Investigation of Navada Youth Training Center
The Honorable Kenny Guinn
Governor of Nevada
Capitol Building
Carson City, NV 89701
Re: Findings of Investigation of Nevada Youth Training Center, Elko, Nevada
Dear Governor Guinn:
On December 6, 2001, we notified you, 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, that we were investigating conditions of
confinement at Nevada Youth Training Center ("NYTC"), a facility
located in Elko, Nevada, operated by the Department of Human
Resources for juvenile males who have been adjudicated
delinquent. During February 11-13, 2002, we and our expert
consultants toured NYTC. At an exit interview conducted on the
last day of our visit, we verbally conveyed our preliminary
findings to counsel and senior Department of Human Resources and
facility officials. Consistent with the requirements of CRIPA,
we are now writing to apprise you of our findings.
As a threshold matter, we wish to acknowledge, and express
our appreciation for, the extensive cooperation and assistance
provided to us by the NYTC staff, the leadership of the
Department of Human Resources and the office of the Attorney
General. We hope to continue to work with the State of Nevada
and the administration of NYTC in the same cooperative manner in
addressing the problems that we found. Further, we note that,
though certain conditions at NYTC require immediate attention,
the facility possesses many positive attributes.
I. BACKGROUND
We conducted our investigation by reviewing numerous
facility records; interviewing current and former NYTC staff,
including supervisory personnel, mid-level managers and line
staff; interviewing NYTC youths residing in each of the
facility's living units; observing and speaking informally with
staff and youths; and touring the facility's buildings and
grounds.
At the time of our visit, NYTC's population was
approximately 160 male youths, between the ages of 13 and 18.
Most of the youths during our visit were 15 to 18 years old. The
majority of them came from the Reno and Las Vegas areas and were
committed to NYTC for seven to twelve months because of property
offenses, drug charges, and failures in residential placements.
The facility operates seven living units. Each of the three
larger units can house approximately 30 youths. The remaining
four can accommodate approximately 20 youths. The living units
are overseen by approximately 11 head staff and 40 supervisory
staff. The facility also has 5 counselors and a vacant position
for a psychologist.
NYTC has many positive elements. It is configured as a
residential boarding school, with no perimeter fences. It has a
fully accredited academic and vocational educational program. It
maintains an active interscholastic athletic program. Its
behavior point system appears to function reasonably well. Its
fire fighting program offers an unusual, positively affirming
experience for its youth participants. Finally, many of its
staff appear to be motivated by the youths' welfare, and its
newly installed administration has voiced a commitment toward
implementing a quality program. However, certain conditions at
NYTC are not consistent with constitutional standards.
As a general matter, the State must provide confined,
adjudicated juveniles with reasonably safe conditions of
confinement. See Youngberg v. Romeo, 457 U.S. 307, 315-16, 24
(1982) (recognizing that a person with mental retardation in
state custody has rights under the Fourteenth Amendment,
including the right to reasonable safety); Bell v. Wolfish, 441
U.S. 520, 535-36 & n.16 (1979) (applying the Fourteenth Amendment
standard to adult pre-trial detainees); Gary H. v. Hegstrom, 831
F.2d 1430, 1432 (9th Cir. 1987) (applying Fourteenth Amendment
standard to facility for adjudicated juveniles). It must also
provide a means of grievance that reasonably does not expose
juveniles to risk of retribution. Bradley v. Hall, 64 F.3d 1276
(9th Cir. 1995). The State must provide minimum procedural
safeguards before placing juveniles in disciplinary confinement.
Milonas v. Williams, 691 F.2d 931, at 941-942 & n.4 (10th Cir.
1982). It must also not censor mail based on criticisms of the
juvenile institution. Id. at 940-941. Finally, it must provide
juveniles with adequate mental health care. Youngberg, 457 U.S.
at 315. The conditions that do not meet constitutional
standards, and the minimum remedial steps that we believe need to
be undertaken in response, are detailed below.
II. FINDINGS
Our findings address the following areas: (1) excessive
force; (2) an inadequate grievance system; (3) lack of procedural
due process in the imposition of seclusion and time out;
(4) improper screening of mail for statements critical of the
facility; (5) inadequate mental health care and safety; and
(6) unsafe transportation of youths.
A. Excessive Force Is Prevalent at NYTC
In operating NYTC, the State is constitutionally required to
"take reasonable measures to guarantee the safety of inmates."
Farmer v. Brennan, 511 U.S. 825, 832 (1994)(internal quotation
marks and citations omitted). A corollary obligation is to
refrain from use of excessive force against prisoners. Id.
These obligations extend to juveniles in detention. See H.C. v.
Jarrard, 786 F.2d 1080, 1089 (11th Cir. 1986)(juvenile's rights
violated when juvenile detention facility superintendent slammed
juvenile against wall and metal cot for laughing and protesting
imposition of isolation on another detainee); Milonas v.
Williams, 691 F.2d 931, 942 (10th Cir. 1982)(prohibiting physical
force for any purpose other than to restrain juvenile who is
physically violent and immediately dangerous to himself or others
or physically resisting institutional rules); Nelson v. Heyne,
355 F. Supp. 451, 454 (N.D. Ind. 1972)(beating juveniles with
boards violated juveniles' constitutional rights), aff'd, 491
F.2d 352 (7th Cir. 1974).
Most of the youths, and a number of current and former
staff, whom our consultants interviewed credibly recounted
instances in which they had seen staff use excessive force
against youths. These instances included punching youths in the
chest, kicking their legs, grabbing shirts and shoving youths
against lockers and walls, "dipping" or throwing youths to the
floor, slapping youths in the face, smashing youths' heads in
doors, and pulling youths from their beds to the floor. Staff
and youths further indicated that, typically, the triggers for
the use of force were youths disobeying or failing to follow
directions, rather than youths posing an immediate threat of harm
to themselves or others.
Similarly, most of the youths, and a number of current and
former staff, whom our consultants interviewed reported that
youths frequently were subjected to verbal abuse, in which their
race, family, physical appearance and stature, intelligence, or
perceived sexual orientation were aggressively attacked. It was
evident that some staff used verbal abuse to provoke youths into
physical confrontations to provide a pretext for the use of
force.
In conducting record reviews, our consultants found numerous
memoranda, incident reports, abuse reports, written reprimands
and other documentation of incidents where: (1) use of force was
treated as "horse play" or otherwise trivialized when the
described circumstances suggested more serious physical contact
occurred, without significant repercussions to the involved
staff; and (2) the same staff person was identified in multiple
incidents, without significant interventions. In this regard, it
does not appear that the facility's reporting system includes the
possible relationship between verbal abuse and use of force.
The frequency with which particular instances were
corroborated by more than one person, and with which particular
staff and/or abusive practices were independently identified by
record review, youths and staff, lead us to conclude that there
is a pattern or practice of use of excessive force at NYTC.
These problems were especially prevalent at the Reception
and Classification ("R&C") Unit, in which all new youths are
"oriented," although they were by no means isolated to that
living unit. Almost every one of the youths we interviewed in
that living unit related instances of physical or verbal abuse
that occurred there. Further, the unit is extremely regimented -- youth spend extended periods in silence and in their rooms, and
their exposure to meaningful educational programing is
inadequate. Youths in R&C are often threatened, especially
around food issues. For relatively minor infractions they are
placed in "time out," and forced to sit upright on their bed
frame for extended periods of time. A number of youths and a
long-term staff member indicated that, as of the time of our
visit, staff regularly threaten to force feed R&C youths who do
not take a portion of everything offered in the foodline and then
eat it all. In effect, the R&C Unit is a place where newly
arrived youths at NYTC are taught that, notwithstanding its
written policies, the facility will subject them to excessive
force, verbal abuse and intimidation as means to control them.
Our consultants' interviews and record reviews identified
several factors contributing to the excessive force at NYTC.
First, certain staff persons in management positions were
frequently identified as regularly using excessive force against
youths. Despite their reputations, these persons have received
insignificant, if any, sanctions regarding their use of excessive
force. In fact, some of them were promoted to management
positions after NYTC had determined that they had used
inappropriate force on youths. In the same vein, a number of
current and former staff related to us their perception that
NYTC's administration had tolerated this conduct, at least when
engaged in by certain staff members.
Record reviews confirmed this perception. In the facility's
documentation, staff's use of force is often described as
"horseplay" or otherwise minimized. A November 20, 2001
memorandum is typical; it detailed an investigation of an
incident in which a youth received a one-inch laceration at the
back of the head as a result of a physical altercation with a
staff member, and stated, ". . . [the youth] initiated the
altercation by making fun of [the staff's] sweater . . . . [T]he
staff grabbed [the youth] and wrestled him to the ground . . . ."
It then recounted that the staff was "told that he could expect a
memo (oral warning) on Horseplay."
A July 20, 2000 written reprimand of R.B. recounted that:
As a result of [a youth's] slow response to your
instructions, you kicked his posterior with your foot
to get his attention. It was determined that the ward
was not injured and that you just meant to get his
attention, however, kicking a ward for any reason,
playing or to get a point across is unacceptable.
The youth was not out of control, nor did he pose a risk of
danger to anyone. He was subjected to use of force "to get his
attention." Yet, the facility described the incident in the
context of playful activity and limited R.B.'s sanction to a
written reprimand. It was quickly apparent during our interviews
of youths and staff that R.B. was widely known to use excessive
force. Nevertheless, he continued to supervise youths until
shortly after our tour, following which he reportedly was
dismissed.
Second, NYTC's staffing patterns often leave only one staff
person responsible for 20 to 28 youths. This staffing pattern
exposes staff to group control issues that undoubtedly contribute
to a perception among many staff members that even minor
infractions must be met swiftly with physical intimidation to
maintain control.
Third, the facility's behavior management/crisis
intervention training for staff is provided once annually: Newly
hired staff can supervise youths for up to a year before
receiving it. Even then, there is some doubt whether all staff
supervising youths receive it. Further, the non-violent
intervention techniques that are taught require two or more staff
to implement. Because staff often are providing single coverage
when supervising youths, many staff regard these techniques as
useless. In fact, in our record review, we could not find a
single reference indicating that these techniques had been
implemented at NYTC.
Fourth, quality assurance and documentation practices at
NYTC are weak. Frequently, incident reports and other NYTC
documentation fail to justify why staff used force and why other
non-physical interventions were not implemented. The
documentation is mainly silent about the nature and amount of
force used in any given incident. Further, we saw no evidence
indicating that the facility can track or systemically analyze
critical incidents, including factors such as time, place, nature
of force, involved persons, and antecedent events.
Fifth, the abuse investigation process at NYTC is often
ineffective, which, in addition to the more immediate problems
associated with responding properly to a particular incident,
reenforces the perception among staff that excessive force
against youths is tolerated. Currently, when a formal abuse
investigation, which is conducted by state officials and local
law enforcement, is initiated, the facility typically does not
take responsive action until that investigation is completed.
However, these formal investigations often are conducted weeks or
months after the alleged incident, by which time visible evidence
of injury, if any, is lost. Under such circumstances, the
facility should at least take steps to ensure that relevant
evidence is preserved and that youths are adequately protected
from harm. Further, the facility's investigations are often
conducted by staff who directly supervise the people whom they
are investigating. Finally, as noted above, NYTC most often
employs mild sanctions, such as "letters of instruction" or
"guidance," in response to instances in which it found excessive
force was used.
B. NYTC's Grievance System Is Ineffective and Fails to
Protect Youth from Harm
Just as prisoners and juvenile detainees have a
constitutional right of access to the courts, they have a right
to a grievance system that does not carry risk of punishment as a
price for using it. See Bradley v. Hall, 64 F.3d 1276 (9th Cir.
1995); see also Bounds v. Smith, 430 U.S. 817, 822 n.17 ("Our
main concern here is protecting the ability of an inmate to
prepare a petition or complaint.") (internal quotation marks and
citations omitted). For the entire calendar year 2001, only five
youth grievances were filed. Youths do not use the facility's
grievance system because they do not trust it. Many youths told
us that they did not believe that the facility would seriously
investigate their grievances, and some related that some staff
had threatened to retaliate against those who grieved. When we
asked a youth whether he felt safe at NYTC, he described his
fearful reaction to witnessing a staff member striking another
youth. Although this incident, which other youths witnessed,
frightened him enough to relay fears for his safety in a letter
to his father, the youth did not report it to anyone at the
facility. Significantly, NYTC's administration reportedly began
investigating this incident after the father brought it to the
superintendent's attention, not in response to a grievance.
C. NYTC's Seclusion and Disciplinary Confinement Practices
Lack Adequate Due Process
Juveniles should not be involuntarily secluded for periods
longer than necessary to regain control of themselves and to
eliminate significant risks to the safety of the juvenile, other
persons and the security of the institution.
Courts have held that, in the case of juvenile correctional
and detention facilities, use of isolation triggers the due
process protections of the Fourteenth Amendment. In Milonas, the
Tenth Circuit affirmed a permanent injunction barring a facility
from ever placing juveniles in isolation rooms. 691 F.2d at 941-42 & n.4. The Ninth Circuit has held that, in juvenile
facilities, due process hearings are warranted before inmates are
placed in disciplinary confinement for extended periods of time.
See Gary H., 831 F.2d at 1432-33 (9th Cir. 1987) (due process
hearing prior to confinement in excess of 24 hours
constitutionally warranted). Further, juvenile facilities must
also abide by whatever state-created process pertains to liberty
restrictions involving significant hardship.
The NYTC Policy Manual (9-3 and 9-4) indicates that
Seclusion, or "Time Out" (isolation in a small, locked room,
interrupted only by latrine breaks) can be used to protect youths
from harming themselves or others, to prevent escapes, and to
prevent program disruption. Youths involved in fighting may be
placed in time out for up to an hour, with extensions of time
made based upon a written justification. Policy 9-3. Youths in
time out are to receive psychological, medical and educational
services, and large muscle activity. Policy 9-4. Procedurally,
such time out intervention must be reviewed after 60 minutes by
the Superintendent or his designee and can be extended for up to
24 hours. Id. Thereafter, "due process protections," including
an evidentiary hearing, are required for further extensions of
time. Id. Time out is not to be used as a punishment. Id.
NYTC's actual practice does not comport with its procedure.
For instance, according to NYTC's "time out" log, on February 10,
2002, two youths were placed in "time out" for 7.75 hours, for
"gang related" activities. There was no indication that their
condition was reviewed by a staff person after 60 minutes, that a
written recommendation was made to exceed 60 minutes, or that
they were kept in time out to establish calm or safety. The time
out log further indicates that, also on February 10, a youth
remained in time out for 13 hours as a consequence of fighting,
again without substantiating the need for this extension. Youths
are sometimes isolated in excess of 24 hours without a due
process hearing. The log contains a January 9, 2002 entry, for
example, indicating that a youth was placed in time out for 32
hours for fighting, without any evidence that a due process
hearing was provided.
Our interviews of youths and review of records makes clear
that "time out" is an almost automatic response to fighting and
that its duration often runs well beyond the time that individual
behavior control has been reestablished. That is, it appears
that "time out" is used in contravention of NYTC procedures as a
form of summary punishment. At a minimum, NYTC must comply with
its own procedures regarding the imposition of "time out" and
disciplinary confinement. Cf. Bass v. Perrin, 170 F.3d 1312,
1318 (11th Cir. 1999) (even adult prisoners enjoy state-created
liberty interest when prison deprives them of yard time, in
contravention of its procedures, after placing them in
segregation).
D. NYTC's Practice and Policy Regarding Screening of
Outgoing Mail is Unconstitutional
NYTC's Policy (15-4) identifies as "unacceptable" mail
relating "[s]ituations or incidents that could or would bring
discredit to the Institution or staff." In many, if not all,
living units, staff routinely read youth's outgoing mail.
Prohibiting mail because it is critical of an institution and
routinely subjecting outgoing mail to screening has been held to
be unconstitutional. Milonas, 691 F.2d 931, 940-941 (10th Cir.
1982) (affirming order permanently enjoining, as violative of the
1st and 14th Amendments, policy and practice of a Utah school for
youths monitoring and censoring outgoing mail that was critical
of the institution.)
E. Inadequate Mental Health Care and Safety
NYTC is not providing adequate mental health care and safety
for its youths. Youths receiving psychotropic medications at the
time they are admitted to the facility are not systemically
screened and evaluated before a professional determination is
made whether to discontinue such medications; psychotropic
medications are automatically and permanently discontinued at the
youths' arrival, without the provision of alternative psychiatric
supports.
Also, the single rooms in the infirmary area contain suicide
risks (e.g., grated windows, metal door arms) that should be
eliminated. In the same regard, toxic cleaning materials are
sometimes stored in unlocked containers in some of the cottages.
Such materials should be secured.
F. Unsafe Transportation of Youths
The facility typically handcuffs youths together during
transport to and from the airport. This is an unsafe practice
that substantially departs from professional standards and places
youths at risk of harm.
III. MINIMUM REMEDIAL MEASURES
To remedy the deficiencies discussed above and to protect
the constitutional rights of juveniles at NYTC, Nevada promptly
should implement the minimum remedial measures set forth below.
A. Excessive Force
NYTC must take reasonable measures to guarantee the safety
of the youth in its custody and to protect them from harm from
the use of excessive force. In particular, the facility should:
1. Limit the use of force to situations in which youths
pose a risk of harm to themselves or others.
2. Ensure that, regardless of position or seniority, all
staff are held accountable, through meaningful
disciplinary action, for the use of excessive force and
verbal abuse used to provoke youths into
confrontations.
3. Maintain staff ratios that will permit staff to
supervise, and maintain control of, youths without
resort to excessive use of force.
4. Ensure that all instances of use of force are
immediately, thoroughly, and reliably documented and
investigated.
5. Ensure that quality assurance mechanisms are in place
that adequately monitor and analyze incidents where
force is used, identify corrective action, as
appropriate, and ensure that such action is
successfully undertaken.
6. Ensure that all allegations of abuse are investigated
in a timely and thorough manner.
7. Provide appropriate behavior management/crisis
intervention training to staff before staff may work in
direct contact with youths.
B. Grievances
NYTC must provide youth with an effective, reliable process
to raise grievances, without exposing them to retribution from
staff. In particular, the facility should:
1. Ensure that grievances are examined by persons other
than the staff, and the direct and indirect supervisors
of those staff, who supervise the youth making the
grievance.
2. Ensure that youths making a grievance are informed of
the results of the grievance process.
C. Seclusion and Disciplinary Confinement
NYTC must not place youths in seclusion in contravention of
its own policies. In particular, the facility should:
1. Ensure that youths do not remain in time out after they
no longer pose a significant risk of danger to
themselves, others or the security of the institution.
2. Ensure that, before youths are placed in confinement in
excess of 24 hours, they are afforded adequate due
process protections, including an evidentiary hearing.
D. Screening And Censoring Outgoing Mail
NYTC staff must not censor youths' outgoing mail for
material critical of the institution.
E. Mental Health Care and Safety
1. The decision to discontinue a youth's psychotropic
medications should be made based on a professional
assessment of the youth, not on a blanket prohibition
of such medications.
2. Suicide risk hazards, such as grated windows and door
arms, in single rooms near the infirmary should be
eliminated, and toxic cleaning chemicals in the living
units should be safeguarded properly.
F. Transportation of Youths
Youths should not be handcuffed together when being
transported to or from the airport.
* * * * *
The collaborative approach that the parties have taken thus
far has been productive. We hope to be able to continue working
with the State in an amicable and cooperative fashion
to resolve our outstanding concerns regarding NYTC.
We will forward our expert consultants' reports under
separate cover. Although their reports are their work - and do
not necessarily represent the official conclusions of the
Department of Justice - their observations, analyses, and
recommendations provide further elaboration of the relevant
concerns, and offer practical assistance in addressing them. We
hope that you will give this information careful consideration
and that it will assist in facilitating a dialogue swiftly
addressing areas requiring attention.
In the unexpected event that the parties are unable to reach
a resolution regarding our concerns, we are obligated to advise
you that the Attorney General may initiate a lawsuit pursuant to
CRIPA, to correct deficiencies or to otherwise protect the rights
of NYTC residents, 49 days after the receipt of this letter.
42 U.S.C. § 1997b (a)(1). Accordingly, we will soon contact
State officials to discuss in more detail the measures that the
State must take to address the deficiencies identified herein.
Sincerely,
/s/ Ralph F. Boyd, Jr.
Ralph F. Boyd, Jr.
Assistant Attorney General
cc: The Honorable Frankie Sue Del Papa
Attorney General
State of Nevada
Michael J. Willden
Director
Nevada Department of Human Resources
Dale E. Warmuth
Superintendent
Nevada Youth Training Center
Daniel G. Bogden, Esq.
United States Attorney
Updated July 25, 2008
