Both President Obama and the U.S. Supreme Court chose Monday, January 25, a day in which the federal government didn’t even open for business, to make juvenile justice headlines.
The high court continued its tradition of answering one question about life without parole sentences while creating another question. Obama used executive privilege to ban the use of solitary confinement for juvenile offenders, a decision he trumpeted in a Monday op-ed published by The Washington Post.
The ban was one of many suggestions made to him by the Justice Department regarding the use of restrictive housing. You can check out the entire package of Justice Department recommendations by clicking here.
Read our assessment of the Supreme Court decision here. Following are a few thoughts from Youth Services Insider (YSI) on Obama’s executive actions on solitary confinement:
Direct Effect: D.C. and Indian Youth
Juvenile offenders make up a very tiny portion of the population in the custody of the Federal Bureau of Prisons (BOP). The BOP website describes its juvenile population as consisting of “predominantly…Native American males with an extensive history of drug and/or alcohol use/abuse, and violent behavior.”
While tribes are left to handle lesser crimes on Native American land, the federal government has jurisdiction to prosecute serious crimes.
The other significant source of juveniles to BOP is Washington, D.C., where youth transferred into adult court are subject to federal incarceration.
It’s All About the Contractors
The first thing that came to mind for YSI when we saw Obama’s op-ed was that he might have just banned solitary confinement for a population that doesn’t exist. That’s because BOP does not house juvenile offenders in its facilities until they turn 18; it relies on contracts with local facilities until that age.
There are between 30 and 60 under-18 inmates under federal custody at any given time, according to Amy Fettig, Senior Staff Counsel for the National Prison Project of the American Civil Liberties Union. About half of those youths are from the Washington, D.C. area.
Will local facilities be required to end the use of solitary when it comes to juveniles? The fine print suggests that the answer is yes, with perhaps some delay in implementation.
Page 114 of the Justice Department report briefly highlights a suggested process for ending juvenile isolation:
To put this policy into effect, the Bureau should hire a full-time Juvenile Administrator to enhance oversight of juvenile facilities. In addition, the Bureau should establish new contractual agreements (or modify existing ones) with facilities housing juveniles.
So while it might not happen overnight, it does appear that local contractors with BOP will be required to adhere to the new ban.
“The ban isn’t a silver bullet because it still has to be enforced,” Fettig said. “But it gives us a good tool to start breaking America’s addiction to solitary.”
Another Obama Move with Bigger Impact
In the same op-ed, Obama also announced that BOP would no longer employ the use of solitary as punishment for “low-level infractions.” That ban, if enforced, will almost certainly have a bigger impact on offenders who are convicted before their 18th birthday than the actual ban on solitary during their juvenile years.
Tara Libert, the co-founder of the D.C.-based Free Minds Book Club, is one of the few advocates focused on juveniles in federal custody. Free Minds runs a book club for D.C. juveniles awaiting transfer to federal prison, and remains in contact with as many of those offenders as possible during and after incarceration.
She said Free Minds has worked with more than 1,000 juveniles that spent time in BOP facilities, and that “almost all of our members” were in solitary at least once during their incarceration.
“The young men we knew at 16 and 17 years old often come home years later as different people,” Libert said. “They are traumatized , anxiety ridden and withdrawn, and have difficulty adjusting to life at home.”
Of course, not all of those trips to solitary were prompted by “low-level infractions,” the subgroup banned this week by Obama. But Libert said many are. She recalled one Free Minds member spending more than a year in solitary for possession of a cellphone, and another who was in solitary for months after having sex with another inmate.
Libert said another reason her members frequently end up in solitary is protective custody, which she said is often provided by placing an offender into restrictive housing. The Justice Department’s recommendations state that “generally, inmates who require protective custody should not be placed in restrictive housing.”
Instead, the recommendations state, such an inmate should either be transferred to a location where he is not at risk, or placed in a specialized housing unit for inmates experiencing a similar threat.
Both of those options are pricier than just using existing solitary cells. The capacity to establish more specialized BOP units likely depends on whether or not BOP can lower its total population, as recommended by the Colson Task Force yesterday.
Spurring State Action
For Fettig and other advocates, the hope is that this shift in federal philosophy on solitary can be used to propel change in the states.
“There are thousands of kids in state and local [juvenile justice] and adult facilities who are subject to solitary every day,” Fettig said. “The federal ban is key to changing national standards on how we treat detained youth, but it does not directly impact those youth immediately.”
The only nationwide survey on the use of solitary with juveniles was published last year by the Lowenstein Center for the Public Interest (click here to read). The survey found that 21 states (including D.C.) prohibit the use of solitary as punishment. Another 20 states impose some limit on the length of time that solitary can be used as punishment, although calling California’s 90-day cap on solitary a “limit” is pretty laughable.
Another 10 states place no restrictions on the ability of facilities to use solitary as a punishment.
Click here to read about how Louisiana has reformed its use of isolation and solitary.