There are a number of ways for attorneys to challenge solitary confinement. Read below to learn more about strategies for your practice, information about making your voice heard, and litigation.
RESOURCE: Unlocking Youth: Legal Strategies to End Solitary Confinement in Juvenile Facilities
This report uses surveys of public defenders, conversations with youth and families, interviews with correctional administrators, and legal and psychological research to fill these gaps and set forth recommendations for reform.
Visit your state or local juvenile justice facility – if you don’t visit regularly – to learn more about practices and whether solitary is used. Talk to direct care staff, supervisors, case managers, mental and physical health professional, and your clients to learn if solitary is being used. Contact us for advice on this process.
Request data on the use of solitary confinement in state and local facilities that house youth. Reform work to end solitary confinement begins with a clear understanding of whether and how it is being used. You should also be sure to talk to your clients. They are a key source of information about what is actually happening inside facilities. Contact us for advice on this process.
Rely on best practice standards such as the Juvenile Detention Alternative Initiative (JDAI) Facility Standards and JDAI Strategies to Reduce Unnecessary Room Confinement. Cite the Standards in your practice and familiarize judges and facilities with them. If your jurisdiction is a JDAI site, this may be a point of leverage, as the standards strictly limit room confinement. Increasingly, the use of solitary goes against the accepted professional judgment, practice, and standards in the juvenile justice field.
Encourage facilities and stakeholders to adopt core strategies that have helped to reduce solitary confinement in other jurisdictions. If stakeholders are reluctant, find out clear reasons why. Attempting to address their particular concerns with data and examples from other states may help convince them. In many situations, facilities and staff are concerned that, without the threat of room confinement, youth will not obey commands or assault staff. Other facilities have found that, when done strategically and carefully, reducing room confinement does not increase violence.
Connect facility staff and administrators with resources to reduce solitary and information that facilities in other jurisdictions have limited solitary without jeopardizing facility safety. In fact, violence decreased in some states, including Ohio, Indiana, and Colorado.
Get judges invested in reducing solitary confinement. The National Council of Juvenile and Family Court Judges issued a resolution calling on judges to take an active roll in ending solitary confinement for youth and adopting a presumptive policy against the practice. Judges may be more likely to intervene if they consider solitary an abuse happening to youth on their watch or as a practice that prevents their court orders for youth to receive treatment, rehabilitation, and school.
Call State Legislators and Members of Congress and ask them to speak out against solitary confinement for kids and work to end the practice. You can use this sample call script and share it with clients and colleagues.
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There are many opportunities to challenge solitary confinement in creative motions practice. Using constitutional arguments and information about the harms of solitary confinement, attorneys can file motions asking judges to order facilities not to place youth in solitary confinement or not to commit them to facilities at all. Learn more about legal arguments against solitary under the Eighth and Fourteenth Amendments in the report, Unlocking Youth: Legal Strategies to End Solitary Confinement in Juvenile Facilities, and from several recent federal class action lawsuits described below. You can also use Department of Justice findings letters and statements of interest. For additional resources and more information about successful litigation strategies, contact Jessica Feierman at the Juvenile Law Center.
United State Supreme Court Justice Anthony Kennedy has invited a challenge to solitary confinement in his concurrence in this case, although the case itself was not about solitary confinement. The case was focused on jury selection and the death penalty, but Kennedy introduced the issue of solitary confinement into the discussion.
In January 2017, the Juvenile Law Center (JLC) and the Wisconsin ACLU filed a class action lawsuit against the state of Wisconsin for subjecting kids to solitary confinement and other abusive conditions. In J.J. v. Litscher, the plaintiffs argue that the use of solitary at the Lincoln Hills and Copper Lake facilities is abusive and unconstitutional. Read the social media toolkit, press release, and first-hand accounts of young people here.
In September 2016, the New York Civil Liberties Union (NYCLU) and Legal Services of Central New York (LSCNY) filed a class action lawsuit against Onondaga County, New York (Syracuse) for keeping 16 and 17-year olds in solitary confinement for up to 23 hours a day, often for minor offenses. In January 2017, the U.S. Department of Justice issued a Statement of Interest backing the NYCLU’s position that solitary confinement for youth in dangerous, inhumane, and unconstitutional. In February 2017, the U.S. District Court Judge granted a preliminary injunction to temporarily stop the jail from putting 16 and 17-year olds in solitary confinement pending the result of case. On June 26, 2017, the NYCLU and LSCNY announced a settlement with the Onondaga County Sheriffs Department and the Syracuse School District that would prevent youth from being placed in solitary confinement unless “there is an imminent safety threat that less restrictive measures cannot adequately resolve.” In such emergency cases, isolation will last for only the minimum time necessary to resolve imminent safety concerns. The complaint and amended complaint in Conway also claimed that the jail was denying youth their education rights while in solitary confinement.
Ohio – S.H. v. Reed
Along with the U.S. Department of Justice, the Children’s Law Cnter of Ohio sued the Ohio Department of Youth Services for solitary confinement and other abusive conditions. Litigation in the case of S.H. v. Reed (formerly S.H. v. Stickrath) contributed to drastic reductions in the use of solitary confinement in Ohio facilities. See court documents from the case and learn more about the Children’s Law Center’s litigation against Ohio. To read more about how the Ohio DYS made changes and the litigation, click here.
New Jersey – T.D. v. Mickens
In 2013, in the case of T.D. v. Mickens, the Juvenile Law Center brought litigation against the New Jersey Juvenile Justice Commission on behalf of two youth held in excessive solitary confinement. In December 2013, the U.S. District Court of New Jersey approved a $400,000 settlement against the New Jersey Juvenile Justice Commission. Read the complaint and other court documents from the Juvenile Law Center.