Will Texas follow suit?

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Last week, President Obama boldly banned the use of solitary confinement for juveniles in federal prisons. He also banned its use in cases of low level infractions for adult offenders and announced his goal of expanding mental health treatment in federal prisons. These reforms altogether are expected to impact nearly 10,000 people in federal facilities. The reality, though, is that there are only 26 juveniles in federal custody, according to the Marshall Project, and solitary confinement has been used in just a handful of instances with juveniles in federal custody over the last year.

The President’s pronouncement is then largely symbolic, setting the tone for the country and encouraging states to follow suit. So where does Texas stand?

Since it was found in 2007 that children under the care of (the since disbanded) Texas Youth Commission were being sexually abused in juvenile prison facilities, the State made major positive reforms to juvenile justice. The legislature banned the commitment of misdemeanants to juvenile facilities and significantly reduced the overall number of referrals to locked facilities by diverting more youth to community-based programming and probation.

In 2013, the legislature passed a law requiring Texas Juvenile Justice Department (TJJD) probation officers and other personnel to receive trauma-informed care training for working with youth with adverse childhood experiences (ACES). That same year the State also added provision §203.016 to Human Resources Code, requiring TJJD to collect data on its use of “disciplinary seclusion,” also known as solitary confinement.

By statute now, TJJD must tally the number of placements in disciplinary seclusion for more than 90 minutes and less than 24 hours, between 24 and 48 hours, and longer than 48 hours. This data, however, is not readily available to the public. The scope of Texas’s use of solitary confinement in juvenile locked facilities is unknown. Before the data collection requirement went into effect, ACLU reported that there were 37,071 placements of children in disciplinary seclusion in 2011, with thousands of placements lasting longer than 24 hours. Though logically a mandate to collect data on solitary confinement might have curtailed its use, there is no available data to evidence attenuation.

Texas ranks first in the U.S. for solitary confinement of adults. In September of 2015 Yale Law School released results from a national survey, revealing that in 2014 6,194 adult male prisoners were held in isolation, with the next closest state being Arizona with 2,402. Texas kept 107 women in solitary (placing us 2nd behind Georgia), while Colorado, DC, Indiana, Montana, New York, North Dakota, and Wisconsin did not keep any women under such conditions. Latinos were largely overrepresented in the number of individuals placed in solitary confinement in Texas, accounting for over half of all confinements and outnumbering their African American and white peers 2 to 1.

Indiscriminate use of solitary confinement is hardly news. At the beginning of the last legislative session, the ACLU and Texas Civil Rights Project (TCRP) released a joint report, adumbrating Texas’s misuse of the practice through hard data, thorough research, and alarming case studies. The interviews uncover a world of mental anguish, in which prisoners must disassociate in order to endure conditions of permanent fluorescent lighting, filth, stench, no physical human contact, rare intervals outside, and exposure to the cement-muffled screams of fellow detainees. Prisoners are allowed brief visitation with their families only through a barrier.

If we are to extrapolate the scope of the use of solitary confinement, and/or these experiences, to juveniles in the care of the State, it is indeed cause for alarm. The effects on an adolescent’s brain development and well-being are devastating, potentially irreversible, and can be lethal.

Despite the watchful eye of organizations like ACLU and TCRP, only a handful of bills related to solitary confinement were filed over the last legislative session. Two were signed into law. H.B. 1140 requires county sheriffs to report on the healthcare and conditions of pregnant prisoners being jailed, along with any policies adopted on placing them in solitary confinement. [Aside: The United Nations called for the prohibition of solitary confinement for pregnant prisoners in 2011 in “Rule 22” of The Bangkok Rules, citing potential health complications for the mother and consequences for the child.]

H.B. 1083 requires a mental health assessment to be conducted before placing an inmate in solitary and precludes placement for those found unfit for isolation. The new law does not explicitly require that prisoners who wind up in solitary be re-evaluated. Once they are in, how does one who has developed a psychological condition get out?

No bill touched upon even restricting use of disciplinary seclusion for juveniles, but maybe the tides have changed?

In 8th Amendment analyses considering cruel and unusual punishment, the Supreme Court has repeatedly applied an evolving standards of decency test, as in the cases of Roper, Graham, and Miller. What are our evolving standards of decency here in Texas? Can we conscionably uphold this practice? While President Obama didn’t explicitly equate solitary confinement of youth with cruel and unusual punishment, he did declare the practice to be “an affront to our common humanity.” Surely such a vehement proclamation might set the tone for our evolving standards and provide a clear cyclorama for court challenges.

We didn’t do it in the 84th legislative session, but we have another year to get our act together to end solitary confinement of juveniles. We can’t risk the lives of any more Texas youth.


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