Carey Wedler

January 8, 2016

(ANTIMEDIA) A report released by the Nebraska American Civil Liberties Union this week reveals the state’s extensive use of solitary confinement in children across multiple juvenile detention centers. Solitary confinement is considered a form of torture by the U.N., and in recent years, has been outlawed and scaled back in the United States. In Nebraska, however, children are being forced into isolation for offenses as minor as having too many books or passing notes.

According to the Center for Constitutional Rights, in the early 19th century, the United States pioneered solitary confinement as a form of punishment. After its damaging psychological effects became apparent, however, it was discontinued. Though the practice recently regained popularity, it has once again been skewered as excessive and dangerous.

The United Nations Special Rapporteur on Torture, Juan Mendez, concluded in 2011 that “even 15 days in solitary confinement constitutes torture or cruel, inhuman or degrading treatment or punishment, and 15 days is the limit after which irreversible harmful psychological effects can occur.”

“Considering the severe mental pain or suffering solitary confinement may cause,” Mendez said, “it can amount to torture…when used as a punishment, during pre-trial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles.” Mendez, an Argentinian human rights activist and attorney who was personally tortured by the military in his native country in the 1970s, urged an “absolute prohibition” on solitary confinement for juveniles and those with mental illness.

Experts stress that because children are not developmentally mature, the effects of torture may be more pronounced. The American Academy of Child & Adolescent Psychiatrists opposes the practice altogether, though Juvenile Detention Alternatives Initiative recommends it be used for no more than four hours — a guideline Nebraska facilities routinely violate.

Reports from recent years indicate many states are taking efforts to reduce the extent of the practice, including many of Nebraska’s neighboring states.

Even New York’s Rikers Island, notorious for its abuse of prisoners, moved last year to discontinue the use of solitary confinement for inmates under the age of 21. A successful class action suit filed in 2015 on behalf of California inmates at the Pelican Bay State Prison had sweeping effects on the state’s solitary confinement system.

Nebraska, however, has not followed this trend, in spite of the psychological consequences and multiple violations of constitutional rights that come along with it.

Concerned by previous findings on the state’s use of solitary confinement on children, the Nebraska branch of the ACLU examined written policies from different facilities on the practice. It also issued open records requests to obtain logs detailing the implementation of the punishment.

The ACLU found, “A young Nebraskan’s experience with solitary confinement is completely arbitrary and dependent upon the facility in which he or she is placed.”

For example, two facilities run by the Department of Health and Human Services, located in Geneva and Kearney, had individual stays in solitary that lasted at most 5 and 5.1 days, respectively. Both institutions have policies limiting confinement to five days, though this duration is still longer than experts recommend. A county facility located in Sarpy had relatively low numbers; its longest stay was less than half a day. Interestingly, it does not have a policy dictating limits on the practice.

The longest stay at the state’s Nebraska Correctional Youth Facility, located in Douglas County, was 90 days — 75 days longer than the maximum recommended for adults. That facility’s shortest stay was a full day, also longer than the recommended duration for children. A county facility located in Madison County, the Northeast Nebraska Juvenile Services Center, had at least one solitary sentence lasting 52 days. Its shortest, like the Douglas facility, was one full day.

The length of the average stay often exceeded the recommended length of time at each facility (four hours), as well. Kearney and Geneva averaged confinement durations of 20.8 and 50.24 hours, respectively. Others were slightly lower, as in the case of a county facility in Lancaster, which averaged 14.15 hour stays. However, employees at Lancaster likely sentenced a higher volume of children to confinement, considering the total number of days spent in solitary at the facility was 455.85; though the stays were relatively short, they were distributed across a high number of students and were still longer than recommended. The ACLU noted Lancaster’s solitary logs “demonstrate the seemingly often arbitrary and subjective use of solitary confinement as a form of punishment.”

The Nebraska Correctional Youth Facility in Douglas County, which ranked highest for its longest individual stay — 90 days — ranked second highest in the average length of punishment: 187.66 hours, or nearly eight days. Children spent 2,021.04 total days in solitary confinement. Further, Madison County’s state-run Northeast NE Juvenile Services Center had the longest average stay: 189.16 hours. The total days spent in solitary by all juvenile inmates was 1,064.

According to the ACLU, this problem disproportionately affects minorities. Though only 20% of youth in Nebraska are “of color,” the ACLU reports, they make up 55% of the juvenile detention population in the state.

Regardless of race, the ACLU suggested the overuse of the punishment occurs because “The lack of statewide standards leaves facilities with far too much discretion, often resulting in the use of solitary confinement for improper or unnecessary purposes.” While some facilities allow students to attend educational activities while in solitary, others enforce complete isolation. The inciting activities of students are equally arbitrary.

Citing official logs detailing children sentenced to the punishment, the Nebraska ACLU noted one student was sent for rummaging through garbage to look for cookies, failing to stop when asked. Another was doing pull ups on a window ledge. One passed a note in class, yet another was caught talking in the hallway, and one deviant had a thread from a sock in their mouth . Most egregiously, two instances of solitary confinement were prompted after children were determined to have an “excessive” number of books. Often, the punishment excludes the child from attending educational classes or so much as socializing with other children, further limiting their ability to learn.

Jacob Rusher was held at the Douglas Correctional Youth Facility from the age of 15 to 17. He told the ACLU he was placed in solitary confinement for three months on multiple occasions. First, it was for his own protection after he broke his ankle. Then, he says he was placed in solitary after being attacked by older detainees: “It was 23 hours a day alone, no TV or radio,” he said. “You were in there with one book, a blanket, a mat, and a toothbrush. No art materials, no hobby items — everything was considered contraband.”

Solitary confinement can have staggering consequences. As the ACLU report detailed:

“For adults, the effects can be persistent mental health problems, or worse, suicide. And for children, who are still developing and more vulnerable to irreparable harm, the risks of solitary are magnified – protracted isolation and solitary confinement can be permanently damaging, especially for those with mental illness.”

Yet in one case study, the ACLU found a female inmate who threatened self-harm was subsequently placed in solitary confinement. Lisa, now an adult, recalled her experience. “Ironically (because I was in solitary for self harm), I survived my time alone by just falling back on hurting myself,” she said. “I’d bite my own cheeks and tongue, banging my head on the wall.”

Though it seems the world is evolving past this form of cruel and unusual punishment, Nebraska’s practices demonstrate there is still work to be done. The ACLU offered several recommendations to scale back and standardize solitary confinement, including using it as a last resort, ensuring due process — such as letting the inmate know why they are subjected to it — and mandating staff members be educated in youth development, mental health, and de-escalation techniques.

As Lisa observed:

“What are the facilities trying to accomplish? If it is to manage somebody’s behavior so they don’t harm themselves or someone else, it doesn’t work — it just creates more isolation, anger and separation and hopelessness. We need to be cognizant of how many traumatic and difficult, violating experiences these youths have already had. Solitary just re-traumatizes them. Much of what was done to me was out of ignorance, not evil, but I want people to recognize that we can change things for the better.”

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