The beginning of the end: using Ohio's plan to eliminate juvenile solitary confinement as a model for statutory elimination of juvenile solitary confinement.

• Author: Rademacher, Elizabeth M.
• Position: NOTES

Table of Contents INTRODUCTION I. THE HARMFUL EFFECTS OF SOLITARY CONFINEMENT ON JUVENILES A. Physical and Developmental Harm B. Psychological Harm C. Recidivism II. EXISTING FEDERAL AND STATE POLICIES AND NATIONAL STANDARDS ON SOLITARY CONFINEMENT IN JUVENILE CORRECTIONAL FACILITIES A. State Laws B. Federal Statutes C. National Standards and Best Practices III. CASE LAW CONCERNING SOLITARY CONFINEMENT IN JUVENILE CORRECTIONAL FACILITIES A. Courts Describing a Right to Treatment B. Courts Holding There Is No Right to Treatment IV. THE OHIO SETTLEMENT AGREEMENT AND PROPOSED STATUTORY REFORMS A. Ohio's Plan to Reduce and Eliminate Solitary Confinement 1. Prevention Strategies 2. Immediate Intervention Strategies 3. Strategies for the Aftermath B. Proposed Reforms CONCLUSION INTRODUCTION

William, a fifteen-year-old boy, was committed to a juvenile correctional facility in New Jersey for 225 days. (1) For 178 of those days, William was placed in solitary confinement in a cell measuring seven feet by seven feet. (2) He had no access to books, auditory stimulation, or any opportunities to interact with others. (3) Just a few days after being placed in solitary confinement, William started experiencing auditory and visual hallucinations and throwing his bodily fluids at the cell walls. (4) After only a week in solitary confinement, William began self-mutilating by cutting himself. (5) Not long after that, he attempted suicide by hanging himself in his cell on five separate occasions. (6)

Unfortunately, William's experience is not unique in modern juvenile detention facilities in the United States. Solitary confinement, a controversial practice used nationwide in state juvenile justice systems, can have devastating psychological, physical, and developmental effects on youth. (7) Research has demonstrated that solitary confinement is especially damaging for adolescents, yet juvenile detention facilities often use the practice as a disciplinary measure. (8) Recent efforts at reform, however, provide a framework for ending experiences like William's for adolescents across the country.

On May 21, 2014, Ohio's Department of Youth Services entered a landmark settlement agreement with the United States Department of Justice (DOJ) to phase out and eventually end the use of solitary confinement in its juvenile correctional facilities, while also agreeing to provide more mental health services in those facilities. (9) After beginning an investigation in 2007 at Ohio's Scioto and Marion Juvenile Correctional Facilities, the DOJ found numerous potentially unconstitutional flaws with Ohio's lack of mental health care and use of solitary confinement in its juvenile correctional facilities. (10) In particular, the DOJ found that the facilities often imposed solitary confinement on juveniles as a "knee-jerk, prolonged first response" to even minor behavioral infractions and that it was frequently used as a means of isolating mentally ill youth instead of providing them with psychological treatment. (11)

Although Ohio and the DOJ entered a consent decree in 2008 that aimed to remedy these deficiencies, (12) the DOJ discovered in 2013 that the State was not complying with the terms of the consent decree. (13) By May 2014, Ohio and the DOJ had reached a new, more comprehensive agreement to end entirely the use of solitary confinement in all of the State's juvenile correctional facilities. (14) This settlement agreement was in place until December 2015, when the DOJ and the State agreed to terminate the consent decree as a result of Ohio's substantial compliance with the terms of the settlement agreement. (15)

Ohio's promise to end the use of solitary confinement is notable because the State sought to completely end the use of solitary confinement for youth in all of its facilities instead of merely modifying existing policies regarding the practice. (16) The agreement signals that policies concerning solitary confinement in juvenile correctional centers may soon begin to evolve nationwide. (17) Several civil rights advocacy organizations have long argued that solitary confinement is particularly psychologically and developmentally harmful for children. (18) These organizations are hopeful that Ohio's settlement agreement is an important first step toward nationwide juvenile justice reform. (19)

There are approximately 70,000 children in juvenile justice facilities throughout the country on any given day. (20) Although each state has its own set of regulations and policies regarding its juvenile justice system, these systems share similarities nationwide. (21) Because children are developmentally different from adults, the juvenile justice system attempts to approach juveniles less punitively. (22) Unlike the adult criminal justice system, which aims to deter crime and punish criminals, the main purposes of the juvenile justice system are rehabilitation and treatment, in addition to community protection. (23) Courts adjudicate juveniles as "delinquent"--rather than guilty--and typically offer a wide range of treatment options, including placement in juvenile correctional facilities. (24)

Solitary confinement is widespread in American correctional institutions, including juvenile correctional facilities. (25) Solitary confinement, also known in juvenile correctional facilities by harmless-sounding names like "room confinement," "restricted engagement," "seclusion," or "reflection," (26) is routinely used as a means of punishing disobedient youth. (27) Children can spend days, weeks, or even months in solitary confinement. (28) Research has shown that solitary confinement has particularly adverse effects on youth, resulting in or exacerbating existing mental health problems like agitation and depression and elevating the risk of suicide. (29) Much of the research suggests that confining youth in juvenile correctional facilities increases their recidivism rates, whereas providing adequate mental health treatment lowers these rates. (30) Additionally, certain research postulates that the damaging effects of solitary confinement increase rates of recidivism among juveniles. (31) Because of the damaging effects that solitary confinement has on youth, it should no longer be used as a disciplinary measure in juvenile correctional facilities. (32)

The Supreme Court has never directly addressed the issue of juvenile solitary confinement, although there are a handful of federal cases that have addressed the constitutionality of certain conditions of solitary confinement in juvenile correctional facilities. (33) Some lower courts have recognized a right to rehabilitative treatment for juveniles held in juvenile correctional facilities using Eighth and Fourteenth Amendment arguments. (34) These courts held that conditions of solitary confinement were unconstitutional. (35)

But most courts hearing lawsuits challenging the conditions of juvenile correctional facilities have not recognized that a right to treatment exists. (36) In fact, in Youngberg v. Romeo, an unrelated case about the conditions of state-run asylums, the Supreme Court indicated that there might not be such a right to treatment at all. (37) As a result, sweeping reform of the juvenile justice system and the nationwide use of solitary confinement likely will not be achieved through constitutional challenges in federal or state courts.

By implementing statutes mirroring the language used in Ohio's plan to eliminate solitary confinement, however, state legislators could eventually end the use of a harmful and potentially life-threatening practice while improving mental health treatment and making their juvenile justice systems more effective. This Note will argue that states should implement reforms paralleling those that Ohio has undertaken by eliminating the use of solitary confinement in their juvenile correctional facilities. This approach balances the states' interests in the safety and security of their facilities with youths' interest in a more rehabilitative, less harmful experience in the juvenile justice system.

Part I describes the harmful effects that solitary confinement has on juveniles and demonstrates how solitary confinement is a counterproductive, inefficient practice. Part II discusses the current national standards and state policies that address solitary confinement. It illustrates how these policies are often broadly worded or inadequately designed to prevent the damaging effects of solitary confinement. Part III describes courts' reluctance to recognize a right to treatment and suggests that litigation alone is not an adequate means of eliminating the use of solitary confinement in juvenile detention facilities. Instead, Part III argues that state legislation is a better vehicle to achieve this goal. Part IV outlines Ohio's settlement with the DO J and recommends that states implement provisions of the settlement in statutes to eliminate the use of solitary confinement in juvenile correctional facilities while balancing the need for safety and security.

1. THE HARMFUL EFFECTS OF SOLITARY CONFINEMENT ON JUVENILES

   Solitary confinement is defined as physical and social isolation for between twenty-two and twenty-four hours each day for one day or more. (38) In juvenile correctional facilities, youth in solitary confinement are often placed in unfurnished, cramped cells for days, weeks, or months at a time. (39) While juveniles are held in solitary confinement at juvenile correctional facilities, they are often denied or deprived of access to various services, including psychological care, educational programming, and recreational or physical activity. (40) For instance, the American Civil Liberties Union has reported that youth are sometimes not even given access to schoolbooks. (41) Solitary confinement is distinguishable from brief interventions like short-term emergency seclusion or isolation in the event of disruptive behavior. (42) Solitary...