In today’s Washington Post, President Obama reminds us of Kalief Browder, a young man who was crushed by the weight of his experience with the criminal justice system, and invokes Kalief’s story as he announces historic federal action to end the use of solitary confinement for juveniles in federal prisons.
The Department of Justice (DOJ) report that Obama refers to contains a number of Guiding Principles for all adult corrections facilities, and there are two recommendations specific to juveniles housed in adult facilities. The first one states that juveniles ought not be placed in restrictive housing. The second one reads:
In very rare situations, a juvenile may be separated from others as a temporary response to behavior that poses a serious and immediate risk of physical harm to any person. Even in such cases, the placement should be brief, designed as a “cool down” period, and done only in consultation with a mental health professional.
This aligns with the settlement language of a federal case against agencies in Contra Costa County, California on behalf of young people in the county’s secure juvenile facility. Both the DOJ and the Department of Education were active in that case, filing a Statement of Interest in the months preceding settlement. As part of the settlement agreement, Contra Costa County abolished isolation practices in its secure juvenile facilities.
The plaintiffs in that case presented evidence that their experiences in solitary confinement were degrading, dangerous, and traumatic. Here’s where things get really interesting: their legal case was built entirely around allegations of denials of education services. If that doesn’t quite make sense to you yet, it will soon.
When a young person is confined to a secure facility – often called a “commitment” or “disposition” rather than a “sentence” – he or she (but usually he) typically becomes a ward of the state agency tasked with juvenile justice matters. In some states it’s a law enforcement agency and in others it’s a child welfare agency. One agency takes custody of the young person, but once that person is processed into the system, a constellation of agencies and service providers descend upon him. Among them is an education provider. Depending on the state, that provider may be a separate division of the custodial agency, it may be a local education agency operating in the geographic area, or it may be a contractor. Except where state law grants specific waivers, that provider has the same obligations as any other school in the state. This includes compliance with both federal and state education laws – like IDEA, ADA, and compulsory education regulations.
Pause here for a moment and take a guess what happens to a young person placed into restrictive housing (it doesn’t matter if you call it “solitary,” “segregation,” “special handling,” or “max,” we all know what it means). If you imagine that he still goes to school every day, you’re dead wrong.
Every day in this country, school-age kids are punished by being kept out of the classroom for days, weeks, and months on end: students with IEPs that mandate daily instructional services, kids whose instigating behavior is attributable to an identified disability, young people with other state and federal rights to education programming. These aren’t aberrations or mistakes or bad actors; this is the policy. Are there any other schools where we would allow that to happen?
The president calls on each of us individually and all of us collectively to “rethink solitary confinement.” On that, he’s wrong. Solitary confinement, particularly for young people, needs no rethinking. Punitive isolation has no demonstrated value and costs us dearly – costs that we can only wish were unimaginable.
The tragedy continues; I think that the worst part of Kalief’s story might be that it isn’t unique. As a practical matter, most juvenile offenders come home (Montgomery v. Louisiana, decided yesterday, underscores this point), but the president’s actions in our federal prisons won’t change things for the thousands of young people who cycle through state and county juvenile justice facilities across the country each year. This action wouldn’t have helped Kalief. That task is now up to state and local leaders, and to the voters who hold them accountable.