Across the nation, 2014 was a landmark year for solitary-confinement reform: Ten states adopted 14 measures curtailing the practice, in most cases by limiting its use among particularly vulnerable populations, such as the young and the mentally ill. Yesterday, a rule introduced by New York City Board of Corrections suggests that reform momentum continues. In a unanimous vote, the board banned solitary confinement for inmates 21 and under.
The notion that youth should be exempt from solitary is not a new one, and has made inroads in policy over more than a decade. In 1998, West Virginia became the first state to ban segregation of juveniles, though this early legislation was limited (it only banned confinement for more than 10 days) and toothless (it was barely enforced for over 10 years). Since then, bans on the solitary confinement of juveniles – whether as a result of legislation or litigation – have spread throughout the country, including to Alaska, Connecticut, Mississippi, Nevada, Oklahoma, Indiana, Ohio, and now New York.
These policies, however, have only applied to youth housed in juvenile facilities. What makes New York’s new rule a particular breakthrough is that it’s the first formal, binding ban on segregation for juveniles in adult jails and prisons – most notably in Rikers Island, which has come under scrutiny for rampant abuse. Last fall, the Correction Department took a step toward reform by proposing a ban on solitary confinement for all 16- and 17-year-old inmates, and Mayor de Blasio gave his stamp of approval at the end of the year.
As Ian Kysel, Georgetown law professor, notes, the action taken by the Board of Corrections is not only more comprehensive than the mayor’s prior injunction (because it covers all inmates under 21), it also has more sticking power: BOC policies can’t be overturned by future mayors.
But there are significant reasons to question how the reforms will work in practice. Taylor Pendergrass, a senior staff attorney at the NYCLU, who has worked on their federal lawsuit challenging New York state solitary practices, foresees two problems with implementation. The first is one that the Board of Corrections itself has identified: funding. In fact, the board literally underlined this contingency in their new regulations. The ban on solitary will only take effect, they wrote, “provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming.”
Even if funding is secured, a bigger challenge awaits: how to manage such a drastic policy overhaul in a place where, as one former corrections official told The New Yorker, staff has become “severely addicted to solitary confinement.” If this addiction is as deeply rooted as many claim (and Commissioner Joseph Ponte has himself identified a “culture of excessive solitary confinement”) the new policy could face stiff resistance. “The piece that’s complicated and harder to get a sense of,” Kysel says, “is how much buy-in there will be from officers who are putting them in practice.”
But more than getting corrections officers on board, the key, according to Pendergrass, will be “making sure that [guards] have tools other than sending [inmates] to solitary as a knee-jerk response. I think it’s certainly true that if you just take away solitary confinement and replace it with something else, there’s a high risk that the policy will never be properly implemented, or even if it is implemented, you will have a regression back to punitive responses.”
Solitary confinement, he says, has been used as a blunt instrument to respond to a wide array of problems, ranging from mental illness to substance abuse to adolescent defiance, and poses real dangers to those assigned to maintain order. Pendergrass says a long-term solution will require “fragmenting the approach”; tailoring responses to inmates who act out based on their underlying problems. That, of course, requires complicated – not to mention expensive – training. The BOC’s new rule seems to anticipate this approach. It specifies that all staff who monitor punitive segregation units will be provided with training that “shall include, but shall not be limited to, recognition and understanding of mental illness and distress, effective communication skills, and conflict de-escalation techniques.”
For their part, corrections officers’ spokesmen seem to be skeptical that these alternatives will offer sufficient protection for guards. Sidney Schwartzbaum, who heads the union for assistant deputy wardens, told The New York Times, “If we can’t secure them, violence is going to go on unabated. What do we do with a guy who slashes someone’s throat?”
Amanda Masters, the acting Executive Director of the Board of Corrections, insists there are a still “a great number of tools at [the Department’s] disposal to ensure safety.” They include “enhanced restraint units,” where inmates are kept shackled, and increased staffing and age-appropriate programming. These reforms may help keep officers safe. Whether they will keep them feeling safe, however, remains to be seen – and could determine the extent of cooperation from corrections staff.
Pendergrass raises the cautionary tale of Mississippi, where a ban on juvenile solitary confinement was widely lauded – but then never really took hold. The lesson, he says, is that “if you just say you’re going to shut down solitary confinement and don’t do the underlying work to create alternatives and bring staff along, it’s going to be a short-lived approach.”
In New York, the Board of Corrections has built extensive reporting requirements into the new rule, including updates every 60 days on who is being put in solitary and for how long.
But come January 2016, youth will no longer fall into this category, and it isn’t clear what data about their conditions will be monitored and reported. These numbers could be telling. Other forms of isolation, such as keeping inmates locked inside their general-population cells, could be implemented as a de facto form of segregation without violating the new ban. “A ban on solitary can't just mean substituting one form of isolation or human rights abuse for another,” Kysel says.
Monitoring assault rates – including both violence among inmates, and between inmates and guards – will also be important, Pendergrass says, since Rikers is such a notoriously violent place: “When you make these kinds of changes, you are going to have a horror story. Some kid who is under 21 who would have been in solitary is going to hurt someone or hurt himself...that incident in isolation might look like reforms are failing, but if we look at aggregate levels we might see violence decline in general. We need that background context to make sure the political will endures for the long haul.” And for inmates under 21, the strength of that will is especially important: As advocates are quick to point out, they have their whole adult lives – the longest haul of all – still ahead.
An earlier version of this article incorrectly identified Pendergrass as an attorney at the ACLU. He is an attorney at the NYCLU.