typically do not receive “convict[ions]” for their actions, freedom from unnecessary restraint
requires closer scrutiny. 145
Rather than focusing on safeguarding children from the devastating effects of isolation,
standards have historically created procedural limitations to when juvenile facilities may place
youth in isolation, how they must be supervised, and the documentation required to justify their
continued length of stay in isolation. More recently, however, standards developed by
professional and trade organizations within the juvenile justice field have begun to provide a
more comprehensive view of how isolation should be limited, with greater attention and emphasis
drawn to other more effective forms of behavior management.
Recent attention has focused on the practice of isolating youth as a civil and human rights
issue, with a socially and psychologically damaging impact, 146 which has garnered increased
federal response to this practice. For example, the 2012 U.S. Attorney General’s National Task
Force on Children Exposed to Violence (“Task Force”) called for strict limitations on the use of
youth isolation, noting that “[n]owhere is the damaging impact of incarceration on vulnerable
children more obvious than when it involves solitary confinement.” 147 The Task Force called for
abolishing correctional practices that result in trauma to children and that diminish their
opportunities to become productive adults. 148 Similarly, the Office of Juvenile Justice and
Delinquency Prevention takes the position that the isolation of children is dangerous, fails to
comport with best practices, and may constitute cruel and unusual punishment if used
excessively. 149 Moreover, the Department of Justice through its promulgation of regulations
implementing the Prison Rape Elimination Act (PREA) has noted that isolation of youth in
correctional facilities is not appropriate. 150
Continued legal challenges to the use of isolation should focus more heavily on the
harmful effects of isolation practices on youth, and utilize evidence-based practices for managing
behavior to more robustly apply standards, change policy, and improve litigation results.
A. The Results of Litigation in Shaping Practices
Litigation challenging unconstitutional conditions of confinement in juvenile facilities
has resulted in remedial measures to address the use of isolation and the serious damaging effects
it has on youth. Application of the Fourteenth Amendment standard to juvenile cases concerning
the use of isolation has, in many circumstances, resulted in the determination that such practices
are a violation of the Due Process Clause. Some courts, however, have applied the Eighth
Amendment standard of cruel and unusual punishment. Several of these cases are discussed
below, including findings made by the United States Department of Justice Office of Civil Rights
through its CRIPA enforcement authority.
the detained juvenile satisfies the requirements of due process, it is quite appropriate–indeed necessary–to consider that in such an
environment juveniles may indeed have different needs and more importantly, different capacities than adults.”).
145 Santana v. Collazo, 714 F.2d 1172, 1179 (1st Cir. 1983).
146 See generally Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the
Subcomm. on the Constitution, Human Rights and Civil Rights of the S. Comm. on the Judiciary, 112th Cong. (2012) (providing notice
of the subcommittee hearing and including a list of witnesses); 2012 U.S. Senate Hearing: Archive of Written Testimony, SOLITARY
WATCH, http://solitarywatch.com/resources/testimony/2012-senate-hearing-archive-written-testimony/ (last visited Mar. 8, 2014)
(providing the written testimony submitted by organizations and groups including the Children’s Law Center, Inc., the Center for
Children’s Law and Policy, the Juvenile Justice Initiative, the Pacific Juvenile Defender Center, and the Youth Law Center).
147 ROBERT L. LISTENBEE, JR. ET AL., REPORT OF THE ATTORNEY GENERAL’S NATIONAL TASK FORCE ON CHILDREN EXPOSED TO
VIOLENCE 178 (2012), http://www.justice.gov/defendingchildhood/cev-rpt-full.pdf.
149 See Letter from Robert L. Listenbee, Adm’r, Office of Juvenile Justice & Delinquency, to Jesselyn McCurdy, Senior Legis.
Counsel of the Am. Civil Liberties Union (July 5, 2013).