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Washington’s Largest County Bans Solitary Confinement For Kids in Adult Jails

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Washington’s Largest County Bans Solitary Confinement For Kids in Adult Jails

Last week, councilmembers in Washington State’s largest county unanimously passed a bill that eliminates solitary confinement for youth detained in adult correctional facilities. In doing so, they joined a growing group of lawmakers across the country taking a stance against a practice that has disastrous effects on kids and teenagers tangled up in the criminal justice system.

The bill was introduced in the King County Council in November. It defines solitary confinement as “the placement of an incarcerated person in a locked room or cell alone with minimal or no contact with persons other than guards, correctional facility staff, and attorneys.” With the vote, juveniles in the county’s two adult facilities — located in Seattle and Kent — cannot be segregated unless there’s a safety concern that cannot be solved using a less repressive measure. Solitary can no longer be used as a form of punishment. The legislation’s sponsors cited the American Academy of Child and Adolescent Psychiatry, the Department of Justice, and the United Nations, all of which have reported that isolation impacts brain development and exacerbates mental health disorders. Isolation can lead to depression, anxiety, paranoia, and suicide, the bill states.

The bill also ensures that youth in the adult facilities receive educational programming in accordance with state school standards. Solitary confinement essentially prevents youth from participating in these types of programs.

Solitary confinement was already banned in King County’s juvenile detention center.

Neuroscientistsjuvenile justice advocates, and Supreme Court justices agree that young people shouldn’t be treated the same way as adult offenders. But Washington law stipulates that 16 and 17-year-olds must be prosecuted in the adult court system for specific crimes, including burglary, robbery, and murder. Prosecutors also have the power to request that a young person be moved from the juvenile system, which is supposed to be rehabilitative, to the more punitive adult one.

Youth who end up in King County’s adult facilities — 86 percent of whom were black in 2016 — are often thrown in solitary confinement for “protective custody” or disciplinary reasons. Many are detained pretrial, and therefore haven’t been found guilty of a crime. According to a federal class action lawsuit filed in October, some kids held at the King County Jail are housed in small, isolated, window-less cells for weeks or months on end with “no meaningful human interaction, little to no education or programming, no music or television, and very few reading materials.” They only receive “a few minutes of face-to-face instruction,” and their recreation excludes interaction with other people. Solitary confinement has been used to punish them for being too loud, talking back, or wearing the wrong clothes.

“It is my hope that this legislation marks a significant shift in the way we think about and administer justice, especially for minors, at King County,” said bill cosponsor Jeanne Kohl-Welles. “It is our responsibility to make sure all young people in detention have the access and opportunity they need to reach their full potential, such as educational programming required under state law.”

With their unanimous vote, councilmembers in King County joined the national movement to ban all solitary confinement for juveniles, whether they are detained in youth or adult facilities. The issue was thrust into the national spotlight in 2016, when former President Barack Obama banned the practice in federal adult prisons. But most kids are detained in facilities run by individual states, which have their own laws and policies to dictate where youth are detained and how they are treated.

According to Jennifer Lutz, a staff attorney for the Center for Children’s Law and Policy, it is extremely difficult to assess how many kids are in solitary nationwide. Jails, prisons, and youth detention centers use different terms to describe the practice, such as isolation and segregation, which makes it hard to collect and assess the most accurate numbers. What’s clear is that solitary confinement “has long been the default method of security and behavior control” for youth in the adult criminal system, Lutz told In Justice Today. Adult facilities are particularly ill-equipped and poorly trained to deal with young people’s unique behavioral, developmental, and mental health needs. They see solitary confinement as a solution to a perceived problem, Lutz says.

“It’s inhumane,” she added. “Young people need to be engaged.”

But juvenile justice advocates who want to eliminate solitary are notching key victories at the state and local level. This year, Connecticut and Washington, D.C passed legislation to severely limit when isolation can be used. Similar legislation was introduced in Virginia, New Mexico, and Nevada. Local facilities in Wisconsin, Tennessee, Nebraska have also been sued for the practice. In September, the American Correctional Association, which sets national standards and certifies youth and adult facilities, announced possible changes to restrictive housing for youth. Under its proposed policy guidelines, “separation” would no longer be a disciplinary or punitive option.

For now, King County is one of the jurisdictions leading the way.

“There is a growing national consensus that placing juveniles is solitary confinement is both unconstitutional and inhumane,” Vanessa Hernandez, the Youth Policy Director for the ACLU of Washington, said of the recent county vote. “The ordinance sends a strong message that this practice should not occur in King County Detention facilities, and we applaud the council for showing strong leadership to protect children.”

Civil Rights and the White Manel

Civil Rights and the White Manel

Memo to those who organize conferences, especially conferences on civil rights: your panels should include women and people of color. Bonus tip: when an invited panelist says that she can only participate in good conscience if the demography of the panel is adjusted, don’t disinvite herWe’re ready to flip the calendar to 2018; why are we still having this conversation? Diversity is too often invoked as an interest disembodied from policy, but there is a direct line between the diversity of legal discourse and the legal rules that such discourse produces. Yes, diversity is desirable for lots of moral reasons — diversity at the upper echelons of the legal profession remains a national embarrassment and, good god, the way academic panels get populated is straight out of the 1950s — but what gets lost is that diversity is also desirable because it produces good law.

It’s difficult to think of a better example of the relationship between diverse discourse and good policy than when talking about overzealous policing. Obviously — obviously — having a bunch of older white dudes monopolize the conversation suppresses the institutional response to the very outgroups whose communities experience the worst elements of modern policing. So, in 2017, after spending the last several years staring at an endless loop of footage documenting over-escalated police encounters involving people of color, those interested in “serious” policing discourse are attentive to diversity, right?

Apparently not. The Tenth Circuit just announced its annual Bench and Bar Conference, and the attendees include Justices Sotomayor and Gorsuch. The Conference will include a panel on qualified immunity. For those who are unfamiliar with the significance of qualified immunity, it’s the asteroid that destroys police accountability. Some high profile exceptions over the past few years notwithstanding, force escalation is rarely prosecuted as a crime, and it almost never produces a criminal conviction. Ordinarily, rules of civil liability work in tandem with criminal punishment to produce behavioral incentives, but qualified immunity means that police officers do not have to pay damages for force escalation (including killings) unless they acted “unreasonably” in light of “clearly established law.” And whereas those constructs could theoretically preserve space for damages-based incentives to do some work, the Rehnquist and Roberts Courts have defined those terms in ways that make it really hard for claimants to win. Qualified immunity, then, is really at the center of how law mediates relationships between law enforcement and the outgroup communities — particularly communities of color — that they police.

University of Denver law professor Nancy Leong (who is nonwhite) is one of the country’s leading experts in qualified immunity, and happens to live and work around the proverbial corner from the Conference. (The Conference is in Colorado Springs.) The Tenth Circuit Conference organizers invited Professor Leong, who noticed that she was the only panelist who wasn’t a white man. She responded: “Perhaps I am mistaken, and I am glad to be corrected, but I appear to be both the only woman and the only person of color on this panel. I’m not willing to appear on a panel so lacking in demographic diversity, given that it’s 2018. Particularly not on a topic related to civil rights. I hope those in charge will add some diversity to this panel. Otherwise, I respectfully ask to be replaced.” Firm, polite, and spot on. (Professor Leong’s response is part of a growing trend in which invited participants refuse to participate in nondiverse panels.) Much to her credit, Magistrate Judge Suzanne Mitchell seemed to recognize the urgent importance of panel diversity, particularly on this subject: “I very much understand your position. I will try to contact you next week. We would very much like to have you participate.” Several days later, however, Judge Mitchell, having consulted with the Conference organizers, conveyed to Professor Leong that the “best route is to find another speaker to replace you.” Even if Professor Leong were eventually to be replaced by a woman or a person of color — an outcome that is completely speculative at this point — seventy-five percent of a civil rights panel will still be white men.

People should not be concerned about Professor Leong, who does not need to be featured on this panel to cement her status in the field. It’s something else that everyone should find deeply troubling. (Well, several things, but I’m going to set aside what white “manels” say about how uncritically the keepers of professional privilege reproduce it.) Whether Judge Mitchell is expressing her own views — which I doubt in light of her first email — or whether she is expressing the preferences of other Conference members, the message is clear enough: having a panel with a suitable demographic makeup was just too inconvenient. But diversity is not some accommodation for women, people of color, and other outgroups; it’s necessary for the Conference to do its job. If it wants inform its audience about qualified immunity — to have an informed discussion about the use of force in policing — then don’t have a panel that consists entirely of people who can’t identify with over-policed communities. Its decision is like convening an all-white-man panel on the effects of affirmative action in higher education, or on sexual harassment in the workplace. It’s a #metoo conference in a men’s locker room.

This is how institutional discrimination happens. There is no reason to think that any individual decision-maker harbors any discriminatory animus towards the excluded groups. The Tenth Circuit, however, is staging an event to educate its bar membership about the use of force by police and appears not to be including a single black person; and when fielding a reasonable request for more diversity, it could not be bothered. At least as of now, conference attendees will be treated to a panel that is bleached of outgroup perspectives. Those perspectives, in turn, are necessary to critically evaluate incumbent assumptions about what sorts of police responses are “reasonable,” and the way accepted policing models are actually experienced in communities whose input has been historically marginalized. There is a direct line between decisions like that made by the Tenth Circuit Conference organizers and the practices of modern law enforcement institutions. In Denver, where the Tenth Circuit is headquartered, the city has paid out $14.5 million in the last three years just to settle lawsuits against the police — many of which involve people of color.

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Amid Opioid Crisis, Pennsylvania District Attorneys Advocate for War on Drugs

Pennsylvania Attorney General Josh Shapiro
Jessica Kourkounis / Getty

Amid Opioid Crisis, Pennsylvania District Attorneys Advocate for War on Drugs

Overdoses on fentanyl, an uber-potent synthetic opioid, are the main driver of the opioid crisis: deaths related to the drug more than doubled from 2015 to 2016, killing nearly 20,000 people, according to the Centers for Disease Control and Prevention.

Pennsylvania is a locus of the crisis. In 2016, fentanyl was present in over half of the overdoses in the state. And yet despite PR-savvy law enforcement messaging about a “public health response” to mitigate the toll, district attorneys there are doubling down on harsh, punitive drug laws. “The stronger we can be in our state sentencing, the better,” Pennsylvania’s Attorney General Josh Shapiro, a Democrat, recently said during a roundtable discussion on opioids. “Stiffer penalties for fentanyl would go a long way in helping us.”

The Pennsylvania District Attorneys Association supports Shapiro’s push for increasing sentences for fentanyl-related crimes. “An increase in the sentencing guidelines for #fentanyl will help prevent deaths,” the Pennsylvania DAs Association tweeted on December 11. “PA Sentencing Commission is considering changes.”

Many advocates, however, believe that increasing sentences for drug crimes will do little to reduce overdose deaths and prevent people struggling with addiction from seeking help in the first place. Addiction is a chronic medical condition, yet it is still being treated as a sin or a crime, say advocates who specialize in public health, criminal justice and addiction recovery.

“The [public health] rhetoric doesn’t match with the prosecutory practice,” Devin Reaves, a recovery advocate who studied social work at the University of Pennsylvania, told In Justice Today about the recent push for stiffer drug penalties. “In Pennsylvania, we need to embrace the ideals of harm reduction: How do we lessen the harm of an inherently racist War on Drugs?”

“Those are the questions prosecutors should be asking,” adds Reaves, “I am a huge of fan of Josh Shapiro, I just think he’s off on this one issue.”

Bill Stauffer, co-chair of the public policy committee at Faces & Voices of Recovery, who has been sober for 31 years, told In Justice Today that he’s worried about mandatory minimums being applied to people with addiction. “The legislation I’ve looked at emphasizes going after high level distributors,” he said. “But that’s generally not what happens. We’re quite concerned about going down this road again — we don’t want to reinvigorate the prison system.” Stauffer, who lives in Allentown, Pennsylvania, hopes to see his state expand access to treatment, not punishment.

new report by the Vera Institute of Justice, an independent nonprofit research and policy organization, shares Reaves’ and Stauffer’s concerns. “Increased enforcement and severity of punishment has not reduced illicit drug use or associated crime,” the report concludes. “It has, however, led to more incarceration and exacerbated racial disparities in the criminal justice system, with particularly devastating impacts on black communities.”

“Fentanyl is clearly a huge problem, so we need to focus on the extent to which its driving overdoses,” Jim Parsons, research director at Vera and an author on the new report, told In Justice Today. “All the evidence shows that a harm reduction approach is the most effective way to respond to health consequences. The problem with a punitive response is it means people are less likely to contact authorities when someone is experiencing an overdose or other health crisis.”

Law enforcement officials are often quoted in news media saying, “We cannot arrest our way out of addiction” and that they don’t write the laws, but merely enforce them. Prosecutors in Pennsylvania, however, are choosing to prosecute overdoses as homicides and are advocating, without evidence, that stiffer drug penalties will help save lives and help their state ravaged by overdoses. Since 2013, nearly half of all homicide cases in Cumberland County have been for “drug delivery resulting in death.” Yet the overdose death rate continues its steep rise.

“For the past 30 years we’ve had this tough on crime approach,” says Reaves. “And it has not only not worked, but has made things worse.”

Thanks to Burke Butler.

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