Santana v. Collazo, 793 F.2d 41 (1st Cir. 1986)

COFFIN, Circuit Judge.

This appeal is another phase of a class action challenging the treatment of residents in two juvenile detention facilities in

Puerto Rico. Our decision in an earlier appeal, Santana v. Collazo, 714 F.2d 1172 (1st Cir.1983), resolved some issues but remanded for further development of the record, reflection, and decision the question of whether isolation as imposed on juveniles at the Mayaguez Industrial School satisfies constitutional standards.1 Because we are not, at this juncture, satisfied that the record has been sufficiently developed to allow the kind of review we contemplated, we are not yet in a position to approve or disapprove of the decision below, which found conditions at Mayaguez to be constitutional. To make clear our sense of inadequacy we rehearse the posture of this issue as we last left it, the scope and depth of the inquiry below, and the nature of our residual uncertainty.2

I.

Plaintiffs-appellants are a certified class of all present and future juveniles committed to the Mayaguez Industrial School in Mayaguez, Puerto Rico, or the Maricao Juvenile Camp in Maricao, Puerto Rico. The United States was added as a party when it filed a complaint in intervention reinforcing the claims of the main plaintiffs that conditions at the two facilities were unconstitutional. Plaintiffs originally sought to establish a constitutional right to treatment on behalf of the juveniles incarcerated at the facilities, and the district court therefore heard considerable testimony about all aspects of life in the institutions over a number of days of trial in late 1979, early 1980 and mid-1981. In its opinion, Santana v. Collazo, 533 F.Supp. 966 (D.P.R. 1982), the district court rejected the claimed right to treatment but did enjoin certain uses of the isolation unit at Maya-guez as unconstitutional. For example, it prohibited commitment of a juvenile to isolation because of sickness or mental defect; commitment of a juvenile without notice of the charges against him and an opportunity to contest them; and commitment of any pre-trial juvenile detainee. The district court did not, however, address claims that isolation as practiced at Mayaguez is unconstitutional even when imposed as a disciplinary measure after an appropriate hearing.

On appeal in 1983, plaintiffs renewed their claim to a right to treatment and their challenge to the use of isolation. We affirmed the district court on the right to treatment question, but found it necessary to remand the isolation issue. We began our discussion of isolation by noting the factual findings of the district court regarding the use of isolation at Mayaguez. According to those findings, 533 Supp. at 983, 989-90, “cells” in the isolation unit at Mayaguez measured nine feet by nine feet, and contained only a wood slab with a foam mattress covered by a sheet, a wash basin, and toilet. The average length of stay in the isolation cells was 13.3 days, although at least several juveniles had spent continuous months in isolation.

allowed any writing or reading material in their cells except the Bible. Furthermore, they are not allowed any physical exercise or recreation; the only time they are allowed out of the isolation cell is for a daily shower”. Id. at 989.

We declined to find that isolation in these circumstances was unconstitutional per se. We found, however, that these conditions substantially curtailed the freedom of juveniles placed in isolation, and thus deserved close scrutiny. Santana v. Collazo, 714 F.2d 1172, 1181 (1st Cir.1983). We noted that while courts have been reluctant to find isolation cells unconstitutional in adult prisons, id. at 1179, juveniles who have not been convicted of crimes have “a due process interest in freedom from unnecessary bodily restraint which entitles them to closer scrutiny of their conditions of confinement than that accorded convicted criminals”. Id. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (restrictions on liberty of involuntarily confined mentally-retarded patients must be reasonably related to legitimate government interests). Moreover, because the Commonwealth has no legitimate interest in punishing such juveniles as retribution for past misdeeds (as may be permissible in the case of convicted criminals), restrictions on their liberty must be justified on the basis of other objectives — rehabilitation, safety, or internal order and security. 714 F.2d at 1180.

We recognized, however, that administrators of a juvenile home must be allowed to punish residents for the purpose of discipline. And we conceded that “[t]he distinction between conditions imposed for the legitimate purpose of maintaining institutional order and safety and those that amount to retribution is a fine one.” Id. Yet, in this case, we found that it was a distinction demanding attention.

We thus concluded that, in the light of the record before us, the use of isolation at Mayaguez deserved closer scrutiny than it had thus far been given, and that the district court was best suited to conduct further inquiry.

We pointed out that, under Youngberg, the reasonableness of defendants’ practice regarding isolation “should be assessed in light of the judgment of qualified professionals.” Id. 714 F.2d at 1182; Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462.

II.

Two factors seemed to motivate the district court to find that isolation as used at Mayaguez meets constitutional requirements. First, the court pointed to the sub

stantial changes that had taken place in the conditions of confinement at Mayaguez.

New written rules for the use of isolation also provide that “isolation of a juvenile will be carried out only when it is clearly justifiable and only for that period of time absolutely necessary to accomplish the purpose for which it is being utilized.” Santana v. Collazo, No. 75-1187, slip op. at 7.3 Second, after summarizing the relevant testimony, which included testimony at its earlier hearing and new expert testimony from plaintiffs, but not from defendant, the court noted the different perspectives and schools of thought that exist in the behavioral sciences, and the resulting “erratic and often frustrating tentativeness of knowledge in these fields”, presumably including knowledge regarding isolation of juveniles, id. at 5.

The district court seemed to conclude that with the marked improvement in the nature of the confinement in isolation, and the uncertainty and conflict that he felt existed among experts over the value of prolonged confinement, there was an insufficient basis for finding that isolation as practiced at Mayaguez violated constitutional standards. Moreover, weighing heavily in its balance was its conviction that “the judgment as to what means are necessary to accomplish the State’s permissible goals in the juvenile detention context is one properly left to State discretion in the first instance.”

Accordingly, the court accepted the manner in which isolation is used at Mayaguez without considering whether the Commonwealth could significantly avoid or reduce the need for the use of prolonged isolation by adopting other techniques. See Santana, 714 F.2d at 1182; Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462.

III.

As we recognized in our earlier opinion, relying on Youngberg, 457 U.S. 307, residents of a juvenile detention center have “a due process interest in freedom from unnecessary bodily restraint”, and restrictions on their liberty must be “reasonably related to legitimate government interests in imposing those restrictions”. 714 F.2d at 1179. While the changes in the conditions of isolation at Mayaguez, as represented by defendants, have reduced the restriction of the juveniles’ liberty interests, this does not mean that the isolation practice there now fulfills constitutional requirements. Rather, a court must determine whether this improved system of isolation is sufficiently related to the Commonwealth’s legitimate objectives.

A court making this determination must adhere to a scope of review that has three facets. The first is obvious, namely that what is being reviewed is not isolation in the abstract but the congeries of conditions

attending the precise kind of isolation imposed on juveniles in the ease at bar.

The second facet of review is the substantive standard to be applied, in this case whether there is a reasonable relationship between the isolation practiced at Maya-guez and the Commonwealth’s interests in ensuring the safety of staff, public, and inmates, and in deterring and rehabilitating those placed in isolation. We think it unlikely that, under Youngberg, “reasonableness” in this context means that corrections officials are bound to employ the “least restrictive” alternative. We think it even more unlikely that the ordinary “rational relationship” equal protection test could be considered to give enough consideration to the liberty interests of these juveniles. What seems to be indicated from the Court’s discussion in Youngberg of the state’s duty to provide training to involuntarily committed mentally retarded inmates4 is that if the need for restraints, in this case the need for extended isolation, can be significantly reduced or eliminated by other equally effective but less confining methods requiring relatively minimal additional effort, it is unreasonable not to use them.

Finally, under Youngberg, the third aspect of review in a case such as this is the deference that must be paid to a “professional decisionmaker” as to what is a reasonable restraint. 457 U.S. at 322-23, 102 S.Ct. at 2461-62. Such a decisionmaker is “a person competent, whether by education, training or experience, to make the particular decision at issue.” Id. at 323 n. 30, 102 S.Ct. at 2462 n. 30. A decision by such a person — or by another acting on the advice of such a person — is “presumptively valid.” Id. at 323,102 S.Ct. at 2462. Thus, the test is not simply what responsible Commonwealth officials have determined “in good faith” is necessary for legitimate institutional reasons, but rather whether the isolation practice at Mayaguez accords with the considered judgment of a qualified professional as to what is necessary to accomplish the institution’s justifiable goals. See id., at 322-24, 102 S.Ct. at 2461-62. It is not the court’s task to choose from among several professionally acceptable choices, id. at 321, 102 S.Ct. at 2461, but only to determine whether defendants’ system of isolation is supported by some professional judgment. A court need not accept a professional judgment, however, if it is “a substantial departure from accepted professional judgment, practice, or standards.” 457 U.S. at 323, 102 S.Ct. at 2462.

The evidence available at the remand hearing did not, we regretfully conclude, enable the court to make findings and conclusions satisfying these criteria. On the one hand, plaintiffs’ experts gave extensive and detailed testimony, based on their professional judgments drawn from relevant experience, about the utility and hazards of prolonged isolation and other means of achieving the Commonwealth’s legitimate goals. To indicate the nature of this testimony, we summarize it briefly in the margin.5 In addition to such testimony there was evidence that United States De

partment of Justice standards limit confinement of juveniles in any case to twenty-four hours, and that American Bar Association standards set a maximum of eight hours of isolation for safety reasons.6 Finally, courts that have considered isolation for juveniles have with near unanimity limited such confinement to twenty-four hours, with only rare exceptions allowed.7

In support of defendants’ use of prolonged isolation, however, we have almost nothing before us that we did not have three years ago, except a sworn statement describing recent improvements at Maya-guez. Defendants chose not to present witnesses at the remand hearing, relying instead on inferences drawn from cross-examination, and from testimony presented during trial in 1980-81. Although Dr. Luis Iturino, the part-time psychiatric consultant at Mayaguez, testified at trial that the practice at Mayaguez of using fifteen to twenty days of isolation for disciplinary purposes was appropriate, this testimony was insufficiently complete for the purpose of ascertaining whether, in the considered judgment of qualified professionals, isolation as used at Mayaguez is “reasonably related to legitimate government interests in imposing those restrictions”, 714 F.2d at 1179.

Defendants’ failure to offer testimony at the remand hearing is puzzling in light of the burden they face. Once plaintiffs present substantial evidence that ten or twenty days of isolation is not only ineffective for safety and disciplinary purposes but also may aggravate conditions in the facility and cause psychological damage, defendants must respond with evidence of professional support for their isolation practice. To show that prolonged isolation is reasonably related to justifiable institutional objectives, they must also show that whatever legitimate needs are served by extended isolation are unlikely to be achieved by resort to other less burdensome practices such as shorter periods of isolation and/or a system of incentives and deterrents based on the granting and deprivation of privileges.

Ordinarily, after giving defendants the opportunity to make a record in support of their practices, which they declined, and faced with overwhelming support for plaintiffs in the form of expert testimony, national standards, and judicial precedent, we would find defendants’ system of prolonged isolation to be unconstitutional. We refrain from reaching a final judgment at this juncture, however, for two reasons. First, we hesitate to substitute our judgment for that of correction officials charged with maintaining institutional order and security. See Santana v. Collazo, 714 F.2d at 1181; Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462. We are far from being experts in the fields of behavioral science and juvenile justice, and recognize that the traditional tools of our decision-making — legal precedent and factual comparisons — are of limited value when we confront this still relatively new breed of institutional litigation. We must instead rely heavily on the views of both independent experts and of those running the insti

tutions; in fact, Youngberg tells us that decisions supported by appropriate professional judgment are presumptively valid. 457 U.S. at 323, 102 S.Ct. at 2462.

We are therefore uncomfortable with the prospect of restricting the use of isolation at Mayaguez without more information about how, when and why the institution resorts to its use. The constitutionality of isolation practice, after all, cannot be determined in the abstract. The particular conditions of isolation, for example, will affect what may be considered a reasonable duration under due process standards. There is a difference between “total” isolation in a blackened room without any social contact whatsoever, and a more limited isolation practice that permits physical exercise, provides tutoring services, and allows reading materials in the cell (something closer to what may exist at Mayaguez now). Moreover, in determining what is reasonable, we should also take into account whether any restrictions have been placed on the circumstances under which isolation can be imposed. For example, we have been told that the new rules at Mayaguez restrict isolation for disciplinary purposes to those “infractions whose gravity and nature justify it”. It could be, therefore, that juveniles now are confined only rarely and only for the most egregious offenses, such as assault with a weapon.8 Testimony from plaintiffs’ experts suggested that extended isolation for the most serious offenders within a juvenile facility might be reasonable, particularly if no other options are available. For example, Warren Albrecht, director of a juvenile center in New York, testified that youngsters at his institution who repeatedly harmed others might be prosecuted as adults and placed in an adult jail. Although taking a similar step at Mayaguez under 34 L.P.R.A. § 2004 or § 2007(c) seems possible, the record suggests that the procedure in Puerto Rico is unusually time-consuming, and it thus might be appropriate to confine a youngster in isolation for up to ten or twenty days while the procedure is underway.

We also do not know whether the Commonwealth has considered or tried alternatives to isolation, such as separating juveniles according to their problems. See Santana v. Collazo, 714 F.2d at 1182. We do not know whether Mayaguez is different from other maximum security institutions in that its juveniles are particularly difficult to control, id. at 1181,9 or particularly capable of enduring lengthy confinement without harmful effects and with positive results.10 Because our task is not to pass judgment on the use of isolation per se, but only on isolation as used at Maya-guez, we need answers to these specific questions. Plaintiffs’ testimony about isolation in general also, is relevant to the inquiry, however, because it is their contention, supported by professional opinions, that isolation of juveniles for longer than a few hours, under any conditions, is not reasonably related to any institution’s legitimate objectives. Defendants must present professional support for their contention that this widely held expert view is inapplicable to Mayaguez.

Our second reason for deferring judgment is that we suspect that a full record will confirm our present view that some change is necessary to bring the use of disciplinary isolation at Mayaguez within

constitutional bounds.11 And if our suspicions bear fruit, we think it should be up to the district court in the first instance to decide the nature of the change. We think its proximity to, and familiarity with, May-aguez will allow the district court to tailor its response more closely to the institution’s needs. It may decide, for example, to monitor the disciplinary problems at Mayaguez for a period of time before deciding whether to order a specific alternative to isolation or simply to bar confinement for more than twenty-four hours. It may discover that separation of juveniles according to their particular problems is impossible at Mayaguez, but that adding staff either to provide “minimal additional individual attention” to everyone, Santana v. Collazo, 714 F.2d at 1181-82, or to oversee the most difficult offenders is a feasible alternative to the significant restriction of liberty resulting from isolation.12

In sum, what we were unwilling to assume the last time this case came before us, we are still unwilling to assume, namely that the Commonwealth’s presumed interests in protecting the juveniles from harm, discouraging offending behavior and preventing escapes justifies the deprivation of personal liberty imposed at Mayaguez. While we recognize that there has been substantial progress in conditions in the isolation unit, the fact remains that defendants have failed to meet their burden of showing a legitimate interest in confining juveniles in isolation for as long as twenty days. This is a particularly significant failure in light of the plaintiffs’ expert testimony and the legal authority uniformly in favor of only the briefest commitments to isolation. On remand, we expect that the Commonwealth will exert itself to be of maximum help to the court, so that it may thoroughly explore defendants’ professed need to use prolonged isolation, including the practicability of less restrictive alternatives.13