Issues Arising in Institutional Litigation, part 7 of 8: Restraints

Restraints

Mechanical Restraints

Facilities vary in their use of mechanical restraints. Most juvenile facilities use handcuffs, but the use of four-point restraints or straitjackets is rare. In some facilities, a high incidence of restraint incidents results from inadequate staff training and overcrowding. In others, restraints are used to control mentally ill children or adult inmates or as a punitive measure for troublesome youth.

Freedom from bodily restraint is a protected liberty under Youngberg v. Romeo. Thus, in Garrett v. Rader, the mother of a retarded adult who died in restraints was entitled to bring an action claiming failure to properly hire and train staff and failure to correct conditions that had caused past abuse. One court has prohibited the restraint of children to a fixed object (see Pena v. New York State Division for Youth). The use of restraints as corporal punishment is unconstitutional under H.C. v. Hewett by Jarrard and Stewart v. Rhodes. Moreover, the use of restraints as a retaliatory device against inmates who displease correctional officers may violate the constitution (see Davidson v. Flynn).

Other courts dealing with the use of mechanical restraints have found that due process is violated unless recommended by a health professional (see Wells v. Franzen and O’Donnell v. Thomas on permitting restraint of a suicidal inmate and Jones v. Thompson on finding that use of three-way restraints on a suicidal inmate for a week, coupled with a failure to provide medical treatment or review and the absence of personal hygiene amenities, was unconstitutional). The U.S. Supreme Court permits the use of antipsychotic drugs as a form of medical restraint only where there is substantial due process protection for the inmate (see Washington v. Harper and Riggins v. Nevada).

There is some authority that restraints may be used for a limited period to prevent self-injury by a minor under Milonas v. Williams and Gary W. v. State of Louisiana. Such courts have also held that restraints may not be used for longer than 30 minutes without authorization from qualified professionals or institutional administrators (see Gary W. v. State of Louisiana and Pena v. New York Division for Youth).

Chemical Restraints

A few juvenile institutions have begun to use tear gas or pepper spray to restrain children. Although pepper spray alone may not cause death, it may pose serious danger for inmates who suffer from certain health conditions.

Although the use of chemical restraints has seldom been litigated in juvenile cases, at least two cases have found that the use of tear gas and mace on children who were troublesome, uncooperative, or unresponsive to staff violated the constitution (see Morales v. Turman, and State of West Virginia v. Werner). Similarly, Alexander S. v. Boyd found it improper to use tear gas on children to enforce orders.

Isolation

Most institutions use isolation for out-of-control individuals or as punishment for breaking rules. Even though isolation is commonly imposed as a sanction in juvenile institutions, some courts have found that children may be placed in isolation only when they pose immediate threats to themselves or others, that they must be monitored closely, and that they must be

released as soon as they have regained control of themselves.

Adult institutional case law on the use of isolation as punishment focuses on arbitrary placement in isolation, the length of time imposed, and conditions in the isolation room (see Harris v. Maloughney, McCray v. Burrell, and Lareau v. MacDougall). The cases, demanding that persons in isolation be afforded humane physical conditions and access to basic necessities such as showers and exercise, also apply to children. Children in isolation should be given books, writing materials, and articles of personal hygiene. What may be acceptable as punishment for adults may be unacceptable for children. Children have a very different perception of time (5 minutes may seem like an eternity), and their capacity to cope with sensory deprivation is limited. Thus, in Lollis v. New York State Department of Social Services, a 14-year-old status offender who got into a fight with another girl was placed in isolation in a 6- by 9-foot room for 24 hours a day, for 2 weeks. The court found this isolation to be unconstitutional.

Corporal Punishment

The wanton infliction of pain on prisoners violates the eighth amendment under Weems v. United States and Jackson v. Bishop. The use of excessive force by police or custodial officials violates the 14th amendment under Hewitt v. City of Truth or Consequences and Meade v. Gibbs. Torturing inmates to coerce information from them is also improper (see Cohen v. Coahoma County, Mississippi). Similarly, depriving an inmate of adequate food is a form of corporal punishment (see Cooper v. Sheriff,

Lubbock, Texas).

Due process

A huge body of law governs disciplinary due process in adult institutional cases, mostly in relation to administrative segregation or disciplinary transfers. The leading case, Wolff v. McDonnell, holds that inmates are entitled to these protections whenever “major” discipline is to be imposed (see Baxter v. Palmigiano). There must be evidence to support the finding of the disciplinary board.

During disciplinary proceedings, inmates are entitled to advance written notice of the charges against them, an opportunity to call witnesses and present evidence in their defense where permitting them to do so would not be unduly hazardous to institutional safety or correctional goals, an impartial decisionmaker, a written decision describing the evidence relied upon and the reasons for any disciplinary action taken, and a procedure for appealing the decision (see Hewitt v. Helm, Punte v. Real, and Sandin v. Conner).

Grievance procedures

Grievance procedures are important to children because they provide a means of addressing perceived injustices, and they thereby assist the rehabilitative process. They are also important to institutional administrators, since they provide information about abuses that

may be occurring. In cases involving adults, it is clear that the constitutional right to seek redress of grievances is violated if there is any retaliation against the prisoner for filing a grievance (see Dixon v. Brown). Similarly, grievance procedures may not place unreasonable restrictions on the language that may be used in presenting the inmate’s complaint under

Bradley v. Brown.

Constitutional law specific to grievance procedures for children is limited, but many cases have approved various forms of grievance procedures. The basic elements of adequate procedures are notice to the children of the availability, purpose, and scope of the procedure; a clear and simple procedure for the child to present a grievance to staff; prompt investigation of the grievance; an opportunity for the child to present the grievance to an impartial panel; notice to the child of the panel’s decision; appropriate disciplinary sanctions to staff if the grievance is found justified; and written records of the procedure and final action.