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Pacific Juvenile Defender Center Testimony Before Senate Judiciary on Solitary Confinement 2012

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VIA EMAIL
June 15, 2012

The Honorable Richard Durbin, Chairman
Senate Judiciary Subcommittee on
The Constitution, Civil Rights, and Human Rights
224 Dirksen Senate Office Building
Washington, D.C. 20510
Nicholas_Deml@judiciary-dem.senate.gov

RE:

Statement of the Pacific Juvenile Defender Center (PJDC)
Reassessing Solitary Confinement: The Human Rights, Fiscal and
Public Safety Consequences
June 19, 2012 Hearing Before the Senate Judiciary Subcommittee
on the Constitution, Civil Rights, and Human Rights

Dear Chairman Durbin and Members of the Subcommittee:
The Pacific Juvenile Defender Center (PJDC) thanks the Subcommittee for
holding this hearing on the use of solitary confinement in the prisons, jails, and
juvenile halls of the United States. We write to offer our insight on the profound
and permanently negative effects of solitary confinement upon children.
PJDC is the regional affiliate for California and Hawaii of the National
Juvenile Defender Center based in Washington, D.C. PJDC works to build the
capacity of the juvenile defense bar, and to improve access to counsel and quality
of representation for children in the justice system. Collectively, PJDC’s
membership of more than 400 juvenile attorneys represents tens of thousands of
children in California and Hawaii’s delinquency and dependency courts.
Extensive research by mental health and medical professionals has shown
that solitary confinement of adults is the most extreme form of criminal punishment
besides death, and only should be used in the most limited of circumstances. (C.
Haney, “Mental Health Issues in Long-Term Solitary and Supermax Confinement,”
49 Crime & Delinquency 124 (2003).) When used with children, its effects are
even more devastating. Anyone who has spent time with a child realizes that their
conception of time is very different from that of adults, and an hour is an eternity.
The negative impacts seen in adults after a month in solitary can be seen in
children after brief periods of solitary. (S. Simkins, M. Beyer, L. Geis, “The

Hon. Richard Durbin, Chairman
Senate Judiciary Subcommittee on the
Constitution, Civil Rights, and Human Rights
Statement of the Pacific Juvenile Defender Center
June 15, 2012
Page 2

Harmful Use of Isolation in Juvenile Detention Facilities: The Need for PostDisposition Representation,” 38 W ASH. U. J. OF L. & POL’Y 241 (2012).) The U.S.
Supreme Court has repeatedly held that children are different than adults, and as
a result they deserve different punishment. Roper v. Simmons, 543 U.S. 551
(2005); Safford Unified School Dist. v. Redding, 557 U.S. 364 (2009); Graham v.
Florida, 560 U.S. ___, 130 S.Ct. 2011 (2010); J.D.B. v. North Carolina, __ U.S. __,
131 S.Ct. 2394 (2012).
Most youth who are isolated in solitary confinement at juvenile detention
facilities have histories of abuse, trauma, and mental illness. However, even for
children without mental illness or abuse histories, being isolated for 23 to 24 hours
a day and denied the most basic of human contact induces grave and permanent
results. Children in solitary confinement often are denied education or substance
abuse and mental health treatment, rehabilitative services that would do the most
good to prepare them for a successful return to their families and community.
One of the most common justifications for isolating youth in solitary
confinement is that they are at risk of self-harm or suicide. Isolating these
vulnerable children for days or weeks on end, rather than providing them
appropriate mental health treatment, exacerbates their conditions. This practice
flies in the face of extensive research by mental health and criminal justice
experts. Furthermore, federal courts have found that prisons may not isolate
seriously mentally ill adults; such reasoning surely applies to mentally ill children.
Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Calif., 1995); Jones ’El v. Berge, 164
F.Supp.2d 1096 (W.D. Wis. 2001); Presley v. Epps, No. 4:05CV148-JAD (N.D.
Mississippi, 2005 & 2007). Isolating mentally ill children or children in crisis does
nothing but compound their trauma.
A recent national study of suicides in juvenile detention facilities published
by the U.S. Department of Justice found that half of all youth who killed
themselves in custody were subjected to isolation in disciplinary confinement, and
that 75% of juvenile suicides were children who were confined to single-occupant
cells. (L. Hayes, “Characteristics of Juvenile Suicides in Confinement,” OJJDP
Juvenile Justice Bulletin, Feb. 2009).
The federal government has taken steps to end the practice of “seclusion”
of children in mental health institutions because of the permanent physical and
mental harms that occur. The Children's Health Act of 2000 required Substance
Abuse and Mental Health Services Administration (SAMHSA) and the Centers for
Medicare & Medicaid Services (CMS) to develop regulations governing use of
restraint and seclusion in health care facilities receiving federal dollars and in nonmedical, community-based facilities for youth. CMS has established standards
that prohibit hospitals and residential psychiatric treatment facilities for people

Hon. Richard Durbin, Chairman
Senate Judiciary Subcommittee on the
Constitution, Civil Rights, and Human Rights
Statement of the Pacific Juvenile Defender Center
June 15, 2012
Page 3

under age 21 from using restraint and seclusion except for very brief periods of
time to ensure safety during emergencies. SAMHSA’s goal is to end the use of
seclusion (and restraints) on children in mental health institutional settings.
(http://www.samhsa.gov/samhsanewsletter/Volume_18_Number_6/EndSeclusion
Restraint.aspx).
Not all states isolate their children in juvenile detention facilities. For
example, through programs such as the Annie E. Casey Foundation’s Juvenile
Detention Alternatives Initiative, jurisdictions are moving away from using punitive
solitary confinement and replacing it with positive behavior support programs. As
a result of litigation, the California Department of Juvenile Justice (DJJ) has
reduced its overreliance on isolation in its juvenile prisons, and has turned to using
evidence-based therapeutic interventions with youth. These facilities have seen a
decrease in violence, and the changes allow staff to focus on rehabilitation and
education of children.
The work by SAMHSA and CMS in mental health institutions provides a
roadmap for how to end the use of solitary for children. Congress can require
juvenile detention facilities and jails to adhere to the strict requirements for
“seclusion” now imposed on mental health treatment facilities. Congress can
similarly enact legislation that requires the Department of Justice (and other
agencies) to promulgate standards, professional education, and technical
assistance to end the isolation of children. Congress also should reauthorize the
Juvenile Justice and Delinquency Prevention Act (JJDPA) to condition federal
funding to the states on the elimination of solitary confinement of children.
Thank you for your consideration of our comments on the issue of solitary
confinement for children.
Sincerely yours,

PACIFIC JUVENILE DEFENDER CENTER
/s/ Jonathan Laba

/s/ Corene Kendrick

Jonathan Laba
Deputy Director

Corene Kendrick
Board of Advisors

 

 

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