AGREEMENT
TABLE OF CONTENTS
I. INTRODUCTION
II. DEFINITIONS
III. CONSTITUTIONALLY REQUIRED CARE
IV. SUBSTANTIVE REMEDIAL MEASURES
A. PROTECTION FROM HARM
B. SUICIDE PREVENTION
C. MEDICAL AND DENTAL CARE
V. COMPLIANCE AND QUALITY ASSURANCE
VI. MONITORING AND ENFORCEMENT
VII. REPORTING REQUIREMENTS AND RIGHT OF
ACCESS
VIII. IMPLEMENTATION AND TERMINATION
I. INTRODUCTION
(A) On May 8, 2002, the United
States notified State of Mississippi officials of its intent
to investigate conditions of confinement at the Oakley Training
School ("Oakley") in Raymond, Mississippi and Columbia Training
School ("Columbia") in Columbia, Mississippi, pursuant
to the Civil Rights of Institutionalized Persons Act ("CRIPA"),
42 U.S.C. § 1997 and the Violent Crime Control and Law
Enforcement Act of 1994, 42 U.S.C. § 14141 ("Section
14141").
(B) Between June 24 and September 27, 2002, the United
States toured Oakley and Columbia with consultants in the
fields of juvenile justice, medicine, mental health care,
education, and sanitation.
(C) Throughout the course of the investigation,
the United States received complete cooperation and access
to all facilities and documents from the State of Mississippi.
(D) On
June 19, 2003, the United States issued a findings letter
pursuant to 42 U.S.C. § 1997(a)(1), which concluded
that certain conditions at Oakley and Columbia violated
the constitutional and federal statutory rights of juveniles
confined in the facilities.
(E) The Court has jurisdiction over
this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1345,
and 42 U.S.C. § 14141.
Venue is proper in this district pursuant to 28 U.S.C.
§ 1391 (b).
(F) Defendants in this action are the State of Mississippi,
and the Mississippi Department of Human Services, and
their successors, contractors and agents. The State of
Mississippi shall ensure that all State agencies take
any actions necessary to comply with the provisions of
this Agreement.
(G) For purposes of this lawsuit only and in
order to settle this matter, the State of Mississippi consents
to the entry of a finding that it has violated the federal
rights of juveniles at Oakley and Columbia in each area
addressed in Section IV of this Agreement. The State is firmly
committed to providing legally adequate conditions by instituting
the remedial measures required by this Agreement.
(H) The State
asserts that it has made improvements in the following
areas since 2002: grievance system, greater access to attorneys,
religious freedom, new medical facilities, increased educational
staff. The United States takes no position on the validity
of the foregoing State assertions.
(I) The United States and the
State of Mississippi stipulate and agree that all of the
prospective relief in this Agreement is narrowly drawn,
extends no further than necessary to correct violations of
federal rights, is the least intrusive means necessary to
correct these violations, and will aid public safety and
the operation of Oakley and Columbia.
(J) The parties to this
Agreement agree and represent to the Court that this Agreement
complies in all respects with the provisions of 18 U.S.C. § 3626(a),
and may serve as the factual and legal basis for a Court
order issued pursuant to those provisions.
(K) The issue of liability
has not been litigated. The parties ask the Court to approve
this Agreement without a full hearing on the merits, on
the basis of the United States' Complaint and the above stipulations.
(L) This
Agreement is not intended to have any preclusive effect
except between the parties. Should the issue of the preclusive
effect of this Agreement be raised in any proceeding other
than this civil action, the parties agree to certify that
this Agreement was intended to have no such preclusive effect.
(M)This
Agreement and the Memorandum of Agreement shall not be
used against the State in any proceeding other than a proceeding
between the United States and the State of Mississippi.
(N) Nothing
in this Agreement or the Memorandum of Agreement shall
prevent the State from modifying or closing Oakley or Columbia,
or developing alternative community placements for the youth
currently in the facilities.
(O) No person or entity is intended
to be a third-party beneficiary of the provisions of this
Agreement or the Memorandum of Agreement for purposes of
any civil, criminal, or administrative action, and accordingly,
no person or entity may assert any claim or right as a
beneficiary or protected class under these agreements. These
agreements are not intended to impair or expand the right
of any person or organization to seek relief against the
State, Division or its officials, employees, or agents for
their conduct or the conduct of Division employees; accordingly,
they do not alter legal standards governing any such claims,
including those under Mississippi law.
II. DEFINITIONS
In this Agreement, the following definitions apply:
(P) "Columbia" means the Columbia Training School located
at 1730 Highway 44, Columbia, Mississippi, and any
facility that is built to replace or supplement Columbia.
(Q) "Division" means the Division of Youth Services within
the Mississippi Department of Human Services that
oversees the safety, treatment, and rehabilitation of juveniles
residing at Oakley and Columbia.
(R) "DOJ" means the United States Department of Justice,
which represents the United States in this matter.
(S) The term "Ironwood" shall refer to the stand alone building
located on the Oakley campus and in use as of the
DOJ's 2002 investigation.
(T) "Effective Date" means the date the Agreement is entered
by the Court.
(U) "Implement" means to give practical effect and ensure
actual fulfillment by concrete measures, including
appropriate training of relevant staff.
(V) "Include" or "including" means "include, but not be
limited to" or "including, but not limited to."
(W) "Isolation" means placement of a youth alone in a locked
room. The term isolation does not apply to locking
a youth in a room during the hours of 9:30 p.m. to 5:30 a.m.
or a similar eight-hour period for sleep.
(X)"Oakley" means the Oakley Training School,
which is also known as the Mississippi Youth Correctional
Complex, and is located at 2375 Oakley Road, Raymond, Mississippi,
and any facility that is built to replace or supplement
Oakley.
(Y) "Memorandum of Agreement" refers to the Rule 41
Agreement between the United States and the State
of Mississippi resolving the United States' education,
special education, mental health, and rehabilitative
services claims in this action.
(Z) "Restraints" means
any chemical or mechanical device, including OC spray,
used to control the behavior of a youth.
(AA) "Qualified medical professional" means
a physician, nurse or other medical provider licensed
and sufficiently trained to provide the services
he or she undertakes to provide.
(BB) "Qualified mental health professional" means a
mental health care provider licensed and sufficiently
trained to provide the services he or she undertakes
to provide.
(CC) "Quality Assurance Program" means a system of self-auditing
and improvement to assess the implementation and
effectiveness of all remedies instituted pursuant
to this Agreement, to identify deficits that may
exist, and to effectuate new measures to cure deficits
identified.
(DD) "SIU" means the Special Intervention Units at Oakley
and Columbia, designed for youth with behavioral
and disciplinary problems and youth who are suicidal.
(EE) "State" means the Defendants as described in paragraph
F above.
(FF) "Suicide Precautions" means any level of watch,
observation or measures to prevent self-harm.
(GG) "The facilities" means
Oakley and Columbia, collectively, and any residential
secure facilities operated by or under contract with
the Division of Youth Services.
(HH) "Train," means sufficiently
instruct in the skills addressed, including ongoing
assessment of mastery of instructional material.
(II) "Youth" means
any juvenile or juveniles committed by a court to and
residing at the facilities during the operation of
this Agreement.
III. CONSTITUTIONALLY REQUIRED CARE
The purpose of this Agreement is to protect some of the
constitutional rights of juveniles committed to Oakley and
Columbia. The terms and requirements of this Agreement shall be
interpreted to be consistent with the remedial measures necessary
to protect these constitutionalrights of the juveniles.
IV. SUBSTANTIVE REMEDIAL MEASURES
A. PROTECTION FROM HARM
(1) Protection from Harm The State shall, at all times, provide
youth in the facilities with reasonably safe living
conditions.
(2) Protection
from Abuse The
State shall ensure that youth are protected from
violence and other physical or sexual abuse by staff
and other youth.
(3) Protection from
Abusive Institutional Practices The State shall ensure
that abusive institutional practices such as hog-tying,
pole shackling, "sitting in a chair," "guard
duty," making youth eat vomit, making youth run with
tires around their bodies, or run with mattresses,
cease immediately.
(4) Protection
from the "Dark Room" The
State shall immediately cease using the "dark room" cells
at Columbia for the inappropriate punitive isolation
of girls in the SIU.
(5) Ironwood Ironwood
is closed and shall not be used for youth committed
to the Division during the life of this Agreement.
(6) Protection
from Undue Restraints The State shall ensure that youth are
not subjected to unreasonable restraints and that restraints
are never used to punish youth. The State shall develop
and implement policies, procedures and practices to ensure
that only safe methods of restraint are used at the facilities,
and only in those circumstances necessary for safety
and security.
(7) Reporting
of Staff Misconduct and Other Serious Incidents The
State shall develop and implement appropriate policies,
procedures, and practices to ensure that all incidents
of staff-on-youth and youth-on-youth violence, inappropriate
staff relationships with youth, and abusive institutional
practices are reported to appropriate individuals,
and that such reporting may be done through confidential
means, without fear of retaliation. The State shall
ensure that all incidents are adequately documented
and reported appropriately and with sufficient detail,
including the facts of the incident, any injury that
occurred as a result of the incident, and in a way
that permits review.
(8) Health Care
Inquiries Regarding Injury A nurse or other health
care provider shall question, outside the hearing of other
staff or youth if appropriate, each youth who reports to
the infirmary with an injury, regarding the cause of the
injury. If, in the course of the youth's infirmary visit,
a health care provider suspects staff-on-youth abuse, that
health care provider shall immediately:
a. take all appropriate steps to preserve
evidence of the injury (e.g., photograph the injury and
any other physical evidence);
b. report the suspected abuse to the appropriate
local officials;
c. document adequately the matter in the youth's
medical record; and
d. complete an incident report.
(9) Uses of Force The State shall develop and implement
comprehensive policies, procedures and practices governing
uses of force, ensuring that the least amount of force
necessary for the safety of staff, youth residents,
and visitors is used on youth.
(10) Investigations The State shall develop and
implement an adequate system for investigation by senior
management of uses of force, alleged child abuse, youth-on-youth
violence, and alleged sexual contacts.
(11) Staff Training in Behavior Management, De-Escalation
and Crisis Intervention The facilities shall provide
appropriate competency-based training to staff in behavior
management, de-escalation techniques, appropriate
communication with youth, and crisis intervention before
staff may work in direct contact with youth.
(12) Behavior Management
Program The State shall develop and implement an effective
behavior management program. The behavior management program
shall be implemented throughout the day including during
school time. The State shall develop and implement policies,
procedures, and practices to ensure that mental health staff
provide regular consultation regarding behavior management
to custody and other staff involved in the behavior management
program, and shall develop a mechanism to assess the effectiveness
of interventions utilized.
(13) Staffing The
State shall ensure that there are sufficient numbers
of adequately trained direct care and supervisory staff to
supervise youth safely, protect youth from harm, and
allow youth reasonable access to medical and mental health
services, and adequate time spent in out-of-cell activities.
(14) Isolation The
State shall develop and implement policies, procedures
and practices to ensure that isolation, lockdown,
seclusion and other similar restrictions are used only when
appropriate and in an appropriate manner, and to document
fully the use of isolation. The State shall immediately cease
requiring youth to strip and remain naked while in isolation.
(15) Due Process The
State shall ensure that youths confined for more than
24 hours receive an appropriate due process hearing by an
impartial supervisory staff member to determine whether
cause exists for continued disciplinary confinement.
(16) Grievances The
State shall develop and implement policies, procedures,
and practices to ensure that the facilities have
an adequate grievance system.
(17) Admissions
Intake and Orientation The
State shall develop and implement policies, procedures
and practices to establish a consistent, orderly admissions
intake system, conducive to gathering necessary information
about youth, disseminating information to staff providing
services and care for youth, and maintaining their
safety. Each youth entering the facility shall receive
an effective orientation that shall include simple directions
for reporting abuse, and assure youth of their right
to be protected from harm and from retaliation for reporting
allegations of abuse. Orientation shall also clearly
set forth the rules youth must follow at the facility,
explain how to access medical and mental health care
and the grievance system, and provide other information
pertinent to the youth's participation in facility programs.
(18) Employment Practices The State shall ensure that only
individuals fit to work with youth residents are employed
at the institutions. The State shall utilize reasonable
measures to determine applicants' fitness to work in
a juvenile justice facility prior to hiring employees
for positions at the facilities. Within 120 days of
the Effective Date of this Agreement, the State shall conduct
a criminal record check for all current employees at
the facilities, taking appropriate actions where new
information is obtained. Every two years thereafter,
the State shall update record checks for all employees
who come into contact with youth.
(19) Classification The
State shall develop and implement a classification
system that places youth appropriately and safely within the
facility, and provides for reclassification in appropriate
circumstances.
B. SUICIDE PREVENTION
(20) Development and
Implementation of Policy The State shall develop and implement
adequate policies, procedures, and practices relating to suicide
prevention.
(21) Suicide Risk
Assessments The State shall develop and implement policies,
procedures, and practices to ensure that qualified mental
health professionals conduct timely suicide risk assessments,
using reliable assessment instruments, for a) all youth exhibiting
behavior which may indicate suicidal ideation, and b) when
determining whether to change the level of suicide precautions.
(22) Mental Health
Response to Suicidal Youth The State shall develop and implement
policies, procedures, and practices to ensure that youth who
demonstrate suicidal ideation or attempt self-harm receive
timely and appropriate mental health care by qualified mental
health professionals. This shall include helping youth develop
skills to reduce their suicidal ideations or behaviors, and
ensuring that all youth discharged from suicide precautions
receive adequate follow-up treatment within the facilities.
(23)Supervision of Youth at Risk of Self-Harm The State shall ensure that
newly-arrived youth, youth in isolation or seclusion, and
other youth at heightened risk of self-harm are sufficiently
supervised to maintain their safety.
(24) Housing for Youth
at Risk of Self-Harm The State shall ensure that all housing
for youth at heightened risk of self-harm, including holding
cells, isolation cells, seclusion cells, and housing for youth
on suicide precautions, is free of hazards that would allow
youth to hang themselves or commit other acts of self-harm.
(25)Restrictions
for Suicidal Youth The State shall ensure that youth on suicide
precautions are not restricted in their access to programs
and services more than safety and security needs dictate.
(26)Documentation
of Suicide Precautions The State shall develop and implement
policies, procedures, and practices to ensure that the following
information is thoroughly and correctly documented, and provided
to all staff who need to know such information:
a. the times youth are placed on and removed from
precautions;
b. the levels of precautions on which youth are
maintained;
c. the housing location of youth on precautions;
d. the conditions of the precautions; and
e. the times and circumstances of all observations by
staff monitoring the youth.
(27)Access to
Emergency Equipment The State shall ensure that direct care staff have
immediate access to appropriate equipment to intervene in the
event of an attempted suicide.
(28)Suicide
and Suicide Attempt Review The State shall ensure that appropriate
staff review all completed suicides and serious suicide attempts
for policy and training implications.
C. MEDICAL AND DENTAL CARE
(29)Appropriate
Care The State shall provide youth adequate, appropriate, and timely
medical and dental care to meet the individualized needs of
youth, including treatment of acute and chronic medical conditions.
The State shall develop and implement adequate medical and
dental policies, procedures and protocols. The State shall
ensure that there are sufficient numbers of qualified medical
professionals to meet these needs.
(30 Coordination
of Medical, Dental, and Mental Health Care The State shall
hire a qualified health care services coordinator who shall
coordinate the medical, dental, and mental health care of
each youth in the facilities. The qualified health care services
coordinator shall coordinate care provided by lower level
practitioners, and participate in quality assurance and infection
control programs.
(31) Medical Facilities The
State shall ensure that the facilities are equipped
with adequate medical and dental clinics and that medical
equipment that could be used as weapons is not accessible
to youth. Each clinic shall provide for an appropriately
confidential environment in which to conduct medical and
mental health assessments.
(32) Health Assessments The State shall ensure
that youth receive adequate health assessments upon admission
or re-admission to the facilities.
(33) Medication
Administration The State shall develop and implement training
for all medical staff responsible for medication administration
to prevent medication discontinuity and ensure that generally
accepted professional standards are followed.
(34) Medical Referrals The State shall develop
and implement policies, practices, and procedures to ensure
that medical decisions to refer youth for specialty consultations
or dental treatment are not overruled by non-medical personnel.
(35) Medical and
Mental Health Records Retrieval The State shall develop and
implement policies, procedures and practices to ensure that,
consistent with State and Federal law, at a minimum, the
juvenile courts in the State, all juvenile detention facilities,
and all placement settings from which youth are committed,
timely forward all pertinent youth records regarding medical
and mental health care.
(36) Medical and Mental Health Record System The
State shall develop and implement policies, procedures
and practices to ensure that medical and mental health
care staff have access to documents that are relevant
to the care and treatment of the youth.
V. COMPLIANCE AND QUALITY ASSURANCE
(37) Document
Development and Revision The State shall revise and/or
develop policies, procedures, protocols, training curricula,
and practices to ensure that they are consistent with,
incorporate, address, and implement all provisions of this
Agreement. The State shall revise and/or develop as necessary
other written documents such as screening tools, logs,
handbooks, manuals, and forms, to effectuate the provisions
of this Agreement.
(38) Document Review Within 30 days after the filing
of this Agreement with the Court, the State shall submit
a master plan to DOJ that establishes a time line of up to
one year to revise and/or develop written policies, procedures,
protocols, training materials, and screening and assessment
tools to effectuate the provisions of this Agreement. The
master plan and the policies, procedures, protocols, training
materials, and screening and assessment tools shall be submitted
to the DOJ for review and approval consistent with this paragraph.
The DOJ shall provide prompt guidance to the State, including
specific explanations as to how the provisions, policies,
or procedures, if any, are inconsistent with the terms of
this Agreement, and shall suggest revisions. In the event
that the DOJ asserts that policies, procedures, and other
written documents are not in compliance with the terms of
this Agreement, the parties will agree to a schedule for
the parties' experts to communicate. The State shall revise
policies as necessary to conform with the terms of this Agreement.
If, after the policies, procedures, and practices affected
by this Agreement are implemented, either of the parties
determines that a policy, procedure, or practice, as implemented,
fails to effectuate the terms of this Agreement, the parties
shall consult and the policy, procedure, or practice shall
be revised as necessary to conform to the terms of this
Agreement. If the parties are unable to agree on revisions
to the policies, etc., the parties shall submit the
issue to the Monitor. If either party is unsatisfied with
the Monitor's resolution, then either party may invoke
mediation. If neither party requests mediation, or
at the conclusion of mediation, the dispute may be submitted
to the Court.
(39) Quality Assurance Programs The State shall
develop and implement Quality Assurance programs consistent
with generally accepted professional practices for each
discipline addressed in this Agreement.
(40) Corrective
Action Plans For each discipline addressed in this Agreement,
the State shall develop and implement policies and procedures
to address problems that are uncovered during the course
of quality assurance activities. The State shall develop
and implement corrective action plans to address these problems
in such a manner as to prevent them from occurring
again in the future.
(41) Technical
Assistance DOJ will provide the State with technical assistance
in the development of policies and procedures required
to effectuate the terms of this Agreement. DOJ will assist
the State in identifying additional financial resources
to supplement those resources currently allocated to the
facilities.
VI. MONITORING AND ENFORCEMENT
(42) Monitor
Selection The parties have jointly selected Joyce Burrell
to serve as the Monitor. Should the position become vacant
and the parties cannot agree on a replacement, the parties
shall recommend candidates to the Court, and the Court
will select the Monitor. Neither party, nor any employee
or agent of either party, shall have any supervisory authority
over the Monitor's activities, reports, findings, or recommendations.
The cost for the Monitor's fees and expenses shall be borne
by the State. The selection of the Monitor shall be conducted
solely pursuant to the procedures set forth in this Agreement,
and will not be governed by any formal or legal procurement
requirements. The
Monitor may be terminated only for good cause, unrelated
to the Monitor's findings or recommendations, and only
with prior notice to and approval of both parties or
by Court order.
(43) Monitor Qualifications The Monitor shall have experience and education or training
in the field of juvenile justice. The Monitor may also have
education, training, or experience in general or special
education, adolescent health and mental health needs (particularly
the needs of institutionalized adolescents), and institutional
abuse and incident investigations.
(44) Monitor
Access The Monitor shall have full and complete
access to the facilities, all facility and Division records,
staff, and residents. The State shall direct all employees
to cooperate fully with the Monitor. All non-public information
obtained by the Monitor shall be maintained in a confidential
manner.
(45) Monitor
Ex Parte Communications The Monitor shall be permitted
to initiate and receive ex parte communications
with all parties.
(46) Limitations on
Public Disclosures by Monitor Except as required or
authorized by the terms of this Agreement or the parties
acting together, the Monitor shall not: make any public
statements (at a conference or otherwise) or issue findings
with regard to any act or omission of the State or its
agents, representatives or employees, or disclose non-public
information provided to the Monitor pursuant to this Agreement.
Any press statement made by the Monitor regarding their
employment must first be approved by the parties. The Monitor
shall not testify in any other litigation or proceeding
with regard to any act or omission of the State, Division
or any of their agents, representatives, or employees related
to this Agreement, nor testify regarding any matter or
subject that he or she may have learned as a result of
his or her performance under this Agreement. Reports issued
by the Monitor shall not be admissible against the State
in any proceeding other than a proceeding related to the
enforcement of the State's agreements with DOJ. Unless
such conflict is waived by the parties, the Monitor shall
not accept employment or provide consulting services that
would present a conflict of interest with the Monitor's
responsibilities under this Agreement, including being
retained (on a paid or unpaid basis) by any current or
future litigant or claimant, or such litigant's or claimant's
attorney, in connection with a claim or suit against the
State or its departments, officers, agents or employees.
The Monitor is not a state or local agency or an agent
thereof, and accordingly the records maintained by the
Monitor shall not be deemed public records subject to public
inspection. Neither the Monitor nor any person or entity
hired or otherwise retained by the Monitor to assist in
furthering any provision of this Agreement shall be liable
for any claim, lawsuit or demand arising out of the Monitor's
performance pursuant to this Agreement. This paragraph
does not apply to any proceeding before a court related
to performance of contracts or subcontracts for monitoring
this Agreement.
(47)Monitor
Reports The Monitor shall file with the Court and provide
the parties with reports describing the steps taken by
the State to implement this Agreement and evaluate the
extent to which the State has complied with each substantive
provision of the Agreement. Such reports shall be issued
every four months, unless the parties agree otherwise.
The reports shall be provided to the parties in draft form
for comment at least two weeks prior to their issuance.
These reports shall be written with due regard for the
privacy interests of individual youth and staff and the
interest of the State in protecting against disclosure
of non-public information.
(48) Monitor
Budget The Monitor shall have a budget sufficient to allow
the Monitor to carry out the responsibilities described
in this Agreement. The Monitor may consult experts or consultants
retained by either party. All parties shall receive copies
of all draft reports from experts to the Monitor prior
to the issuance of any Monitor's report, and shall have
the option of being present at briefings from such experts
to the Monitor and to the State. The Monitor may initiate
and receive ex parte communications with the parties and
with the parties' consultants.
VII. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
(49) DOJ Access The DOJ shall have full and complete access
to the youth at the facilities. The DOJ shall have full and
complete access to the facilities, youth records, staff
records, and staff of the facilities regarding the
topics addressed in this Agreement. The DOJ shall have the
right to conduct unannounced visits to the facilities. The
DOJ shall have the right to conduct interviews with staff,
and confidential interviews with residents and former residents.
State attorneys may be present at interviews of staff and
tours of facilities. All non-public information obtained
by the DOJ shall be maintained in a confidential manner.
(50) State Response
to DOJ Questions Limited to ten succinct questions without
subparts within a six month period, within 30 days of receipt
of written questions from the DOJ concerning the State's
compliance with this Agreement, the State shall provide the
DOJ with written answers and access to any requested documents
regarding the State's compliance with the requirements of
this Agreement. Any dispute regarding the scope or burden
of the requests shall be resolved by the Monitor.
(51) State Documentation
of Compliance The State shall maintain sufficient records
to document its compliance with all of the requirements of
this Agreement. The State shall also maintain (so long as
this Agreement remains in effect) any and all records required
by or developed under this Agreement.
(52) State Compliance
Reports Fourteen calendar days before each report from the
Monitor is due, the State shall provide the Monitor and the
United States with a status report regarding its compliance
with this Agreement.
(53) Privileges This Agreement shall not be deemed to waive the attorney/client,
attorney work product, deliberative process, or executive
privileges. The State shall not assert physician/patient
or psychotherapist/patient privileges with respect
to the monitoring of this agreement and the Memorandum of
Agreement by DOJ and the Monitor.
VIII. IMPLEMENTATION AND
TERMINATION
(54) Information to Employees The State shall ensure
that all current and future relevant State employees understand
the terms of this Agreement (to the extent necessary
to carry out their job duties and responsibilities) and
implement the terms of this Agreement.
(55) Implementation The
State shall implement all reforms necessary to
effectuate this Agreement. The implementation will begin
immediately upon the filing of this Agreement. The parties
agree that the systemic and comprehensive nature of this
Agreement will require implementation and refinement of
policies and programs over a number of years. In addition,
the parties agree that the State shall make continuous
progress during the first three years of this Agreement
to provide adequate juvenile correctional officers, counselor
aides, and security officers. The parties also agree that
the State shall make continuous progress during the first
eighteen months of this Agreement to provide adequate teachers,
nurses, and nurse practitioners. As a separate matter,
minor, inconsequential, sporadic, unintentional or isolated
harmless instances of noncompliance with the Agreement
shall not be a basis for enforcement, provided
they do not affect a substantial interest of the youth.
(56) Integration This Agreement shall constitute the entire integrated
Agreement of the parties with respect to the United States'
claims concerning protection from harm and medical and
dental care. The United States and the State have entered
into a Memorandum of Agreement that addresses the United
States' claims concerning mental health, rehabilitation,
education, and special education. With the exception
of DOJ's findings letter referenced in ¶D hereof,
the Memorandum of Agreement, and any DOJ technical
assistance recommendations, no prior or contemporaneous
communications, oral or written, will be relevant
or admissible for purposes of determining the meaning
of any provisions herein in this litigation or in any
other proceeding.
(57) Enforcement If DOJ believes that the State has failed to substantially
comply with any obligation under this Agreement,
DOJ will, prior to seeking judicial action to enforce
the terms of this Agreement, give written notice of
the failure to the State. The parties shall conduct good-faith
discussions to resolve the dispute. If the parties
are unable to reach agreement within 15 days of the DOJ's
written notice, the parties shall submit the dispute
to mediation. The parties shall split the cost of the
mediator. In the first instance, the mediator shall
be Judge Reuben Vincent Anderson. If Judge Anderson is
not available, the mediator shall be Robin Rosenberg. If
neither of these mediators is available, the Court
shall select a mediator. Thereafter, the order in which
mediators are contacted shall alternate between mediations.
The parties shall attempt in good faith to mediate the
dispute for a minimum of 30 days prior to initiating any
court action. DOJ commits to work in good faith with the
State to avoid enforcement actions. However, in case of
an emergency posing an immediate threat to the health or
safety of youths, the United States may omit the notice
and cure requirements herein (including the
provision regarding mediation), before seeking judicial
action.
(58) Agreement
Coordinator The State shall appoint an Agreement Coordinator
to coordinate and oversee compliance with this Agreement.
(59)Termination This Agreement shall terminate four years from the
date it is ordered by the Court. The Agreement may also
end earlier than four years from the date it is ordered
by the Court if the State has substantially complied with
each of the provisions of the Agreement and has maintained
substantial compliance for at least two years. The
burden shall be on the State to demonstrate this level
of compliance. There are three substantive sections of
this agreement - protection from harm, suicide prevention,
and medical and dental care. A section of the Agreement
may be terminated if the State sustains its burden with
respect to that section of the Agreement. Noncompliance
with mere technicalities, or temporary failure to comply
during a period of otherwise sustained compliance will
not constitute failure to maintain substantial compliance.
At the same time, temporary compliance during a period
of sustained noncompliance shall not constitute substantial
compliance.
(60)Defense
of Agreement The parties agree to defend the provisions
of this Agreement. The parties shall notify each other
of any court challenge to this Agreement. In the event
any provision of this Agreement is challenged in any
local or state court, removal to a federal court shall
be sought.
(61) Successors This Agreement shall be binding
on all successors, assignees, employees, agents and all
those working for or on behalf of the State.
(62)No Waiver
for Failure to Enforce Failure by either party to enforce
this entire Agreement or any provision thereof with
respect to any deadline or any other provision herein shall
not be construed as a waiver of its right to enforce other
deadlines or provisions of this Agreement.
(63)Notice "Notice" under
this Agreement shall be provided by courier or
overnight delivery and shall be provided to the Governor
of the State of Mississippi and to the Attorney General
of the State of Mississippi.
(64)Unforeseen
Delay If any unforeseen circumstance occurs which causes
a failure to timely carry out any requirements of this
Agreement, the State shall notify the DOJ in writing
within 20 calendar days of the time that the State
becomes aware of the unforeseen circumstance and its impact
on the State's ability to perform under the Agreement.
The notice shall describe the cause of the failure to perform
and the measures taken to prevent or minimize the failure.
The State shall implement all reasonable measures to
avoid or minimize any such failure.
(65)Non-Retaliation The State agrees that it shall not retaliate against
any person because that person has filed or may file
a complaint, provided information or assistance, or
participated in any other manner in an investigation or
proceeding relating to this Agreement.
(66)Subheadings All subheadings in this Agreement are written for convenience
of locating individual provisions. If questions
arise as to the meanings of individual provisions,
the parties shall follow the text of each provision.
(67)Severability In the event any provision of this Agreement is declared
invalid for any reason by a court of competent jurisdiction,
said finding shall not affect the remaining provisions
of this Agreement.
(68)Attorney's
Fees and Expenses Each party shall bear the cost of
their fees and expenses incurred in connection with this
cause.
FOR THE UNITED STATES:
| /s/Dunn O. Lampton |
/s/R. Alexander
Acosta |
| DUNN O. LAMPTON |
R. ALEXANDER ACOSTA |
| United States Attorney |
Assistant Attorney General |
| Southern District of Mississippi |
Civil Rights Division |
| |
|
| |
/s/Bradley J. Schlozman |
| |
BRADLEY J. SCHLOZMAN |
| |
Deputy Assistant Attorney General |
| |
Civil Rights Division |
| |
|
| |
/s/Shanetta Y. Cutlar |
| |
SHANETTA Y. CUTLAR |
| |
Chief |
| |
Special Litigation Section |
| |
|
| |
/s/Tammi
R. Simpson |
| |
JUDY PRESTON |
| |
Deputy Chief |
| |
TAMMI R. SIMPSON |
| |
JEFFREY J. RESETARITS |
| |
LAURA L. COON |
| |
MATTHEW J. DONNELLY |
| |
Trial Attorneys |
| |
U.S. Department of Justice |
| |
Civil Rights Division |
| |
Special Litigation Section |
| |
950 Pennsylvania Avenue, N.W. |
| |
Washington, D.C. 20530 |
| |
|
FOR THE STATE:
| /s/Haley Barbour |
| HALEY BARBOUR |
| Governor |
| State of Mississippi |
| |
| /s/Donald Taylor |
| DONALD TAYLOR |
| Executive Director |
| Department of Human Services |
| |
| /s/Kathy Pittman |
| KATHY PITTMAN |
| Director |
| Division of Youth Services |
| |
| /s/Jim Hood |
| JIM HOOD |
| Attorney General |
| State of Mississippi |
| |
SO ORDERED this _______ day of ___________, 2005.
THE HONORABLE HENRY J. WINGATE
UNITED STATES DISTRICT COURT JUDGE
SOUTHERN DISTRICT OF MISSISSIPPI
