What a difference a word makes.
A year ago, supporters of a bill to end solitary confinement in California’s juvenile detention facilities were lamenting the bill’s failure and gearing up for a new fight. At a press conference in San Francisco in early December, state Sen. Mark Leno, the Bay Area lawmaker who authored the failed bill, announced plans to re-introduce it in 2016.
To signal his frustration, he proposed calling it the “Stop Torture of Children Act.”
“We’re calling it what it is,” Leno told The Crime Report in an interview shortly after the press conference. “It’s an outrage that we’re still having this debate.”
Leno’s bill was the fourth attempt since 2012 to address the use of isolation in the state’s juvenile lock-ups. Like previous bills, it had faced strong opposition from California’s prison guards union, whose members work in state-run juvenile detention centers, and from the Chief Probation Officers of California (CPOC), whose members run county juvenile facilities. Both groups took issue with the bill’s use of the term “solitary confinement,” arguing that while there were times when youth needed to be separated from the general population, calling it “solitary confinement” sent the wrong message.
“It immediately evokes images of a person locked away in a dark, dank, brick cell deprived of light and fresh air like a prisoner of war in a foreign country,” CPOC argued in a 2014 publication.
But despite his public stance, behind the scenes, Leno continued a dialog with opponents, who, as CalMatters reported last February, were working on their own bill that would prohibit the use of solitary confinement while also making it clear that that’s not what their facilities practiced.
When Leno re-introduced the bill in March 2016, there was no adversarial title, just a bill number: SB 1124. Gone, too, was any reference to solitary confinement. Instead, SB 1124 used the term “room confinement.”
Aside from that, it wasn’t much different than its predecessor, which Leno had amended several times to address issues raised by opponents. Both bills sought to limit to four hours the amount of time a juvenile who poses a safety threat could be confined to a room and established guidelines for instances when a youth might need to be isolated for a longer period of time.
From Opponents to Allies
By replacing “solitary confinement” with “room confinement,” Leno turned opponents into allies. CPOC signed on as co-sponsors and the prison guards union changed its position to neutral. The bill faced no opposition and was signed into law by Gov. Jerry Brown on September 27.
The word change was “cosmetic,” said Jennifer Kim, director of programs at the Oakland-based Ella Baker Center for Human Rights, a sponsor of the bill.
“It doesn’t matter to us what it’s called,” Kim said. “It’s the practice that we’re trying to change.”
Leno said part of what convinced him to drop “solitary confinement” were visits he made to juvenile detention facilities in San Francisco and Sacramento counties in early 2016. He said he was impressed with how well-run they were. Probation officials in those two counties told him they took offense to him using “solitary confinement” because, to them, it suggested that “somewhere in their facility there was a dark, cold cruel cell,” Leno said.
“Some counties are having problems,” Leno told The Crime Report. “Others, like San Francisco and Sacramento, are doing a really fine job.”
Leno said he doesn’t regret using “solitary confinement” in his first bill.
“It was a conscious decision on our part to speak forthrightly about what we believe were abusive practices,” he said.
In California, rules governing juvenile detention facilities urge limited use of room confinement, but don’t mandate it. Several months before Leno’s first bill, an investigation by Youth Law Center revealed instances of suicidal kids being pepper-sprayed and confined to their rooms for up to five days in San Diego County.
And, in 2013, attorneys with Disability Rights California and Public Counsel sued Contra Costa County after reports of kids being isolated for up to three months. Los Angeles County has also been criticized for its increasing use of isolation in juvenile detention facilities, prompting the county’s board of supervisors to vote earlier this year to restrict its use.
Mary Butler, Napa County’s chief probation officer and CPOC’s vice president, said the language in Leno’s first bill “was something the [probation] chiefs really struggled with.”
‘We Want Them Going to School’
“Yes, we use room confinement,” Butler said. “But we very much support the idea that young people need to be in the population as much as possible…. We want them going to school, we want them going to programs.”
A key provision of the bill says that if a juvenile can’t safely be returned to the general population after four hours of room confinement, staff must work with the youth to address the issues that led to room confinement in the first place. This includes coming up with collaborative “goals and objectives” that will help the youth safely return to the general population.
Butler said this requirement will help staff prioritize troubled kids.
“This legislation pushes us even harder to not get to a place where you can be complacent and say, ‘We’ll get to them when we have time,’” she said.
Both Butler and Kim acknowledged that it took a while for each side to understand where the other was coming from.
“There was a lot of friction between advocates and folks opposed [to the bill],” Kim said, “but that led to us sitting down and coming up with a solution.
“It would have been nice if it had been a shorter path,” she added, “but I think there was a lot that was gained from struggling together.”
Kim said this is the first time the Ella Baker Center, which was founded 20 years ago to advocate for criminal-justice reform, has partnered with a law-enforcement entity on legislation.
Amy Fettig, who runs the ACLU’s national Stop Solitary campaign, said having California restrict the use of isolation in juvenile detention facilities is a milestone.
“There is no question that a large and important system such as California impacts our national standards and the field of juvenile justice,” she said.
She added that amid calls nationwide to improve conditions of confinement, there’s something to be learned from how both sides came together to craft legislation.
“The advocacy community and workers in corrections and juvenile justice are discovering that they have common goals,” she said. “But sometimes it’s difficult to see this when we use different language. Clearly, the parties in California were able to get beyond language and get down to solving problems together.”
The law won’t take effect until Jan. 1, 2018, to give counties time to train staff on new guidelines. But Leno believes most counties will have implemented it before then.
“Now that the bill has been signed, every county knows what their future will look like,” he said.
Kelly Davis is a 2015 John Jay/Langeloth Mental Health & Justice Reporting Fellow and a freelance reporter in San Diego who writes about the criminal justice system and vulnerable populations. She welcomes your comments.