By Abigail Q. Cooper
In the last year, the call to reform the practice of solitary confinement has come from all sides. Most of the attention has been on changes at the federal level, despite the fact that the vast majority of inmates in the United States are held at the local and state level. Additionally, the proposed reforms have centered around constitutional arguments that the use of solitary confinement is a violation of the Eighth Amendment. This Note argues that a constitutional ruling in this area is neither necessary nor sufficient to effect change. Solitary confinement is a problem beyond the reach of the Constitution. Rather, it is a byproduct of chronic underfunding, understaffing, and a pervasive culture within prisons that regards solitary confinement as a means of keeping correctional officers safe and maintaining order.
After carefully analyzing the recent settlement in Illinois, as well as a recent lawsuit in New York, this Note argues that reformers should shift their focus to the state level, and, specifically, to the office of the Attorney General. As defense counsel for the state, the Attorney General controls the course of these litigations — including the decision of if, and when, to settle. Yet, an Attorney General is also duty-bound to represent the interests of the People, even when defending the state and its officers in court. Thus, the state Attorney General must always keep an eye towards the plaintiffs — the juveniles themselves — and their interests during these lawsuits and settlement negotiations. Moreover, as the chief legal officer to the state, the Attorney General is uniquely positioned to bring together crucial stakeholders within the government and correctional facilities in order to negotiate a settlement agreement. By examining the filings and transcripts in the New York and Illinois lawsuits, which this Note does for the first time, it becomes clear how crucial state Attorneys General are to ending juvenile solitary confinement.