Simkins Et Al Wash U Law Journal Report on Isolation in Juvenile Prisons 2012

• Topics: Juveniles, Juvenile Prisons

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THE HARMFUL USE OF ISOLATION IN JUVENILE..., 38 Wash. U. J.L. &...

38 Wash. U. J.L. & Pol'y 241
Washington University Journal of Law & Policy
2012
Access to Justice: Evolving Standards in Juvenile Justice: From Gault to Graham and Beyond
THE HARMFUL USE OF ISOLATION IN JUVENILE FACILITIES:
THE NEED FOR POST-DISPOSITION REPRESENTATION
Sandra Simkins a1 Marty Beyer aa1 Lisa M. Geis aaa1
Copyright (c) 2012 Washington University; Sandra Simkins; Marty Beyer; Lisa M. Geis
September 2009, the first client referral: three guards escorted sixteen-year-old Troy to the interview. Despite years of
experience, I was shocked. In leg-irons and with his hands cuffed behind his back, he wore no real clothes and no prisonissued jumpsuit. His body was covered with a sleeveless thigh-length robe, held together by a few *242 Velcro strips. 1 It
was painful to watch him try to sit in the chair. Just when he seemed to manage the handcuffs and the outfit, one of his flip
flops would slide off.
I asked one of the guards if Troy could have his hands cuffed in front of him. The left flank guard, wearing dark sunglasses,
complied without speaking. With Troy's arms in front of me, I found it difficult not to stare. Self-mutilation scars, too numerous
to count, covered his arms.
Documents later confirmed what Troy told me that first day: he had spent twenty-four hours a day in an isolation-type cell for
approximately 180 of the 225 days he had spent in the facility. 2 The 7' x 7' cell had a mattress (no sheets or blankets), a sink,
a toilet, and a small sealed window near the ceiling. Nothing else was permitted in the cell. All meals were eaten in the cell.
There was no school or books. There was no exercise. The only time he got out of the cell was to shower.
I filed an emergency court motion for his immediate release. Days later he was transferred to a psychiatric hospital. A federal
lawsuit is pending. 3
Post-disposition representation has long been recognized as a critical stage in juvenile court proceedings: a stage where zealous
advocacy is needed. 4 The goal of the New Jersey post-disposition *243 project 5 was to fill a systemic gap and provide
juveniles with post-disposition access to counsel. The project was intended to focus on reducing recidivism by ensuring that
programs are meeting the individual needs of the child and assisting with re-entry. Unfortunately, the project quickly became
consumed with the conditions issues experienced by the children in facilities, particularly violence and isolation. This Article
focuses on the excessive use of punitive isolation (a practice which has been known for centuries to cause harm in adults), on
how isolation type practices harm children, and on strategies that advocates might employ to eliminate this harmful practice.
Part I of this Article describes the components of our post-disposition project, including an outline of the legal parameters
of New Jersey juvenile law as it relates to post-disposition representation. Part II addresses the issue of isolation in juvenile
facilities. This section looks at the current definition of isolation and available research concerning the harmful effects that
isolation has on the juvenile population, featuring the work of clinical psychologist Dr. Marty Beyer. It also reviews the judicial
response to the use of isolation in juvenile facilities and examines how isolation is used in New Jersey facilities and the legal
structure that permits this. Part II concludes with a review of the national standards of juvenile isolation, and highlights the
various investigations conducted across the country.

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Part III uses In Re O.S. 6 to illustrate the problems we found in New Jersey's secure juvenile facilities and the challenges we
faced when trying to use the existing New Jersey structure to address those problems. Part IV first shows that isolation does not
have the purported benefits of safety, punishment, or deterrence in juvenile *244 facilities, demonstrates that juvenile facilities
can manage youth more effectively with treatment instead of isolation, and proposes strategies for the future and suggests how
the juvenile defender community might respond.
I. Components of The Post-Disposition Project and Legal Parameters of New Jersey Post-Disposition Law
A. Across a River but a World Apart: New Jersey Juveniles Have Significantly Less Due Process Protections
Prior to coming to New Jersey, I had practiced in Philadelphia, 7 where there was a legal culture of excellent post-disposition
advocacy driven by mandatory six month review hearings. 8 As a public defender, I was thoroughly taught that some of the
most important advocacy happens after the judge makes his disposition ruling. I had seen first-hand how vulnerable children
become once they are placed in a facility. 9 I knew that when judges send children *245 to facilities to “get help,” an advocate
is essential to make sure that (1) the programs are held accountable and (2) that the rehabilitative needs of the child do not
fall through the cracks.
New Jersey is different than Pennsylvania in significant ways in terms of providing post-disposition representation to juveniles.
In New Jersey, once a juvenile judge orders a disposition:
(1) There are no automatic, regularly scheduled review hearings, (regardless of the length of sentence);
(2) The statewide Office of the Public Defender routinely closes their files (unless an appeal is filed or other specific postconviction relief is sought); and
(3) Children are rarely, if ever, visited by lawyers in facilities. 10
Recognizing this important systemic gap in children's access to counsel, the New Jersey statewide Office of the Public Defender
and two law school professors submitted a grant proposal to the MacArthur Foundation. 11 The goal of the application was
to participate in a National Initiative to enhance legal representation for indigent children and expand the capacity of the
Office of the Public Defender. Upon receipt of the JIDAN 12 grant, we created the post-disposition pilot project. In order to
expand capacity and enhance representation, the idea was to have juvenile public defenders from two pilot counties refer postdisposition cases to law school clinical programs. The clinical programs would assume post-disposition representation and visit
the child while they were in placement. As a result of the post-disposition pilot project, New Jersey children in facilities would
have access to lawyers for the first time.
*246 B. Components of the New Jersey JIDAN Post-Disposition Project
1. Choosing Pilot Counties
As indicated in the grant application chart, 13 the available data and geographic considerations made Camden County in
South Jersey and Essex County in Northern Jersey obvious choices for pilot counties. First, both counties are located in large
urban environments. Second, these counties comprise approximately 50 percent of the total juveniles sent to juvenile justice
facilities. 14 Third, these two counties contain New Jersey's two state law schools (Rutgers School of Law-Camden and Rutgers
School of Law-Newark), and two members of the New Jersey JIDAN team ran clinical programs at these schools. 15
2. Focusing on Secure Care Facilities: Children at the Deep End of the Juvenile Justice System

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All juvenile programs in New Jersey are run by the Juvenile Justice Commission (JJC), a statewide agency created in 1995
to reform New Jersey's juvenile justice system. 16 The project's choice of which population to work with was difficult. There
was much discussion. Should it focus on the children at the deep end: those in large secure care facilities who tend to have
failed a number of prior programs and were generally older? Or should it focus on children who were being sent to their very
first juvenile placement in an attempt to prevent them from going any deeper? Both populations present compelling interests.
For deep end children, this would be the *247 last opportunity to prevent them from going into the adult system. For first
placement juveniles, there was an opportunity to prevent further educational and program failure.
Ultimately, the project to begin by representing the juveniles in the large secure care juvenile facilities for the following reasons:
• First, in looking at the data, it was clear that a large number of children in secure care had significant special education needs,
mental health issues and prior Division of Youth & Family Services involvement. 17
• Second, geographically, the facilities were centrally located to both counties and housed many juveniles from each of the
pilot counties. 18
• Third, good programming and effective re-entry are crucial to avoid adult criminal involvement.
• Finally, national research has revealed that large secure care facilities frequently have problems that negatively impact the
juveniles they are designed to serve. 19
3. Leveraging Clinical Resources: Creating a Referral System Between the Office of the Public Defender and Two Law School
Clinical Programs
Next, we created a referral system with the Office of the Public Defender. Our goal was to make the process as easy for public
defenders as possible. It was important that our project create as little extra work as possible, given the high volume practice
in most urban environments. 20 We created the program as follows:
*248 • Developed a referral form 21
• Trained all juvenile defenders in each pilot county to explain to juvenile public defenders why post-disposition representation
was important and the protocol of the post-disposition project
• Explained the referral form, and asked juvenile public defenders to fill out the form and have the child (and parent) sign it
whenever a child from the pilot county was sent to the Juvenile Justice Commission
• After the form was filled out and signed, it was faxed to one of the two law school clinics
• The clinic then screens and assigns the case to a clinic student or a JIDAN fellow. 22 Either the team or the fellow would then
make arrangements to visit the juvenile and begin post-disposition representation. 23
C. Relevant New Jersey Post-Disposition Law
The Office of the Public Defender does not routinely engage in post-dispositional advocacy for juveniles, 24 however, the plain
language of the law appeared to support zealous post-disposition advocacy. There are several statutes in the New Jersey Code of
Juvenile Justice (the “Juvenile Code” or “Code”), Court Rules, and caselaw that address juvenile post-disposition. 25 I elaborate
on a New Jersey statute and court rule below.
*249 1. Juvenile Judges Retain Jurisdiction Throughout Disposition and Can Modify a Disposition At Any Time

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New Jersey's Juvenile Code explicitly states that a juvenile court retains jurisdiction over any case in which it has entered
a disposition . . . and may at any time for the duration of that disposition, if after hearing, and notice to the prosecuting
attorney, it finds violation of the conditions of the order of disposition, substitute any other disposition which it might have
made originally. 26
In addition, New Jersey's Court Rules provide that a juvenile court “may correct, change or modify an order of disposition at
any time pursuant to law and may entertain an application for post-disposition relief.” 27 Furthermore, the comment to this rule
states that “[t]he rule makes clear the court's power both to modify its disposition and to grant post-conviction relief. The rule
permits modification of the order at any time.” 28
2. The Expansive, Flexible, Overarching Goal of Rehabilitation: The Empowering Language of In re C.V.
Statute 2A: 4a-45 was recently interpreted by the New Jersey Supreme Court in State ex rel. C.V. 29 There, the Supreme Court
of New Jersey upheld the adjudication of the Family Part in denying the juvenile's request to credit her suspended sentence for
the time she spent in two residential treatment programs, pursuant to N.J.S.A. 2A:4A-45(b). 30 In upholding jurisdiction, the
Supreme Court cited the “flexibility” of the Juvenile Code in carrying out its “rehabilitative” purpose. 31 In particular, the court
pointed to the Senate Judiciary Committee's intention to significantly broaden [the] arsenal of dispositions . . . when sentencing
a juvenile offender. Specifically, the legislative history provides:
*250 This bill recognizes that the public welfare and the best interests of juveniles can be served . . . while
broadening family responsibility and the use of alternative dispositions for juveniles committing less serious
offenses. Moreover, the provisions of this bill and the other accompanying bills reflect a philosophy which is
pragmatic and realistic in nature rather than bound to any particular ideology. 32
Additional language in the opinion appears to give the judge vast power in order to achieve the rehabilitative purposes of the
New Jersey Code. 33 In addition to C.V., there are other cases which emphasize the purpose of the code and the judge's ability
to craft an appropriate disposition. 34
II. Understanding the Use of Isolation in Juvenile Facilities-National Standards, Psychological Research, Judicial Response
“It's an awful thing, solitary. . . . It crushes your spirit and weakens your resistance more effectively than any other form of
mistreatment.” 35
Despite a Supreme Court ruling made over one hundred years ago 36 that deemed the solitary confinement of adult prisoners
unconstitutional, the practice of confining a prisoner “alone and removed from sustained contact with other human beings” 37
continues. Many studies, including one dating back to 1787, 38 have *251 found that solitary confinement in secure facilities
is detrimental to the mental and physical health of prisoners. The United Nations Human Rights Committee has found that
isolation of prisoners may be considered torture. 39 Courts across the United States have ruled that the use of isolation is
debilitating and, in some cases, inhuman. For example, it is uncivilized to deprive a person of his clothes 40 or to isolate a child
in a room stripped of everything but a mattress. 41
If the juvenile justice system is designed to be more rehabilitative and less punitive, then how is the use of solitary confinement,
segregation, room restriction, or any other means of isolation permitted? We would be outraged if it was found that a parent
was confining her child to a small room for days at a time, with minimal human contact, no educational or medical services, and
very limited sensory stimuli. Although this scenario would seem to be child abuse, youth in rehabilitate facilities throughout
the country are regularly subjected to this kind of treatment.

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A. What is Isolation?
1. Defining Isolation
Juvenile facilities use a variety of terms and acronyms when referring to instances of isolation. Youth placed in secure facilities
refer to it as being “put in the box,” 42 “lockdown,” “seg,” or “the hole.” 43 In juvenile facility manuals, removal of a juvenile
from his cell and separating him from other residents may be referred to as segregation, pre-hearing confinement, protective
custody, seclusion, behavior modification unit, close watch, or room restriction, among other things. 44 Regardless of what a
facility's policy and procedure *252 guidebook calls such placement, it is, definitively, isolation or solitary confinement.
Isolation is usually described as placing a youth alone in an unfurnished cell for as much as twenty-three hours a day, usually
for disciplinary, safety or administrative purposes. Isolation typically includes extensive surveillance and security controls,
the absence of ordinary social interaction, and abnormal environmental stimuli (e.g., many isolation units are noisy and cold).
Isolated individuals are often allowed only five hours a week of solitary recreation and little, if any, educational, vocational, or
other purposeful activities. They may be handcuffed and/or shackled when they leave their cells. 45
Courts use isolation and solitary confinement synonymously and they have been clear in their definition. The District Court in
North Carolina in Berch v. Stahl aptly defined solitary confinement as “confinement alone and removed from sustained contact
with other human beings.” 46 The court held that solitary confinement's “severity as punishment is drastically increased when
the isolation is accompanied by the ‘sensory deprivation’ which is . . . attached to the isolation.” 47 The court then explained
that sensory deprivation occurs if “visual contact and effective voice communication with others” is barred and if an inmate is
prevented from “read[ing], writ[ing], [or] work[ing] on projects,” concluding that the person's “[m]ental and emotional stability
are both threatened, and mental health may be impaired.” 48
In a report concerning “torture, and other cruel, inhuman or degrading treatment or punishment,” the United Nations General
Assembly defined solitary confinement as “the physical isolation of individuals who are confined to their cells for twenty-two
to *253 twenty-four hours a day.” 49 The same report specifically recommends that the use of isolation should be strictly
prohibited for use on children under the age of eighteen and for prisoners with mental illness. 50
Several years earlier, the General Assembly adopted the United Nations Rules for the Protection of Juveniles Deprived of Their
Liberty. Rule 67 prohibits the use of “closed or solitary confinement” of juveniles. 51 The Rule qualifies such punishment as
“cruel, inhuman or degrading treatment.” 52 In 1980, Amnesty International defined solitary confinement in a report on prison
conditions as all “forms of incarceration that totally remove a prisoner from inmate society.” 53 The organization explained
that such confinement removes the prisoner “visually and acoustically” from other inmates resulting in “no personal contact
with them.” 54 International treaty bodies and human rights experts, including the Human Rights Committee, the Committee
against Torture, and the U.N. Special Rapporteur on Torture, conclude that long term isolation may amount to cruel, inhuman,
or degrading treatment in violation of the International Covenant on Civil and Political Rights and the Convention against
Torture and other Cruel, Inhuman, and Degrading Treatment or Punishment. 55
2. Psychological Effects of Isolation in Secure Facilities
There is limited isolation research pertaining to its use in juvenile detention facilities but extensive research has been done on
the use of *254 isolation with adult prisoners. Findings show that “[i]solation can be psychologically harmful to any prisoner,
with the nature and severity of the impact depending on the individual, the duration, and particular conditions (e.g., access to
natural light, books, or radio). Psychological effects can include anxiety, depression, anger, cognitive disturbances, perceptual
distortions, obsessive thoughts, paranoia, and psychosis.” 56

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Craig Haney, in the From Prison to Home: The Effect of Incarceration and Reentry on Children, Families and Communities
project, 57 reported that the use of isolation on adults has the following negative results:
• Impaired sense of identity, hypersensitivity to stimuli, confusion, memory loss, irritability, and anger.
• Aggression & rage: attacks on staff, destruction of property, and collective violence.
• Lethargy, helplessness, hopelessness, and depression.
• Self-mutilation, suicidal ideation, and emotional breakdowns.
• Psychosis, hallucinations, and paranoia.
• Overall deterioration of mental and physical health.
• Produces indices of psychological trauma & psychopathic behaviors. 58
In 1997, Dr. Haney and Mona Lynch published an article that extensively explored the use of isolation in adult prisons. 59
In compiling their data, they studied the use of isolation in a variety of situations: German wartime prison camps, soldiers
stationed in Antarctica, male and female adult prisoners in various facilities *255 throughout the world, and, in some cases,
in voluntary research projects. 60 In these varied settings, the effects of isolation were the same: the prisoners experienced a
range of “stress-related, dysfunctional, and destructive behavior.” 61 In interviews with hundreds of prisoners many reported
that they experienced “rage, panic, loss of control, breakdowns . . . and a build-up of physiological and psychic tension that
led to incidents of self-mutilation.” 62
Psychiatrist and noted isolation expert Dr. Stuart Grassian has published research concerning the psychiatric effects of solitary
confinement in prisons for the state and federal courts in New York, California, Massachusetts, and Kentucky. Dr. Grassian
found that solitary confinement often causes “severe exacerbation or recurrence of preexisting illness, or the appearance of
an acute mental illness in individuals who had previously been free of any such illness.” 63 After being isolated, many of
the prisoners Dr. Grassian studied developed psychiatric syndromes including hypersensitivity to external stimuli; perceptual
distortions, illusions, and hallucinations; panic attacks; difficulties with thinking, concentration, and memory; intrusive
obsessional thoughts and emergence of primitive aggressive ruminations; overt paranoia; and impulse control problems. 64
In an earlier article, Dr. Grassian reported that isolation can cause “severe psychiatric harm” to prisoners. 65
This harm includes a psychiatric syndrome which has been reported by many clinicians in a variety of settings. . . . In more severe
cases, this syndrome is associated with agitation, self-destructive behavior, and overt psychotic disorganization. More than half
the prisoners [in isolation] reported a progressive inability to tolerate ordinary stimuli . . . Almost a third described hearing
voices, often in whispers, often saying frightening things to them. Well over half the inmates *256 interviewed described
severe panic attacks while in SHU [isolation] . . . Many reported difficulties in concentration and memory . . . Almost half the
prisoners reported the emergence of primitive aggressive fantasies of revenge, torture, and mutilation of the prison guards. . . .
Almost half the prisoners interviewed reported paranoid and persecutory fears. 66
Although the level of psychological harm varies and some symptoms may subside upon release from solitary confinement, the
damage suffered by prisoners subjected to isolation continues to present itself once the prisoner is released back into the prison
population or into society at large. Dr. Grassian concluded:
This harm is most commonly manifested by a continued intolerance of social interaction, a handicap which
often prevents the inmate from successfully readjusting to the broader social environment of general population

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in prison and, perhaps more significantly, often severely impairs the inmate's capacity to reintegrate into the
broader community upon release from imprisonment. 67
Many of these behaviors were demonstrated by sixteen-year-old William, a New Jersey's post-disposition project client:
Case example: William, a fifteen year-old boy at a New Jersey secure juvenile facility, spent approximately
178 of his 225 day commitment in isolation. The cell measured approximately seven feet by seven feet. He
had no access to books or other reading materials, auditory stimulation, or substantial conversation. Prior to his
commitment, William was diagnosed with mental health issues as well as displaying a history of aggressive
behaviors and a need for psychiatric treatment. Within a few days of being placed in the “seg unit”, William
began to report auditory and visual hallucinations and demonstrated outrageous behaviors such as throwing
bodily fluids. Within a week he began to self-mutilate by “cutting.” *257 Soon thereafter, he attempted suicide
by hanging himself on five different occasions. 68
Based on a variety of studies and expert opinions, it is undisputed that the psychological effects of isolation are detrimental to
both the mind and the spirit. Although little research has been done on the effects of solitary confinement on juveniles, based
on what is known about adolescent development and teen brain studies, isolation is likely to be more damaging to a juvenile
than to an adult.
B. The Harmful Effects of Isolation on Juveniles
Because isolation is so detrimental to the mental health of juveniles, mental health and correction professionals generally agree
that the use of such measures should be limited to those rare occasions when a young person poses an imminent threat to others'
safety.
Isolation, even for brief periods, is harmful for adolescents for two reasons: (1) Youth in isolation cannot participate in
programs, including education, designed to rehabilitate them; and (2) Isolation has negative psychological consequences,
including increasing risk of suicide, re-traumatizing, depression and agitation. Interactive treatment programs have more success
in reducing problem behavior and mental health problems in youth than does isolation, which in fact provokes and worsens
these problems.
As is evidenced in adult prisoners, isolation can exacerbate a young person's emotional crisis. 69 Isolation practices can have the
following negative consequences on juveniles. First, isolation causes depression. Often, youth in isolation are denied reading
materials, programming (including school and therapy), and exercise. Being alone and having nothing to do gives youth too
much time to ruminate, which can lead to the onset of depression. “Depression is common but often not diagnosed in delinquent
youth. Their behavioral problems become the focus rather than their underlying sadness, isolation and loss. Irritability is a
frequent symptom of *258 adolescent depression, and annoys staff and peers and makes it more difficult to involve the
adolescent in positive activities.” 70 Adolescents may not be able to see the temporariness of isolation and, as a result, cannot
pull themselves out of their depression. Youth in isolation are deprived of whatever socialization is available to youth in the
general population. They usually eat their meals alone in the cells. Recreation and exercise activities are solitary. They may
have no one to talk with other than by yelling through the cell door. Isolation prevents youth from meeting their social needs,
which further contributes to depression. Depression in adolescents can cause a variety of behavioral problems, which usually
result in more punishment. Whether or not a youth is depressed before being isolated, usually he/she will feel disturbed from
being alone and having nothing to do.
Second, isolating juveniles causes agitation. During adolescence, young people gradually define their moral values--and tend
to be moralistic--and insistent upon what should be and are intolerant of anything that seems unfair. Juveniles view isolation as
unfair. Adolescents do not have the adult cognitive abilities to say, “This is not unfairness directed at me personally, isolation is
the consequence for certain behaviors for all residents.” Especially for youth of color, isolation may be perceived as degrading
and racist; girls may also object to isolation as discriminatory. It is normal for youth to protest unfairness, and when their

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protest does not get attention, they are likely to become more agitated. Their trust in adults, on whom they remain dependent
and who they expect to be fair and kind, is violated when they are isolated and their protests of the perceived unfairness of
their confinement are unheard. Youth may believe that “confinement is an overt attempt by authorities to ‘break them down’
psychologically . . . [and] the product of an arbitrary exercise of power, rather than the fair result of an inherently reasonable
process.” 71
Third, isolation causes juveniles to feel victimized, which can be re-traumatizing. Many youth in juvenile facilities experience
abuse, *259 neglect, significant loss, exposure to violence, and other trauma. Some youth in delinquency facilities are
previously known to child protective services agencies and may have had multiple placements in foster care. Trauma slows
down development and can cause disturbances of emotional regulation, relationships, and communication. 72 The depression,
difficulties trusting others, fearfulness, aggression, substance abuse, and concentration problems common in delinquent youth
are often caused by untreated trauma. Abuse of power by an adult can provoke in traumatized youth a combination of selfblame and a sense of betrayal, which can lead to self-destructiveness or aggression. For those who have been abused and/or
neglected, isolation is likely to activate painful memories and may be experienced as re-victimization. Isolation could make a
traumatized youth feel once again that they cannot control hurtful things that happen to them. Such powerlessness is damaging
and can undermine the progress the youth has made in recovering from earlier trauma. 73
Fourth, isolation causes an increased risk of suicide. In 1999, the Office of Juvenile Justice and Delinquency Prevention released
a national study of suicides in public and private juvenile facilities. The study found that 50 percent of youth who committed
suicide were in isolation at the time of their suicide and 62 percent had previously been in isolation. Even youth who had not
previously expressed thoughts of harming themselves can become desperate, hopeless and suicidal in isolation. For youth who
are already talking about or who have previously attempted suicide, isolation is a dangerous practice that should be prohibited.
While regularly checking on a suicidal teen in isolation may prevent death, the young person's mental health deteriorates.
Suicidal youth must spend most of each day in activities and interacting with peers and staff. Further, isolation is not the
only means of staff observation of troubled teens; they can just as easily be observed outside of isolation without the negative
psychological consequences of isolation.
*260 Finally, youth in isolation are frequently denied the education to which they are entitled. In juvenile detention and
commitment facilities, youth are required to attend school, and educational benefits should not be denied because they are
being punished. As many as half of the youth in detention and commitment facilities have disabilities that substantially affect
their learning abilities and either have or should have been identified for special education. The individuals with Disabilities
Education Act services should be designed to prevent the behaviors that might lead to punishment, such as isolation. 74 When
youth are deprived of educational services, not only do they lose that aspect of rehabilitation, but they also lose an important
source of self-esteem building.
Facilities use isolation to manage behavior, but the reality is that isolation makes things worse. Isolation is “a reaction to dayto-day crises and evolve[s] into an institutional practice with its foundation never being questioned.” 75 Juveniles isolated for
behavior problems *261 tend to be youth who act out as a result of perceived harassment and threats due to past trauma.
Behind problematic youth behavior is a combination of immature thinking and identity, learning disabilities, and trauma. 76
And, as a result of isolation, the very behaviors that are the cause for placement in isolation are exacerbated. This is particularly
alarming among juveniles because often the residents are subjected to isolation because they have “acted out” in some way or
are not able to conform to the rules of the facilities.
C. Judicial Response to the Use of Isolation in Juvenile Facilities
For well over a century, courts have ruled that the use of isolation in secure facilities violates the Eighth and Fourteenth
Amendments to the U.S. Constitution because such treatment is detrimental to the health of prisoners. In 1890, the Supreme
Court discharged a prisoner on the basis of wrongful imprisonment due to solitary confinement. 77 The Court looked to a 1787
study of Philadelphia prisoners held in *262 solitary confinement that found that a “considerable number of the prisoners

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fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and
others became violently insane, others, still, committed suicide.” 78 Although that ruling involved an adult prisoner, courts
have repeatedly found that the continued use of isolation in juvenile facilities is not only unconstitutional but detrimental to
rehabilitation.
However, Courts have chosen not to totally abolish the use of isolation in juvenile facilities as there is an understanding that,
at times, a child may need to be separated from others if he is a risk to himself or others and that a complete prohibition on the
use of isolation would completely tie the hands of a facility's administration at such times. However, in those situations, courts
seem to agree that the period of isolation must be short and the child must be closely monitored on a regular basis. 79
Courts agree with mental health professionals that excessive use of isolation is detrimental to the rehabilitation of a child.
Courts often rely on the reports and evaluations of mental health experts when rendering decisions in cases concerning the use
of isolation in juvenile facilities. In Lollis v. New York Department of Social Services, the District Court looked to the affidavits
of seven specialists when it held that isolation violated the Eighth Amendment. 80 All seven specialists were “unanimous in
their condemnation of extended isolation as imposed on children, finding it not only cruel and inhuman, but counterproductive
to the development of the child.” 81
Two years later, the United States District Court in Rhode Island, in Inmates of the Boys' Training School v. Affleck, ruled
that the use of isolation with juveniles is “psychologically damaging, anti-rehabilitative, and, at times inhumane.” 82 The court
stated:
*263 To confine a boy without exercise, always indoors, almost always in a small cell, with little in the way
of education or reading materials, and virtually no visitors from the outside world is to rot away the health of
his body, mind, and spirit. To then subject a boy to confinement in a dark and stripped confinement cell with
inadequate warmth and no human contact can only lead to his destruction. 83
A month before Affleck was decided, the district court in Nelson v. Heyne held that the use of isolation at the Indiana Boys
School was “both cruel and unusual punishment.” 84 According to the regulations, boys could be placed in confinement for
five to thirty days. 85 It was found that this time limit was not always followed and boys were locked in eighty-six square
foot rooms with a toilet and bed with only a Bible to read for periods ranging from several days to, as was found in one case,
fifty-seven consecutive days. 86 Once again the court relied on experts who testified that such treatment was “emotionally and
psychologically debilitating and serves neither treatment nor punitive goals.” 87
Often referencing expert studies and opinions, courts have been clear in finding that any type of prolonged separation from
one's peers is psychologically damaging. Such treatment is in direct opposition to the rehabilitative goals of the juvenile justice
system.
Courts have repeatedly found that the isolation of a juvenile is a violation of his rights under the Eighth and Fourteenth
amendments. Often, the decision to place a juvenile in isolation is done at the discretion of correctional officers for a reason
that does not warrant such an intense level of corrective action. Further, isolation is often used in a strictly punitive capacity
and not as a diversionary tactic. Worse, the decision to separate the juvenile from his peers for a prolonged time is usually done
without any due process. 88 Courts *264 hold that such treatment is in violation of a juvenile's constitutional rights under the
Eighth and Fourteenth Amendments.
In Lollis, the district court applied a two-prong test to determine whether or not placing a child in isolation amounted to a
violation of the Eighth Amendment. 89 First, it had to be determined that the severity of the punishment was disproportionate
to the offense that was committed. 90 “[S]econd, the severity . . . of the [punishment must be] measured by ‘broad and idealistic

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concepts of dignity, civilized standards, humanity, and decency.”’ 91 Experts testified that placing a young girl in a bare room
without recreational facilities or reading materials was “cruel and inhumane” as well as “equivalent to ‘sensory deprivation”’
and that such treatment is “punitive, destructive, defeats the purposes of any kind of rehabilitation efforts and harkens back
to medieval times.” 92 Therefore, the court held that such treatment violated the Constitution's ban on cruel and unusual
punishment under the Eighth Amendment. 93
In deciding Affleck, the court looked to the Supreme Court's decision in In re Gault. 94 Gault firmly established the right to the
due process of law in juvenile cases while defining the juvenile system as having rehabilitative objectives rather than punitive
goals. 95 Relying on Gault, the court in Affleck held that placing a child in isolation was anti-rehabilitative and therefore
deprived that child of Due Process under the Fourteenth Amendment. 96
The district court in Morales v. Thurman expanded the “right to treatment” theory of due process under the Fourteenth
Amendment. 97 The juveniles were often locked in single cells for periods as long as a month, being permitted to leave only
for daily showers and meals. 98 *265 Many of the youth received minimal or no counseling or educational services. 99 The
court held that the withholding of rehabilitative services, the failure to allow participation of family or friends in the program,
and the failure to provide access to an uninterested party to whom the juveniles could seek administrative relief without fear of
retaliation, all constituted violations of the state and federal right to treatment under Due Process. 100
But there are circumstances that warrant the use of isolation in a juvenile facility. Courts reason that isolation may be acceptable
when a juvenile is at risk of hurting himself or others, but even then, only when the appropriate precautions are in place. 101
However, such situations do not give a facility carte blanche to isolate a juvenile for a prolonged period of time without a
system of checks in place to prevent further harm from being done. In Lollis, the court made clear that isolation, used within
permissible bounds, is constitutional, and courts should be reluctant to interfere with the management of juvenile facilities. 102
D. New Jersey's Use of Isolation: The “Box” and The “E Rule”
Case example: Denise is a thirteen-year-old girl who was a resident at the Hayes facility, New Jersey's most secure juvenile
facility for girls. According to Denise, she was assaulted by an older girl in the classroom. Another girl got on top of Denise
to protect her from the blows, but Denise was still punched and kicked about the body. She was taken directly to pre-hearing
room restriction (“PHRR”) where she remained for over forty-eight hours while an investigation was conducted. The room was
approximately seven-by-seven feet. It had a slab bed with a mattress, a sheet, and a toilet. Her meals were brought to her by
the guards. All charges against her were dismissed. 103
*266 Such stories are commonplace. Youth in New Jersey's secure care facilities are very familiar with “the box” and with the
“e rule.” The “box” is what the children are placed in when they are removed from their peers. Such separation is often referred
to as pre-hearing room restriction (“PHRR”), segregation (“seg”), medical isolation, close watch, behavior modification unit,
or protective custody. The terms are different, but the effect is the same. The child is placed alone in the cell for long periods
of time, usually without any reading or educational materials, no personal effects whatsoever, and often without any human
interaction.
Sometimes, the reason for placement in “the box” is a result of a serious disciplinary problem, like rioting or fighting. However,
the post-disposition project found numerous examples of the JJC disregarding its own policies designed to minimize the use
of isolation in the first place. 104
The New Jersey Juvenile Justice Commission's policy states that “[d]isciplinary sanctions shall be objectively administered and
proportionate to the gravity of the rule and severity of the violation.” 105 It goes on to state that “[t]emporary restriction of a
juvenile to his or her sleeping room, or isolation room, shall be used as a last resort only after other less restrictive measures

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have failed,” 106 and that “[r]oom restriction shall not be used for punitive purposes, but rather to gain control of an acting-out
juvenile and [to] ensure the security and safety of the facility, staff and other juveniles.” 107
Juveniles have reported being in “the box” as a first response for a wide array of rule infractions including: writing on the wall,
cursing, horseplay, and singing songs with inappropriate lyrics. 108 Others report being placed in isolation for being the victim
of assault, awaiting medical treatment, and population management. 109
*267 Case example: Darren and Charles were removed from their cottage and placed in “the box” because there were too
many boys from their county in their cottage. They were assigned to the segregation unit for two days while awaiting new
cottage assignments.
Case example: Shortly before his release from custody, Oliver was attacked by another resident, who fractured his cheek bone
and made several lacerations to his face. He spent the final two weeks of his disposition in isolation “for his own protection.”
He was not permitted to bring personal effects or reading materials into his cell.
Case example: John was “accidently” punched in the nose by a corrections officer. He was placed in room restriction for two
days. At the end of the second day, John was asked to sign a release, stating that he did not feel threatened by the officer. If
he refused to sign, he was told that he would remain in protective room restriction for forty-five days while a full investigation
of the incident was conducted. 110
According to the New Jersey Administrative Code's regulations on juvenile discipline, there are limitations to the use of room
restriction as a disciplinary sanction:
(a) “A juvenile may receive up to five days in room restriction as a sanction for each violation charged, whether arising out
of a single or separate incident. However, no juvenile may spend more than five consecutive days in room restriction, whether
because of separate sanctions imposed for distinct charges or for any other reason, except as set forth in (e) below.”
(b) “At least two consecutive days out of room restriction must follow a period of five consecutive days served in room restriction
before any succeeding term of room restriction may be imposed.”
*268 (c) “A juvenile shall not serve an aggregate time in room restriction in excess of 10 days in any 30 day period.”
(e) “Nothing in this section shall prevent the placement of a juvenile in room restriction for the minimum time necessary to
eliminate an immediate threat to the safety of either the juvenile, staff or other juveniles, or to the orderly operation of the
facility.” 111
Unfortunately for the children in New Jersey, the exception found in subsection (e) of this regulation swallows up any limitation.
The “e rule” is completely discretionary. Often, a resident will be placed in PHRR while facing in house charges for three to five
days. Once the facility's internal court process has been completed, the youth will often be placed on Behavior Modification
Unit status for an additional period of time. This is usually just a change of status in the juvenile's file but not a change in the
conditions of confinement as the youth will generally stay in the same segregated cell throughout this process. 112 Although
the youth's “status” has changed, the conditions of confinement have not as the juvenile usually does not even change rooms.
E. A Review of the National Standards for the Use of Juvenile Isolation, and the Various Investigations Done by the
Department of Justice
1. National Standards for Use of Isolation in Juvenile Facilities
Four national bodies have drafted standards that they recommend govern the use of juvenile isolation. The Juvenile Detention
Alternatives Initiative of the Annie E. Casey Foundation established the most current standards for juvenile isolation. 113 “Room
confinement” and “isolation” are distinguished. “Room confinement” *269 is a disciplinary procedure used for serious rule

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violations, usually limited to four hours and not routinely used for twenty-four hours. 114 The facility director must authorize
the use of room confinement for longer than twenty-four hours and the youth must be seen by a mental health professional. 115
“Isolation” is defined as placing a youth in a room if the youth's behavior threatens imminent harm to self or others or serious
destruction of property and is limited to four hours. 116 Prior to placing a juvenile in isolation or room restriction, the staff
must utilize less restrictive techniques to de-escalate the youth. While in isolation, a mental health professional must provide
crisis intervention. 117
The United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Standards for the
Administration of Juvenile Justice provide that no juvenile should be placed in room confinement for more than twenty-four
hours. 118
The American Bar Association (ABA) Juvenile Justice Standards Relating to Corrections Administration permit the isolation
of juveniles for up to ten days for major infractions and five days for minor infractions. 119 The ABA standards recommend
that “isolation . . . be accomplished in the juvenile's own room” or, if “specially designated” rooms are used, that those
rooms “resemble, as nearly as possible, the ordinary rooms of the facility.” 120 Recognizing the severity of isolation, the ABA
Standards condemn the use of special dietary restrictions or “extraordinary sensory or physical deprivations” during isolation
beyond the confinement itself, require access to reading materials, 121 one hour of recreation in every twenty-four-hour period
of isolation,” and visits “at least hourly by a specially designated and trained staff person.” 122 A “staff member should remain
with the juvenile” unless safety considerations “make *270 it impossible for the staff member to remain, [in which case] the
staff member should maintain constant observation of the juvenile.” 123
The Council of Juvenile Correctional Administrators (“CJCA”) and the American Correctional Association (“ACA”) also
set standards for the use of isolation in juvenile facilities. Performance-based Standards published by the CJCA (“CJCA
Performance-based Standards”) provide that isolation should not be used punitively, but rather to neutralize out of control
behavior and redirect it into positive behavior. 124 The standards require that facility staff record each time a youth is held
in isolation and that each incident be reviewed to determine if isolation was appropriate and if it could have been avoided or
shortened. 125 The ACA recommends that juveniles spend no more than a maximum of five days in isolation. 126
2. Isolation in Juvenile Facilities and Department of Justice Investigations
Despite continued condemnation of the use of isolation of youth for prolonged periods, solitary confinement is practiced
routinely at detention facilities across the country. Regardless of United States Department of Justice investigations and federal
lawsuits, states continue to permit such practices even though regulations and standards caution against the misuse of isolation.
In May 2011, Nancy Campbell, appointed by the State of California to oversee the state's juvenile facilities, confirmed the
findings of an audit conducted by the California Department of Corrections and Rehabilitation in a letter to the Prison Law
Office. 127 The California Division of Juvenile Justice requires that youth *271 receive a minimum of three hours of out-ofroom time. 128 According to the audit, over a fourteen week period (January 16, 2011 to April 30, 2011), juvenile facilities
throughout the state had failed to meet the out-of-room requirements for juveniles placed in Temporary Detention (“TD”) or
on Temporary Intervention Plans (“TIP”) on nearly 250 occasions. 129
In early 2011, the U.S. Department of Justice, Civil Rights Division, (“DOJ”) released findings from its 2010 investigation of
the conditions at the Terrebonne Parish Juvenile Detention Center in Louisiana. The DOJ found that the “amount of isolation
at Terrebonne is excessive and disproportionate to the underlying disciplinary offense.” 130 Because of the excessive and
unnecessary use of isolation, the Center was found to be in violation of juveniles' rights by “subjecting them to harmful and
unnecessary restraint in isolation rooms.” 131 The DOJ suggests the use of “proper behavior management techniques and sound
verbal de-escalation skills” before implementing isolation when attempting to prevent violence and out-of-control behavior. 132

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The DOJ conducted a similar investigation at Indiana's Marion County Juvenile Detention Center in late 2006 and early 2007.
The Department found that the facility used isolation excessively when attempting to deal with the facility's residents. 133 The
report pointed to the center's arbitrary use of isolation and revealed that isolation was used for all infractions, ranging from
assaults on other youth to failing to follow instructions. 134 Finally, it was found that isolated youth did not receive required
services such as “mental health care *272 services, special education services, regular access to medical care, or daily large
muscle exercise.” 135
As recently as December 2011, the DOJ released an investigative report that addressed the use of isolation in secure juvenile
facilities. 136 The Department was concerned with practices at two Florida facilities, the Arthur G. Dozier School for Boys and
the Jackson Juvenile Offender Center. The report called attention to the harsh conditions in the isolation units and the various
terms used by the facilities that refer to what amounts to solitary confinement. 137 The investigation team found that the youth
subjected to isolation were not afforded the opportunity to challenge the charges that resulted in placement in the isolation
units and that those charges were “minor violations” such as “horseplay,” “being uncooperative,” and “name calling.” 138
Further, while in isolation, the youth did not regularly receive educational services, mental health treatment, or exercise. 139
The DOJ concluded that “the confinement units “did not serve any rehabilitation purpose” and because the units “only served as
punishment to uncooperative youth and a warning to others,” the use of the units “violated the youths' constitutional rights.” 140
It must be noted that Florida's Department of Juvenile Justice closed both facilities on June 30, 2011, for budgetary reasons. 141
In May 2007, the U.S. magistrate judge appointed an independent fact finder to conduct an investigation in S.H. v. Stickrath, a
class action suit brought by juvenile residents against the Ohio Department of Youth Services (“ODYS”). The team reported that
the “excessive use of isolation, some of it extraordinarily prolonged, is endemic to the ODYS system” 142 and that “imposing
prolonged and highly *273 deprivational isolation, whether in the name of treatment, behavior modification, or punishment
is not constitutionally permissible.” 143 In some cases, the team found that isolation lasted for months. It also found that youth
in isolation units throughout Ohio did not receive adequate treatment or educational services.
III. Are New Jersey Judges Powerless to Intervene If a Juvenile
Is Harmed in a Juvenile Facility? In re O.S: A 2011 Case Study
Petitioner O.S. was sent to a secure JJC facility because he ran away from a residential placement. Consequently he was placed
in the most secure JJC facility, JMSF. 144 Throughout his placement at JMSF, 145 the sixteen-year-old was repeatedly assaulted.
The assaults included beatings by other residents who gained access to his cell, and injuries incurred during a large-scale riot. 146
After the riot, the Rutgers School of Law-Camden Children's Justice Clinic, entered an appearance on behalf of O.S., and the
clinic continued to represent him post-disposition.
The assaults on O.S. continued. On April 5, 2010, O.S. was attacked by two residents. O.S., trying to follow the advice of
counsel, did not fight back and simply curled up in a ball on the floor. After the beating, O.S. was locked in a cell, a.k.a. “medical
isolation.” On the fourth day of medical isolation, x-rays revealed that his jaw was fractured. 147
Upon learning of the assault and the fractured jaw, counsel filed a recall motion, pursuant to N.J.S.A. 2A:4A-44(g) (2), with
O.S.'s committing judge requesting review of the disposition “to evaluate *274 juvenile placement due to safety concerns.” 148
The judge, however, refused to hear any testimony, asserting that he did not retain jurisdiction to address the issues raised. The
decision was appealed to the appellate division and oral argument was held.
While the appellate decision was pending, O.S. was assaulted again. Facility reports indicate that although O.S. “offered no
resistance” he was “extremely bloodied from the assault.” 149 Emergency medical treatment confirmed a fractured orbital
wall. 150 An emergency application was filed with the Appellate Division. 151

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On April 19, 2011, the Appellate Division panel in an unpublished opinion 152 agreed that the juvenile judge lacked jurisdiction
to intervene:
Once the Family Part judge determines that incarceration is the proper disposition, the place of confinement and the day-to-day
issues that arise during that confinement, no matter the magnitude of those issues, are not a concern that affects the fundamental
decision of whether the needs of the juvenile and the public require incarceration. No matter how O.S. attempts to couch his
argument, to do as O.S. suggests inserts the Family Part judge into the day-to-day management of the place of confinement.
That is manifestly beyond his authority. 153
*275 We do not mean to suggest that O.S. is without a remedy to address threats to his personal safety. We have been informed
that he and others have filed a complaint in the United States District Court. We simply hold that the Family Part judge does
not have the authority under the guise of a recall motion to address whether the facility to which a juvenile has been assigned is
appropriate, whether the classification at a facility is appropriate, whether particular sanctions or restrictions are appropriate, or
whether the JJC is discharging its serious responsibilities to the juveniles who have been committed to its custody and care. 154
A Petition for Certification to the New Jersey Supreme Court was filed but was unanimously denied. Meanwhile, O.S. is used
in other cases to prevent juvenile court judges from hearing recall motions involving safety concerns. 155
In re O.S. disempowers judges. Ignoring the rehabilitative purpose of the New Jersey juvenile code, the plain language of the
statutes, and recent case law, In re O.S. holds that a judge must wash his hands once a juvenile is placed with the Juvenile Justice
Commission, and cannot intervene, despite evidence of harm to the juvenile. So, the question remains: Given the holding of
O.S., what recourse does a juvenile have if he is abused in a New Jersey facility? 156
*276 IV. Strategies for the Future/Response of Juvenile Defenders
A. Isolation Does Not Have the Purported Benefits of Safety, Punishment, or Deterrence in Juvenile Facilities
“The use of extended isolation as a method of behavior control is an import from the adult system that has proven both harmful
and counterproductive when applied to juveniles. It too often leads to increased incidents of depression and self-mutilation
among isolated juveniles, while also exacerbating their behavior problems. We know that the use of prolonged isolation leads
to increased, not decreased, acting out, particularly among juveniles with mental illness.” 157
Psychiatric facilities for youth have also used isolation for youth who present a danger to themselves or others, but “research has
found seclusion to be harmful to patients and not related to positive patient outcomes. . . . There is no . . . theoretical foundation
for the use of seclusion with children. Evidence has been building for more than 30 years that the practice of seclusion does
not add to therapeutic goals. . . .” 158
*277 Juveniles isolated for behavior problems tend to be those who are particularly susceptible to harassment and perceived
threats because of their past trauma. 159 Because they need acceptance from others, teenagers have more difficulty than adults
in ignoring what others say. It is not easy to have high self-esteem or self-confidence when stigmatized by others. When adults
do not protect teenagers from being picked on, they are likely to become preoccupied with the unfairness of being mistreated.
When teased or when not protected by adults, their behavioral reactions may cause them to be deemed “uncooperative.” 160
B. Juvenile Facilities Can Manage Youth More Effectively With Trauma-Responsive Care Instead of Isolation
Traumatized youth typically need nurturing as if they were much younger than their chronological age. However, they may be
*278 reluctant to accept such nurturing because their trust has been violated in the past. Program interventions should be based
on an understanding of the role of unresolved trauma in the youth's behaviors. Traumatized youth need to know that they will be

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protected from harassment or touch; learn to soothe themselves when they become anxious and before those feelings escalate;
have help to separate past trauma from present provocations; and understand themselves as victimized rather than as “bad.”
Individual trauma treatment (to learn to differentiate mistreatment and loss in the past from limit-setting and teasing in the
present) and self-soothing techniques (essential skills) are needed so that traumatized teenagers can avoid reacting to every
provocation out of an unresolved pool of anger and hurt. Aggressive young people who overreact must be taught how to hear
and observe others differently and to respond without aggression. It takes patient teaching to help youth see that they are
misinterpreting what others say and do, and that most people are not hostile towards them. An important aspect of skill-building
is learning to use self-calming techniques instead of lashing out. Avoiding power struggles, de-escalation before the youth's
behavior gets out of control, learning not to be so rejection-sensitive, and how to handle their anger are crucial elements of
caring for traumatized teenagers.
Adult actions can prevent most of their behavior problems. Staff who work with traumatized teenagers require training on how
to respond (and not respond) to reactive youth and how to avoid exacerbating their behavior and effectively de-escalating them.
Use of isolation is the result of punitive programming in juvenile facilities. Behavioral problems are typically the focus of
institutions rather than residents' underlying sadness, isolation, and sense of loss. Aggressive responses to youth anger and
aggression have led to a harmful pathology-oriented, punitive approach in juvenile facilities.
There must be close supervision to assure safety and consequences for rule violations, but the consequences must be seen by
residents as fair, or they will be counter-productive. An environment of rigid external control produces chronic crises due to
behavior management problems and staff who are frustrated that youth do not improve.
*279 The usual adult reaction to adolescent rule violations or other misbehaviors is anger or punishment, which only increases
the probability that problem behaviors will continue. Staff can get caught up in residents' aggression. A perceived provocation
gets an angry reaction that causes a more aggressive response, and so on, in an escalating cycle.
Avoiding this cycle by preventing confrontation, deescalating provocative situations, and modeling reduced reactivity to insults
and threats, creates an environment where staff are not afraid of residents and who do not use physical force against them. 161
C. Promising Approaches to reduce reliance on Isolation
New York State is implementing a juvenile justice approach that engages rather than punishes youth. The NY Model is a
synthesis of evidence-based and promising practice programs, treatments and philosophies that have proven to be effective
in working with juvenile justice involved adolescents in a variety of settings. By using an environmental and philosophical
infrastructure that is both trauma-informed and trauma-responsive, and applying empirically validated treatment paradigms
for the emotional and behavioral problems which frequently arise in response to trauma exposure, the NY Model creates a
treatment supportive milieu which is designed to ready youth for independent, self-regulated and effective behavior. The NY
Model emphasizes establishing (or re-establishing) and maintaining the connections between the youth in care, their family and
community supports, and other available community resources in order to facilitate an expeditious and successful reintegration
to their homes and neighborhoods. The NY Model thus creates a treatment-focused, trauma responsive continuum of care,
wherein youth and families are supported in pursuing self-determined goals with reliance on external supports and services as
needed, gradually moving toward system independence. 162
*280 Dr. Stuart Ablon of Massachusetts General Hospital has developed a program called the “Collaborative Problem Solving
Approach” (“CPS”) that has demonstrated success in reducing the use of isolation and restraints for juveniles. The premise of
the program is that youth lack certain cognitive and social skills and need to be taught to develop those skills. Over-simplified,
the approach requires the youth and adult to identify the youth's concern about an issue, then identify the adult's concern,
and together brainstorm a way of addressing it. This approach equips youth with the critical skills necessary to overcome the
frustration, attention-seeking behaviors, and to limit the testing behaviors. 163

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This approach was used at the Maine Youth Development Center (which had previously been shut down due to use of four-point
restraints and long periods of isolation with young teens). Implementation of CPS in the high custody unit of the Mountain View
Youth Development Center was associated with a significant decrease in the number of assaults, the use of force, placements in
seclusion (by at least 50%) and also far less workers' compensation claims due to injury. The CBS approach was also utilized in
the Ohio Hospital for Psychiatry. The results were as follows: one year seclusion free, 95% reduction in restraints, staff turnover
under 3%. When the CBS approach was used at the Yale-New Haven Children's Hospital Inpatient Psychiatry Unit, restraints
dropped from 263 to 7 and seclusion dropped from 432 to 133.
A four-country study recently concluded that seclusion should always be the last resort when it comes to dealing with aggressive
episodes involving young offenders with psychiatric disorders. 164 The forensic units studied ranged from eight to twelve beds,
treating young offenders with severe mental health disorders, delinquent, violent and non-compliant behavior and impulse
control problems in *281 the UK, Belgium, the Netherlands and Finland. Mental and unit staff on the units found that the
most effective response to problem behaviors was verbal intervention that was clear, structured and used in the early stages of
aggression. Sometimes the aggressor was separated from other adolescents for five to fifteen minutes to give them a chance to
calm down. Talking about the incident afterwards was also important, so that both the adolescent and staff could reflect on why
it happened and how it could be prevented. Teamwork was crucial and all members of the multi-disciplinary team had to be
committed to therapeutic aggression management. Staff endeavored to cooperate with the adolescent as long as possible and
to avoid coercive measures, while still maintaining the safety of others.
A juvenile facility must have policies that forbid isolation, limit the use of physical restraint and PRN medication for behavior
control, and forbid secluding suicidal youth. Not only must the facility train staff in these policies, but it must also coach
staff specifically in how to de-escalate easily triggered youth. Just as important is a juvenile institutional environment that is
developmentally and trauma-informed where youth feel respected and where restraint is seen as a rare last resort when all other
efforts to de-escalate the young person have failed.
D. Strategies for Individual Juvenile Defenders
If your state has mandatory review hearings, bring these issues to the judge's attention at that time and cite the harmful effects of
isolation-type practices. If your state does not have mandatory review hearings, but the juvenile court judge retains jurisdiction,
it is important to have a mechanism in place for incarcerated youth to have contact with attorneys. An attorney may seek judicial
review and appropriate relief by filing a motion to have a review hearing, as was attempted in O.S.
There are additional steps that an individual lawyer concerned about a client can take if he/she suspects institutional abuse or
the excessive use of isolation-type practices. The following list was developed by Sue Burrell, from the Youth Law Center in
California. Different strategies can be used depending on the seriousness of the *282 situation. With each strategy, always
make sure to tell the child what you plan to do, and make sure that they want you to proceed. 165
(1) Make a Phone Call to the Facility Administrator
This is a good strategy when there is something specific you want to accomplish, such as getting the facility to take your client
to a doctor, or arranging a personal visit with someone not on the visiting list. Keep a record of the person(s) you speak with, the
date of the phone call, and notes about what was said. Also ask for a return phone call or written response when any requested
action is carried out.
(2) Send a Letter or Fax to the Facility Administrator
If the request is urgent, such as a situation where you need to have a mental health clinician examine a child's mental health status,
then you may want to fax a written request asking the administrator to investigate and take prompt, appropriate action to address
the situation. Faxing has the added advantage of providing a written record of the request. Keep copies of the successful fax.
You could also use e-mail, but because administrators get a huge number of e-mails, faxes stand out better as communications

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calling for a response. If the situation is very serious or if your less formal attempts to resolve them fail, then write a letter to
the administrator of the facility asking for an investigation or specific action, outlining what you know about the matter, and
request a prompt written response.
(3) Contact the Ombudsperson or Grievance Coordinator
If the request has to do with a relationship issue (for example, trouble with a particular staff member) or particular incident in
the facility, then you may want to call the Ombudsperson, or if there isn't one, contact the grievance coordinator for advice.
*283 (4) Notify the Licensing or Regulatory Agency
If the facility or placement is licensed, or if there is a regulatory agency, then there may be a complaint process for investigation
and action in individual cases. For example, group homes in California are licensed by the California Department of Social
Services. Children (or anyone) may file complaints through the Foster Care Ombudsman. 166 Typically, state law requires
investigation and response to occur within a specified period of time, and complaints are retained in the licensing file.
(5) Make a Child Abuse Report
Most states have provisions for the filing of complaints in relation to physical or sexual abuse of children, and this includes
abuse by facility staff members or law enforcement officers. These reports may be confidentially filed, and the child welfare
agency must respond to them.
(6) Involve Specialty Advocates for Assistance
A disproportionate number of youth in the juvenile justice system have disabilities qualifying them for special education
services, or necessitating services for developmental disabilities or mental health conditions. Accordingly, in such cases, contact
your local Protection and Advocacy (“P & A”) office, or other agencies that provide educational, developmental disabilities
and mental health advocacy services.
(7) Contact the Civil Rights Division of the United States Department of Justice
The Civil Rights of Institutionalized Persons Act 167 (“CRIPA”) gives the Civil Rights Division of the DOJ the power to bring
action *284 against the state if civil rights are violated in publicly operated facilities. If information indicates abuse, contact:
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66400
Washington, DC 20035-6400
(202) 514-6255 www.usdoj.gov/crt/split/juveniles.htm
V. Conclusion
The excessive use of isolation in juvenile facilities is a national problem. There is obvious need for greater oversight, monitoring,
and uniform legislation to eliminate this harmful practice. In addition, juvenile systems should explore different approaches
such as the CBS approach described above so that the need for isolation in the first instance is reduced. However, in addition
to broader, national and systems approaches, there are many actions that individuals can take to protect juveniles.

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Courts and human rights organizations have recognized that isolating a person is damaging and can be extremely harmful.
Despite the more than two hundred years of research showing that isolation is detrimental to mental health, juvenile facilities
across the country regularly employ isolation techniques. While it may be necessary to separate a child from others for a limited
time to quell dangerous situations, locking a child in a room for a prolonged period of time only makes the situation worse and
exacerbates pre-existing mental health issues.
Isolation of juveniles is used for a variety of reasons, protection, population management, de-escalation of volatile circumstances
but it seems to be most often used punitively. Call it segregation, room restriction, behavior modification, or “the box,”
separating a child from others with little to no external stimuli is in no way rehabilitative. The use of such practices flies in the
face of a core objective of our juvenile justice system and must cease.
*285 Appendix
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Footnotes
a1
Sandra Simkins, Clinical Professor, is the Director of Clinical Programs and Co-Director of the Children's Justice Clinic at RutgersCamden School of Law. Professor Simkins is the author of sixteen professional articles related to juvenile justice issues; and has
a book under contract, When Kids Get Arrested, What Every Adult Should Know, which was released in 2009. In 2008, she was
selected by the MacArthur Foundation to participate in the Models for Change Juvenile Indigent Defense Action Network. Prior to
joining the Rutgers faculty in 2006, she spent fifteen years working at the Defender Association of Philadelphia where she was the
Assistant Chief of the Juvenile Unit. Sandra is also the co-director of the Northeast Region Juvenile Defender Center, a subsidiary
of the National Juvenile Defender Center, where she provides consultation and training to child advocates in Delaware, New Jersey,
New York and Pennsylvania.

aa1

Marty Beyer is a juvenile justice and child welfare consultant with a Ph.D. in clinical psychology from Yale University. In addition
to assisting states in designing delinquency services, her work with juveniles focuses on how a young person's cognitive, moral and
identity development, trauma and disabilities affected the offense and must be considered in designing rehabilitation. She has also
assisted with the implementation of strengths/needs-based child welfare practice in several states. Some of her publications can be
found on her website MartyBeyer.com.

aaa1

Lisa M. Geis is a graduate fellow at Rutgers-Camden School of Law working with the John D. and Catherine T. MacArthur
Foundation's Models for Change Juvenile Indigent Defense Action Network. Although she represents juveniles at all levels of the
adjudication process, she primarily provides post-disposition representation for youth detained. Lisa participated in the MacArthur
Foundation Models for Change initiative in conjunction with New Jersey Office of the Public Defender, working to improve access
to legal representation for juveniles at initial detention hearings. Through her work with the Rutgers Children's Justice Clinic, Lisa
continues her research on conditions of confinement and the use of isolation in juvenile detention facilities.

We later learned that this was called a “ferguson gown.”

For additional information see Troy D. and O'Neill S. v. Mickens et al., Juv. L. Center, http://www.jlc.org/litigation/
troy_d._and_oneill_s._v._ mickens_et_al (last visited Oct. 30, 2011).

For additional information regarding the federal lawsuit, see Troy D. v. Mickens, No. 10-2902 (JEI/AMD), 2011 WL 3793920 (D.N.J.
Aug. 25, 2011); Troy D. and O'Neill S. v. Mickens et al., supra note 2.

See Nat'l Council of Juvenile & Family Court Judges, Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile
Delinquency Cases 25 (2005) [hereinafter Juvenile Delinquency Guidelines], available at http:// www.ncjfcj.org/images/stories/
dept/ppcd/pdf/JDG/juveniledelinquencyguidelinescompressed. (holding delinquency judges responsible for providing children with
access to counsel at every stage of the proceedings, from before the initial hearing through post disposition and reentry); Juvenile
Defenders Ass'n of Pa., Performance Guidelines for Quality and Effective Juvenile Delinquency Representation 14 (2010), available

THE HARMFUL USE OF ISOLATION IN JUVENILE..., 38 Wash. U. J.L. &...

at http://www.jdap.info/file/juvenile_ performance_guidelines.pdf; Robin Walker Sterling et al., Nat'l Juvenile Defender Ctr., Role
of Juvenile Defense Counsel in Delinquency Court 19 (2009), available at http://www.njdc.info/pdf/njdc_role_of_counsel_book.pdf;
Nat'l Juvenile Defender Ctr., Ten Core Principles for Providing Quality Delinquency Representation Through Public Defense
Delivery Systems 3 (2d ed. 2008), available at http://www.njdc.info/pdf/10_Core_Principles_2008.pdf.

“The Juvenile Indigent Defense Action Network (JIDAN) is a Models for Change-supported effort ... to engage leadership in targeted
strategies to improve juvenile indigent defense policy and practice.” Juvenile Indigent Defense Action Network (JIDAN), Models
for Change, http:// www.modelsforchange.net/about/Action-networks/Juvenile-indigent-defense.html (last visited Nov. 1, 2011).

New Jersey ex rel. O.S., No. A-5366-09T1, 2011 N.J. Super. Unpub. LEXIS 955 (Apr. 19, 2011).

From 2001-2006, I served as the assistant chief of the Juvenile Unit of the Defender Association of Pennsylvania. See Laval S.
Miller-Wilson & Patricia Puritz, Am. Bar Ass'n, Pennsylvania: An Assessment of Access to Counsel and Quality of Representation
in Delinquency Proceedings 64 (2003) [hereinafter Pennsylvania Assessment], available at http:// www.jlc.org/files/publications/
paassessment.pdf (“Also impressive is the Defender Association's post-disposition advocacy for youth in placement. Despite vast
geographical separation from their clients, the Defender Association investigates and monitors the treatment of clients placed in outof-home facilities.”).

42 Pa. Cons. Stat. § 6353 (2011). The statute states, in relevant part:
No child shall initially be committed to an institution for a period longer than four years or a period longer than he could have been
sentenced by the court if he had been convicted of the same offense as an adult, whichever is less. The initial commitment may be
extended for a similar period of time, or modified, if the court finds after hearing that the extension or modification will effectuate the
original purpose for which the order was entered. The child shall have notice of the extension or modification hearing and shall be
given an opportunity to be heard. The committing court shall review each commitment every six months and shall hold a disposition
review hearing at least every nine months.
Id. § 6353(a).

Sandra Simkins, Road Trip! A Simple Solution for Protecting Girls from Institutional Abuse, 8 Women Girls & Crim. Just. 7 (2007);
Marty Beyer, Gillian Blair, Sarah Katz, Sandra Simkins, & Annie Steinberg, A Better Way to Spend $500,000: How the Juvenile
Justice System Fails Girls, 18 Wis. Women's L.J. 51, 64, 66-67, 69 (2003); Doron Taussig, Restraining Disorder, Phila. Citypaper
(May 19, 2005), http://archives.citypaper.net/articles/2005-05-19/cover.shtml.

New Jersey recognizes that children are entitled to an attorney “at every critical stage” of the delinquency process. N.J. Stat. Ann.
§ 2A:4A-39(a) (West 2011). Unfortunately, due to the structure of the indigent defense delivery system, public defenders are not
contracted to do post-dispositional work. See § 2A:4A-39(a). Most children by their very status are indigent, and most children in
the juvenile justice system come from low-income families and qualify for court-appointed counsel. See James Garbarino, Forward:
Pathways from Childhood Trauma to Adolescent Violence and Delinquency, in Trauma and Juvenile Delinquency: Theory, Research
and Interventions, at xix, xxi-xxiii (Ricky Greenwald ed., 2002).

See infra app.

See id.

See infra app.

Id.

For information regarding the Rutgers School of Law Newark Urban Legal Clinic see http://law.newark.rutgers.edu/clinics/urbanlegal-clinic (last visited Feb. 2, 2012). For information regarding the Rutgers School of Law-Camden, Children's Justice Clinic see
http://camlaw.rutgers.edu/childrens-justice-clinic (last visited Feb. 2, 2012).

Act of Dec. 15, 1995, ch. 284, 1995 N.J. Laws 1796 (codified as amended at N.J. Stat. Ann. §§ 52:17B-169 to -178 (West 2011))
(establishing the JJC). The JJC is “responsible for operating State services and sanctions for juveniles involved in the juvenile justice
system and responsible for developing a Statewide plan for effective provision of juvenile justice services and sanctions at the State,
county and local level....” N.J. Stat. Ann. § 52:17B-169(k) (West 2011); see also Introduction to the New Jersey Juvenile Justice
Commission, Off. Att'y Gen., http:// www.nj.gov/oag/jjc/info_intro.htm (last visited Oct. 26, 2011).

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Data for original grant was provided in 2006 by the New Jersey Administrative Office of the Courts. For current demographics, see
http:// www.nj.gov/oag/jjc/stats/01-20-12-Juvenile-Demographics-and-Stats.pdf (last updated Jan. 20, 2012).

See id. at 13.

Amanda Petteruti et al., Justice Policy Inst., The Costs of Confinement: Why Good Juvenile Justice Policies Make Good Fiscal Sense
9 (2009), available at http://www.justicepolicy.org/images/upload/09_05_REP_ CostsofConfinement_JJ_PS.pdf.

See Patricia Puritz et al., Am. Bar Ass'n Juvenile Justice Center, A Call for Justice: An Assessment of Access to Counsel and
Quality of Representation in Delinquency Proceedings 46 (1995) (discussing pervasive problem of high caseloads), available at http://
www.njdc.info/pdf/cfjfull.pdf.

See infra app.

For both the JIDAN post-disposition project in North and South Jersey we had a JIDAN fellow. These recent law school graduates
worked on the post-disposition project approximately twenty to thirty hours per week.

See Chart of Full Protocol, infra app. at 287.

Id. (Unless there is an appeal pending, or other post conviction relief is specifically sought, or if the juvenile is returned to court
for a probation violation).

See N.J. Stat. Ann. § 2A:4A-43(b)-(c) (West 2011) (giving juvenile judges a wide array of disposition options); §2A:4A-45 (providing
that juvenile judges retain jurisdiction over the case); N.J. Ct. R. 5:24-6 (allowing juvenile judges to modify the disposition upon a
recall motion); § 2A:4A-44(d)(2) (“[T]he juvenile's attorney ... may make a motion ... for the return of the [incarcerated] child from
a juvenile facility prior to his parole.”).

§ 2A:4A-45.

N.J. Ct. R. 5:24-6.

N.J. Ct. R. 5:24-6, cmt. 2281 (2012).

990 A.2d 640 (N.J. 2010).

Id.

Id. at 648.

Senate Judiciary Comm., Statement to Assembly, S. 200-641, 1st Sess., at 1 (N.J. 1982).

Id. at 642 (“New Jersey's Code of Juvenile Justice provides a comprehensive scheme that empowers Family Part judges to tailor
dispositions toward aiding and rehabilitating juveniles charged with delinquent acts, while simultaneously ensuring protection of the
public from dangerous and/or repetitive juvenile offenders.”).

In re R.M., 141 N.J. 434, 453 (1995).

Atul Gawande, Hellhole, New Yorker (Mar. 30, 2009), http:// www.newyorker.com/reporting/2009/03/30/090330fa_fact_gawande
(quoting John McCain).

In re Medley, 134 U.S. 160 (1890).

Berch v. Stahl, 373 F. Supp. 412, 420 (W.D.N.C. 1974).

In re Medley, 134 U.S. at 168; Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am. J. Psychiatry 1450
(1983); Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary
Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477 (1997).

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Interim Rep. of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 18, 23, U.N. Doc. A/63/175 (July 28, 2008) [hereinafter Interim Report].

Berch, 373 F. Supp. at 421.

Lollis v. N.Y. Dep't of Soc. Servs., 322 F. Supp. 473 (S.D.N.Y. 1970).

This knowledge is based on more than seventy-five client interviews conducted by Lisa Geis as part of the NJ post-disposition
representation program.

Interview by Marty Beyer with juvenile clients.

State of New Jersey Dep't of Law & Pub. Safety, Juvenile Justice Comm'n, New Jersey Training School, Handbook on Rules,
Regulations, and Discipline Rev. Feb. 2010); N.J.A.C. 13:92 (2011); N.J.A.C. 13:95-11; N.J.A.C. 13:101-5.3; Interviews with Postdisposition program clients.

Marty Beyer addition.

Berch v. Stahl, 373 F. Supp. 412, 420 (W.D.N.C. 1974).

Id.

Id. Because the court in Morales v. Turman was aware of the various names applied to isolation in juvenile facilities, it defined
solitary confinement as the placement of an “inmate alone in a [room] other than a room in the inmate's own locked or otherwise
secured room or cell dormitory.” Morales v. Turman, 364 F. Supp. 166, 177 (E.D. Tex. 1973). The court also defined “dormitory
confinement” and “security” in a similar fashion. Id.

Interim Report, supra note 39, at 18.

Id. at 25.

United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, G.A. Res. 45/113, R. 67, U.N. Doc. A/RES/45/113
(Dec. 14, 1990).

Id.

Amnesty Int'l, Amnesty International's Work on Prison Conditions of Persons Suspected or Convicted of Politically Motivated Crimes
in the Federal Republic of Germany: Isolation and Solitary Confinement 9 (1980), available at http://www.amnesty.org/en/library/
asset/EUR23/001/1980/en/a49b3516-773f-4a2d-b753-50eb1c34c493/eur230011980en.pdf.

Id.

Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38
J. Am. Acad. Psychiatry & Law 104-08(2010).

Id.

Craig Haney, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment 14 (2001), available at http://
aspe.hhs.gov/hsp/prison2home02/haney.pdf.

Id.

See Haney & Lynch, supra note 38.

Id. at 511-25.

Id. at 525.

Id. at 518.

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Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol'y 325, 333 (2006).

Id. at 335-36.

Grassian, supra note 63.

Id. at 1-4.

Grassian, supra note 63.

See supra text accompanying notes 2, 3.

Nat'l Advisory Comm. for Juvenile Justice & Delinquency Prevention, U.S. Dep't of Justice, Standards for the Admin. of Juvenile
Justice § 4.52 (1980).

Michael D. Cohen et al., Health Services for Youth in Juvenile Justice Programs, in Clinical Practice in Correctional Medicine, 120,
124 (Michael Puisis ed., 2d ed. 2006).

Grassian, supra note 63, at 333.

Marty Beyer, A Developmental View of Youth in Juvenile Justice System, in Juvenile Justice: Advancing Research, Policy, and
Practice (Francine Sherman & Francine Jacobs eds., 2011).

See id.

As Joe Tulman described in the ABA publication Representing Juvenile Status Offenders, youth who have or should have been
identified for special education have the right not to be excluded from school, even if facility staff are disciplining the youth for rule
violations. Joseph B. Tulman, Using Special Education Advocacy to Avoid or Resolve Status Offense Charges, in Am. Bar Ass'n,
Representing Juvenile Status Offenders 89-120 (Sally Small Inada & Claire S. Chiamulera eds., 2010).

Jeff Mitchell & Christopher Varley, Isolation and Restraint in Juvenile Correctional Facilities, 29 J. Am. Acad. Child & Adolescent
Psychiatry 251-55 (1990). The authors describe their work with a juvenile detention center that closed its isolation unit despite the
objections of staff and instituted a behavior modification program. Jeff Mitchell & Christopher Varley, Isolation and Restraint in
Juvenile Correctional Facilities, 29 J. Am. Acad. Child & Adolescent Psychiatry 251, 253 (1990). The incidence of behavior problems
decreased dramatically. Id.
It is essential for juvenile correctional programs to provide their residents with stimulating recreational programs, educational
programs, well-administered behavior management programs ... and team-generated, individualized service plans....
... [T]hese recommendations ... improve behavioral management. Administrators who eliminate abusive isolation ... practices find
that they are in more control of their programs. It is presumed that their residents recognize this and behave accordingly.
Id. at 254-55. “[P]rograms relying on excessive isolation experience high rates of aversive behaviors among residents.” Id. at 253.
While as many as 65%-75% of youthful offenders have one or more diagnosable psychiatric disorders, most juvenile detention
facilities do not have the capacity to serve them. This situation is aggravated by multiple problems, including overcrowding,
dilapidated institutions, inadequate funding for services and programs, and inadequately trained custodial and mental health staff.
These factors are associated with an increased risk of suicide, physical assaults, and accidental injuries.
Kim J. Masters & Joseph V. Penn, Practice Information, Juvenile Justice + Interventions = Fragmentation, J. Am. Acad. Child &
Adolescent Psychiatry (July/Aug. 2005), available at http://www.aacap.org/cs/root/member_ information/practice_information/jul/
aug_2005_aacap_news_seclusion_restraint_ juvenile_justice_interventions_fragmentation.

“Aggressive youth overreact to perceived threat, typically because it is reminiscent of past victimization. These youth do not see these
responses as excessive. They may have little experience expressing their thoughts and resolving their feelings verbally rather than
through aggression. These youth may feel helpless about regulating their behavior.” Cohen, supra note 70, at 124. Some teenagers
who have been victimized in the past react to limit-setting as if it is personalized, or a form of harassment against them. Any “No”
from an adult can be seen as victimization. Some of these youth misinterpret and are offended by relatively benign things that others
say and do. They perceive hostility coming from others, and their reactions cause adults to view them as difficult and oppositional.
Reacting to perceived threats is characteristic of traumatized teenagers. When there is a history of repeated physical and sexual abuse,
a young person is likely to feel more threatened and is more likely than other teens to be on the alert.

THE HARMFUL USE OF ISOLATION IN JUVENILE..., 38 Wash. U. J.L. &...

Afterwards, it may appear that a frightened teenager over-reacted, but threat can only be evaluated from the perspective of each
young person at the time that he/she felt in danger (no matter how well-intentioned the adult was). It is not unusual for traumatized
youth to be surprised by their angry outbursts when memories of their victimization are triggered. A traumatized teenager may have
no way of responding to harassment or a perceived threat, feeling out of control and experience a primitive, unthinking reflex. It is
these youth who are often punished with isolation.

In re Medley, 134 U.S. 160 (1890).

Id. at 168.

Morales v. Thurman, 569 F.Supp. 332, 345-46 (1983); Lollis v. N.Y. Dep't of Soc. Servs., 322 F. Supp. 473, 482 (S.D.N.Y. 1970).

Lollis, 322 F. Supp. at 480.

Id.

Inmates of the Boys' Training Sch. v. Affleck, 346 F. Supp 1354, 1372 (D.R.I. 1972).

Id. at 1365-66.

Nelson v. Heyne, 355 F. Supp. 451, 456 (N.D. Ind. 1972).

Id. at 455.

Id. at 455-56.

Id. at 456.

This is a frequent occurrence in New Jersey, where juveniles are routinely placed in pre-hearing room restriction (“PHRR”) for
several days while an “investigation” occurs. There are numerous examples of juveniles being placed in PHRR for days, only to have
their “charges” dismissed after the “investigation” . See case example of Destiny, pp. X.

Lollis v. N.Y. Dep't of Soc. Servs., 322 F. Supp. 473, 480-83 (S.D.N.Y. 1970).

Id. at 480 (citing Weems v. U.S., 217 U.S. 349 (1909)).

Id. (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)).

Id. at 481.

Id. at 482.

In re Gault, 387 U.S. 1 (1967).

Id. at 16-29.

Inmates of the Boys' Training Sch. v. Affleck, 346 F. Supp. 1354, 1364-67 (D.R.I. 1972).

Morales v. Turman, 364 F. Supp. 166 (E.D. Tex. 1973).

Id. at 171.

Id. at 172.

100

Id. at 174-75.

101

Morales, 569 F. Supp. at 345-46.

102

Lollis v. N.Y. Dep't of Soc. Servs., 322 F. Supp. 473, 483-84 (S.D.N.Y. 1970).

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103

Clients reported incidents to the post-dispostion project attorney during their attorney-client visits. The names of all clients have
been changed.

104

Id.

105

N.J. Admin. Code § 13:92-7.3(e) (2011).

106

§ 13:92-7.4(a) (emphasis added).

107

§ 13:92-7.4(b).

108

See supra text accompanying note 103.

109

See Lollis v. N. Y. Dep't of Soc. Servs., 322 F. Supp. 473 (S.D.N.Y. 1970).

110

See id.

111

§ 13:101-6.17 (emphasis added).

112

See supra text accompanying note 103.

113

See Annie E. Casey Found., Detention Facility Self-Assessment: A Practice Guide To Juvenile Detention Reform 84 (2006), http://
www.aecf.org/upload/PublicationFiles/jdai0507.pdf; Annie E. Casey Found., No Place for Kids: The Case for Reducing Juvenile
Isolation 7 (2011).

114

See supra Annie E. Casey Found., Detention Facility Self-Assessment, at 93.

115

Id. at 94.

116

Id. at 92.

117

Id. at 89.

118

Nat'l Advisory Comm. for Juvenile Justice & Delinquency Prevention, U.S. Dep't of Justice, Standards for the Admin. of Juvenile
Justice § 4.52 (1980).

119

Juvenile Justice Standards Relating to Corr. Admin. §8.7(B)-(C) (1980).

120

Id. § 7.11(H)(4)-(5).

121

Id. § 7.11(H)(7).

122

Id. § 7.11(H)(8).

123

Id.

124

Council of Juvenile Correctional Administrators, Goals, Standards, Outcome Measures, Expected Practices and
Processes, PbSStandards, 9, 37 (April 2010), available at http://www.juvenilejusticechange.com/wp-content/uploads/2011/01/
PbS_Standards_April_2010.pdf.

125

Id.

126

Am. Corr. Assoc., Standards for Juvenile Detention Facilities 67 (3d ed. 1990).

127

Email from Nancy M. Campbell, Special Master Farrell v. Cate, to Sara Norman, Managing Attorney, Prison Law
Office (May 20, 2011), available at http://media.baycitizen.org/uploaded/documents/2011/6/nancy-campbell-may-20-letter/
NancyCampbellLetter.pdf.

128

15 CCR 1371• (2011).

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129

Id.

130

Letter from Thomas E. Perez, Assistant Attorney Gen., to the Honorable Michel Claudet, President, Terrebonne Parish (Jan. 18,
2011), available at http://www.justice.gov/crt/about/spl/documents/TerrebonneJDC_ findlet_01-18-11.pdf.

131

Id. at 12.

132

Id. at 9.

133

Letter from Wan Kim, Assistant Attorney Gen., to the Honorable Robert Altice et al., Exec. Comm., Marion Cnty Superior Court
(Aug. 6, 2007), available at http://www.justice.gov/crt/about/spl/documents/marion_juve_ind_ findlet_8-6-07.pdf.

134

Id. at 11.

135

Id. at 12.

136

Civil Rights Div., U.S. Dep't of Justice, Investigation of the Arthur G. Dozier School for Boys and the Jackson Juvenile Offender
Center, Marianna, Florida, (Dec. 1, 2011), available at www.justice.gov/crt/about/spl/documents/dozier_findltr_12-1-11.pdf.

137

Id. at 17-18. The size of the individual cells were 9.8 feet by 5.5 feet with nothing more than a concrete slab that served as a bed.

138

Id.

139

Id.

140

Id at 18.

141

Id. at 5.

142

Fred Cohen, Final Fact Finding Report, SH v. Stickrath, ii (Jan. 2008), available at http://www.dys.ohio.gov/DNN/LinkClick.aspx?
fileticket=lDovnn7P96A%3D&tabid=81&mid=394.

143

Id. at iii.

144

JMFS stands for Juvenile Medium Secure Facility. See JJC Secure Care Facilities, Office of the Attorney General, http:// www.nj.gov/
oag/jjc/secure_bordentown.htm#jmsf (last visited Feb. 2, 2012).

145

O.S. was originally ordered to serve a fifteen month custodial sentence for conspiracy to distribute drugs.

146

In addition to his injuries, O.S. was charged with aggravated assault, riot and possession of a weapon in the riot. The clinic also
represented him in that case.

147

Thereafter, O.S. remained in his cell for three more days (seven days total), waiting to see the oral surgeon. During these seven days,
he was not allowed to contact family or counsel, go to school or receive counseling. See O.S. Recall Motion (on file with author).

148

Id. at 1.

149

Petition for Certification to the New Jersey Supreme Court at exhibit 10-12, New Jersey ex rel. O.S., No. A-5366-09T1, 2011 N.J.
Super. Unpub. LEXIS 955 (Apr. 19, 2011) (exhibits on file with authors).

150

Id. at exhibit 14.

151

The emergent application was denied. Id. at exhibit 15.

152

Regarding unpublished opinions, N.J. Rule.1:36-3 states:
No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for
publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata,
collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any

THE HARMFUL USE OF ISOLATION IN JUVENILE..., 38 Wash. U. J.L. &...

court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of
the opinion and of all other relevant unpublished opinions known to counsel including those adverse to the position of the client.

153

New Jersey ex rel. O.S., No. A-5366-09T1, 2011 N.J. Super. Unpub. LEXIS 955, at *7 (Apr. 19, 2011) (emphasis added).

154

Id. at *7.

155

In two subsequent client post-disposition issues, in two different counties, O.S. has been relied upon to preclude juvenile court
jurisdiction. Juvenile legal files at Rutgers School of Law-Camden, Children's Justice Clinic (on file with author).

156

The attorney general has argued that the recall motion is improper and that there are administrative remedies and these remedies must
be exhausted. For example, under N.J.A.C. 13:95-8.5, a juvenile assigned to a secure facility may make a request for a change in
assignment or status by completing a special classification request Form J081 and submitting it to his social worker. The attorney
general has also argued that there are civil remedies available. See generally New Jersey ex rel. O.S., No. A-5366-09T1, 2011 N.J.
Super. Unpub. LEXIS 955 (Apr. 19, 2011).
The reality is that for children, the only connection they have to the court is their juvenile court judge. As over half of the children in
JJC custody have been classified as special education, it is unlikely that they would be able to exhaust the administrative remedies.
In addition, as most of the children in juvenile facilities are indigent, is it unlikely that they would have access to a civil lawyer.

157

Steven Rosenblum, Chair, Civil Rights Div., U.S. Dep't of Justice, Remarks Before the Fourteenth Annual National Juvenile
Corrections and Detention Forum (May 16, 1999), available at http:// www.justice.gov/crt/about/spl/documents/juvspeech.php.

158

Linda M. Finke, Use of Seclusion is not Evidence-Based Practice, 14 J. of Child & Adolescent Psychiatric Nursing 186, 186, 189
(2001), available at http://galenet.galegroup.com/servlet/IOURL? locID=sain79627&ste=6&prod=HWRC&docNum=A81761745.
“Programs relying on excessive isolation experience high rates of aversive behaviors among residents.” Id. at 189. While as many as
65-75 percent of youthful offenders have one or more diagnosable psychiatric disorders, Linda A. Teplin et. al., Psychiatric Disorders
in Youth in Juvenile Detention, 59 Archives of Gen. Psychiatry, 1133-43(2002), available at http://www.nctsnet.org/nctsn_ assets/
Articles/104.pdf; G. Wasserman et. al., Mental Health Assessments in Juvenile Justice: Report on the Consensus Conference. 42
J. Am. Acad. of Child and Adolescent Psychiatry 752-61 (2003), available at http:// www.ncmhjj.com/resource_kit/pdfs/Screening
%20and% 20Assessment/Readings/MHAssessInJJ.pdf, most juvenile detention facilities do not have the capacity to serve them. This
situation is aggravated by multiple problems including overcrowding, dilapidated institutions, inadequate funding for services and
programs, and inadequately trained custodial and mental health staff. These factors are associated with an increased risk of suicide,
physical assaults, and accidental injuries. Isolation is “a reaction to day-to-day crises and evolve[s] into an institutional practice
with its foundation never being questioned.” Jeff Mitchell & Christopher Varley, Isolation and Restraint in Juvenile Correctional
Facilities, 29 J. Am. Acad. Of Child and Adolescent Psychiatry 251 (1990). The authors describe their work with a juvenile detention
center that closed its isolation unit, despite the objections of staff, and instituted a behavior modification program. The incidence of
behavior problems decreased dramatically.
“It is essential for juvenile correctional programs to provide their residents with stimulating recreational programs,
educational programs, well-administered behavior management programs and team-generated, individualized service
plans ... these recommendations ... improve behavioral management. Administrators who eliminate abusive isolation ...
practices find that they are in more control of their programs. It is presumed that their residents recognize this and
behave accordingly.”
Id.

159

Michael Puisis, Clinical Practice in Correctional Medicine 124 (2d ed. 2006) (“Aggressive youth overreact to perceived threat,
typically because it is reminiscent of past victimization. These youth do not see these responses as excessive. They may have little
experience expressing their thoughts and resolving their feelings verbally rather than through aggression.”). Some teenagers who
have been victimized in the past react to limit-setting as if it is personalized, or a form of harassment of them. Any “No” from an
adult can be seen as victimization. Some of these youth misinterpret and are offended by relatively benign things that others say and
do. They perceive hostility coming from others, and their reactions make adults view them as difficult and oppositional. Reacting to
perceived threats is characteristic of traumatized teenagers. When there is a history of repeated physical and sexual abuse, a young
person is likely to feel more threatened and likely to be on the alert more than other teens. Afterwards it may appear that a frightened
teenager over-reacted, but the threat can only be evaluated from the perspective of each young person at the time he/she felt in danger
(no matter how well-intentioned the adult was). It is not unusual for traumatized youth to be surprised by their angry outbursts. A

THE HARMFUL USE OF ISOLATION IN JUVENILE..., 38 Wash. U. J.L. &...

traumatized teenager may have no way of responding to harassment or perceived threat, feeling out of control and experiencing
primitive and unthinking reflexes. But these youth are often punished with isolation.

160

See id.

161

Id. at 124-25.

162

Joseph Tomassone, Chief of Treatment of Services, Bureau of Behavioral Health Services, Division of Juvenile Justice and
Opportunities for Youth, NYS Office of Children and Family Services, Personal Communication (forthcoming).

163

Ross W. Green & J. Stuart Ablon, Treating Explosive Kids: The Collaborative Problem Solving Approach (2005) (discussing this
approach and its impressive impacts); see also Think: Kids, http://www.thinkkids.org (last visited Feb. 2, 2012).

164

Johanna Berg et al., Management of Aggressive Behaviour Among Adolescents in Forensic Units: A Four-Country Perspective, 18
J. of Psychiatric and Mental Health Nursing 776-85 (Nov. 2011).

165

Sue Burrell, Esq., Youth Law Center, San Francisco, California.

166

California Department of Social Services, The Office of the Foster Care Ombudsman, Complaints Form, http://
www.fosteryouthhelp.ca.gov/complaints.html (last visited Nov. 26, 2011).

167

42 U.S.C. § 1997 (1980).

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