Investigation of Custer Youth Correctional Center, South Dakota
The Honorable William J. Janklow
Governor of South Dakota
500 East Capitol Avenue
Pierre, SD 57501-5070
Re: CRIPA Investigation of Custer Youth
Correctional Center, Custer, South Dakota
Dear Governor Janklow:
We are writing to report the findings of our investigation
of conditions at the Custer Youth Corrections Center. On
December 29, 1999, we notified you of our intent to investigate
certain South Dakota juvenile corrections facilities pursuant to
the Civil Rights of Institutionalized Persons Act ("CRIPA"),
42 U.S.C. § 1997, and the pattern or practice provision of the
Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C.
§ 14141 ("Section 14141"). Those facilities were the State
Training School, the Juvenile Prison, and the Girls Intensive
Program ("the Plankinton facilities"), and the Patrick Henry
Brady Boot Camp, the Custer Youth Correctional Center, the Living
Centers, and the Quest Program (hereinafter referred to as
"Custer" or "the facility").
On February 14, 2000, the State informed us that it would
not permit us access to tour either the Plankinton or Custer
facilities. At about the same time, private litigation was
instituted concerning the Plankinton facilities. We awaited the
outcome of that private litigation before taking further action.
That litigation produced a settlement concerning conditions at
the Plankinton facilities in December 2000. The State closed the
Plankinton facilities in January 2002. On March 4, 2002, we
renewed our request for access to the Custer facilities in order
to confirm or deny the allegations we had received about the
conditions. On March 18, 2002, the State denied our renewed
request to tour the Custer facilities.
Nevertheless, we continued our investigation, interviewing
former juvenile residents of Custer and also parents of former
and then-current juvenile residents. On June 12, 2002, the State
gave permission for us to tour the facility and also to procure
documents for expert consultants to review. That permission was
later expanded to allow our expert consultants in mental health
care, medical care, and education to tour Custer, but you denied
permission for an expert consultant in juvenile justice
management to tour the facility, though you did provide
documentary evidence for such an expert to review.
On June 17-18, August 13-14, and August 28-29, 2002, we
conducted on-site inspections of the facility with expert
consultants in mental health care, medical care, and education,
and we have had an expert consultant in juvenile justice
management review documents provided to us by the facility.
While at Custer, we interviewed residents, and direct care,
program, and administrative staff. Before, during, and after our
visit, we reviewed documents including policies and procedures,
incident reports, investigations, and mental health, medical, and
education records. At the end of each visit, our expert
consultants provided detailed exit interviews about their
preliminary findings. At the State's request, we provided
technical assistance in order for the State to begin to address
our expert's preliminary findings.
We would like to thank the staff at Custer and State
officials for the cooperation we received since June 2002. We
also appreciated the candor and openness of the facility's staff
and administration. Moreover, State and facility staff and
administration reacted positively and constructively to the
observations and recommendations for improvement made by our
consultants during the site visits.
Consistent with the statutory requirements of CRIPA, we
write to advise you of the results of the investigation. On the
whole, we found Custer to be a well-run facility with staff that
appear to care for the welfare of the residents and an
administration that seems committed to providing the best
atmosphere and programs possible. Both the staff and
administration have been very responsive to suggestions from our
experts on how to implement not only a program that complies with
statutory and constitutional requirements, but also one that
utilizes best-practices for juvenile justice facilities. We find
no systemic constitutional or statutory violations in the areas
of overall juvenile justice management, excessive force, or
provision of medical care.
Nevertheless, as described more fully below, we conclude
that certain conditions at Custer violate the constitutional and
statutory rights of residents at the facility. The facility
fails to provide required education services. Also, youth
confined at Custer suffer harm or the risk of harm from some
deficiencies in mental health care.
A. FACILITY DESCRIPTION
Custer houses juveniles ages 13-18, and usually holds
approximately 175 boys, served in four separate settings, and 48
girls, served in two separate programs. For the boys, the Intake
Center (capacity 52) is designed to conduct a battery of
assessments related to the youth's medical, mental health, and
educational needs, and provides an orientation to the Boot Camp
program. The average length of stay in the Intake Center is
approximately 20 days, although the range is between 15 and 45
days. The Boot Camp program is a structured, military-type
program in which youth participate for between four and six
months. During our visits, the Boot Camp housed 90 boys. The
actual capacity of the boot camp is 120 youth, but the facility
is staffed to operate only three of the four possible 30-bed
platoons. The Living Center A program (capacity 36) serves youth
with a substance abuse diagnosis, and provides job skills and
vocational training during the youths' six to eight month period
of detention. The Living Center B program (capacity 36) serves
youth who have completed a DOC program, but who remain committed
to the DOC and cannot, for any number of reasons, return home.
This program is considered a step-down from the Boot Camp or
Living Center A program. Some of these youth attend school or
work in the community, but reside in the dormitory at night. In
general, boys who are determined to be high-risk or high-need are
diverted to alternative settings and are not placed in programs
Custer operates two separate programs for girls, located on
a campus that is approximately 15 miles from the boys' campus.
The Excel program (capacity 24) is a licensed group home that
serves lower-level offenders in a program focused on wellness and
family issues. The typical length of stay is between four and
six months. The Quest program (capacity 24) is a residential
substance abuse treatment (RSAT) facility, which integrates
substance abuse treatment and treatment for girls recovering from
a history of sexual abuse or victimization. The typical length
of stay is between six and eight months.
B. LEGAL BACKGROUND
Both CRIPA and Section 14141 give the Department of Justice
the authority to seek a remedy for a pattern or practice of
conduct that violates the constitutional or federal statutory
rights of children in juvenile justice institutions. 42 U.S.C.
§ 1997; 42 U.S.C. § 14141. Adjudicated juveniles have a right to
adequate education instruction not only by state law but also by
the United States Constitution. See Alexander S. v. Boyd, 876 F.
Supp. 773, 798 (D.S.C. 1995); Donnell C. v. Illinois State Bd. of
Ed., 829 F. Supp. 1016 (N.D. Ill. 1993). They also possess
federal statutory rights to education under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.
Moreover, the Equal Protection Clause can bar discrimination
based on gender in the provision of education services, see
United States v. Virginia, 518 U.S. 515 (1996).
The Constitution also requires that confined juveniles
receive adequate mental health treatment, including mental health
treatment and suicide prevention measures. Hott v. Hennepin
County, 260 F.3d 901, 905 (8th Cir. 2001) (citing Williams v.
Kelso, 201 F.3d 1060, 1065 (8th Cir. 2000)); Young v. City of
Augusta, 59 F.3d 1160, 1169 (11th Cir. 1995); Horn v. Madison
County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994); Bowring v.
Godwin, 551 F.2d 44, 47 (4th Cir. 1977).
Custer violates the constitutional and statutory rights of
its residents by failing to provide adequate education services.
These education deficiencies include the failure to provide
sufficient instructional time for youth in the Intake Center.
Moreover, youth held in isolation cells do not receive adequate
instruction. The vocational programming for girls must be
commensurate with that available for the boys; it presently is
not. Finally, the facility does not have sufficient certified
teachers on staff in certain areas of mandatory instruction.
I. Insufficient classroom instruction for residents
of the Intake Center.
The school programs for girls and for boys in the Boot Camp
and Living Center provide for at least 330 minutes of instruction
per day, which is consistent with State law. However, the boys'
Intake Center's school schedule includes only three hours of
education (180 minutes) provided each weekday afternoon. While
it is understood that a battery of assessments needs to be
completed for youth upon admission, to the extent possible, these
efforts should not compromise the youth's opportunity to
participate in school. Further, a significant number of youth
are held on the unit beyond the time required to complete the
assessments. In addition, youth who are "recycled" through the
Boot Camp program in response to their non-compliance with rules
of the Boot Camp program then return to the Intake Center to
await the deployment of a new platoon. Given the recency of
their original admission, they are not required to complete a new
battery of assessments. For these youth, it is particularly
important that a complete range of educational services are
offered so that their efforts and progress made in the Boot Camp
school program can continue.
II. Youth in isolation do not receive adequate
Youth who are in disciplinary isolation do not consistently
receive education services. The mechanism for communicating the
presence of youth in disciplinary isolation to the education
staff is not dependable. A review of disciplinary isolation logs
for June-August 2002 revealed that there were a significant
number of youth in isolation for significant periods of time.
The education staff reported that they were not made aware of
these youths' placement in isolation, and therefore had not
provided educational services to them. Further, there is
currently no procedure for documenting the provision of education
services to these youth.
III. Vocational programming is not available to girls
Given their physical separation from the boys' campus and
the attached vocational facilities, girls housed at Excel and
Quest do not have access to vocational programs. Girls are
entitled to the same range and quality of educational and
vocational programming as boys. Given their age, length of stay,
and the likelihood that they will enter the world of employment
shortly after release, a range of vocational options for girls
will also serve the rehabilitative goals of the facility.
IV. The Learning Center classroom is staffed by an
instructor/aide, not a certified teacher.
The education program for boys at Custer features a Learning
Center classroom, which is used to serve regular and special
education students in an environment affording greater structure
and individual attention than the regular classroom. Currently,
this classroom is led by a teacher's aide, whose services are
supplemented by an additional teacher's aide and the special
education teacher. Given that students are assigned specifically
to this class, and may be so assigned for a large portion of the
school day, it needs to be staffed (i.e., led) by a certified
teacher. Please note that the assistance of aides and the
special education teacher are certainly valuable resources that
should be continued.
V. Some special education students are not receiving
The philosophy for special education service provision at
Custer is "full inclusion," meaning that to the extent possible,
special education students are served in the regular education
classrooms with their peers who do not have disabilities, using
appropriate instructional supports. This philosophy is clearly
in line with federal statutes calling for services in the least
restrictive environment. A review of files indicated that most
of the special education students at Custer have learning
disabilities, and generally do not have emotional or behavior
disorders or far below-average IQ's. Further, most special
education students appear to progress through the regular
curriculum and earn credits at the same rate as their
non-disabled peers. Thus, the efforts toward full-inclusion are
appropriate for most of the population served.
However, this model is not providing adequate special
education services for some students. A significant number of
special education students have been referred to the Learning
Center classroom because they needed additional support. Because
these students appear to be struggling in the regular classroom
setting, it may be appropriate to change their special education
placement to a classroom featuring co-teaching or team-teaching.
If so, Custer should consider staffing the Living Center at a
level that would provide opportunities for at least a few periods
a day to be team taught by a regular education teacher and a
special education teacher.
B. MENTAL HEALTH
The psychiatric treatment at Custer is provided by one of
two psychiatrists. One psychiatrist comes twice a month for one
day each time. One of these days is to the girls' site; one is
to the boys' site. A second psychiatrist, a child and adolescent
psychiatrist based in Sioux Falls, consults to the boys' campus
two days per month utilizing a telemedicine hook-up. He does not
come on-site. One of the two mental health professionals ("MHP")
sit in with the youth when they see a psychiatrist and provide
background information. The formulary for the psychiatrists is
unrestricted; they can prescribe whatever medications they feel
are clinically indicated. Having an unrestricted formulary is an
The assessments of the first psychiatrist, who performs on-site visits, appear generally comprehensive, and his
documentation is extensive. The medications he prescribes appear
generally reasonable. Interviewed youth appeared to like him,
and found him responsive to their needs. Although not trained as
a child and adolescent psychiatrist, he has had considerable
experience treating both children and adolescents, and by virtue
of his experience, appears qualified to provide care to
adolescents. Youth on medication appeared to be followed at
least every 90 days, but more frequently in some cases when the
clinical needs required it.
The second psychiatrist, who performs the telemedicine
consultations, began providing services in the beginning of July
2002. Administrators indicated that they had attempted to
contract with local psychiatrists for on-site service, but were
unsuccessful, so turned to telemedicine techniques. This
psychiatrist's care was more difficult to assess. Overall, the
medications written appeared to be reasonable. However, there
were no notes from him in any of the charts. Administrators were
aware of this deficiency. Youth who were interviewed expressed
mixed views about the telemedicine techniques of sitting in front
of a camera and seeing him on the screen. While some youth found
this a novel approach and enjoyed seeing themselves on TV, others
found the experience quite unnatural, complained they could not
hear him and that he could not hear them (reflecting essentially
technical difficulties), and the youth did not feel they had
communicated very effectively with this psychiatrist.
Many youth are admitted to Custer who are already taking
psychotropic medications. The facility continues their
prescribed regimen without having the youth and these medications
reviewed by a psychiatrist or physician from the facility. For
most youth, there is a significant lag time between when they
arrive at the facility and when they first see a psychiatrist.
One of the counselors estimated the average wait to be 45 days.
Review of records and appointment dates for selected youth
revealed a wide range of wait times. Some youth who were
identified as having urgent needs were seen more rapidly, while
others had been in the facility for over 80 days and had not yet
seen a psychiatrist despite receiving psychotropic medications.
This is problematic from at least two perspectives. First, given
that the intake phase lasts about 30 days, most youth are
classified without benefit of psychiatric or other mental health
input. This is reflected also on the form which documents the
classifications from various perspectives (school, medical, etc.)
on which, for many youth, the mental health classification status
was left blank. Second, maintaining youth on psychotropic
medication in an institution without a review of efficacy or
appropriateness by any physician for more than 21 days or any
review of side effects by a psychiatrist constitutes substandard
care. A number of personnel interviewed voiced the hope that the
addition of the second psychiatrist with his telemedicine
evaluations will shorten the waiting time for an initial
psychiatric evaluation. However, at the time of our visit,
impermissible delays remained.
The documentation of one youth who was transferred out of
Custer suggested that mental health services for such youth may
fall through the cracks. This youth was admitted to the intake
unit and noted to be on psychotropic medication. After several
weeks, before being seen by a psychiatrist, he was deemed not to
be suitable to remain at Custer due to his behavior, and was
placed in the isolation cells in the bootcamp building to await
transfer. It is not clear whether his medication regime was
appropriate, or whether another medication regime might have
controlled his behavior so that he would have been found suitable
to remain at Custer. It is our understanding from the staff that
once placed in the isolation cell, he was deemed "transferred,"
and so was removed or not placed on the schedule to see a
psychiatrist. He awaited transfer for about six days. He was
transferred out shortly before our visit, and so could not be
This youth's case illustrates two deficiencies. First, a
placement decision was made for a youth with known psychiatric
problems without any psychiatric assessment. Second, youth
awaiting transfer are placed in isolation, and mental health
services that otherwise might be provided are markedly reduced.
The facility admitted to us that youth awaiting transfer are
removed from programmatic support, e.g., psychiatric services and
educational services. While a youth is housed at the facility,
it is the facility's responsibility to provide adequate mental
health care and education to that youth.
Finally, the suicide procedures were reviewed and appeared
reasonable. Putting a youth on suicide watch was less frequent
than is seen at many institutions, presumably because of the
nature of the population (certain types of offenders are diverted
from and not placed at Custer). Because of the infrequency,
relatively few youth who had been on suicide watch were available
for interview, and of those who were, the events took place
several months previously. From this limited data, however, the
procedures appeared to be implemented appropriately.
III. REMEDIAL MEASURES
In order to rectify the identified deficiencies and protect
the constitutional and statutory rights of the youth confined at
Custer, the facility should implement, at a minimum, the
1. Restructure the school program for the Intake Center so that
all youth are routinely provided the opportunity for at
least 330 minutes of instruction per day.
2. Notify education staff regarding the placement of youth in
disciplinary isolation. Once notified, education staff need
to provide access to educational services for these youth.
3. Develop a range of vocational program options for girls.
4. Assign a teacher to be the leader of the Learning Center
classroom. Provide models of special education service delivery to accommodate the needs of all qualified youth.
B. MENTAL HEALTH CARE
1. In addition to the current mental health screening procedure
administered at the time of a youth's admission to Custer,
within three weeks of a youth's admission and prior to that
youth's classification provide an interview and medication
review by a physician with expertise in the medication for
youth with identified psychiatric problems and for those who
are admitted on psychotropic medication. While for some
medications (such as stimulants for treating attention
disorders), some pediatricians have sufficient expertise to
assess medication appropriateness, for most other
psychotropic medications, psychiatric expertise is generally
2. Implement a procedure such that the notes of any mental
health evaluations conducted via a telephonic hook-up are
available on the chart within 10 days of contact with
3. Correct the technical problems (poor sound transmission,
etc.) of the telemedicine apparatus.
4. Ensure that youth awaiting transfer continue to receive
needed mental health services.
# # #
In making the foregoing findings, and identifying
appropriate remedies, we recognize that the facility appears to
have made progress in remedying many of the allegations we
initially received. This progress can be attributed to the
efforts of State and facility officials to address proactively
problems they identified. These efforts evidence a commitment to
improving the facility.
We will be sending our consultants' evaluations of the
facility under separate cover. Although the experts' evaluations
and work do not necessarily reflect the official conclusions of
the Department of Justice, their observations, analysis, and
recommendations provide further elaboration of the issues
discussed in this letter and offer practical assistance in
Pursuant to CRIPA, the Attorney General may institute a
lawsuit to correct deficiencies of the kind identified in this
letter forty-nine days after appropriate officials have been
notified of them. 42 U.S.C. (Section 1997b(a)(1)). We would
prefer, however, to resolve this matter by working cooperatively
with you. We have every confidence that we will be able to do so
in this case. Civil Rights Division lawyers will be contacting
your attorney to discuss these remedial measures.
/s/ Ralph F. Boyd
Ralph F. Boyd, Jr.
Assistant Attorney General
cc: Mark Barnett, Esq.
State of South Dakota
Brett Wilbur, Esq.
Counsel for Governor Janklow
South Dakota Department of Corrections
South Dakota Department of Corrections
Custer Youth Corrections Center