Brennan, Patrick

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University of Kentucky

Kentucky Legislature Needs to Get Ahead ofJuvenile Solitary Con nementMay 29, 2018Patrick Brennan, Staff EditorKentucky is one of 18 states that still permits juvenile solitary con nement,  leaving the continuedconstitutionality of Kentucky’s outdated practice in serious doubt. As a result, Kentucky’s Legislatureshould confront this issue immediately – even if some other authority ends the practice – becausedetention centers across the Commonwealth will need cultural and structural change.The end of juvenile solitary con nement in Kentucky could come from a judicial ruling that the practiceis per se unconstitutional as “cruel and unusual punishment.”  What constitutes cruel and unusualpunishment is a moving target, changing along with the standards of society.  The inquiry is two-fold:an objective analysis looking at the facts surrounding opposition to the practice and a subjectiveanalysis in which the court must make its own judgment as to proportionality of the contested practice.The objective facts about juvenile solitary con nement today are similar to the ones the Courtconsidered in Roper v. Simmons, in which it struck down the imposition of the death penalty onjuveniles.  Both then and today, a majority of states and the federal government banned the contestedpractice, and the general trend was constant.  This is corroborated by the fact that many jurisdictionshave changed their rules to ban the practice within just the past two years.  As it pertains to thesubjective analysis, the argument against proportionality  boils down to scienti c data showing thatsolitary con nement on juveniles imposes a high risk of development or exacerbation of mental healthissues.  Hence, the objective and subjective considerations lead to the conclusion, supported by otherscholars, that the use of solitary con nement on juveniles is out of step with our national standards ofdecency.Nevertheless, courts have been reluctant to hold that juvenile solitary con nement is per seunconstitutional, instead limiting their decisions to speci c individuals who experienced extendedcon nement akin to sensory deprivation.  Just last summer, isolation pods at the Fayette RegionalJuvenile Detention Center (FRJDC) were of this type; juveniles committing infractions could be placed insmall windowless cells on a separate unit that contained just a sink, toilet, and concrete ledge for sitting(a mattress was brought in at night).  A report commissioned by the DJJ said, “A court would almostcertainly  nd that the use of these isolation cells … is a violation of a youth’s constitutional rights.”The FRJDC has since changed some practices with their isolation cells, but the use of roomcon nement as punishment is still widespread in Kentucky.  According to regulations on the DJJContact Us620 S. Limestone 40508 Lexington, Kentuckyeditors@kentuckylawjournal.org (859) 257-1678Home  Content  Featured  The KLJ Blog  Kentucky Legislature Needs to Get Ahead of Juvenile Solitary Con nement[1][2][3][4][5][6][7][8][9][10][11][12][13][14][15][16]The KLJ Blog Online Originals Submissions The Print Archive Membership  Symposium  SubscriptionsAbout website, con nement is permissible for up to 5 days.  However, o cials within the DJJ say that theyare in the process of changing their punishment system and limiting room con nement.  In themeantime, the real possibility that a Kentucky court or the U.S. Supreme Court rules juvenile solitarycon nement to be unconstitutional remains.Regardless of who causes juvenile solitary con nement to end in Kentucky, the Kentucky Legislature willneed to get involved. Con nement is an easy  x for negative behavior which ignores the root causes andinstitutionalized failures behind the behavior.  Kentucky o cials admit that taking away this  xovernight is not possible; it will take cultural change.To do so, the Kentucky Legislature will have to consider what resources to allocate to the detentioncenters, measuring the need for increased wages and personnel as well as the potential need forbuilding more appropriate detention structures. Other legislatures are currently considering the sameissues.  As the injustice this Commonwealth has done to its incarcerated youths is great, thecorresponding response must be greater. J.D. Expected (2019). Eli Hager, Ending Solitary Con nement for Juveniles: A Goal Grows Closer, THE MARSHALL PROJECT (Aug.1, 2017), https://www.themarshallproject.org/2017/08/01/ending-solitary-for-juveniles-a-goal-grows-closer. See U.S. Const. Amend. VIII; U.S. Const. Amend. XIV; Robinson v. California, 370 US 660 (1962)(applying the Eighth Amendment to the states through the Fourteenth Amendment); KY Const. § 17(prohibiting “cruel” punishment), Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003) (holding thatSection 17 of the Kentucky Constitution is co-extensive with the Eighth Amendment). Atkins v. Virginia, 536 U.S. 304, 311–12 (2002) (quoting Trop v. Dulles, 356 U.S. 86 (1958)) (“TheAmendment must draw its meaning from the evolving standards of decency that mark the progress of amaturing society.”). Id. at 312. 543 U.S. 551 (2005). Id. at 564–567. Hager, supra note 2. The test for proportionality is whether a punishment measurably serves legitimate ends. See Atkins,536 U.S. at 319. In the context of prison discipline, this issue turns on whether “force was applied in agood faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose ofcausing harm.” Whitley v. Albers, 475 U.S. 312, 320–21 (1986). The extent of injury in icted is a relevantconsideration. Id. at 321. Abigail Cooper, Beyond the Reach of the Constitution: A New Approach to Juvenile SolitaryCon nement Reform, COLUM. J. L. & SOC. PROB. 344, 351–52 (2016). See, e.g., Anthony Giannetti, The Solitary Con nement of Juveniles in Adult Jails and Prisons: A Crueland Unusual Punishment?, 30 BUFF. PUB. INT. L. J. 31, 34 (2012). Cooper, supra note 10, at 359. John Chives, Kentucky Overuses Isolation Cells for Youths Even After Girl’s Death, Report Says,KENTUCKY HERALD-LEADER (Dec. 30, 2017), http://www.kentucky.com/news/politics-government/article192156839.html. Kate Howard, Critical Safety Issues Plague Kentucky’s Juvenile Detention Centers, Report Says,KENTUCKY CENTER FOR INVESTIGATIVE REPORTING (Nov. 21, 2017), http://kycir.org/2017/11/21/critical-safety-issues-plague-state-juvenile-detention-centers-report-says/.[16][17][18][19][20][1][2][3][4][5][6][7][8][9][10][11][12][13][14][15]Tags: juvenile, Patrick Brennan, Roper v. Simmons, solitary con nement Chives, supra note 13; Kate Howard, Youth Detention Center Fails on Basic Services, Report Says, LEOWEEKLY (Jan. 24, 2018), https://www.leoweekly.com/2018/01/youth-detention-center-fails-basic-services-report-says/. JUSTICE AND PUBLIC SAFETY CABINET DEP’T OF JUVENILE JUSTICE POLICY AND PROCEDURES, DJJ 323,(2016), available at https://djj.ky.gov/300%20Policy%20Manual/DJJ%20323%20Isolation.pdf. Chives, supra note 13. See Cooper, supra note 10, at 361–63. Kate Howard, supra note 15. Todd Richmond, Bill Would Close Youth Prison in 2020, Create New Facilities, ASSOCIATED PRESS (Feb.13, 2018), https://www.usnews.com/news/best-states/wisconsin/articles/2018-02-13/bill-would-close-youth-prison-in-2020-create-new-facilities. (discussing recent legislation in Wisconsin).*Featured image by jmiller291, licensed under CC BY-SA 2.0Related PostsAbout The AuthorMark Blankenship[15][16][17][18][19][20]“So, I Have This Friend…” What’s a Birthday Partywith No Cake?A Shift TowardUniformity: the UniformBar ExamBack to Top ↑Copyright 2017 - Powered By WordPress.

Kentucky Legislature Needs to Get Ahead of Juvenile Solitary Confinement

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Kentucky Legislature Needs to Get Ahead of Juvenile Solitary Confinement

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