The Solitary Confinement Case-The Real Story

The Kids of Rutherford County podcast tells a story where a young, idealistic, ball of fire lawyer jumpstarts a huge class action lawsuit after his client is ordered into solitary confinement and the lawyer learns that this is routine practice. In the podcast, the young lawyer calls me, and together we initiate a class action lawsuit, obtain limited initial relief and “within a year” solitary confinement of juveniles in Tennessee is outlawed. That’s not how it happened.

The podcast leaves out a lot. First, the young lawyer had no intention of starting a class action or any other kind of lawsuit. Second, the case is described almost as if it was quick and easy, such that any clever young lawyer can easily do this if they have pluck, brains and courage. Third, the podcasts suggests that we cured the problem “within a year” when in fact the case lasted several years and solitary confinement still happens to some degree in Tennessee.

The truth is far more complicated and important than what the podcast describes. The case took years, seemed doomed and required dogged persistence to see through the finish line. It also did not completely solve the problem.

Wesley Clark was indeed incensed, just as described in the podcast, when Judge Donna Scott Davenport ordered his client into indefinite solitary confinement. However, when he called me, he did so to vent as we so often did about the myriad injustices we saw in Rutherford County. I was no longer actively practicing in the juvenile court because I was seeking larger, game changing cases (as described in another article). This presented that opportunity. I almost immediately suggested that the practice could be declared unconstitutional as cruel and unusual punishment. The podcast does credit me with talking a lot about the constitution, but then never mentions again how that played a role in this case. I also had drafted a different class action complaint against DCS that I never filed because I met with the Department’s Commissioner who agreed with me and voluntarily stopped the practice. In short, Wesley was indeed very angry, but he was not the origin of the class action case.

In the span of a weekend I drafted every word of the Class Action Complaint and the related documents necessary to get our client out of solitary and initiate relief for all the other kids we believed were affected. This required extensive research into the law and science related to solitary confinement, including international law. The following Monday morning we set the bomb off, but only after Wesley expressed his entirely reasonable skepticism about whether we should do it. As part of our filing, we demanded an immediate hearing to get our client out of solitary, but Wesley left the courthouse before that hearing, leaving me to handle the intimidating hearing on my own. Our client was released that day (after some apparent reluctance and anger by the juvenile court and detention center). We were ecstatic because this limited victory was the first chink in the armor of the juvenile court in Rutherford County. I wish we had thought to take pictures of their faces when I charged directly into the courtroom basically yelling “let him out now” while waving a paper copy of the federal court order wildly.

After gaining immediate relief for our client, we began preparation for a hearing to obtain a temporary injunction outlawing solitary confinement for juveniles throughout the County and State. We knew we lacked resources, but I had worked with the ACLU on other cases and the executive director was a personal friend, so I was able to get the ACLU to join in the case. The ACLU’s involvement brought immediate publicity to our cause, and added another very experienced attorney, Tom Castelli, to our team. Tom doesn’t get mentioned at all in the podcast. Over a period of just a few weeks, we conducted depositions and other discovery in an effort to convince the court to immediately prohibit all solitary confinement of juveniles, even before a full trial. Wesley took his first ever deposition in those weeks, but Tom Castelli took most of them. We conducted the injunction hearing, led by the experienced attorneys, but lost because the court decided our client had been released so our particular harm had been solved. Without an example of the practice currently occurring, the judge reasoned, we had no standing to seek relief for unknown and unnamed others. So we weren’t done.

We felt strongly about our case and continued to work it hard. In the first several months, Wesley was heavily involved and it was the center of our practice. However, within a few months it appeared we would lose the case because DCS changed its regulations to prohibit solitary confinement as punishment (government hates the phrase “solitary confinement” so DCS’s policy called it “seclusion”). By enacting regulations that prohibited the type of solitary confinement our case involved, it appeared that DCS could obtain dismissal of the entire case because the new rules rendered the issue moot. At that point, both the ACLU and Wesley pulled back on their efforts, thinking we had lost, and largely left the case for me to wrap up. I believe this is the “within a year” time period the podcast describes. But the case was far from over.

I requested and obtained thousands of pages of documents from the juvenile detention center, anything reasonably related to the solitary confinement of juveniles. I personally reviewed these thousands of pages and what I found was shocking for solitary confinement and also provided the foundation for a big chunk of the second class action we would file.

The hot documents I found showed that Rutherford County persisted and continued to punish scores of youth after DCS claimed to have outlawed it. Indeed, it was the ONLY method Rutherford County used to discipline or control youth for ANY rule violation, and there were lots of rules from small to large. Each rule violation brought longer periods of solitary confinement, up to and including the notorious “indefinite” confinement we saw with our named client (named is technical, because he was a minor so he was John Doe). If a kid touched the tv remote control, solitary confinement. If he didn’t make his bed, solitary confinement. If he cursed, solitary confinement. If he took a nap while in solitary confinement, his solitary time would be increased, all in increasing time periods. Of course, after being in solitary confinement, deemed torture for minors by the United Nations, a youth was much more likely to break a rule because he was out of his mind, so one trip to confinement begat another, longer trip which led to another. Moreover, the juvenile judge saw these events as good reason to extend detention. So the whole process was self-perpetuating.

These thousands of pages of documents also included the policies and procedures of the detention center. These policies clearly described the solitary confinement problem, but also included the rules related to decisions to keep kids in detention after they were arrested but before they were seen by a judge, something Rutherford County called "the Filter System.” These rules were illegal, in direct contravention of Tennessee law that dictates which kids the detention center could keep overnight. These policies formed the basis of the detention claims of our second class action lawsuit and provided most of the money the podcast will eventually describe the County paying to kids. In other words, without persistence in the solitary confinement case, we would never have had the basis to bring the largest part of the second class action this podcast is all about.

I never gave up on the solitary confinement case while both the young lawyer and seasoned ACLU veteran moved on in the face of what seemed certain defeat. I took the time to look at the evidence, then renewed the request for an injunction ending the practice by drafting a second motion and brief putting the evidence I had found in front of the judge. The motion was granted, but it was a preliminary injunction, so the case still was not over. The case ran on for a couple more years, not ending until the summer of 2019, more than three years after Wesley called me to rage about his client being placed into solitary confinement.

Personally, I am more proud of the solitary confinement case than I am about the case you’re going to hear more about in the podcast. It was more important because solitary confinement is actual torture, probably for anyone but definitely for kids. Moreover, even though it sounds like I’m tooting my own horn, I earned the right to do that because I kept going when everyone else gave up, including Wesley and the ACLU.

This reality didn’t strike the right chord with the “narrative framing” the New York Times decided was the best way to hook listeners, so it was wiped and “left on the cutting room floor.” The solitary confinement case wasn’t about money, so there are no millions of dollars to talk about. It also wasn’t really the story of the young lawyer toppling the system, although Wesley was an important instigator of the case. Teamwork was essential, especially in the beginning, but this story is really one of hard work and persistence. That’s not flashy.

I don’t know why the New York Times chose to describe the solitary confinement case like it was a bang bang deal that took less than a year. Almost no cases move that fast, just ask your neighbor who was in a car wreck. Maybe the New York Times thought describing it that way made Wesley, and to a lesser extent me, seem like lightening striking. But that’s not how the law or almost anything important works. Personally, I hope the real story is more inspiring than the podcast quick hit version. Dogged determination and persistence can change the world.

Perhaps most importantly, the podcast implies that Wesley and I conquered the whole problem in that amazing one year. We did not. To the extent the podcast implies the problem is gone, it misleads. Juvenile detention centers throughout Tennessee continue to employ solitary confinement. Mostly, they have simply dressed up the practice under other names, like “restrictions” or “protective custody.” DCS has privatized most of its Youth Development Centers (kid prison for those considered the worst offenders) and with that privatization hidden most of what goes on from the public eye. I don’t think anyone outside of the private kid prisons knows whether or to what extent they use solitary confinement. Even after the State and Rutherford County agreed to an injunction permanently stopping solitary confinement, I learned that The Middle Tennessee Detention Center routinely keeps kids in their cells for up to 23 hours a day, but the practice is excused because the facility does it to almost everyone, so it’s not considered a punishment. The podcast is reckless when it implies this problem is solved and I told them all of this. We did a good thing, and maybe moved the needle, but the problem is still with us.

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