My partner in life and in law has penned this post on Senate Bill 279, a bill currently pending in the Indiana General Assembly.

For most lawyers, Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974), has likely crept into the recesses of history. But for those few of us who work with youth in confinement, it remains a crucial reminder of how kids can be vulnerable in that setting. Westlaw shows Nelson has been cited in 122 law reviews, and another 103 cases, but, ironically, never by an Indiana court despite arising from Indiana litigation. That said, as Nelson turns 50 this month, it is worthy of discussion, especially since it is related in motivational terms to a piece of legislation pending before the Indiana General Assembly.

Nelson is the last name of a child, representative of a group “too numerous and too transitory to mention” who were or had been held in the “Indiana Boys School.” The “School” maintained an average of 400 boys, who stayed an average of 6 ½ months in a sixteen-cottage facility in Plainfield, Indiana. By the time that the litigation reached the Seventh Circuit Court of Appeals, the facts revolved around the practice of beating boys with paddles as a form of discipline, and the administration of tranquilizing psychiatric medications:

In beating the juveniles, a ‘fraternity paddle’ between 1/2" and 2” thick, 12” long, with a narrow handle, was used. There is testimony that juveniles weighing about 160 pounds were struck five blows on the clothed buttocks, often by a staff member weighing 285 pounds. The beatings caused painful injuries.[1]

. . .

Witnesses for both the School and the juveniles testified at trial that tranquilizing drugs, specifically Sparine and Thorazine, were occasionally administered to the juveniles, not as a part of an ongoing psychotherapeutic program, but for the purpose of controlling excited behavior.[2]

Prior to Nelson, “[n]o case precisely on point ha[d] been cited or found which decided whether supervised beatings in a juvenile reformatory violated the ‘cruel and unusual’ punishment clause of the 8th Amendment.”[3] The Nelson Court landed at that point, explaining that such corporal punishment was easily subject to abuse in the hands of the “sadistic and unscrupulous”; the School’s protective procedures governing corporal punishment were minimal; the infliction of “such severe punishment frustrates correctional and rehabilitative goals”; and there was a current trend toward eliminating all corporal punishment in all correctional institutions.[4]

As for the tranquilizer use, the Nelson Court cautioned against judicial foray into determining what are minimum medical standards, but determined that the practices and policies of medicine are nevertheless within the “judicial competence when measured against requirements of the Constitution.”[5] “[A]s practiced by defendants” the use of the tranquilizing drugs was a form of cruel and unusual punishment: the drugs administered could cause the collapse of the cardiovascular system and several other detrimental and dangerous health effects.[6] What loaded the Court’s phrase “as practices by the defendants” was the policy of the School to allow staff (guards, house managers, counselors, teachers, etc.) to administer these drugs intramuscularly under a standing order by the physician.

In addition to the first impression holdings on cruel and unusual punishment, the Nelson Court also held that juvenile offenders have a right to rehabilitative treatment; it was the underlying purpose of the juvenile court itself. “The United States Supreme Court has never definitively decided that a youth confined under the jurisdiction of a juvenile court has a constitutionally guaranteed right to treatment. But the Court has assumed, in passing on the validity of juvenile proceedings, that a state must provide treatment for juveniles.”[7]

Keep in mind, Nelson came on the heels of the top-down reformation of juvenile proceedings a little over half a century after their invention. In 1966, the Supreme Court of the United States had held that a child facing transfer[8] from the juvenile court to a court of criminal jurisdiction deserves a panoply of due process protections.[9] A year later, the High Court issued In re Gault,[10] which provided children in juvenile court the protections of notice, a right to counsel, and an opportunity to confront witnesses and testify. And then, three years later, the U.S. Supreme Court declared that every element of the charges against delinquents must be proven beyond a reasonable doubt.[11] Kent, Gault, and Winship had insisted that the juvenile court provide essential “due process and fair treatment.” What would be the point if the correctional institutions used to effectuate the goals of the juvenile court were devoid of rehabilitative treatment?

In the end, the Nelson Court summarized the right to treatment as being focused on the individual needs of the child based upon the state’s role of inserting itself into the family. When the state assumes the place of the juvenile’s parents, it assumes as well the parental duties, and its treatment of juveniles should, so far as can be reasonably required, be what proper parental care would provide. Without a program of individual treatment the result may be that the juveniles will not be rehabilitated, but warehoused, and that at the termination of detention they will likely be incapable of taking their proper places in free society; their interests and those of the state and the school thereby being defeated.

Pending in the Indiana General Assembly is Senate Bill 279, “Juvenile facility visitation policies.” Allowing children to communicate with their families is a “no brainer” for several reasons, but some facilities do not allow in-person visits and require families to pay significant costs for phone calls. As demonstrated by Nelson, children can be vulnerable in custody settings and need access to adults outside of the system concerned about their wellbeing. SB 279 seeks to require at least two free phone calls or video teleconferences each week and an opportunity for at least one in-person visit each week as a minimum level of family visitation. SB 279 also discourages the curtailment of visitation as a form of punishment. As Nelson showed 50 years ago, sometimes those children being punished need the aid of adults to ensure that punishment is not unnecessary or excessive.

[1] 491 F.2d at 354.

[2] 491 F.2d at 356.

[3] 491 F.2d at 354-55.

[4] 491 F.2d at 355.

[5] 491 F.2d at 357.

[6] 491 F.2d at 357.

[7] 491 F.2d at 359.

[8] A process which we call “waiver” under Indiana law. See, Ind. Code chap. 31-30-3.

[9] Kent v. United States, 383 U.S. 541 (1966)

[10] 387 U.S. 1 (1967).

[11] In re Winship, 397 U.S. 358 (1970).