only the most extreme conditions and the most heinous treatment by staff members, and may not
afford sufficient relief for juveniles suffering the adverse effects of isolation practices.
The recent Supreme Court trend reframing the treatment of youth “suggest[s] that
developmental immaturity may necessitate different treatment of adolescents under the Eighth
Amendment.” 203 Using the construct of developmental immaturity as a guide, application of the
Eighth Amendment should extend beyond adolescent sentencing and include further
consideration of conditions analysis. One author suggests that framing Eighth Amendment
claims to incorporate the development status of an adolescent could create a juvenile deliberate
indifference standard, requiring courts to consider “(1) the seriousness of the harm in light of
juvenile vulnerability; and (2) the intent of the correctional official in light of the heightened duty
to protect juveniles.” 204
Youth who are subjected to harsh penalties associated with solitary confinement may be
more likely to experience negative emotions that can undermine their sense of self-worth; thus,
the “‘seriousness of the harm’ test for juveniles must account for the unique juvenile vulnerability
to harm in confinement.” 205 Similarly, a modified juvenile standard under the Eighth Amendment
concerning deliberate indifference should necessitate a more objective, rather than a subjective
standard, since juvenile corrections staff should be trained and expected to understand that young
people have a “unique vulnerability to harm” and staff should act accordingly. 206
3. The Civil Rights of Institutionalized Persons Act
The Civil Rights of Institutionalized Persons Act (CRIPA) establishes federal authority to
remedy the deprivation of constitutional or federal statutory rights of incarcerated individuals,
and allows the Attorney General (AG) to inspect facilities, send findings letters to state or local
government officials regarding the conditions it observes at each, and, in cases in which facilities
violate certain provisions of CRIPA, to initiate civil actions on behalf of the United States. 207 The
Department of Justice (DOJ) recognizes that disciplinary matters resulting in isolation require
adequate due process protections, and that such restrictions on liberty must come with significant
oversight and regulation. 208
Several findings letters by the DOJ have noted the damaging effects of isolation on
youth, and note that isolation “should be used only to control behavior that poses a clear and
present danger” 209 and that the “routine and improper use of an isolation unit in a state facility
may constitute cruel and unusual punishment.” 210 In establishing these restrictions, the AG took
the harmful effects of isolation into consideration, stating that “[y]outh with mental health
problems that result in disruptive and/or self-destructive behaviors are transferred routinely to . . .
203 See Levick et al., supra note 24, at 293, 300-07, 321 (analyzing Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560
U.S. 48 (2010), and J.D.B. v. N. Carolina, 131 S. Ct. 2394 (2011)).
204 Id. at 313.
206 Id. at 314.
207 42 U.S.C.A. § 1997a(a) (West 2014); Rights of Persons Confined to Jails and Prisons, U.S. DEP’T OF JUST.,
http://www.justice.gov/crt/about/spl/corrections.php (last visited Mar. 2, 2014).
208 Letter to Governor of Ind., supra note 124, at 6.
209 Letter from Deval L. Patrick, Assistant Att’y Gen., to Mike Foster, Governor of La. 9 (Oct. 3, 1996), available at
210 Letter from Thomas E. Perez, Assistant Att’y Gen., to Michel Claudet, President, Terrebonne Parrish Juvenile Detention Ctr. 5
(Jan. 18, 2011), available at http://www.justice.gov/crt/about/spl/documents/TerrebonneJDC_findlet_01-18-11; see also Letter from
Ralph F. Boyd Jr., Assistant.Att’y Gen., Ronnie Musgrove, Governor of Miss. 5 (June 19, 2003), available at
http://www.justice.gov/crt/about/spl/documents/oak_colu_miss_findinglet.pdf (“Oakley and Columbia do not have any system of
positive incentives to manage youth, but instead rely on discipline and force. This leads to unconstitutionally abusive disciplinary
practices such as hog-tying, pole-shackling, improper use and overuse of restraints and isolation, staff assaulting youth, and OC spray