Cardozo Public Law, Policy & Ethics Journal
Defense attorneys are well acquainted with the ill-considered and extreme use of solitary confinement in local jails. Isolation is one of many problems clients face while locked up in jail awaiting trial. Other common conditions of pretrial confinement include lack of mental health treatment, inadequate medical care, violence from corrections staff, and lack of protection from the violence of others. "Owing time", a recently dismantled practice, is just one example of jails' frivolous use of extreme isolation practices. At times, youth in the juvenile facility at Rikers were placed in solitary so often that there was a waitlist at the facility.
These abuses are happening to people that have not been convicted of crimes. Common forms of mistreatment in pretrial detention affect the emotional and mental health and cognitive abilities of people, just as they are asked to make momentous decisions in their lives. Despite the impact of trauma experienced in jail on critical thinking, attorneys rarely address abuse in detention as integral to a criminal case.
The article explores the effects of solitary confinement, one of the most extreme forms of mistreatment in U.S. jails, its effect on people awaiting trial, and how abuse in jail impacts the ability of those detained to consult with counsel in defense of their criminal charges. The trauma of isolation is associated with impaired cognitive abilities and problems communicating and reasoning through legal options with an attorney. By continuing to allow traumatizing conditions to persist in jails, the state interferes with people's ability to access assistance of counsel.
Beyond the Visiting Room: A Defense Counsel Challenge to Conditions in Pretrial Confinement, 14 Cardozo Pub. L. Pol'y & Ethics J. 1 (2015)