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Juveniles face solitary confinement, abuse in state custody, Justice Department finds

18-year-old being held at Richland adult detention center denied transfer back to DJJ (copy) (copy) (copy) (copy)

Federal officials found that conditions at the S.C. Department of Juvenile Justice's Broad River Road facility in Columbia violate the Constitution. File/Staff

You're in a cell. It's 8 feet long and 8 feet wide. The only furniture is a cement bed with a thin mattress. It's dark, with light coming only from a narrow slot in the metal door. The cell's only window is painted over, to prevent you from interacting with anyone outside.

You'll be there 23 hours a day.

For hundreds of youths at the state Department of Juvenile Justice's Broad River Road Complex in Columbia, solitary confinement is far too common, the U.S. Department of Justice said in a critical report released Wednesday saying the facility's conditions violate federal law. It found juveniles can be placed in solitary confinement for the most minor offenses — having playing cards, drawing on themselves with a pen or being outside of their assigned areas. 

Solitary can go on for weeks or months at a time, Justice Department officials determined. After more than two years of investigating the complex, Justice Department officials concluded that South Carolina has violated the 14th Amendment of the Constitution for not providing reasonable safety from harm for the youths in the department's care. Beyond solitary confinement, juveniles often face a barrage of physical and emotional abuse from each other and from the under-trained staff, a report said.

The 14th Amendment ensures the rights of due process and equal protection.

“Many of the issues discussed in the report are things that Director Pough has been working to address since becoming director of DJJ in 2017. From Director (Freddie) Pough’s regionalization initiative to his ongoing efforts in the recruitment and retention of officers, Governor McMaster has consistently proposed investing in important reforms and will continue to do so," Brian Symmes, spokesman for the Governor's Office, said. The report was addressed to Gov. Henry McMaster.

5 months in solitary

One young man who recently turned 18 has been in Department of Juvenile Justice custody for more than two years. He regularly cycles from the crisis management unit, for solitary confinement, to restrictive room confinement in the intensive treatment unit — which uses a similar cell in which he stays for 20 hours or so a day. That unit is meant for those returning to the general population. But for this young man, that transition never happens, his lawyer said.

Despite his history of mental health issues and disabilities, the Department of Mental Health has not accepted him into its care. Many psychiatric clinics will not take patients with a history of delinquent behavior, the lawyer said. 

The young man, whom The Post and Courier is not naming for his protection, has little human interaction and no socialization with his peers. At one point, he was in solitary confinement for five months straight.

"There's not much rehabilitation happening at all. It's more like a punitive warehouse," his attorney, Aleksandra Chauhan, said.

She said the federal agency's findings are a step in the right direction. "It sheds light on the issues DJJ has been denying exist," she said.

Reform won't be easy, however. While many at the state department are eager to make changes, the abuse has been institutionalized, according to Chauhan.

"Security trumps everything else at DJJ," she said.

In a written statement, Pough emphasized the measures he's advanced: enhanced mental health intervention policies, more services for aggressive juveniles in the Intensive Treatment Unit and finalizing "safe, calming space where kids can voluntarily go to get away from specific stressors and de-escalate themselves." 

He said he's also worked with the Legislature on juvenile justice system reform bills that tackle use of restraint and isolation and tried to increase salaries for officers.

"I’m grateful for the support from legislators as we continue honest, open dialogue spurred on by a shared goal to empower youth and heal communities," Pough said. 

But those reforms don't fully address what Pough called a "disservice": how seriously mentally ill juveniles are shuffled into DJJ, which "is not equipped to properly house and treat these young people."

"In the past, we've had little choice but to treat them in an isolated environment due to the safety and security risks they present to themselves and their peers," Pough said. "But frankly, they do not belong at DJJ."

100 teens held at complex

On average, more than 100 juveniles are housed in the Broad River Road Complex. Between July 2015 and December 2017, the average age was 16, but the youngest child admitted was 13, the Justice Department said. Most are nonviolent offenders, often in custody due to a probation violations or contempt of court charges. Many suffer from mental illnesses, but few are transferred to psychiatric facilities.

"They are sitting in jail when they should be in a clinic, but there's no room for them," said Susan Dunn, legal director of the American Civil Liberties Union of South Carolina. Since the system is designed for profit, there's no incentive to have extra beds, she said.

"A child who's at risk may not be identified until they do something that's criminal," Dunn said. 

Violence is a daily problem the youths face, the Justice Department found. The state agency told the Legislature that between July 2018 and July 2019, there were 134 fights and 71 assaults, resulting in 99 injuries. Fights and assaults occurred two out of every three days on average.

In many of these assaults, officers failed to protect the youth they were supervising, the Justice Department reported. One on occasion, video surveillance shows an officer watching a youth being assaulted three times, but he remained seated and did not move to restrain the attackers.

Staff decreased by nearly 30 percent from September 2017 to May 2019, federal investigators found. In that time, the population at Broad River Road Complex increased. The complex's staffers were "unfamiliar with basic safety procedures," according to a 2017 report from the General Assembly Legislative Audit Council.

In 2017, 232 youths were isolated at least once, with 225 days the longest single isolation recorded. According to Chauhan, the problem has only gotten worse. The Department of Juvenile Justice uses isolation to punish youth, federal investigators found, even for minor misbehavior in which the youth wasn't a threat to health or safety.

Being in a cell for 23 hours a day with little light, diversion or interaction led to deteriorating mental health in many of the juveniles, the federal investigators reported. At least three youths tried to hang themselves while in isolation. Afterward, they were not given psychiatric treatment and were put into a suicide resistant isolation cell. That cell had no sink, bathroom or bed. Youths were given blankets and had to sleep on the floor in a suicide smock, the Justice Department report said.

Investigators listed several remedial measures the state should implement. More video surveillance is necessary, they said. Staff needs more training and more staff is likely needed. Isolation should be eliminated for minor misbehavior, protective custody and mental health observation. And the state should explore other ways to avoid isolation. The Department of Mental Health needs to take youths who fall under their purview, the report said.

In a letter to McMaster, the Justice Department advised that after 49 days, the attorney general may file a lawsuit if the conditions have not been satisfactorily addressed.

Fixing a broken system

Efforts also are underway in the Legislature to fix the system. The S.C. Juvenile Justice Reform Act was introduced in the Senate by state Sen. Gerald Mallory, D-Darlington, in January and is in subcommittee.

"The bill is trying to be smart on juvenile crime so kids are only incarcerated when they need to be," said Josh Gupta-Kagan, a University of South Carolina law professor specializing in juvenile justice.

He said the state's system is overburdened by having custody of children who should rightfully be in psychiatric clinics for their mental health issues and disabilities. It's against the law for the DJJ to have custody of such youths, Gupta-Kagan said, but since the private clinics can reject them, there's no where else for them to go.

The bill advocates for a "Children's Bill of Rights" to provide youth with the right to "be treated with basic human dignity, to be provided necessary care, medical treatment, food, education, access to family, advocates, and lawyers, and to be free from abuse, neglect and harassment." 

It also provides for lesser sentences for juveniles, prohibiting solitary confinement, protecting youths with disabilities and many other changes to current law.

The bill "would allow for children to be treated as children," Chauhan said. 

Sara Coello contributed to this report.

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Reach Fleming Smith at 843-937-5591. Follow her on Twitter at @MFlemingSmith.

Fleming Smith covers crime and public safety for the Charleston area. A native Georgian, she previously covered breaking news and features for The Wall Street Journal and The Atlanta Journal-Constitution.

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