By Doug Vance, PhD, Advisory Council Chair
AUSTIN, Texas –
Introduction:
Effective June 1, 2016, the TJJD Advisory Council’s Standards Committee recommended significant and important philosophical, as well as practical, revisions to the use of seclusion in the Texas juvenile probation system that were adopted by the Texas Juvenile Justice Board. As such, I thought it might be of keen interest to readers if I provided my editorial of this very momentous event in the history of Texas juvenile justice.
Seclusion, the placement of a resident alone in an area from which egress is prevented, has long been a common and effective practice used in both juvenile and adult correctional facilities in order to help maintain essential levels of safety, security, and order. For many years, Texas juvenile detention centers have routinely utilized this practice.
Prior to June 1, 2016, disciplinary seclusion served a dual purpose: a teaching tool issued as a disciplinary consequence for major rule violations, and secondly, an effective means of providing safety and security in response to acts of violence, property damage, and escape. While this practice was generally effective, there was no easy way to distinguish on a state-wide scale between its dual purposes - discipline and safety - often times resulting in a skewed analysis and potential misinterpretation of raw aggregate data.
Of additional concern, several constitutional safeguards pertaining specifically to the use of seclusion, while in practice, were not adequately transparent within the text of Chapter 343 of Title 37 of the Texas Administrative Code – Standards for Secure Juvenile Correctional Facilities, which govern the use of seclusion.
In response to these concerns, in 2014, the Standards Committee conducted an in-depth analysis and review of TAC 343 with special attention to disciplinary seclusion. What resulted was a revolutionary change in the philosophy and use of seclusion in Texas juvenile justice.
Reasons for Review:
Over the previous decade, litigation from across the county began to emerge challenging what some courts viewed as the improper use of seclusion in certain juvenile correctional facilities located in various jurisdictions across the country as diverse as Ohio, Louisiana, and California. In many of these cases, courts were citing concerns with a failure to provide adequate constitutional protections while in seclusion.
Additionally, new and very pertinent scholarly research was emerging suggesting a link between excessive isolation and mental illness in children, thereby indicating the potential for psychological harm to occur in seriously mentally ill children who are exposed to extensively long periods of time in an isolated or secluded setting.
Thirdly, SB 1517 introduced in the 83rd Texas Legislature called for drastic restrictions on the use of seclusion in juvenile detention centers that in the view of many juvenile justice practitioners would have had a detrimental impact on the ability to protect children and to maintain, safety, security, and order. While the bill did not pass, the Standards Committee deemed it prudent to address concerns behind the bill.
Finally, the Standards Committee desired to develop a nationally recognized, best-practice model for the use of seclusion within juvenile correctional facilities that protected children, and at the same time, provided the means necessary to control for inappropriate and or dangerous behaviors. I believe that the work of the committee moved Texas juvenile system closer to that model.
Clarification:
To better distinguish between the two purposes of seclusion, discipline and safety, the Standards Committee created a second type of seclusion entitled “safety-based seclusion.” Safety-based seclusion was designed to be utilized, not as a disciplinary consequence, but solely as a means of providing immediate safety and security in significantly dangerous circumstances.
The creation of safety-based seclusion allowed the committee the flexibility necessary to then be able to restructure disciplinary seclusion, limiting its use, and specifying that it now solely be used as a disciplinary consequence in response to only the most serious of major rule violations – ones that threaten safety, security, persons, or property.
Project Goals:
Develop a national best-practice model for use of seclusion that:
Provision of Constitutional Protections:
The Standards Committee was very concerned with ensuring civil rights were properly addressed within our revisions and as such introduced language that prohibited the denial of pertinent constitutional protections as a disciplinary consequence while a child is in disciplinary seclusion. These protections included, among others, the right to visitation, correspondence, exercise, educational programming, and religious services, thereby ensuring children the ability to exercise use of their civil rights, even while in disciplinary seclusion.
The Standards Committee also felt it important to properly address due process with the use of disciplinary seclusion by mandating that disciplinary seclusion be imposed only for a major rule violation that threatens persons, property, safety, or security and that is proved prior to its use, in a formal disciplinary hearing. This was quite a significant change, as the long standing practice had been that a formal disciplinary hearing was not required to be held until 24 hours after disciplinary seclusion was already imposed.
Due process was beefed up even more by requiring the disciplinary review process be held by one or more neutral and impartial persons; all evidence be disclosed to the child; the child be provided the opportunity to be heard in person and to present relevant witnesses; a translator be provided for the child when appropriate; and the entire process was provided an avenue for appeal.
Protection for Mentally Ill Children:
The Standards Committee also felt it essential to provide adequate safeguards into the use of seclusion for children suffering from serious mental illness. Therefore, the revisions contained language that disallowed the use of disciplinary seclusion for any child with a known serious mental illness or intellectual disability. Furthermore, language was added requiring that a mental health care provider be consulted prior to disciplinary seclusion being imposed on any child who is suicidal.
Protection Against Excessive Use:
Finally, to protect against excessive time being spent in seclusion, the Standards Committee limited the total time a child may stay in disciplinary seclusion to a maximum of only 48 hours. This was a very significant change, as prior to this, there was no limitation imposed on length of time that a child could spend in disciplinary seclusion, which left open the door to the potential for misuse.
Closing:
While the use of seclusion in Texas juvenile probation had for years been considered safe and effective, by 2014, it was time for a thorough examination and honest appraisal of its use and effectiveness. The Standards Committee did just that. After several months of extensive review and healthy debate, the Standards Committee introduced specific safeguards and other protections into the use of seclusion, forever benefiting children and facilities, and forever helping to ensure that Texas juvenile detention centers humanely and effectively reflect the highest ideals of safety, security, order, and justice – the four cornerstones of facility management.
I want to close by recognizing the great men and women of the TJJD Advisory Council’s TAC 343 Standards Committee who gave so much of themselves and of their time and talent while working on this very important project. Without their untiring dedication, unwavering determination, keen sense of justice, and strong commitment to the betterment of Texas juvenile justice, this project would not have been possible.
Texas juvenile justice will be forever indebted to: Karol Davidson, Terri Dollar, Scott Friedman, Kavita Gupta, Ashley Kintzer, Steve Roman, Phil Hayes, Kaci Singer, James Williams, Monica Kelly, Ross Worley, Neil Eddins, Ron Lewis, Susan Humphrey, Carlos Gonzales, Ed Cockrell, Bruce Gusler, Jesse Murrilo, Leah Probst, Upendra Katrangadda, Tom Hough, Chet Thomas, and Committee Chair – Doug Vance.
AUSTIN, Texas –
Introduction:
Effective June 1, 2016, the TJJD Advisory Council’s Standards Committee recommended significant and important philosophical, as well as practical, revisions to the use of seclusion in the Texas juvenile probation system that were adopted by the Texas Juvenile Justice Board. As such, I thought it might be of keen interest to readers if I provided my editorial of this very momentous event in the history of Texas juvenile justice.
Seclusion, the placement of a resident alone in an area from which egress is prevented, has long been a common and effective practice used in both juvenile and adult correctional facilities in order to help maintain essential levels of safety, security, and order. For many years, Texas juvenile detention centers have routinely utilized this practice.
Prior to June 1, 2016, disciplinary seclusion served a dual purpose: a teaching tool issued as a disciplinary consequence for major rule violations, and secondly, an effective means of providing safety and security in response to acts of violence, property damage, and escape. While this practice was generally effective, there was no easy way to distinguish on a state-wide scale between its dual purposes - discipline and safety - often times resulting in a skewed analysis and potential misinterpretation of raw aggregate data.
Of additional concern, several constitutional safeguards pertaining specifically to the use of seclusion, while in practice, were not adequately transparent within the text of Chapter 343 of Title 37 of the Texas Administrative Code – Standards for Secure Juvenile Correctional Facilities, which govern the use of seclusion.
In response to these concerns, in 2014, the Standards Committee conducted an in-depth analysis and review of TAC 343 with special attention to disciplinary seclusion. What resulted was a revolutionary change in the philosophy and use of seclusion in Texas juvenile justice.
Reasons for Review:
Over the previous decade, litigation from across the county began to emerge challenging what some courts viewed as the improper use of seclusion in certain juvenile correctional facilities located in various jurisdictions across the country as diverse as Ohio, Louisiana, and California. In many of these cases, courts were citing concerns with a failure to provide adequate constitutional protections while in seclusion.
Additionally, new and very pertinent scholarly research was emerging suggesting a link between excessive isolation and mental illness in children, thereby indicating the potential for psychological harm to occur in seriously mentally ill children who are exposed to extensively long periods of time in an isolated or secluded setting.
Thirdly, SB 1517 introduced in the 83rd Texas Legislature called for drastic restrictions on the use of seclusion in juvenile detention centers that in the view of many juvenile justice practitioners would have had a detrimental impact on the ability to protect children and to maintain, safety, security, and order. While the bill did not pass, the Standards Committee deemed it prudent to address concerns behind the bill.
Finally, the Standards Committee desired to develop a nationally recognized, best-practice model for the use of seclusion within juvenile correctional facilities that protected children, and at the same time, provided the means necessary to control for inappropriate and or dangerous behaviors. I believe that the work of the committee moved Texas juvenile system closer to that model.
Clarification:
To better distinguish between the two purposes of seclusion, discipline and safety, the Standards Committee created a second type of seclusion entitled “safety-based seclusion.” Safety-based seclusion was designed to be utilized, not as a disciplinary consequence, but solely as a means of providing immediate safety and security in significantly dangerous circumstances.
The creation of safety-based seclusion allowed the committee the flexibility necessary to then be able to restructure disciplinary seclusion, limiting its use, and specifying that it now solely be used as a disciplinary consequence in response to only the most serious of major rule violations – ones that threaten safety, security, persons, or property.
Project Goals:
Develop a national best-practice model for use of seclusion that:
- Provides appropriate means to maintain safety, security, order, and protection from harm;
- Ensures the provision of constitutionally protected rights and other safeguards;
- Controls for inappropriate, and or excessive use; and
- Ensures for adequate protections for children with mental illness.
Provision of Constitutional Protections:
The Standards Committee was very concerned with ensuring civil rights were properly addressed within our revisions and as such introduced language that prohibited the denial of pertinent constitutional protections as a disciplinary consequence while a child is in disciplinary seclusion. These protections included, among others, the right to visitation, correspondence, exercise, educational programming, and religious services, thereby ensuring children the ability to exercise use of their civil rights, even while in disciplinary seclusion.
The Standards Committee also felt it important to properly address due process with the use of disciplinary seclusion by mandating that disciplinary seclusion be imposed only for a major rule violation that threatens persons, property, safety, or security and that is proved prior to its use, in a formal disciplinary hearing. This was quite a significant change, as the long standing practice had been that a formal disciplinary hearing was not required to be held until 24 hours after disciplinary seclusion was already imposed.
Due process was beefed up even more by requiring the disciplinary review process be held by one or more neutral and impartial persons; all evidence be disclosed to the child; the child be provided the opportunity to be heard in person and to present relevant witnesses; a translator be provided for the child when appropriate; and the entire process was provided an avenue for appeal.
Protection for Mentally Ill Children:
The Standards Committee also felt it essential to provide adequate safeguards into the use of seclusion for children suffering from serious mental illness. Therefore, the revisions contained language that disallowed the use of disciplinary seclusion for any child with a known serious mental illness or intellectual disability. Furthermore, language was added requiring that a mental health care provider be consulted prior to disciplinary seclusion being imposed on any child who is suicidal.
Protection Against Excessive Use:
Finally, to protect against excessive time being spent in seclusion, the Standards Committee limited the total time a child may stay in disciplinary seclusion to a maximum of only 48 hours. This was a very significant change, as prior to this, there was no limitation imposed on length of time that a child could spend in disciplinary seclusion, which left open the door to the potential for misuse.
Closing:
While the use of seclusion in Texas juvenile probation had for years been considered safe and effective, by 2014, it was time for a thorough examination and honest appraisal of its use and effectiveness. The Standards Committee did just that. After several months of extensive review and healthy debate, the Standards Committee introduced specific safeguards and other protections into the use of seclusion, forever benefiting children and facilities, and forever helping to ensure that Texas juvenile detention centers humanely and effectively reflect the highest ideals of safety, security, order, and justice – the four cornerstones of facility management.
I want to close by recognizing the great men and women of the TJJD Advisory Council’s TAC 343 Standards Committee who gave so much of themselves and of their time and talent while working on this very important project. Without their untiring dedication, unwavering determination, keen sense of justice, and strong commitment to the betterment of Texas juvenile justice, this project would not have been possible.
Texas juvenile justice will be forever indebted to: Karol Davidson, Terri Dollar, Scott Friedman, Kavita Gupta, Ashley Kintzer, Steve Roman, Phil Hayes, Kaci Singer, James Williams, Monica Kelly, Ross Worley, Neil Eddins, Ron Lewis, Susan Humphrey, Carlos Gonzales, Ed Cockrell, Bruce Gusler, Jesse Murrilo, Leah Probst, Upendra Katrangadda, Tom Hough, Chet Thomas, and Committee Chair – Doug Vance.