Tuesday, October 14, 2014

Life in a Box: The Plight of American Youth Growing Up in Solitary Confinement

Imagine being locked behind a steel door in a room so small you can barely stretch your arms out all the way.  All of your meals come in through a narrow slot in the door.  On the left side of your tiny cell is a rusted metal bed with a thin, rubber-foam mattress that is spotted with mold. Graffiti is scrawled all over the dirty walls.  To your right is a stainless steel toilet-sink combination.  The room smells of urine, sweat, and drool. In the cell next to you, you can hear someone screaming.  You are caged in this six-by-eight foot concrete box for twenty-three hours a day.  The days blend into each other.  You cry and scream and yell.

The only thing left to do is go crazy.

For the thousands of teenagers living in solitary confinement in juvenile facilities and adult jails and prisons across the United States, this is too often the sad reality of life.  Many young people are forced to live in isolation for days, weeks and at times even months.

Solitary confinement, which is also often referred to as “isolation” or “segregation,” is the practice of physically and socially isolating individuals for twenty-two to twenty-four hours per day and “severely limiting human contact and environmental stimulation of any kind” for one or more days.  While housed in solitary confinement, adolescents are often deprived of things such as health and educational services, adequate exercise and programming that is crucial to their growth and development.

Because states are not required to report data on the number of juveniles who are subjected to solitary confinement, it is impossible to estimate exactly how many individuals under the age of eighteen are housed under such conditions.  However, available data suggests that the practice is quite pervasive.  According to the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency, more than thirty-five percent of the 100,000 youth living in U.S. juvenile detention centers have been “locked up or confined to their rooms with no contact with other residents” and more than fifty-five percent of those youth (over 17,000 adolescents) have been held in isolation for more than twenty-four hours.  A 2010 Department of Justice survey of nearly 4,000 juvenile facilities found that twenty-one percent of the surveyed juvenile detention centers used varying degrees of solitary confinement on their residents.

Outside of the juvenile correctional system, more than 95,000 teenagers are held in adult jails and prisons across the United States.  The New York City Department of Corrections, one of the largest corrections systems in the country, reported that approximately 14.4 percent of their incarcerated youth between the ages of sixteen and eighteen are placed in solitary confinement. Similarly, Pennsylvania, one of the states with the largest populations of youth being held in adult prisons, reported that ten percent of the young people in their system were held in solitary confinement of some kind.

Solitary confinement can have serious psychological, emotional, and developmental effects on adolescents.  Living in isolation is stressful and uncomfortable and because adolescents have fewer psychological coping mechanisms than adults to deal with discomfort, stress and anxiety, the effects can be especially damaging.  Placing youth in isolation can exacerbate and even cause mental health problems in teenagers.  According to Dr. Bruce Perry, a child psychologist and senior fellow at the Child Trauma Academy in Houston, Texas, the experience of isolation in children can have profound effects on the brain:

Almost all of [the teenagers locked in solitary confinement] start to retreat into their inner world because there’s nowhere else to get stimulation. Some of these kids, without any external relational anchors, start to go crazy….The brain is so used to a variety of sensory input that in the absence of that, over time, they start to hallucinate and get paranoid. You can literally make people crazy by keeping them in solitary.

It is not uncommon for youth living in solitary confinement to experience depression, anxiety, auditory and visual hallucinations, shifting sleep patterns, nightmares, and uncontrollable feelings of anger and rage.  Many, particularly those with existing mental health issues, are completely unable to cope with the sense of isolation and abandonment that they feel and often turn to methods of self-harm such as cutting and at times even suicide.  According to the Department of Justice, fifty percent of suicides amongst detained teenagers occur when they are held in isolation and sixty percent of the children who commit suicide in detention have a history of being locked up in solitary confinement.  Ironically, one of the stated purposes of solitary confinement is to protect inmates from this exact type of behavior.

A high percentage of the youth entering the adult criminal justice system have existing mental illnesses.  For example, in 2012 the New York City Department of Corrections reported that forty-eight percent of the youth entering their system had a “diagnosed mental disability.”  As the number of operational public mental health facilities in the country continues to drop, jails and prisons are “becoming America’s de facto mental health institutions.”  However, correctional staff is often not properly trained to recognize or deal with mental health problems and therefore detained youth are often denied access to the types of services they need to manage their illnesses.

In the international community, the use of solitary confinement on young people is considered torture.  The practice is a violation of international law and falls under the definition of cruel, inhuman and degrading treatment.  Juan Mendez, the United Nation’s Special Rapporteur on Torture, is one of the many prominent figures in the international human rights community who have spoken out against the use of solitary confinement on young people:

The Convention on the Rights of the Child (“CRC”) specifically says that solitary confinement for young offenders is prohibited as a matter of international law. And it’s not capricious. It’s because the medical and the psychiatric literature demonstrates that young offenders suffer isolation in very different and much worse forms than adults… For juveniles, it should never be used. For people with mental disabilities, for women who are pregnant or feeding children. And even for people who are completely healthy, it shouldn’t be either prolonged or indefinite...” 

The CRC is the most widely ratified human rights treaty in history; however, the United States, Somalia, and South Sudan are the only three countries in the world yet to ratify it.

This September, after months of intense media and governmental scrutiny, Riker’s Island Correctional Facility, the second largest jail in the United States, announced that it will end its use of solitary confinement on juveniles.  In a detailed report about Rikers Island prepared for the New York City Board of Correction, Dr. James Gillian and Dr. Bandy Lee wrote that the use of prolonged solitary confinement “can only be seen by both inmates and staff as one of the most severe forms of punishment that can be inflicted on human beings short of killing them… [and] should not be imposed upon any inmates in the jail.”  Many are hopeful that as the government continues to investigate the use of solitary confinement for incarcerated juveniles in the United States corrections system, there will be a larger push to finally end this practice nationwide.

Ife Afolayan

Senior Editor, Criminal Law Practitioner

Friday, October 10, 2014

Officer Safety: A Detriment to Society?

In today’s society, there seems to be an emerging trend of distrust related to police officers, where the public often feels that the police overstep their bounds and exercise poor judgment. I think most people would agree that there is inherent danger in the practice of police work, and that as a matter of public policy we want our officers to be safe. However, the question that keeps presenting itself in the news is: are the current laws we have protecting officer safety actually causing harm to citizens?

Laws related to officer safety have been in place for decades. In the 1977 case Pennsylvania v. Mimms, the Supreme Court held that police have the automatic right under Terry to order a driver out of the car during the course of a legal stop. (In Maryland v. Wilson (1997), the Court extended Mimms to give police power to order passengers out of the car during traffic-related stops). The State's proffered justification for such order—the officer's safety—is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety.” However, the Court was not unanimous in this decision. Justice Stevens vehemently dissented stating, “Some citizens will be subjected to this minor indignity while others -- perhaps those with more expensive cars, or different bumper stickers, or different-colored skin -- may escape it entirely.”

Justice Stevens’ concerns may have been realized in a recent incident in Hammond, Indiana, which has once again brought this issue to the forefront. An Indiana family is suing the Hammond Police Department for use of excessive force, false arrest and imprisonment, assault and battery, and intentional infliction of emotional distress. This came after an incident where Lisa Mahone, who was driving with her friend, Jamal Jones, and her two children ages 14 and 7, was pulled over for a seatbelt violation. Mahone and Jones were both cited for not wearing their seatbelts. They were asked for their driver’s licenses. Mahone gave the officer her license and had no further issues, but Jones had recently turned over his license to the police in an unrelated event. Because he did not have his license he tried to find other identification. The police officers, which supposedly were frightened when Jones reached in the backseat for his backpack that contained identification, asked him to step out of the car. He refused to do so saying that he was not the operator of the vehicle. The passengers of the car stated that they were afraid because of incidents they were aware of where officers mistreated people. The police called for backup and repeatedly asked Jones to get out of the car. He would not get out, and only cracked the window enough to hand the officers a paper containing his identification. After about thirteen minutes of this dispute, the officers used an ax to break the window and used a taser to get Jones out of the car. The glass reportedly flew and hit the children who were in the backseat. The 14 year-old boy filmed the event. You can hear the children and Mahone screaming and crying after Jones is removed from the car.

The Hammond Police Department and and the Mayor of Hammond have both issued statements supporting the officers at the scene. In his statement Mayor McDermott said, “Northwest Indiana recently had two Police Officers killed in the line of duty. That is something I never want to see happen in Hammond as long as I am the Mayor, and I will legally do all I can, as Mayor, to help protect officer safety.” The Hammond Police Department statement said, “The Hammond Police officers were at all times acting in the interest of officer safety and in accordance with Indiana law.” This statement is likely to be proved correct by the courts. In a recent panel analyzing the events in Hammond, CNN enforcement analyst Tom Fuentes said, "when drivers get pulled over, whether they agree with the reason for the stop or they don't, you must comply with lawful requests of the police." However, he also said, “Just because the police could do it, doesn't mean they should. My question here is the judgment that they used smashing that window with the kid in the car and four passengers in that car if there could have been another way to get around that.”

Until this issue is addressed by the legislature or a change in precedent law, we are likely to continue to see litigation concerning people fighting for rights which they do not have, but believe they should. As the law stands right now, people such as Jamal Jones likely have no recourse.

Kathryn Kimball

Blog Editor, Criminal Law Practitioner

Photo by Jay Kleeman via Flickr

Tuesday, October 7, 2014

Digital Service of Process: Turning to Social Media

Technology has historically outpaced the law. The prevalence of social media throughout society indicates an inherent ability to transition methods of Service of Process in the near future. Given social media’s rapid technological advances in other fields, perhaps it will find its place within the framework of the legal system. There are already precedents being set.

After defendant Gökhan Örün, who is allegedly located in Turkey could not be located and served personally or by letter, the plaintiff, WhosHere, offered to serve process on Örün by email and through the social networking sites, Facebook and LinkedIn. On February 20th, 2014, U.S. Magistrate Judge Thomas Rawles Jones, Jr. (Eastern District of Virginia) authorized a first-ever Service of Process by social media. Judge Jones held that, since Turkey “has not specifically objected to service by email or social media networking sites which are not explicitly listed as means of service,” under Federal Rules of Civil Procedure 4(f)(3) email, Facebook, and LinkedIn were reasonable methods of delivering the summons and complaint.

More recently, a Staten Island man Noel Biscocho used Facebook to electronically serve his ex-wife Anna Maria Antigua legal notice that he intended to modify his child support obligations. After his son turned 21, Biscocho filed an action “to cancel his court-ordered $440-a-month child support.” According to a July 6th affidavit, Antigua had moved out of her home and left no forwarding address. Attempts to contact the couple’s children regarding her whereabouts proved fruitless, as neither his son nor daughter, 22, responded to his messages.

But, Antigua “maintains an active social media account with Facebook” and “as recently as July” had even “liked” several photos posted by Biscocho’s second wife. Staten Island Support Magistrate Gregory Gliedman ruled that the traditional methods for service of process – such as delivery to Antigua personally, or to someone at her home or business, and mailing her a copy – were “impracticable” given her unknown location. “However, despite the absence of a physical address, [Biscocho] does have a means by which he can contact [Antigua] . . . namely the existence of a social media account,” he contended.

Since traditional methods had failed, the Family Court reasoned that social media provided the best chance of Antigua receiving actual notice of these proceedings and as a last resort “[Antigua] can receive communications via social media, whereas her actual physical whereabouts are uncertain.”

Although the courts in both cases eventually found that the plaintiff’s best chance for serving notice rested in social media, there was first an effort to uphold the traditional methods for service of process. Only after these methods had failed, due to the whereabouts of the respective defendants being unknown, did the judge allow the use of social media. Furthermore, it was not enough that these defendants merely had Facebook accounts. Rather, what really made this method a viable option was the evidence that the defendants maintained active profiles and therefore were more likely to check and see the summons and complaints.

While these cases relate to civil matters, they are applicable to criminal cases as well, because any person authorized to serve a summons in a federal civil action may serve a criminal summons. There is an integral reliability when sending a summons via Facebook. According to Facebook“messages are marked as seen when the person you sent them to is actively chatting or checking their messages,” which acts similarly to an email with a Request Read Receipt. Therefore, the court will always receive proof that the active user in fact received his or her summons while on Facebook.

Similarly, the broad appeal of social media makes it a useful tool already being utilized by police departments. New York State Police launched a program called "Warrant Wednesday," where police post wanted photos in an effort to use Twitter and Facebook to catch suspects wanted in connection with crimes and to bring them to justice. Each of the ten fugitives featured has a felony warrant out for their arrest, and a corresponding local police number to call. 

If social media were to be authorized as a primary form of Service of Process it would allow police departments and various courts to offer warrants or summons directly to the suspect or defendant. However, concerns over privacy and reliability suggest the method would not be without setbacks. Nonetheless, social media already offers plaintiffs, criminal attorneys, and judges an expedited secondary means through which to serve notice.

Michael Coburn

Staffer, Criminal Law Practitioner

Photo by Jason Howie via Flickr