Solitary confinement at Texas youth prisons: A brief history

"Off with her head!"

I've seen this movie. From Mike Ward at the Austin Statesman, state Senate Criminal Justice Committee Chairman John Whitmire said TYC officials are engaging in "hug a thug" behavior for not using solitary confinement more frequently, or in TX juvenile justice jargon, imposing "behavioral management plans" on youth ("Juvenile justice officials disagree on reopening Waco-area lockup," May 24):

At issue is whether to use the empty beds at the McLennan County Juvenile Correctional Facility in Mart — single-cell rooms with a higher level of security than most of the six campus-like facilities that hold most of Texas' 1,100 teenage offenders. Supporters say the cells could separate the troublemakers from other youths and reduce violence. But opponents, notably Texas Juvenile Justice Department Executive Director Cherie Townsend, say moving the offenders would disrupt their schoolwork and their treatment.

The stalemate comes amid continuing reports of assaults and violence at agency facilities. On May 14, several people were reported injured as youths rioted at the Evins Regional Juvenile Justice Center in Edinburg. It was the second such uprising there in five months. On Monday, six youths at the Giddings State School broke down a door and climbed onto a dorm roof before guards subdued them with pepper spray.

Two months ago, the disclosure of escalating violence, unchecked gang activity, extortion rings and general unrest at Giddings sparked a legislative inquiry.

For those who don't recall (assuming anyone even cares anymore), this is PRECISELY how TYC reacted the first time Sen. Whitmire launched into his Queen of Hearts impersonation and began shouting "Off with their heads!" (We're definitely through the looking glass, now.) The agency cracked down, expanding use of solitary confinement in just the way being suggested in this article, then had to roll it back once agency leaders discovered legal limits on the practice.

Grits argued recently that many of the agency's problems stemmed from failing to follow the recommendations of the "blue ribbon" panel of experts convened by the Governor because of the expense of shifting from large to small facilities. We can add "ditto" on the question of use of solitary. From a 1/16/08 Houston Chronicle article:

Juvenile justice experts expressed disappointment, but not surprise, upon hearing of the alleged stepped-up reliance on isolation at the agency — particularly so soon after the abuse scandal broke and after the agency found itself the target of a lawsuit over its increased reliance on pepper spray to subdue difficult youths.

"Solitary confinement has been universally condemned by courts in the juvenile justice system," said Barry Krisberg, president of the California-based National Council on Crime and Delinquency, and a member of the task force in Texas that last year recommended TYC reforms.

"Nothing good happens when you isolate youth. These are youth that are already having trouble communicating," Krisberg said.

Then-TYC Ombudsman Will Harrell issued a memorandum four years ago (which Grits uploaded here) detailing the legal limits of BMP. Critically, and this was the bane of BMP expansion under then-executive director Dimitria Pope, use of solitary confinement at TJJD is regulated by a federal settlement agreement described in a memo appended to Harrell's report. Most folks have forgotten this history, but restrictions on BMP stem from a 1973 lawsuit, Morales v. Turman. Back then, a federal "Court ordered that certain practices of TYC, including the conditions of solitary confinement, be abolished pending final order of the Court. Ten years later, after a good faith effort by TYC to improve facilities and protect the plaintiffs’ rights, the parties agreed on a settlement, setting forth, among other things, TYC commitments, policies, and goals regarding use of isolation and security" (citations omitted). Concluded Harrell, "The settlement agreement remains binding today, and any dispute arising in regard to its enforcement, if not resolved amicably, may be enforced by the plaintiffs in any court of competent jurisdiction."

The agreement "includes provisions regarding (1) the appropriate reasons for placing youth in isolation or security; (2) limits on the duration of that placement; (3) necessary treatment of inmates while in isolation or security; and (4) appropriate conditions of confinement in isolation or security," all of which he alleged TYC was violating in 2008. Here's an overview of the settlement provisions from the report's summary:

The 1983 settlement agreement that ended litigation in Morales v. Turman prohibits facilities from using isolation as a mode of retaliation or as a first-resort punishment, and limits its use to when the facility’s superintendent agrees that an inmate is out of control and dangerous. When the inmate is sufficiently under control, he or she shall be released. Isolation should not be used for more than 3 hours. The agreement, with a few exceptions, allows placement in security only as a last resort, and for no longer than 24 hours. If the inmate is kept in security longer than 24 hours, he or she is entitled to impartial review and appeal of his or her confinement. While in isolation or security, inmates must receive: daily visits from the superintendent and personnel from clinical, social work, and medical units; appropriate psychological and medical services; and the same food, prepared in the same manner, as other inmates.

So there are limits to expanded use of solitary that TYC under Ed Owens and Dimitria Pope failed to respect but which still apply if TJJD decides to crack down again - whether or not Cherie Townsend is in charge - including appellate procedures if isolation lasts longer than 24 hours. Grits suspects a program maxxing out solitary confinement under the Morales v. Turman settlement still wouldn't satisfy revanchist critics within the agency who're driving this recommendation. They want to use solitary as punishment, not behavior management, and likely wouldn't be satisfied if, "When the inmate is sufficiently under control, he or she shall be released."

IMO expanded STAFFING of youth prisons, along with shifting away from larger facilities altogether, as the Governor's blue-ribbon panel recommended, would do more to reduce both current problems and future crime than expanded solitary confinement. But legislators wanted to reform TYC while cutting costs and eschewed such suggestions, so here we are. Larger youth prisons that were failing five years ago are still failing for the same reasons. Like I said, we've already seen this movie: It's over-hyped, has too much violence, a crappy ending, and it goes on way too long.

RELATED: Violence at youth prisons blamed on lax discipline, structural problems ignored.