Special Litigation Section Cases and Matters

REMARKS
OF
STEVEN H. ROSENBAUM
CHIEF, SPECIAL LITIGATION SECTION
CIVIL RIGHTS DIVISION
UNITED STATES DEPARTMENT OF JUSTICE

BEFORE THE
FOURTEENTH ANNUAL
NATIONAL JUVENILE CORRECTIONS AND DETENTION FORUM

AT
LONG BEACH, CALIFORNIA
MAY 16, 1999



I. Introduction

Thank you. I am pleased to speak with you this morning about civil rights issues in juvenile detention and corrections systems. I bring greetings from both Attorney General Reno and Acting Assistant Attorney General for Civil Rights Bill Lann Lee.

The Attorney General reserves high praise for lawyers who are "problem solvers and peace keepers." It is in that spirit that I join you today. Often we in the Civil Rights Division meet you in the context of investigations and litigation. But we also want to work with you to find ways to avoid those enforcement activities.

My speech today comes in two parts. In the first part, I will explain the civil rights laws we enforce and the procedures we use to enforce them. I want you to know who we are, what we do and how we do what we do. In the second part, I will identify the major, recurring problems we find in juvenile facilities and discuss ways to address those problems. In doing so, I will discuss the challenges you face due to: 1) the increased resort to juvenile incarceration; 2) the special needs presented by juveniles who are young or who have a mental illness or mental retardation; and 3) the wide range of educational needs among incarcerated youth. I will also discuss the problems we see when adult correctional models are applied to juvenile settings. When I'm done with each part of my presentation, I look forward to, what I expect will be, a spirited and frank question and answer period.

Let me begin by putting our civil rights work in the broader juvenile justice context. Here is what Attorney General Reno had to say when she announced that we had reached a settlement agreement with Georgia concerning its juvenile facilities:

"The children of America are our most precious possession. How we treat them predicts our future. How we guide them is a measure of our abilities as government officials, parents, teachers and concerned citizens.

Young people must be held accountable when they commit a crime. They must know that you can't put a gun up beside someone's head and rob them and get away with it.

Yet, we cannot give up on the children we place in the juvenile justice system because they are coming back to our communities. We cannot fail to educate them and treat their ills. To fail to do so is inhumane -- and it is penny-wise and pound-foolish. If we return our delinquents to the streets without giving them the care and tools to cope they will be back in the system again. If they don't acquire the proper skills, if they don't receive the proper education, if they don't learn the difference between right and wrong, and aren't treated with basic dignity, then they run huge risks of committing further crimes, or of being jobless and a burden on us all or ill and a charge to the taxpayer.

We must administer punishments to our young in firm, fair ways that fit the crime and that hold them accountable. At the same time we must pave the way for each child to have a strong and positive future -- crime free, self-sufficient and contributing."

II. Investigations and Litigation

Congress has authorized the Department of Justice to protect the federal rights of youths in juvenile detention and correctional facilities. In particular, the Department enforces the Civil Rights of Institutionalized Persons Act (often called "CRIPA" for short), a statute Congress has called "the single most effective method for redressing systemic deprivations of institutionalized persons' Constitutional and Federal Statutory rights."(1) We also enforce a provision of the 1994 Violent Crime Control and Law Enforcement Act that authorizes the Attorney General to bring civil lawsuits to correct a pattern or practice of violations of juveniles' federal rights by juvenile justice administrators. The Attorney General has delegated the authority to enforce both provisions to the Special Litigation Section of the Civil Rights Division.

In the eighteen years since Congress enacted CRIPA, the Special Litigation Section has investigated close to 100 juvenile correctional facilities in 16 states, and the Commonwealths of Puerto Rico and the Northern Mariana Islands. Most of these investigations have taken place in just the last five years.

We have resolved almost all of these investigations without contested litigation. We are now monitoring settlements covering juvenile facilities in Georgia, Kentucky, Puerto Rico and the Northern Mariana Islands. We currently have ongoing investigations of a handful of juvenile correctional facilities. And we continue to try to find ways to resolve our litigation concerning Louisiana's juvenile facilities.

In enforcing the federal rights of incarcerated juveniles, we have generally focused on three sources of federal rights: the Constitution, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act.

Under these legal standards, juveniles are entitled to reasonable safety -- including protection from juvenile-on-juvenile violence and abuse or excessive force by staff -- and adequate medical and mental health care. They are also entitled to reasonable rehabilitative treatment in order to fulfill the purpose for which they were committed. For certain juveniles with special needs, federal law requires reasonable accommodations in physical plant and programming, including education, to enable those juveniles with disabilities to benefit from school and other programs. To ensure that these rights are realized, juveniles must have adequate access to the courts, their lawyers and their families.

We do not view ourselves as adversaries of those who administer the facilities and systems we investigate. We recognize that working with troubled adolescents is difficult, even under the best of circumstances, and many systems operate under circumstances that are far from ideal. Some systems are increasingly crowded, stretching resources thin. For many institutions, finding and keeping qualified professional and other staff can be challenging, especially in more remote settings. Juveniles are entering your facilities with a multiplicity of problems, including drug and alcohol addiction, mental illness, histories of sexual and physical abuse, deteriorated families, and lifelong exposure to violence and crime. You are asked to maintain order, yet protect juveniles from each other and from excessive force; to treat juveniles fairly; and to provide negative consequences for delinquent behavior while also providing rehabilitative services, all within the constraints of fiscal austerity.

I note the challenges you face to let you know that when our attorneys and experts go into a juvenile facility we do not go in pointing fingers. We do not go in expecting perfection, looking for problems, or trying to find someone to blame. We go in with an appreciation, built up over the many years we have done this work, for the difficulties of your job, and with a deep respect for those who do it well.

In fact, it has been our experience that quite often administrators view our investigations and subsequent involvement as an opportunity. We regularly encounter administrators who want to run better facilities, but who require the resources, technical assistance or the focused attention or commitment of government officials at higher levels of the jurisdiction's government, to do so. Our investigations, findings and the subsequent dialogue are helpful in focusing attention on important issues, assisting administrators make the case for additional resources, and outside expertise and assistance in improving their programs and facilities.

To do our job -- to protect the constitutional rights of incarcerated juveniles -- we try to work with you, constructively, to achieve our common goals of safe, humane and rehabilitative institutions of juvenile justice.

Let me describe a typical investigation in order to illustrate how these principles are put into practice.

CRIPA authorizes the Attorney General to investigate conditions in juvenile institutions and to bring litigation when necessary. But unlike private lawsuits on behalf of juveniles, we are not authorized to seek money damages. We seek only to determine if systemic problems exist and to ensure that any problems we identify are fixed -- efficiently and effectively. If we uncover evidence of potential criminal civil rights violations, we do refer the evidence to the Division's Criminal Section for review. But it is not our mission to find someone to put in prison or hold liable for damages.

We open investigations of juvenile institutions when we have reason to believe that there may be wide-spread problems leading to serious violations of federal rights. We rely on a wide variety of sources, including reports from government agencies or the news media, as well as information from juveniles and their families or those that advocate on their behalf. We look for concrete and credible information of serious, systemic problems. Investigation recommendations by Special Litigation Section staff are subject to careful review. Every recommendation is reviewed by me, as Chief of the Section, and then by those in the Division's front office who oversee our work. Every formal investigation must be approved by the head of the Civil Rights Division.

Once a formal investigation has been authorized, CRIPA requires us to notify the Governor and Attorney General of the appropriate State, and the Director of the facility. Now, in response to a suggestion made when Bill Lann Lee met with corrections administrators last August, we also notify the state correctional administrator or head of the state department of juvenile justice at the same time.

Investigations are conducted by expert consultants, attorneys and paralegals, all with experience in juvenile justice. Many of the expert consultants we use have had hands-on experience in juvenile justice systems. Generally, investigations under CRIPA include a visit to the facility, during which the expert consultants we have retained walk through the facility, talk with administrators, staff and youths, and review documents in order to verify what we have been told. Often, prior to these on-site visits we will meet with state officials and administrators to explain the process and answer any questions. At the conclusion of an on-site visit our normal practice is to meet with administrators and officials so that our expert consultants can provide immediate feedback regarding their initial impressions. This "exit interview" is an opportunity for administrators and officials to ask questions about what our experts observed, what further information we might need, and what can be expected next.

We have found that when this model is followed, we are usually able to collaborate with administrators to identify any existing problems, and bring about needed changes.

If the investigation does not reveal a pattern or practice of federal violations, we close the investigation and notify the jurisdiction. But if the investigation does reveal a pattern or practice of federal inadequacies, we send a letter explaining our findings in detail. Again, this requirement is built into CRIPA.

This letter, which we call a "findings letter," describes our conclusions regarding conditions, the facts in support of our conclusions, and the minimum measures that will remedy the problems we found. The letter is subject to rigorous internal review and must be approved and signed by the head of the Civil Rights Division.

CRIPA requires the Justice Department to wait at least 49 days after sending a findings letter before filing a lawsuit. CRIPA also requires that we make a good faith effort to negotiate a remedy with the appropriate state authorities and inform them about available federal financial and technical assistance.

In practice, we make every effort to reach an agreement with the jurisdiction about how to correct the problems we found before we ever resort to litigation. We view this process as joint problem solving for a common purpose. State authorities often voluntarily comply with the remedies we suggest. When we see steady improvement and genuine effort we will continue to work with the state. As a result, most CRIPA matters end before contested litigation ever begins.

For example, about a year ago, with the help of Dr. Eugene Walker, who will be speaking on a subsequent panel, we negotiated in just one month a comprehensive agreement with Georgia that covers all the state's juvenile justice facilities. Georgia is now devoting resources to improving its juvenile justice system rather than to prolonged contested litigation. Attorney General Reno wanted to spread the word about what she viewed as this exemplar of problem solving and peace keeping. That's why she sent a letter to state officials citing Georgia and other investigations of juvenile institutions as examples of cases where "we have avoided the expense, acrimony and delay of litigation while securing the rights" of institutionalized persons.(2)

So that is how the statute we use to enforce federal rights operates. It provides notice of our actions throughout the investigation, and it anticipates cooperation wherever possible.

III. Recurring Problems

I'd like to talk now about some areas of increasing concern in juvenile justice administration. In the past few years, we have investigated and worked with administrators in numerous juvenile justice facilities and several States. These investigations have ranged from single facilities to State-wide systems, from 30-bed detention centers to 700-bed training schools. Each facility is different, but many institutions face similar problems so that it is worth making a few generalizations about the common challenges we see administrators facing, especially administrators in systems that are struggling. In particular, major issues we see repeated in troubled institutions have to do with crowding, special needs populations (especially juveniles who are very young, mentally ill or mentally retarded), the increased use of adult correctional practices in juvenile facilities, and education. A. Crowding First, let me discuss crowding. Most systems have seen an increase in the number of juveniles they must serve; many detention facilities have seen a dramatic increase in admissions.(3) This is likely due, in part, to an increased recourse to the juvenile justice system in response to the behavior of troubled adolescents. As I shall discuss shortly, it may also be related to the diminishing capacity of other social service institutions, particularly mental health providers and those who provide services to troubled families in the community. But whatever the cause, it is the juvenile justice administrators who must accommodate the influx of additional youths. Those systems that have experienced significant population increases, and those that had not undertaken sufficient expansion to accommodate more modest increases, have suffered from a variety of problems associated with crowding.

Increased population leads, most obviously, to physical plant capacity problems. There simply is not enough space, in many systems, to adequately house the number of juveniles being placed in the system. As a result, we have been in facilities where three, four or even five juveniles are sleeping in rooms designed for one or two. This leads not only to sometimes unsanitary conditions, but also to severe problems providing adequate supervision to the juveniles.

This is compounded by an additional effect of crowding -- difficulties in implementing a classification system that will separate vulnerable juveniles from those who may harm them. Such failures of classification can, and do, lead to instances of unobserved, preventable physical or sexual abuse. For example, in one detention facility, we found that a youth being held for violation of probation had been housed with three youths accused of armed robbery and aggravated assault and was beaten and sexually assaulted without intervention by staff.

Crowding stretches thin all the resources of a facility. Classrooms become crowded, often leading to difficulties in controlling behavior and to teachers being faced with a wide range of academic abilities and needs within a single class. Often, when staffing does not keep pace with population, direct care staff are asked to monitor ever increasing numbers of juveniles. Their job is made more difficult when the density and other effects of crowding lead to increased irritability and conflict among the youth. The pressures of the job often lead to extremely high turnover and additional strain on training and oversight. B. Special Needs Juveniles A second area of concerns has to do with the demographics of the populations we find in juvenile facilities. On the one hand, facilities are asked to serve significant numbers of juveniles who have committed very violent acts. However, juveniles who commit the most serious acts of violence are increasingly diverted from the juvenile system and tried as adults.(4) At the same time, we find that a large segment of the population in many facilities has come to be composed of younger juveniles and juveniles with relatively minor offenses. On average, less than 20% of juveniles in any system have committed violent offenses.(5)

This diverse population results in a need for adequate classification and a variety of programming. This is especially true for those juveniles with a variety of special needs. Systems experiencing a growth in population are especially likely to see an increase in the number of juveniles with relatively rare conditions and needs. This includes juveniles with serious chronic health conditions (such as diabetes, asthma and sickle cell disease) or mental illness, as well as other populations with needs that are simply different from the general population for whom most programs have been developed (such as very young youth and girls). Failing to provide for the special needs of these populations can, in some cases, result in great harm. For example, failure to identify asthmatics and assess the health risks in a boot camp can lead to life-threatening consequences. As I will discuss shortly, failure to identify and adequately address mental illness often leads to suicide attempts, self-mutilation and serious behavior problems.

As a result, it is increasingly important for juvenile justice systems to have in place a systematic intake process that identifies the full range of medical, mental health, educational and other needs and problems of the juveniles placed in its custody. Once these needs have been identified, juvenile systems must have in place a means to provide adequate care based on the individualized needs of the juvenile. Many of the problems we encounter in juvenile facilities relate to failures to adequately address these special populations. Two, in particular, are worth mentioning. 1. Young Juveniles

First, the very young. According to OJJDP statistics, a growing number of incarcerated juveniles is fourteen years old or younger.(6) In our investigations, we have encountered juveniles as young as nine in secure facilities, often held for minor offenses that would not ordinarily result in secure incarceration. In one investigation, we encountered a very small eleven-year-old boy who was being detained for threatening his fifth grade teacher; a twelve-year-old boy with a seizure disorder incarcerated for making a harassing phone call; a fourteen-year-old girl in secure detention for painting graffiti on a wall; a thirteen-year-old girl who had stolen $127 from her mother's purse; and numerous children who had run away from troubled homes. Often the decision to place these juveniles in a secure facility reflects the lack of other alternative options, rather than a judgment of the true security risk of the child.

At other times, these very young juveniles have often found their way into secure incarceration because of unusually serious emotional and behavioral problems, often after traditional alternative attempts to respond to their behavior have failed. Direct care staff often find these children the most difficult to deal with -- many are alternately playful and volatile, engaging in childish horseplay at one moment and aggressive outburst in the next. As a result, all too often we find that these young residents are inappropriately subject to isolation, restraint, use of force, injuries and exclusion from school.

They are also at increased significant risk for mental health problems and suicide. For example, in one detention facility, we met a 13-year-old girl with a history of running away from home because her mother's boyfriend sexually molested her. She was being held after charges were filed against her for breaking a window screen in a group home and attempting to kick a staff member. She had been held in the detention facility for almost a month when our staff met her, the legal justification for which was the lack of a suitable parent or other custodian to supervise her pending her hearing. While incarcerated, she suffered from serious depression and had nearly succeeded in committing suicide the morning of the day we met her.

We know that not only do adolescents think and act differently than adults, but very young teenagers think and act differently than older teenagers. The failure to account for those differences, either through the maintenance of appropriate alternative placements, creation of placements specifically for younger children or through modification of programming and operations, can lead to persistent and serious violations of those juveniles' rights. 2. Mentally Ill or Mentally Retarded Juveniles Juveniles with mental illness or mental retardation also have special needs. The number of juveniles with mental illness or other significant mental health needs in juvenile facilities nationally is difficult to determine. One federally-funded study found that 60% of incarcerated juveniles have a diagnosable mental health disorder, while 20% have severe psychological disorders.(7) At the time of our investigation in Georgia, an Emory University study had found similar prevalence rates in Georgia's detention facilities.(8) Whatever the particular numbers, it is clear that a sizeable portion of youths in juvenile facilities has significant mental health needs. An adequate mental health system in a juvenile facility must identify mentally ill youth, provide treatment to them, keep them from harming themselves or others, protect them from abuse, and ensure that they receive necessary accommodations to enable them to benefit from programs offered at the facility. We frequently find deficiencies in all five areas.

Not every mental illness is immediately identifiable by correctional staff in a juvenile facility. It is important for mental health needs to be systematically evaluated by qualified professionals. This must happen not only to facilitate appropriate professional treatment, but also to ensure that line staff can become aware of the special needs of individual juveniles and be taught appropriate responses to those needs.

Far too often, we find that predictable behavior relating to mental illness is interpreted by inadequately trained staff as disobedience, defiance or even threats. Staff respond with anger, discipline or even force -- even though other interventions could have defused the situation.

For example, during one of our investigations, we encountered a youth with a history of psychiatric hospitalizations and self-injury (such as placing staples in his eyes). In one incident, he had been placed in shackles for two and a half hours as punishment for misbehavior in a security unit. When he managed to escape from the cuffs, staff physically subdued him and put the handcuffs back on. He continued to act up and was forcibly restrained and given a shot of Thorazine, then placed back in handcuffs and shackles. When he began to kick the door, staff sprayed him with OC spray. He was then showered and put in the isolation room, where he continued to beat his head against the wall until staff placed him in a straight jacket and helmet. Here's the point: At no time during, or after this incident was the youth seen by a mental health professional. Instead, all of his behavior was treated with correctional responses by staff who may not have even understood that the youth had a mental health condition.

In another case, we encountered a girl who continually stabbed her self in the stomach, requiring stitches which she continually pulled out. Every time she engaged in self-mutilation, she was given a disciplinary ticket and punished by security staff with no apparent awareness of her mental health condition or any coordination with mental health professionals.

In these kind of circumstances, it is wrong to punish a juvenile for behavior caused by mental illness. And it is wrong to expect correctional officers to supervise juveniles with mental illness in appropriate ways if they have not been trained how to do so.

Moreover, once a mental health need has been identified, it is not enough simply to have a psychiatrist who rarely visits the facility prescribe pyschotropic medications. Professionals must be involved in providing individualized treatment and in considering what reasonable accommodations are necessary to permit the juvenile to benefit from the services offered at the facility. Juveniles with learning disabilities must be provided special education services to enable them to benefit from educational services, juveniles with cognitive disabilities may require special assistance to benefit from substance abuse programming, youths with severe attention deficit disorder may require accommodations in facility rules to prevent their disability from resulting in disciplinary sanctions. The extent and type of reasonable accommodations needed will vary based on disability and the individual juvenile, but the need for such accommodations must be considered by qualified professionals and the required adjustments should be provided.

And, when adequate mental health care cannot be provided at the facility, the juvenile system should provide alternative placements where it can be provided. Under mounting population pressures, there is significant incentive to reproduce more or less identical copies of existing institutions and programs. System planners, however, should recognize the need to provide a continuum of services to respond to the special needs of those who cannot receive adequate services in traditional programs. C. Adult Corrections Model We have found that providing for the special needs of very young juveniles and mentally ill youths has been complicated by another recent trend in many juvenile systems -- the increased use of adult models of operation in juvenile facilities. Both physically and operationally, juvenile facilities are increasingly like adult jails and prisons. From the use of razor wire and jump suits, to the use of restraint chairs and OC spray, many juvenile facilities are now run in much the same way as prisons, despite the very different needs and legal rights of juveniles. We have found that the wholesale adoption of many adult practices without taking adequate account of the relevant differences between adults and adolescents, has often resulted in operational difficulties and violations of juveniles' federal rights.

The use of extended isolation as a method of behavior control, for example, is an import from the adult system that has proven both harmful and counterproductive when applied to juveniles. It too often leads to increased incidents of depression and self-mutilation among isolated juveniles, while also exacerbating their behavior problems. We know that the use of prolonged isolation leads to increased, not decreased, acting out, particularly among juveniles with mental illness.

We have also confronted the use of restraint and physical management techniques designed for use in adult correctional facilities or police departments that have resulted in increased risk of unnecessary injury to juveniles. These techniques range from tactics that are dangerous and inappropriate in any setting -- such as hogtying-- to tactics that impose unnecessary risk of injury and infliction of pain in the specific context of a juvenile facility.

Such tactics are especially prone to abuse when staff are not adequately trained in the differences between adult and adolescent behavior. We know that juveniles, more than adults, are prone to temporary bouts of defiance and disobedience that can be addressed through verbal interventions. But we have seen that officers trained in adult prison practices, or who come from a background of adult corrections, are often bewildered by the reactions of juveniles, by the failure of traditional correctional responses to achieve desired results. When staff are trained or allowed to resort too quicky to threats and force in the face of non-compliant adolescent behavior, minor incidents get escalated and the risk of harm increases for both the juvenile and the officer.

At a more general level, the sharp division between "security" and "services" that is often developed when an adult correctional model is implemented in a juvenile setting makes it more difficult to provide adequate services to juveniles. In juvenile facilities organized this way, the vast majority of the adults are designated as "security" or "correctional" officers whose responsibilities are often limited to giving orders and enforcing them through disciplinary sanctions, threats and physical force. Although these are the adults with whom the juveniles spend the most time, they often do not, and are not expected, to be involved in the rehabilitative treatment of the juvenile. Instead, rehabilitative treatment is provided in discrete doses by other professionals in much the same way medical treatment is dispensed. The security staff are not trained in the processes for changing the way juveniles think about themselves and their actions, they know little or nothing about the treatment needs or plans for the juveniles under their watch, and they are unable to take advantage of the numerous daily opportunities presented for confronting maladaptive adolescent behaviors in a way that transforms instances of conflict into opportunities for self-reflection and learning.

Their detachment from the treatment process is particularly regrettable in regards to the treatment needs and special accommodations required for juveniles with mental health disabilities. As I mentioned earlier, we have observed on many occasions officers responding to the manifestations of mental illness in ways that escalate volatile situations and place the safety of both staff and juveniles at unnecessary risk simply because they are unaware of the juveniles' mental health condition and are untrained in appropriate responses to it.

Of course, these problems can exist regardless of the title of direct care staff and the model of organization in a facility. The Constitution does not require one model of operation or forbid another, although the model of operation can have an impact on the ability of a facility to comply with federal mandates. The important point is that many of the problems we see in juvenile facilities, particularly those running on an adult model, not only violate specific legal rights of juveniles (for example, to be free from excessive force or arbitrary discipline), but also undermine the underlying mission of the facility. Beyond missed opportunities, when security staff do not receive adequate training and supervision, the lessons taught by educators and counselors are easily diluted, if not countermanded, by daily modeling of adult behavior by correctional staff. Lessons on anger management and non-violence ring hollow when the most significant adults in the juveniles' lives at the time respond to conflict with anger and resolve disputes through force. Lessons in respect for authority can be quickly lost when the immediate authority of correctional staff is exercised arbitrarily. Individualized treatment planning by psychiatrists and other mental health professionals is unlikely to be effective when line staff are not involved in its implementation. D. Education The final area I wish to discuss is education. We know that the vast majority of juveniles entering your facilities have significant educational deficits and that many -- from 30 to 60% according to most studies(9) -- are eligible for special education services. Some of these juveniles have dropped out of school in the community, or attend erratically, while many others were attending school and often receiving special education services directed at helping them overcome learning disabilities or behavior or mental health problems that interfere with their ability to benefit from school. We also know that failure to overcome these deficits will make it particularly difficult for these young people to find employment and successfully reintegrate into their communities when they are released.

Our initial, and extremely basic, concern is that the State at least do no harm when it pulls juveniles from their home schools and places them in juvenile justice education programs. That is, too often we find that youths return from a stay in a juvenile facility further behind in school than when they left, having to repeat grades or, faced with the prospect of repeating grades, dropping out of school altogether. This is due in large part to failures to ensure that youths receive credit for the work they performed in the facility schools, but also due to inadequacies in the quality of services provided in the institution.

The basic rehabilitative premise of juvenile institutions requires, however, that facility schools do better than simply doing no harm. Incarceration provides an invaluable opportunity to identify educational needs and respond to them intensively and individually, so that there is a better prospect of the juvenile leaving the facility, returning to school and graduating. For those students who -- because of age, interests or other reasons -- will not return to an academic program, facility schools must provide vocational education opportunities to prepare the students for some form of productive lifestyle when they leave.

We find that facility education programs that are struggling in these areas often do so for common reasons. First, as is true in other areas, appropriate individualized programming requires initial identification of individualized needs, including eligibility for special education services. This requires communication with parents and prior schools, adequate testing and thorough review of other available documentation. Too often, for example, our education consultants are able to easily identify, from facility records, juveniles who were receiving special education in the community but who have not been identified for special education by the facility.

Second, the information from these assessments must translate into appropriate educational services based on the students' needs. This requires having available a range of services, especially in facilities that house juveniles with a significant range in age and educational level. We have been in institutions where limited resources result in a teacher having to provide instruction to a class ranging in age from 11 to 18, with reading levels from kindergarten to high school. Not surprisingly, such teachers are often frustrated and are often unable to provide adequate services to anyone in the class.

Third, adequate education programs must be designed for the special population of students in juvenile facilities. This includes focusing on intensive remedial needs in reading and math. Behavior management programs should strive to maintain order in the classroom without regularly excluding students from receiving educational services based on behavior problems. We know that this is not easy. It requires teachers who are not only dedicated, but qualified through education, certification and special training to provide services to these youths. But we also know that it is something that is done, and done well, in many of your facilities.

Fourth, the Individuals with Disabilities Education Act, requires that juvenile facilities identify eligible juveniles, whether they have been previously identified or not. Facilities must develop individualized special education programs for such juveniles that are based on the individual needs, which may include mental health counseling, family counseling and other related services. And for juveniles of appropriate age, special education must include plans and services to aid the student in transitioning to post-school activities, which may require vocational education services or instruction in independent living skills. Importantly, the services to be provided must be based on the individualized needs of the juvenile, not on the resource constraints of the facility. Unfortunately, we frequently find that services that are not readily available at the school, due to resource limitations, are not considered or offered, even when those services have previously been determined to be necessary by independent professionals in the community school systems. To protect against this sort of unwarranted reduction of services, and otherwise protect the rights of disabled juveniles, federal law requires that facilities involve the student's parents in the process and inform them of their rights to challenge the decisions reached by the school for their child, or appoint a surrogate parent when the parent is unavailable.

IV. Remedies

Now that I have discussed some of the problems we find during our investigations, I would like to identify some of the things jurisdictions have done in response to such problems in the context of agreements resolving our investigations. Of course, no single reform is guaranteed to work and every jurisdiction must consider what is appropriate in the context of its institutions and its particular challenges. Our agreements often have provisions specifically addressed to particular problems we observed, but there are also some more global, institutional changes that jurisdictions have undertaken to improve the quality of services more generally.

Clearly, additional resources are often (although not always) needed to address deficiencies. Our agreements generally require specific commitments to provide the resources necessary to implement the specific reforms agreed to by the parties.

On a more operational level, one means of addressing particular problems, such as mental health or education, is to designate highly qualified, State-level staff with focused responsibility for developing policy, securing resources and technical assistance, and monitoring the quality of care in that area.

Similarly, we have asked jurisdictions to develop internal quality assurance mechanisms to improve the quality and quantity of information received by top administrators and to focus attention on specific areas of concern within the institutions. These self-monitoring mechanisms have included processes for ensuring independent, high-quality investigations of allegations of staff misconduct as well as inquiries into significant, serious events such as attempted suicides and mass disturbances, for the purpose of evaluating the effectiveness of institutional responses and identifying any potential need for changes in policies or training to minimize the risk of reoccurrence. The idea is to create internal monitoring processes that will outlive the Justice Department's involvement with the institution.

As a part of a program to address overcrowding or the treatment needs juveniles (especially special needs populations), jurisdictions have undertaken to develop a continuum of placements and utilize a risk and needs assessment to assign juveniles to the most appropriate placement. This includes alternatives to secure detention for low-risk youths prior to adjudication, a range of forensic placements for those with serious mental health needs, alternatives to paramilitary boot camps for juveniles who are too young, medically fragile or mentally ill to benefit from a traditional program, and community placements for juveniles who can receive more effective services in their homes and do not require secure incarceration.

Finally, improved training is generally a component of most reform efforts. Assistance in developing and providing such training is available through several of the organizations represented here today, including the Justice Department's Office of Juvenile Justice and Delinquency Prevention.

V. Closing

Of course, we would prefer not to have to become involved in reform efforts in any jurisdiction, at least not through law enforcement investigations or litigation. The Department of Justice, through OJJDP and other resources, and through participation in conferences such as this, seeks to encourage jurisdictions to be pro-active, to assess conditions in their own facilities and to respond to needs without federal law enforcement intervention. But when necessary, the Civil Rights Division does undertake investigations and, when we find serious problems and attempts at a negotiated resolution do not succeed, contested litigation. We hope to minimize these conflicts as much as is possible, consistent with our important law enforcement obligations. But even when we find ourselves in disagreement with administrators, we hope to be able to at least make clear our understanding of the significant challenges faced by all institutions, our appreciation for those who have devoted their lives to improving the lives of young people and their communities, and our desire to find ways to work together in this important endeavor.

Thank You.

1. S. Rep. No. 416 at 27 (1980).

2. Letter from Attorney General Reno to State Officials (Nov. 9, 1998).

3. See Office of Juvenile Justice and Delinquency Prevention, Conditions of Confinement 36 (1994).

4. See Office of Juvenile Justice and Delinquency Prevention, Juvenile Arrests 1996 at 6 (November, 1997) ("The proportion of juvenile arrests sent directly to criminal court in 1996 (6%) was the highest in the last two decades.").

5. Conditions of Confinement at 42. See also Office of Juvenile Justice and Delinquency Prevention, Juveniles Taken Into Custody: Fiscal Year 1993 at 32 (Sep., 1995).

6. See Juveniles Taken Into Custody: Fiscal Year 1993 at 12.

7. Cocozza, J.J. (ed.), Responding to Youth with Mental Disorders in the Juvenile Justice System (1992).

8. "Study: Kids in Jail Often Suffer Psychological Disorders," Atlanta Journal Constitution B3 (Feb. 28, 1996).

9. See Murphy, D.M., "The prevalence of handicapping conditions among juvenile delinquents" in Remedial and Special Education, 7-17 (1986) (analysis of 13 studies).
 

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Updated August 6, 2015

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