Custody and Control: Summary and Key Recommendations

SUMMARY
There is growing recognition that people incarcerated in U.S. jails and prisons often suffer from abusive treatment and neglect. When those abused are children who have been placed in juvenile facilities ostensibly for their rehabilitation, public concern is justifiably heightened. Media stories and public debate about troubled children tend to focus on the delinquent behaviors of and state responses to boys. However, an increasing proportion of the children being put behind bars are girls. In New York State, the proportion of girls taken into custody has grown from 14 percent in 1994 to over 18 percent in 2004.

This report focuses on the two large, prison-like facilities in which girls in New York state are confined, namely, the Tryon and Lansing facilities, and concludes that, far too often, girls experience abusive physical restraints and other forms of abuse and neglect, and are denied the mental health, educational, and other rehabilitative services they need. Because of the facilities’ remote locations, confined girls are isolated from their families and communities.

The New York State Office of Children and Family Services (OCFS) is the state agency whose Department of Rehabilitative Services administers juvenile facilities. Although OCFS is charged with rehabilitating children over whom it takes custody, it often fails to serve, and even to protect, confined girls, and this failure continues because there is little or no meaningful oversight of conditions in OCFS facilities. This last point is critical. Internal monitoring and oversight of the facility are, to put it charitably, dysfunctional, and independent outside monitoring is all but nonexistent. As a result, the conditions in the Tryon and Lansing facilities addressed in this report are shrouded in secrecy and girls who suffer abuse have little meaningful redress.

Human Rights Watch investigates conditions in juvenile facilities in the United States and around the world and we have found OCFS to be among the most hostile juvenile justice agencies we have ever encountered. Despite repeated formal and informal requests over a period of several months, we were denied access to the facilities themselves. Working through channels independent of OCFS, Human Rights Watch and the ACLU (HRW/ACLU) made contact with children, family members, and others with relevant firsthand experiences and knowledge. Ultimately we were able to speak with only 30 formerly incarcerated girls directly, but what we found, as detailed below, is serious cause for concern: the state of New York is failing to watch over OCFS, and OCFS is failing the girls in its custody.

The majority of girls in Tryon and Lansing are fifteen or sixteen years old, although some are as young as twelve. As with incarcerated persons throughout the U.S., a disproportionate number of girls confined in New York are African-Americans from families who have lived in poverty for generations, with parents or other close relatives who themselves have been incarcerated. In many cases, these girls fall into juvenile facilities through vast holes in the social safety net, after child welfare institutions and schools have failed them. In the wake of legal reform in 1996, girls who commit "status offenses" such as disobedience and running away from home are no longer supposed to be placed in custody, but such offenses—and the related issue of involvement with child welfare agencies because of parental abuse and neglect—continue to function as gateways through which particularly vulnerable children are drawn into the juvenile justice system.

Of course, the immediate cause of a girl’s incarceration in the Lansing or Tryon facilities is her commission of a delinquent act, that is, an act that would be a criminal offense if committed by an adult. Such acts include assault, occurring in many cases during family or peer altercations, theft offenses including shoplifting, and other crimes. A judge ordering a girl to be placed in a specific type of facility signals his or her expectation that the girl will be confined at a particular level of security and provided with appropriate, specified services. Unfortunately, conditions in the facilities often are markedly different from what many judges envision. In reality, all girls sent to Tryon or Lansing are confined in a prison-like physical environment where they may be at risk of abuse and where promised services are often not delivered.

One of the most troubling abuses is the use of inappropriate and excessive force by facilities staff against girls. By interviewing formerly incarcerated girls and examining agency documents, HRW/ACLU have documented the excessive use of a forcible face-down "restraint" procedure intended for emergencies but in fact used far more often. In a restraint, staff seize a girl from behind and, in a face-down posture, push her head and entire body to the floor. They then pull her arms up behind her and hold or handcuff them. We found that the procedure is used against girls as young as 12 and that it frequently results in facial abrasions and other injuries, and even broken limbs.

According to human rights standards, physical force may be used against confined children only as an emergency measure to control a violent or self-destructive child and only when all other means of control have failed. Physical force is never acceptable as punishment, yet that is exactly how force sometimes appears to be used at Lansing and Tryon. Many girls told HRW/ACLU that the face-down restraint procedure at times was used punitively for minor of failings by girls, including, in the most egregious cases, improperly making their beds or not raising their hands before speaking.

Girls confined in Tryon and Lansing are also at risk of a range of sexually abusive behaviors. HRW/ACLU documented three specific cases over the past five years of staff having sexual intercourse with girls. Sexual abuse short of intercourse also occurs in the facilities, ranging from verbal innuendo, to observation of girls in states of undress by male staff, to unwanted touching. Girls also report that staff make publicly humiliating comments revealing girls’ past sexual history, or experience of abuse, or a medical condition such as infection with a sexually transmitted disease. Lesbians as well as girls who do not conform to staff stereotypes of girlish behavior are sometimes harassed by staff and other girls.

Girls incarcerated at the Tryon and Lansing facilities are also subjected to security measures beyond what appears to be strictly necessary and in some cases contrary to OCFS’s own official categorizations. The facilities examined in this report are designated by OCFS as "secure" (one part of Tryon, referred to as Tryon Secure), "limited secure" (Lansing), and "non-secure" (another part of Tryon, referred to as Tryon Girls). According to OCFS, girls sent to the "nonsecure" portion of Tryon "do not require the more restrictive setting of a limited secure facility."

Yet both the "secure" and "non-secure" portions of Tryon consist of barracks-like units surrounded by layers of razor wire. Girls’ activities are tightly controlled and their interaction with each other is limited. In fact, there is little discernible difference between Tryon’s "secure" and "non-secure" units.

Throughout Tryon and Lansing, all girls are bound in some combination of handcuffs, legshackles, and leather restraint belts any time they leave the facility. Girls are also subject to frequent strip-searches in which they must undress in front of a staff person and submit to a thorough visual inspection including their genitals. All correctional systems must take appropriate precautions to maintain security and to ensure that weapons, drugs, or other contraband are not smuggled by transported prisoners. Nevertheless, these measures should be reasonable, proportionate, and objectively justified. The measures taken by OCFS are hard to justify as legitimate or reasonable security measures for children, many of whom have been found by judges to require a "non-secure" environment.

Tryon and Lansing provide haphazard and insufficient educational and vocational opportunities for girls. When a girl is ordered to a juvenile facility, she is discharged from her public school and the facility becomes responsible for ensuring one of her most basic and important rights— the right to an education. Classes held at Lansing and Tryon combine girls of varying educational levels and needs, and are insufficiently staffed with qualified teachers. Girls are therefore either intellectually understimulated or overwhelmed, and girls complain that the facilities’ main aim seems to be preparing them to take the General Equivalency Diploma exam, rather than helping them achieve a high school diploma. Both OCFS and the schools themselves fail to ensure that girls leaving facilities are properly placed back in public schools. The lack of reentry assistance provided to girls and poor coordination between facilities and schools likely contributes to the troubling fact that two-thirds of high school aged boys and girls leaving juvenile facilities do not re-enter regular public high schools.

When vocational training is available at all, that offered to girls is limited to stereotypically female pursuits such as culinary arts, cosmetology, and clerical skills. By contrast, comparable boys’ facilities offer a range of vocational classes providing marketable skills and nationally recognized certifications. These educational failings can amount to a crippling future disadvantage for incarcerated girls, exacerbating the pattern of intergenerational educational and economic marginalization suffered by many of the girls and their families.

In New York in 2004, of the children screened by OCFS for special needs when taken into custody, 48 percent had physical health needs, 52 percent had mental health needs, and 77 percent had substance abuse problems. Sixty-nine percent of screened children had multiple special needs. OCFS documents and the statements of administrators reveal that staff are aware of and concerned about the health needs of incarcerated girls. Serious failings remain nevertheless, especially where mental health services are concerned. Many incarcerated girls physically harm themselves and even attempt suicide, to which facilities’ staff frequently respond with punishment in addition to treatment. Mental health counseling by professionally trained staff is largely inadequate, and much "counseling" is instead provided by ordinary line staff without credentials or training in psychotherapeutic treatment.

Judges, attorneys, family members, and friends of incarcerated girls have little chance of learning exactly how girls in OCFS facilities are treated, not least because Tryon and Lansing are located hundreds of miles away from New York City, the place most incarcerated girls call home, and because girls’ access to means of communication is strictly limited. Girls are cut off from the outside world in other ways too. Once a girl is placed in an OCFS facility, she loses the state funded lawyer who represented her in court, unless an appeal or other post-adjudication legal proceeding is underway.

Girls incarcerated in New York’s juvenile system who wish to seek redress for infringements on their rights have few options. In most cases, the only place to which they can turn is the same facility and at times the very same staff members responsible for the wrongs about which they are complaining. Girls’ primary means of drawing attention to problems they experience within a facility is the filing of written grievances. All of the girls HRW/ACLU interviewed said they found the grievance process frustrating and ineffective, most commonly because their grievances were ignored. Thus hidden from public scrutiny and without an effective mechanism for seeking redress, girls in Tryon and Lansing continue to endure harmful treatment and neglect.

One important reason that the abusive treatment and other problems described in this report continue is the absence of genuinely independent oversight of the Tryon and Lansing juvenile facilities. Combined with the facilities’ isolated rural location and restrictions on incarcerated children’s contact with the outside world, the facilities operate in an informational vacuum. Inadequate funding for existing monitors, such as the facilities ombudsman, as well as OCFS’s failure to maintain a functioning Independent Review Board as required by law, are partly to blame. The ombudsman’s office is also weak because it is part of OCFS, answerable to and physically located within OCFS headquarters. New York’s Child Protective Services (CPS) is likewise a sub-part of OCFS and its existence is not known to many incarcerated girls. Another established monitor, New York’s Office of the Inspector General, does not provide the necessary oversight because OCFS represents only a small piece of its broad mandate, and because it conducts no regular monitoring visits to OCFS’s locked facilities. Although judges, legislators, and other state officials have the power under state law to visit the facilities at will, this power is rarely if ever invoked. In response to efforts by outside investigators to gather information on how OCFS runs its juvenile facilities, the agency’s leadership has proven itself secretive and adverse to scrutiny, effectively leaving the public in the dark. Within this institutional scheme, children are left to fend for themselves.

The "key recommendations" below highlight immediate steps we believe OCFS and other state authorities must take to stop some of the most egregious abuses documented in this report. We then provide detailed recommendations for the state and local authorities with responsibilities affecting the conditions under which girls are incarcerated in New York State. Change is essential since girls’ near total isolation from outside eyes and ears allows abuses to continue undetected and without remedy.

KEY RECOMMENDATIONS
A number of problems in New York’s girls’ juvenile facilities urgently require correction. To end its dangerous overuse and misuse of the forcible face-down restraint technique, OCFS must bring its internal policies into compliance with domestic and international law by revising them to permit the physical restraint of children only as an option of last resort in genuine emergencies. OCFS must take immediate and vigorous measures to implement this narrower policy through thorough re-training of all facilities administrators and staff. Facilities employees who use excessive force should be punished. In addition, OCFS should make it a priority to develop safer techniques of emergency control.

The absence of meaningful oversight of OCFS facilities must also be addressed. At a minimum, OCFS should ensure that the Ombudsman’s office is sufficiently well staffed to carry out its legally mandated functions, constitute a functioning Independent Review Board (IRB) staffed as required by state regulations, and open its doors to outside monitors.

Those with immediate authority over New York’s juvenile justice system, the Governor and OCFS Commissioner, should be held accountable for seeing that these reforms are implemented and for ensuring that conditions for all children confined in New York meet international, national, and state standards of safety, health, and dignity. To date, they have failed to do so.

We believe that the foregoing immediate changes are necessary to mitigate the most dangerous conditions in OCFS facilities. More fundamental institutional changes—requiring action by the New York State Legislature in addition to the Governor and OCFS Commissioner—need to be made, however, for significant improvements in girls’ and boys’ conditions of confinement to occur. First, Human Rights Watch and the ACLU urge passage of Assembly Bill 6334/Senate Bill 6877, creating an independent state Office of the Child Advocate to oversee all juvenile justice and foster care facilities. While internal oversight in the form of a functioning and fully staffed ombudsman’s office and IRB may help remedy some of the most urgent abuses, external, independent monitoring is crucial to ensure the fair and humane treatment of New York’s most vulnerable children. Second, as an overarching goal, the Governor, OCFS, and the State Legislature should work diligently toward a system in which few if any children are held in prison-like environments but instead receive the help they need in their homes and communities.