leave no doubt that racism and class prejudice are imbedded in the juvenile justice system. Ideally, justice involvement would provide an opportunity for unmet needs of vulnerable youth to be addressed, but all to often, justice involvement means exposure to an oppressive, dictatorial system that undermines, rather than empowers, historically disenfranchised youth.
Research indicates that many youth under 18 enter the justice system with preexisting emotional, behavioral and developmental vulnerabilities due to histories of multiple adverse childhood experiences (ACEs) such as exposure to physical and sexual abuse, neglect, and household dysfunction. Many have also experienced chronic environmental stressors including persistent poverty, identity and race-based prejudice, police brutality and community violence. Exposure to traumatic stress in childhood has been linked to difficulty regulating mood and emotions, poor impulse control, substance abuse, developmental delays, poor school and work performance, mental health problems, medical problems and heightened risk for both violent victimization and violent perpetration.
What these kids clearly need is a safe, supportive, enriching and rehabilitative environment— a place to process whatever pain, conflict, fear, confusion, anger, grief or hardship they have experienced in their lives. But all too often, what they encounter instead is a system that criminalizes both normal adolescent behavior and their symptoms of traumatic stress—a system that sees fit to treat traumatized individuals with abusive, punitive, further traumatizing practices like solitary confinement.
The Campaign to Stop Solitary for Kids
The past six years have witnessed exponential growth in the movement to end or severely limit the use of solitary confinement in the United States. Groups such as the ACLU, National Religious Campaign Against Torture, Amnesty International, and Solitary Watch, along with state-based campaigns and incarcerated and formerly incarcerated people with firsthand experience of solitary, have helped place this issue firmly on the domestic human rights agenda and drawn the attention of the public, mainstream media, and policymakers. Meanwhile, organizations dedicated to reforming juvenile justice, including the Campaign for Youth Justice, Campaign for Fair Sentencing of Youth, and Children’s Law Center, have placed youth solitary on their advocacy agendas.
On April 19, 2016, Stop Solitary for Kids was launched in Washington D.C. as a national campaign to end solitary confinement of youth in juvenile and adult facilities across the United States. It is a joint effort by the Center for Children’s Law and Policy (CCLP), the Center for Juvenile Justice Reform, the Council of Juvenile Correctional Administrators, and the Justice Policy Institute. In an interview with Solitary Watch, CCLP’s Jennifer Lutz explained that the goal of this campaign is to end juvenile solitary confinement in three years’ time, with solitary confinement defined as “the practice of isolating a kid against their will for any reason other than that they are posing a threat to self or other.” The movement has gained considerable ground since the campaign’s launch. An October article by campaign leaders reports that the movement has gained considerable ground this year. New legislation significantly limits use of youth solitary in California, Colorado and Nebraska, and both the National Council of Juvenile and Family Court Judges (NCJFCJ) and the American Academy of Pediatrics (AAP) recently joined the movement to end youth solitary.
Lutz explained that over-reliance on solitary confinement is never an isolated issue, but rather an indicator of a set of problems. She sees corrections facilities as ‘complex organisms’ and solitary confinement as a symptom of an underlying illness. To effectively treat the symptom, it is essential to locate the systemic deficiencies, imbalances and pathogenic factors which are causing that symptom to be present. Lutz shared that treating the target symptom of a nation-wide over-reliance on solitary confinement in the juvenile justice system requires working to reduce reliance on detention, minimize or eradicate reliance on long-term youth facilities, effectively collect and process data, reveal and reduce racial and ethnic disparities in the system, and ensure safe conditions for every member of the community. According to the Stop Solitary for Kids website, successful change depends upon ongoing collaboration between governments, agency administrators, facility supervisors, law enforcement workers, and justice-involved youth and families who have been directly impacted by solitary confinement.
When asked about the most significant barriers to policy change, Lutz explained that even when a state has a great statute against youth solitary, when mid-level management does not buy into the possibility or the value of change, effective change cannot occur. The transition away from dependence on solitary confinement is a major, requiring considerable staffing resources, time and a transition budget. If the transition is to be effective, front-line staff must be guided and supported throughout the process. In addition to providing direct consultation, one way that Stop Solitary for Kids campaign supports successful transitions is by facilitating partnerships between states, jurisdictions or facilities that are seeking to curb solitary practices with those that have already managed to significant reform.
Lutz also explained that when it comes to direct care policy, effective eradication of youth solitary confinement requires that mental health workers to be better integrated into daily policy, and that all staff be adequately trained in cultural competence, motivational interviewing, conflict-resolution skills, non-violent de-escalation techniques and trauma-informed care. When pre-established systems are overhauled, staff should be educated about the reasons behind making the changes and then engaged in the process of creating new behavioral systems. The replacement systems should include age-appropriate, meaningful rewards and penalties. Currently, states that lead the way in holistic reform are Ohio, Massachusetts, Oregon, and Indiana.
Models for Change
According to The Ohio Model: A Report on the Transformational Reform of the Ohio Department of Youth Services, 2007 ‐ 2015, over the past eight years, as a result of litigation against the Ohio Department of Youth Services, which was followed by a consent decree, Ohio has successfully transformed their youth correctional system from one once found to be excessively punitive and dangerous into one that has become a model for nation-wide reform. Using financial incentives, the Ohio Department of Youth Services worked with juvenile courts across the state to expand county-level services. In only several years, the DYS managed to reduce its youth prison population from over 2000 to less than 500. It also successfully ended the use of disciplinary seclusion, greatly reduced pre-trial seclusion, and ended the use of Special Housing Units, which formerly locked up difficult-to-manage kids for twenty-three hours per day. Any use of solitary confinement is now rare, and when it does occur it is intensively monitored and thoroughly documented.
The “The Ohio Model” report outlines many policy changes that have combined to make these transformations possible. For example, educational services have been improved through investment in teacher training, expansion of quality assurance practices, elimination of school suspensions, and extension of full-day educational programming to all youth, including those in mental health and other special units whose educational rights were previously neglected. Now, instead of responding to rule violations with uniform, disciplinary policies, the DYS now calls upon small, individualized treatment teams to be responsible for disciplinary interventions, some of which include loss of privileges and extended sentences (the latter is used very sparingly).
While in the past, most direct care staff were prison guards, now, all direct care staff have diverse responsibilities, including program development, treatment team participation, and youth mentoring duties. Positive, points-based incentive programs with rewards such as commissary items, additional phone privileges, and entry into special events, give kids reason to behave and offer them heightened control over their experience. Gang problems in the system are no longer met with punitive disciplinary action. Instead, staff aim to create a safe place for youth to talk about their gang experiences, while providing “alternatives, incentives, and supports for youth who want to disengage.” Increased family and community involvement has is better facilitated with added free bus transportation for families and video conferencing technology for family members who cannot make the trip.
In a 2014 article titled “Growing Number of States Moving Away from Juvenile Solitary Confinement,” Gary Gately explains how in 2009, Massachusetts banned punitive solitary confinement in juvenile settings after several suicides in youth facilities prompted the DYS to initiate an internal review of room confinement practices. In lieu of punitive, disciplinary isolation, kids are now place in isolation for ‘time outs’ only when their behavior poses an immediate threat to themselves or others, and in these cases staff must receive authorization if they plan to extend time for longer than a fifteen-minute period. Today, the average time kids spend in isolation in Massachusetts is less than two hours.
According to Peter Forbes, the commissioner of the Massachusetts Department of Youth Services, this policy shift “came only after a considerable resistance from unionized DYS staff and rank-and-file managers in juvenile facilities,” who were concerned that room confinement was necessary to ensure staff safety. Indeed, Forbes admits the ban of juvenile disciplinary confinement in MA was followed by an initial period when the rate of assaults on staff went up, but safety has improved violence has decreased significantly every year since. Massachusetts, Ohio, and other states that have eradicated the use of long-term isolation of kids have demonstrated that with effective programming in place, reducing dependence on solitary confinement improves both safety, wellbeing and effective rehabilitation in juvenile settings.
Juvenile Solitary Reform in California
Over the past two decades, California has seen a dramatic, unparallelled drop in youth incarceration. Just twenty years ago, California was considered “the largest and most violent youth correctional system in the country” with nearly 10,000 youth in eleven large state-run correctional facilities, which were essentially youth prisons. Today, approximately 700 youth are held in the four remaining state youth prisons. This monumental shift in incarceration is due to both a sharp decline in youth crime (between 1995 and 2014, crime in California has dropped 50 percent and the number of youth felony arrests decreased by 67 percent) and also several important policy reforms, including: 1) realignment, or the transfer of fiscal responsibility for incarcerated youth from the state to local juristictions (which financially incentivized less-costly, community-based alternatives to incarceration) 2) exposure of the wildly inhumane treatment of youth in state facilities by journalists and juvenile justice advocacy groups, and 3) litigation (specifically the Farrell lawsuit of 2004), which resulted in facility shut downs, increased oversight and demand for state facilities to be held accountable for their mistreatment of youth and misuse of taxpayer money.
California’s success in redirecting kids from large-scale state prisons means that county-based facilities and programs have become responsible for justice-involved youth. While realignment may be a step in the right direction, many county-based systems have been overwhelmed by the magnitude of the responsibility inherited when most of the state facilities shut down. As a result, many local juvenile facilities have proven no more humane or rehabilitative than the state facilities they replaced. As of 2014, 80,000 youth were housed in county programs, yet until very recently, there has been very little oversight of juvenile halls and camps and no requirement for these facilities to track or document their use isolation. Likewise, until recently it has been considered entirely legal for these facilities to isolate kids in tiny, bare concrete cells for up to for twenty-three hours per day for weeks or months at a time. Youth advocates in California have recognized these issues and have taken action.
In 2013, a class action lawsuit was filed against Contra Costa County, CA, by Disability Rights Advocates, Public Counsel, and Paul Hastings LLC. The lawsuit was filed on grounds that Contra Costa’s 290 bed juvenile hall in Martinez was routinely locking children with disabilities in solitary confinement, depriving them of educational programming, and allowing them to psychologically deteriorate without intervention. Plaintiffs in the suit told of a thirteen-year-old girl diagnosed with bipolar disorder and A.D.H.D. who was held in isolation for twenty-three hours per day for one hundred days, and a seventeen-year-old boy with mental disabilities who displayed mounting symptoms of extreme paranoia and auditory hallucinations, but whose mental status was ignored for ninety days until finally, when he began to smear his feces on the walls of his cell, he was sent to a psychiatric hospital.
The Contra County lawsuit resulted in a settlement agreement, which prohibited Contra County juvenile facilities from using solitary or room confinement for “discipline, punishment, administrative convenience, retaliation, staffing shortages, or reasons other than a temporary response to behavior that threatens immediate harm to youth or others.” The settlement also prohibited the use of isolation for more than four hours at a time.
With three juvenile halls and thirteen juvenile camps housing approximately 1200 youth, Los Angeles county is the nation’s largest juvenile justice system. In May of this year, the Los Angeles board of supervisors unanimously voted to severely restrict the use of solitary confinement in LA’s county facilities. In addition to restricting the use of isolation, the new policy also requires mental health workers to sign off on any decision to use isolation. Today, many of the cells formerly used for solitary confinement being transformed into “cool down rooms,” designed as comfortable, well-lit safe spaces where kids can relax or speak with mental health workers present in the room and available for support. As an alternative to solitary confinement, LA county facilities aim to “achieve safety through relationship-building, trauma-informed care, positive youth development, small and therapeutic group settings, high-quality education, a relational-approach to supervision, and an integrated group treatment model.”
On September 27, 2016, California governor Jerry Brown followed LA and Contra Costa County’s lead when he signed Senator Mark Leno’s State Senate bill 1143, which places state-wide restrictions on the use of ‘room confinement’ in all of California’s state and county Juvenile facilities. The bill came out of four years of tough negotiations between youth advocates and the politically influential labor and law enforcement groups in charge of juvenile halls. After years of debate and multiple failed versions of this bill, SB1143 was ultimately co-sponsored by the Ella Baker Center and the Chief Probation Officers of California, making it an important example of collaborative reform.
Using the Contra County settlement terms as a model for change, the new laws will make it illegal to isolate youth for the purposes of “punishment, coercion, convenience or retaliation.” Isolation practices will now be sanctioned only when a ward poses an immediate threat of physical danger to themselves, their peers or staff. The bill mandates that isolation be used only as a last resort, after less-severe evidence-based interventions have been attempted. When isolation is deemed fit, the length of stay must be limited to four hours, at which point extension can only be authorized after reason for extension, plan for reentry, and supervisory consent have all been appropriately documented.
According to Maureen Washburn of the Center for Juvenile and Criminal Justice, “For a young person, the experience of adult criminal court can be traumatic, exacerbating existing psychological needs and resulting in higher rates of recidivism.” In California, approximately 1,000 youth cases are transferred into the adult criminal justice system each year. Up until very recently, there have been three ways for youth cases to be transferred into adult courts. The first is called a “judicial transfer hearing,” which is when a judge carefully reviews a juvenile’s case, usually over the course of six months, and then comes to a decision about whether that juvenile is suited for the rehabilitative services or treatment programs offered in the juvenile system, or whether they should be instead referred to adult criminal court. In some cases, such as with first degree murder or sexual violence charges, a young person’s case must, by law, be transferred into adult court. This is the second way youth cases end up in the adult system, and is called a mandatory direct file.
In the year 2000, California voted in a ballot measure, proposition 21, “tough on crime” legislation that increased random search and arrests of youth, loosened the definition of the phrase ‘gang association,’ increased sentencing severity for crimes perceived to be gang related, and introduced a third way for juveniles to be transferred into the adult system. Proposition 21, “The Gang Violence and Juvenile Crime Prevention Act,” made it possible for the prosecuting D.A. (as opposed to the judge) the power to decide, single-handedly and within a 48-hour time frame after receiving the case, whether a juvenile aged 14-17 should be tried and sentenced in adult criminal court. When a district attorney uses this power to send a juvenile into the adult system, it is called a “discretionary direct file.”
A 2014 Report titled “The Prosecution of Youth as Adults: A County-Level Analysis of Prosecutorial Direct File in California and its Disparate Impact on Youth of Color” outlines the outstanding ways in which that Proposition 21 has disproportionately impacted youth of color. Statistical analyses of discretionary direct filing trends have revealed it to be an overused, discriminatory practice. Between 2003 and 2014, despite a 55% drop in youth felony arrests, there was a 23% increase in direct files. Incredibly, 90% of the 10,000 youth transferred to the adult system between 2003 and 2014 were youth of color. An 2015 update of the report reveals that in 2015, Latino youth were 3.4 times as likely as white youth to be direct filed into adult criminal court, and black youth were 10.8 times as likely as white youth to be direct filed. When prosecuted, youth of color tended receive longer, harsher sentences than their white counterparts.
In California, youth are very rarely placed in adult prisons while still minors, but when convicted in adult court they are given a lifetime criminal record, and when the criminal court sentence extends past their eighteenth birthday they can be held in one of the three remaining deeply problematic state-run DJJ prisons or transferred into adult prisons. In 2015, 88% of the youth tried as adults were convicted. There were over 6,500 people in California prisons who were under the age of eighteen (some as young as fourteen) when they committed their crimes.
This past November, California voters passed proposition 57, which will end discretionary direct files. The decision as to whether a minor should be tried in adult court will now rest in the judge’s hands. As with SB1143, there is hope that this progressive action will serve as an inspiring example for Washington, D.C., and the thirteen states who continue to allow direct files of youth into the adult system by prosecutors.
The Bottom Line
In his groundbreaking 2011 report on solitary confinement, Juan E. Méndez, then the UN Special Rapporteur on Torture, recommended that prisons cease to use solitary confinement beyond 15 days, except in the most extreme circumstances. For children under the age of 18, he went a step further, recommending a complete and incontrovertible ban. He noted: “The Declaration of the Rights of the Child and the Preamble of the Convention on the Rights of the Child state that, given their physical and mental immaturity, juveniles need special safeguards and care, including appropriate legal protection.”
A ban on children in solitary would be only one step toward solving the myriad problems of the American system of justice for juveniles. True reform would require that all youth be removed from the adult justice system, and given the benefit of education and rehabilitative programming in a system designed to be a safety-net for at risk youth rather than an exercise in punishment. Society would also need to identify how past and present social, economic, and educational disparities have led to justice-involvement, as well as the ways in which the prejudices imbedded in our justice system function to perpetuate cycles of poverty and oppression by disproportionately criminalizing and traumatizing historically disenfranchised groups.
Progress is underway, but with a new administration coming into power–one that ran on a retroactive “tough on crime” platform–the movement to end solitary confinement in youth settings and to create a more just, accountable, rehabilitative system will need more support than ever. But if the progressive reforms of Stop Solitary for Kids and affiliated organizations are successful, devastating cases such as Kalief Browder’s just might become a thing of the past.