HISTORY OF FEDERAL LEGISLATION TO END YOUTH SOLITARY
The population of youth in federal custody is relatively low, ranging from between 30-90 young people. According to the federal Bureau of Prisons (BOP), the majority of youth in federal custody are Native American, as the federal government has jurisdiction over crimes in Indian Country and prosecutes many cases in federal court.
According to the Department of Justice Report on Restrictive Housing, no youth under the age of 18 are housed in Bureau of Prison (BOP) facilities. Instead, the BOP contracts with several state and local facilities to house youth in the federal system. These facilities are require to adhere to a Statement of Work (SOW), which establishes requirements for contract facilities regarding the housing of youth in federal custody.
The First Step Act and previously introduced federal bills described below contain similar core limitations on solitary for youth: solitary is prohibited for youth in federal custody for any reason other than a temporary response when a youth poses an immediate risk of physical harm self or others, and when attempts to de-escalate the situation have failed. “Solitary confinement” or “room confinement” is defined as either “the involuntary restriction of a juvenile alone in a cell, room, or other area for any reason,” or ” involuntary restriction of an individual alone in a cell, room, or other area isolated away from all human contact except for the employees of the detention facility.”
On March 31, 2017, Rep. Jason Lewis (R-MN) and Rep. Bobby Scott (D-VA) introduced HR 1809, a bill to reauthorize the federal Juvenile Justice Delinquency and Prevention Act (JJDPA). The Act expired in 2007 after last being reauthorized in 2002. The House approved its reauthorization last year, but Senator Tom Cotton (R-Ark.) senator blocked it in the Senate in November 2016. The 2017 legislation includes several new requirements about solitary confinement, or isolation. Read more here.
MERCY ACT Bipartisan Legislation To End Solitary in U.S. Senate & House, 2017
In February 2017, Senator Cory Booker (D-NJ) and Senator James Lankford (R-OK) re-introduced the Maintaining dignity and Eliminating Restrictive Confinement of Youth Act (S. 329) as the MERCY Act, a bill banning solitary confinement for youth in federal custody except in emergency situations. Reps. Cummings (D-MD) and Love (R-UT) simultaneously introduced a companion MERCY Act bill in the U.S. House, H.R. 901. Senators Booker and Rand (R-KY) originally introduced the MERCY Act in 2015 as S. 1965.
The MERCY Act also requires the U.S. Attorney General to create a report on why and how solitary confinement was used, data on solitary confinement disaggregated by race and ethnicity, and steps taken by each facility to reduce future solitary confinement.
Sponsors of S. 329: Sens. Paul (R-KY), Lee (R-UT), Durbin (D-IL), Lankford (R-OK), and Casey (D-PA).
Sponsors of H.R. 901: Reps. Cummings (D-MD), Love (R-UT), Labrador (R-ID), Conyers (D-MI), Jackson Lee (D-TX), Maloney (D-NY), and Bass (D-CA).
REDEEM ACT: Record Expungement Designed to Enhance Employment Act of 2017
In April 2017, Representative Cummings (D-MD) and Senator Booker (D-NJ) introduced the REDEEM Act, a bi-partisan and bi-cameral effort to reform juvenile justice. The Senate bill, S.827 and the House bill, H.R. 1906, were re-introduced in 2017 after gaining momentum but ultimately stalling in the 114th Congress. The REDEEM Act was originally introduced in 2015 by Booker and Rand as S. 675. In addition to increasing access to sealing or expungement of records relating to nonviolent criminal or juvenile offenses, the REDEEM Act bans solitary confinement for youth in federal custody for any reason “other than as a temporary response to the behavior of a juvenile that poses a serious and immediate risk of physical harm.” Staff must release youth as soon as the threat has dissipated and in no case longer than three hours if the youth poses a threat to others and 30 minutes if the youth poses a threat to self.
Sponsors of S. 827: Booker (D-NJ) and Rand (R-KY).
Sponsors of H.R. 1906: Conyers (D-MI), Jackson Lee (D-NY), Clay (D-MO), Lee (D-CA), Bass (D-CA), Cárdenas (D-CA), and Norton (D-DC).
KALIEF’S LAW – The Effective and Humane Treatment of Youth Act (2017)
Just a month after Kalief Browder took his own life, Rep. Sheila Jackson Lee (D-TX) introduced H.R. 3155 in July 2015. The 2015 bill had 41 bi-partisan co-sponsors and was referred to the House Judiciary. Rep. Jackson-Lee introduced the bill in 2017 as H.R. 47. The bill was named after Kalief Browder, a young man who committed suicide after years of inhumane treatment in the Riker’s Correctional Facility, including two years of solitary confinement. Kalief’s Law would bar solitary confinement for youth in federal facilities, permitting the use of temporary separation in limited exigent circumstances that meet strict requirements. The bill defined “youth” as anyone under the age of 21 years old. The bill also required states receiving federal juvenile grant funding to implement policies and procedures to provide rights to speedy trial and timely bail consideration, implement training programs for police-youth interactions, and ban shackling of youth in federal court.
Federal Sentencing Reform and Corrections Act of 2017 (S.1917)
The SRCA of 2015 (see below) was reintroduced in the 2017 legislative session with the same language preventing solitary confinement for youth.
Federal Solitary Confinement Reform Act, September 2016
On September 28, 2016, Senator Durbin (D-IL) and others introduced the Solitary Confinement Reform Act, S. 3432. Click here to read the Senator’s press release. The Act would limit solitary confinement for youth in federal custody to situations where the youth’s behavior presents an substantial and immediate threat, and then only for a period of three hours if the youth poses a threat to others and 30 minutes if the youth poses a threat to self. After the designated time period, staff must either (1) transfer the youth to another facility or internal location where services can be provided without solitary confinement or (2) a qualified mental health professional or staff member of the facility must refer the youth to a location that can meet his or her needs.
Sponsors: Sens. Durbin (R-IL), Booker (D-NJ), Franken (D-MN), Coons (D-DE), and Leahy (D-VT).
Federal Sentencing Reform and Corrections Act of 2015, October 2015
A bi-partisan group of Senators introduced S. 2123, or the Sentencing Reform and Corrections Act of 2015, legislation that would limit the use of solitary confinement for youth in federal custody to situations in which the young person poses a serious and immediate threat of physical harm, and then only for brief periods of no more than three hours. The legislation did not pass the U.S. Senate in the 114th Congress.
Sponsors: Sens. Grassley (R-IA), Durbin (D-IL), Cornyn (R-TX), Whitehouse (D-RI), Lee (R-UT), Schumer (D-NY), Graham (R-SC), Leahy (D-VT), Booker (D-NJ), and Scott (R-SC).