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Do No Harm: The Enhanced Application of Legal and Professional
Standards in Protecting Youth from the Harm of Isolation in Youth
Correctional Facilities
By Kim Brooks Tandy, Esq.*
I. INTRODUCTION
The reliance by state and local agencies on incarceration as a means to rehabilitate youth
and protect community safety is increasingly questioned as both counterproductive and costly. A
2011 study released by the Annie E. Casey Foundation found fifty-seven lawsuits in thirty-three
states and the District of Columbia challenging unconstitutional conditional or other alleged
abuses in juvenile facilities.1 The study shows that pervasive violence and abuse have been
widespread and systemic, including excessive use of isolation and/or restraint.2 An extensive
review of recidivism studies compiled from this report suggests that probation or alternative
sanctions may be as effective as incarceration in reducing the criminal conduct of youth who have
been adjudicated delinquent and, further, that the use of incarceration may actually exacerbate
criminality.3 In spite of the proven success of many community-based alternatives and evidence-
based programs in lieu of incarceration, states continue to incarcerate youth in programs that are
often “both poorly designed and ill equipped to provide effective treatment.”4 This is particularly
true for youth with severe mental health conditions, learning disabilities, significant substance
abuse problems, or other acute needs.5
It is against this backdrop that this Article seeks to examine the widespread use of
unnecessary, and often unregulated, physical and social isolation by juvenile detention and
correctional facilities. Even though youth are especially susceptible to the damaging effects of
isolation because they are still in the process of development, facility staff often attempt to justify
its use. The history of trauma, emotional and cognitive disabilities, and immature responses with
which a significant portion of this population of young people enters the system further
exacerbate the consequences of isolation.
There have been numerous cases involving the conditions of confinement in juvenile
detention and correctional facilities that raise claims challenging the use of isolation, including
several cases brought under the Civil Rights of Institutionalized Persons Act (CRIPA) by the
United States Department of Justice, Office of Civil Rights. Both the Fourteenth Amendment
Due Process Clause as well as, in some circuits, the Eighth Amendment prohibition against cruel
and unusual punishment, are used in successful litigation of conditions of confinement claims.
* Kim Tandy is an attorney and Executive Director of the Children’s Law Center, Inc. in Covington, Kentucky. She has litigated
conditions of confinement cases in Ohio and Kentucky, including cases involving the use of isolation in juvenile facilities. The author
wishes to thank Amy Grover and Kari Underwood for their research and writing assistance with this Article.
1 RICHARD A. MENDEL, ANNIE E. CASEY FOUND., NO PLACE FOR KIDS: THE CASE FOR REDUCING JUVENILE INCARCERATION 5
(2011).
2 Id.
3 Id. at 11. Mendel’s research was based on an extensive internet search and literature review in addition to interviews and outreach
with state corrections agencies. Id. at 9. The research conclusions were based upon recidivism analyses in thirty-eight states and the
District of Columbia. Id. “These recidivism studies vary in many important dimensions, including the populations examined and the
measures employed to track recidivism over different lengths of time.” Id. However, in general, the study concluded that the overall
body of recidivism evidence indicates confinement is an ineffective approach to deter youth from future delinquent behaviors. Id.
