III. Conditions of Confinement:
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Our Kids Cant Act Like That The Missouri Model of Juvenile Correctional Facilities Amid the seemingly inevitable realities of New Yorks existing juvenile justice system, it is often difficult for both officials and reformers alike to imagine anything other than the status quo. According to reports, however, for over 20 years, juvenile facilities in the State of Missouri have pursued a sincere commitment to juvenile rehabilitation that disposes with corrections convention in favor of a higher quality of life for residents coupled with some of the lowest recidivism rates in the country.354 The system, referred to as the Missouri Model, took shape in the late 1970s as the establishment of smaller facilities was slowly joined by a new approach to staffing and a working philosophy genuinely stressing treatment over punishment. From the outset, smaller, region-specific facilities ensured that residents were never too far from their homes. In these smaller group settings residents are far more likely to receive the specialized attention essential to rehabilitation.355 According to Mark Steward, former director of Missouris Division of Youth Services and one the primary architects of the Missouri Model, a state can only fully realize the benefits of the small facility model when those staff-resident relationships are of a high quality. Steward said in an interview with HRW/ACLU that this starts with a uniquely equipped and caring staff composed of college-degreed individuals with a level of ethnic diversity reflective of the children in their care. 356 Within the facilities, both residents and staff are individually accountable for the personal relationships they forge while in residence, offering an organic solution for both resident behavioral issues and the staff apathy and turnover that characterize larger facilities. To Steward, controlling staff makeup is essential for a staff-resident relationship that steers clear of the correctional-style interactions that dominate the juvenile justice experience in other states. Steward stresses that severing any philosophical or bureaucratic link between juvenile and adult corrections is a necessary first step in moving from a juvenile justice system that is an idle repository for rejected children to a refuge for kids who warrant renewed investment from their communities and governments. Often, says Steward, the transformation requires awakening a system and its politicians to the realization that these kids are not demons.357 This change of mindset is made easier when policymakers realize that the investment required by the Missouri Model is a question of attitude and technique, not a matter of increased financial investment. The smaller resident populations are divided into 9- to 11-member teams in which each child and staff member is authorized to initiate impromptu rehabilitative discussions and therapy sessions and any child can call the entire team together in a circle for a discussion at any point during the day.358 These sessions allow residents to explore the underlying sources of turmoil in their lives, whether family history or bodily trauma. Physical and mechanical restraints are almost nonexistent in the Missouri Model; rather, when a conflict threatens to escalate, residents form a trust circle, a simultaneous embrace of team members that calms residents whose outbursts endanger the group. The Missouri Model also requires a complete rejection of the opaqueness characteristic of the New York system and instead a simple commitment to outside oversight throughout all levels of administration. In Stewards view, abuses and neglect are simply less likely to happen in an open system. In Missouri, active advisory boards review facilities practices and liaison councils bring legislators and other officials into facilities to interact with residents. In another measure to increase openness, Missouri has situated its facilities in uniquely visible and social environs, such as placing a girls facility on an active college campus where residents regularly dine with the student population.359 These measures simultaneously reduce the likelihood of abuse and increase public understanding of residents and the challenges they face. Looking ahead, Steward predicts that the most significant barrier to Missouri-style change in a situation like New Yorks may be on the agency level. A lot of people [within the agencies] say, Well, our kids cant act like that, laments Steward.360 The challenge ahead rests equally on the shoulders of administrators, legislators, and advocates to ensure that, while this states most troubled children may not be identical to Missouris, New Yorks juvenile justice system can indeed act like that and realize some of the lessons of the Missouri Model. |
154 See, for example, New York State Office of Children and Family Services, Facility Programs: Brief Descriptions of Office of Children and Family Services Residential Facilities and Their Programs, (December 2003).
155 See, for example, Legal Aid Testimony (2000) (Both girls and boys are shortchanged when in custody because the existing system provides inadequate mental health, education, vocational training, and life skills training . . . .).
156 See, for example, Lansing Grievance #4953 (1/04)(feels unsafe after attack by her peer); Lansing Grievance #5170 (4/04)(peers confronting her, staff not saying anything); Lansing Grievance #6459 (3/05); Lansing Grievance #7235 (10/05)(peers put hands on her and nothing was done about it); Lansing Grievance #7301 (11/05)(was threatened by 2 peers and was put on shut down); Tryon Grievance #9050 (2/05). These and subsequent citations refer to grievance logs maintained by the facilities and obtained by HRW/ACLU through a request under the New York Freedom of Information Law. The logs contain abbreviated summaries of grievances filed by incarcerated girls. The citations herein contain the unique number assigned to each grievance and the month and year in which the grievance was submitted.
157 Among their requests under the New York Freedom of Information Law, HRW/ACLU requested: incident reports including, but not limited to, reports regarding inmate death, problems with providing medical care to inmates including delayed provision of medical care, sexual contact between inmates and staff or among inmates, escape, use of force, use of physical or chemical restraints, use of isolation, and use of chemical sprays, inmate medical emergencies, and fights or other disturbances. This request was denied, and a subsequent appeal from the denial was rejected. In addition, OCFS redacted information concerning excessive and unnecessary use of force, as well as other compromising information, from documents it did disclose to HRW/ACLU.
158 HRW/ACLU interview with Denise J., New York, New York, February 13, 2006.
159 Performing the restraint procedure is also known among girls and staff as flooring or dropping girls.
160 See, for example, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted 10 December 1984, G.A. Res. 39/46, U.N. Doc. A/39/51, entered into force June 26, 1987, ratified by the United States of America on October 21, 1994. CAT prohibits the use of cruel, inhuman, or degrading treatment or punishment, and specifically requires that law enforcement personnel and others involved in the custody of any person be trained as to the prohibition. CAT, arts. 10, 16. See also Convention on the Rights of the Child, (CRC) adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/RES/44/25, entered into force September 2, 1990, signed by the United States of America on February 16, 1995, art. 37, para. a; United Nations Rules for the Protection of Juveniles Deprived of their Liberty (U.N. Rules), adopted December 14,1990 by General Assembly Resolution 45/113, rule 87(a).
161 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States of America on June 8, 1992, art. 10, para. 1.
162 CRC, art. 19, para. 1.
163 Under paragraph 67 of the Riyadh Guidelines, [a]ll disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned. United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), adopted and December 14, 1990 by General Assembly Resolution 45/112. See also Riyadh Guidelines, para. 54; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), adopted November 29, 1985 by General Assembly Resolution 40/33, para. 17.3.
164 Riyadh Guidelines, paras. 63, 64; U.N. Rules, rules 66-67. Even the standard applied to adults is very restrictive, permitting physical force only in self-defense or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. United Nations Standard Minimum Rules for the Treatment of Prisoners, U.N. ECOSOC Res. 663C and 2076, adopted July 31, 1957 and May 13, 1977, para. 54(1).
165 Riyadh Guidelines, para. 64.
166 American Correctional Association, Standards for Juvenile Correctional Facilities, 3-JTS-3A-31 (Feb. 2003) (Use of Force: Written policy, procedure, and practice restrict the use of physical force to instances of justifiable self defense, protection of others, protection of property, and prevention of escapes, and then only as a last resort and in accordance with appropriate statutory authority. In no event is physical force justifiable as punishment. . . ).
167 9 NYCRR §§168.1, 179-1.2(b)(2) (2006).
168 9 NYCRR §§ 168.3(a),168.2(b). Physical restraints under OCFS regulations refer to handcuffs and footcuffs.
169 Office of Children and Family Services, Policy and Procedures Manual, PPM 3247.13: Use of Physical Force, July 11, 1997, p. 4.
170 HRW/ACLU interview with Denise J., New York, New York, February 13, 2006; HRW/ACLU interview with Anne C., New York, New York, March 17, 2006; HRW/ACLU interview with Wendy M., New York, New York, November 16, 2005; HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006; HRW/ACLU interview with Janine Y., New York, New York, May 24, 2006; Tryon Grievance #8753 (7/04); review of Legal Aid Society attorneys redacted notes of visit to the Tryon facility on December 28, 2005 (Legal Aid Society site visit).
171 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
172 HRW/ACLU telephone interview with Stephanie Q., May 15, 2006.
173 HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
174 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
175 For example, a June 6, 2003, notice to a staff member reads in part: On the above occasion, you used an improper restraint that resulted in injury to the Resident. A November 10, 2004, notice to a staff member reads in part: On August 2, 2004 . . . you used an improper restraint technique on resident [name redacted]. . . you used unnecessary physical force on resident [name redacted] . . . . A May 18, 2005 notice describes a restraint as having resulted in resident [name redacted] receiving abrasions to her chin and shoulder areas.
176 OCFS Notice of February 16, 2005 to staff member (name redacted).
177 Tryon Monthly Report, October 2002, 14.
178 HRW/ACLU interview with Selena B., New York, New York, February 14, 2006.
179 Letter from Felicia H., to HRW/ACLU, January 24, 2006. Some punctuation added for ease of reading.
180 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
181 HRW/ACLU interview with Denise J., New York, New York, February 13, 2006. OCFS refused requests by HRW/ACLU for incident reports and statistical information regarding the precise nature of injuries inflicted on girls during use of the restraint procedure, preventing an exact assessment of the nature and severity of such injuries. Letter from Kathleen R. DeCataldo, Records Access Appeals Officer, to HRW/ACLU, March 9, 2006; Letter from Sandra A. Brown, Assistant Commissioner, Public Affairs, to HRW/ACLU, January 11, 2006.
182 Tryon Grievance #8716 (6/04).
183 Tryon Monthly Report, January 2004, p. 13 (One resident had an emergency room visit after sustaining injury during a restraint. She was treated for a laceration above her left eye, requiring 4 stitches. She also had a mild concussion.); Tryon Monthly Report, February 2004, p. 2 (during a restraint, a girl sustained a cut to her chin which required transporting her to the emergency room and she received sutures. During another restraint, the same girl sustained an injury to her eyebrow area and steri-strips had to be applied.); Tryon Monthly Report, April 2004, p. 2 (a girl alleged that a male staff her face into the floor. The youth sustained a cut to her eyebrow which required stitches from the emergency room.); Tryon Monthly Report, May 2004, p. 2. (during a restraint, a pop sound is heard and the restrained girl experiences severe swelling of her hand and wrist); Tryon Monthly Report, July 2005, p. 13 (We had one resident receive sutures as a result of a restraint.); Tryon Monthly Report, August 2005, p. 1 (There was an incident where a youth was restrained while at the gym. This youth alleged she was retrained for no reason. Additionally, this youth sustained a cut to her chin.). Although more restraints occur on average at Lansing than at Tryon, the nature of the injuries inflicted on girls during these restraints cannot be discerned because Lansings administrators do not include such information in their monthly reports.
184 HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
185 HRW/ACLU interview with Anne C., New York, New York, March 17, 2006.
186 See, for example, Tryon Grievance #9561 (11/05)([R]esident feels she got restrained by [name redacted] for no reason. Wants something done about this.), Tryon Grievance #8265 (6/03)(Does not want to be on the same unit with [name redacted]. Wants him to take training and to be written up for restraining her and broke open her lip.). Among eleven specifically restraint-related complaints filed at Lansing in 2005 was Lansing Grievance #7383 (12/05) ([name redacted] hit head on floor during restraint and still has headache.).
187 HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
188 HRW/ACLU telephone interview with Stephanie Q., May 15, 2006.
189 HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
190 Tryon Monthly Reports, June 2005, p. 6. The employee was formally counseled for his misbehavior.
191 In the Tryon facility, girls are issued colored shoe laces according to their status.
192 The mudroom, whose use is further described below, is a section of hallway between the living and common areas of each unit in the Tryon facility.
193 Girls held in OCFS facilities are frequently required to stand with their hands held in a diamond shape behind their backs.
194 HRW/ACLU interview with Dana G., New York, New York, May 24, 2006. Other formerly incarcerated girls reported having seen pregnant girls subjected to the restraint procedure outside of Tryon and Lansing, in pre-adjudication facilities and an OCFS non-secure facility.
195 There were seven grievances filed in 2005 relating to non-restraint physical abuse. Complaints involved staff hitting, punching in the face, and throwing a boot at a girl.
196 Tryon Monthly Report, April 2003, p. 2 (girl alleges being choked and kicked in the face by staff).
197 Tryon Grievance #9522 (10/05)([name redacted] is grieving [name redacted] because resident claims that 8th period, she was supposed to leave w/secure & she stepped out of classroom, & he tried to choke her. Wants him to stay away from her.); Tryon Monthly Report, December 2002, p.1 (girl alleges being choked by staff).
198 Tryon Grievance #9291 (6/05)([name redacted] is grieving because on 6/27/05, while resident was in the hallway, resident claimed that [name redacted] grabbed her by the head and threw it against the wall and laughed about it. Does not feel safe around him.); Tryon Monthly Report, December 2004, p. 2 (a girl alleged being slammed against the wall).
199 Tryon Grievance #9343 (7/05)([name redacted] is grieving [name redacted], because she states that he is constantly using pressure points & inappropriate tactics even through hard-playing in itself is wrong, especially w/ professionals. Would like to see staff be more professional & protect the well-being of children instead of hurting them.).
200 Tryon Monthly Report, August 2005, p.2. See also Tryon Monthly Report, November 2005, p. 1 (One youth was sen[t] to Urgent Care for precautionary measures when she injured her hand during a restraint.).
201 See footnotes 52 and accompanying text, above. Some estimates of the rate of past abuse among incarcerated girls are higher.
202 HRW/ACLU telephone interview with Joseph Mullen, President, JKM Training, Inc., April 11, 2006.
203 Speech by Marty Beyer, Psychologist/Juvenile Justice and Child Welfare Consultant, in panel Girls and their Unique Needs in the System, at Beyond These Walls: Promoting Health and Human Rights of Youth in the Justice System, April 8, 2006; see also Marty Beyer, Fact Sheet: What Does It Mean To Design Services To Fit Girls?.
204 Ibid.
205 HRW/ACLU telephone interview (name withheld), June 2006.
206 Lansing Monthly Reports, January 2004 - January 2006. This and subsequent citations refer to monthly reports generated by the director of each OCFS facility and submitted to the OCFS central office. The reports were obtained by HRW/ACLU through requests made under the New York Freedom of Information Law. These numbers may be low, depending on the threshold employed for a reportable injury. The reason for the higher number of reported staff injuries than child injuries is unclear. It may reflect an actual disparity in the incidence of injuries or may reflect differences in the way injuries to girls and staff are measured and reported.
207 Tryon Monthly Reports, January 2004 - January 2006.
208 Tryon Monthly Report, September 2005, p. 6; Tryon Monthly Report, October 2002, p.6 (reporting facility administrators attendance at six-month CMPR Refresher trainings.).
209 Lansing Monthly Report, May 2005, p.12. For reasons that are hard to understand in light of New Yorks Freedom of Information Law, OCFS frequently, but not always, blacked out these general descriptions of what was done when it provided the reports to us.
210 Monthly reports for each facility were obtained by HRW/ACLU via requests made under the New York Freedom of Information Law.
211 HRW/ACLU telephone interview (name withheld), June 2006.
212 Ibid. When HRW/ACLU attempted to reach Ms. Nievez for comment, telephone messages were not returned and instead, HRW/ACLU was contacted by Brian Marchetti of the OCFS Office of Public Affairs, who insisted that HRW/ACLU refrain from contacting any OCFS employee outside the Office of Public Affairs.
213 Letter from Sandra A. Brown, Assistant Commissioner, Public Affairs, to HRW/ACLU, January 11, 2006. Specifically, OCFS cited N.Y. Pub. Off. Law § 87(2)(a), in support of N.Y. Soc. Serv. Law §§ 372, 422, N.Y. Pub. Health Law § 18, and N.Y. Ment. Health Law §§ 16, 33.13. In fact, N.Y. Pub. Off. Law § 87(2)(a) states simply that [e]ach agency shall ... make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that are specifically exempted from disclosure by state or federal statute; N.Y. Soc. Serv. Law § 372 requires institutions with custodial care of minors to keep detailed records of persons placed in their care and provides that these records remain confidential, limiting the detailed records to: personal information about the child such as name and demographic institution and information about the childs disposition, commitment, and custody; N.Y. Soc. Serv. Law §422 creates a repository and register for statewide child abuse reports; N.Y. Pub. Health Law § 18 merely requires certain nonprofit organizations to notify the Commissioner of Social Services of the names of the board of directors and/or trustees of such organizations; and N.Y. Mental Health Law §§33.13 and 33.16 refer to records maintained by the State for the care of patients with mental disorders.
214 Letter from Kathleen R. DeCataldo, Records Access Appeals Officer, to HRW/ACLU, March 9, 2006.
215 Calculated from the facilities monthly reports.
216 See, for example, Lansing Monthly Report, December 2005, p. 3 (Generally CSEA [Civil Service Employees Association] and PEF [Public Employees Federation] Committees are working together well. Both parties concerned with vacancies and need to fill positions.); Lansing Monthly Report, September 2005, p. 4 (Overtime only issue that keeps coming up; Staff are stating though that they do like our overtime procedures).
217 See, for example, Lansing Monthly Report, January 2005, p. 10 (Continue to struggle with amount of overtime and getting training accomplished.).
218 See, for example, Tryon Monthly Report, January 2006, p. 6 (Our vacancy list continues to grow as a result of actual vacancies, administrative leave, reassignments, workers compensation and extended sick leave.); Tryon Monthly Report, November 2005, p. 6 (Staffing remains an on-going issue. Although we are filling some senior staff positions, there are still leadership gaps that do affect program.); Tryon Monthly Report, June 2005, p. 6 (Mandatory overtime is high once again due to vacancies, workers compensation and long-term illness. This is a constant source of stress and frustration for YDAs [Youth Division Aides]. Numerous YDAs complain about being tired and not feeling 100% while on duty.).
219 HRW/ACLU telephone interview (name withheld), June 2006.
220 See, for example, Tryon Monthly Report, September 2005, (Staffing continues to be a problem on Secure due to the numerous vacancies . . . Mandates have been occurring for staff, particularly the 7-3 shift, approximately three times a week. Staff continue to express how tired and burned out they are due to these circumstances.). Lansing Monthly Report, February 2005, p. 4 (Staffs [sic] are tired.). Much text in the facilities monthly reports concerning staff shortages was redacted by OCFS before releasing the documents to HRW/ACLU.
221 HRW/ACLU telephone interview (name withheld), June 2006. (They get paid pretty well for just a high school diploma. The ones that should be screened out arent. ).
222 Youth Division Counselor, who supervises staff on a unit.
223 HRW/ACLU telephone interview (name withheld), June 2006. Lansings director, Theresa Rodgers, refused to be interviewed by HRW/ACLU.
224 HRW/ACLU telephone interview (name withheld), June 2006.
225 An excerpt from a typical monthly report illustrates the challenges faced by facilities staff and staffs attempts to provide diverting activities for incarcerated girls: Mental Health Unit: One youth put a staple in her wrist. She was placed on a special program. Residents made a training bulletin board. Staff continue to do Core Interventions. Currently doing ART [Aggression Replacement Therapy] and then going to Victim Awareness. During April we had our annual spring cleaning contest. Each unit was scored on the cleanliness of their own unit, as well as assigned facility chore. Unit 55 (Mental Health Unit) won the contest. Tryon Monthly Report, April 2005, p. 2.
226 Under the Convention on the Rights of the Child, state facilities housing children should conform to certain standards, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. CRC, art. 3, para. 3.
227 The Convention on the Rights of the Child, as well as each of the other international instruments enumerating the rights of children, contains an anti-discrimination provision requiring, among other things, that the enumerated protections be extended equally to boys and girls. See, for example, CRC, art. 2 (States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the childs or his or her parents or legal guardians race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.) The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) specifically prescribe that [y]oung female offenders placed in an institution deserve special attention as to their personal needs and problems. They shall by no means receive less care, protection, assistance, treatment and training than young male offenders. Their fair treatment shall be ensured. Beijing Rules, para. 26.4. Other international law instruments, including the Convention on the Elimination Against all forms of Discrimination Against Women (CEDAW) prohibit state agencies from engaging in acts or practices constituting sex discrimination. CEDAW, art. 2(d).
228 HRW/ACLU interview with Janine Y., New York, New York, May 24, 2006.
229 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), adopted November 29, 1985 by General Assembly Resolution 40/33, paras. 18.1, 19; New York Family Court Act §342.1(2)(a), requiring that children be placed according to the least restrictive available alternative . . . which is consistent with the needs and best interests of the respondent and the need for protection of the community.
230 United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), U.N. ECOSOC Res. 663C and 2076, adopted July 31, 1957 and May 13, 1977, para. 63(1).
231 The other two sub-facilities are Tryon Girls Reception Program and Tryon Residential Center. Tryon Residential is classified as a boys limited-secure facility.
232 See, for example, New York State Office of Children and Family Services, Facility Programs: Brief Descriptions of Office of Children and Family Services Residential Facilities and Their Programs, (December 2003).
233 Ibid.
234 Review of Legal Aid Society attorneys redacted notes of visit to the Tryon facility on December 28, 2005 (Legal Aid Society site visit).
235 Ibid.
236 Ibid.
237 Ibid.
238 Office of Children and Family Services, Resident Manual: Prescriptive Programming and Youth Development Systems, pp. 13-33. The stages are orientation, adjustment, transition, and honors. Examples of the few differences in the rules between facility types are the number of stuffed animals or dolls a girl may have (one fewer in secure than in limited secure and non-secure) and whether field trips are allowed (not at all in secure facilities, and in other facilities only as approved by the facility and the Associate Commissioner). Ibid.
239 In a February 17, 2006 request under the New York Freedom of Information Law, HRW/ACLU requested, among other things, Records describing the security measures and procedures employed at each of: Tryon Girls Secure Center, Lansing Residential Center, and Tryon Girls Residential Center. This request was denied based on unelaborated safety concerns. Letter from Sandra A. Brown, Assistant Commissioner, Public Affairs, to HRW/ACLU, April 27, 2006.
240 Standard Minimum Rules, para. 63(1).
241 Children enjoy the freedom to seek, receive and impart information and ideas of all kinds. Convention on the Rights of the Child, (CRC) adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/RES/44/25, entered into force September 2, 1990, signed by the United States of America on February 16, 1995, art. 13.
242 Each child enjoys the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances . . . . CRC, art. 37, sec. c.
243 HRW/ACLU interview with Lana S., New York, New York, February 14, 2006.
244 Ibid.
245 Office of Children and Family Services, Policy and Procedures Manual, PPM 3247.18: Contraband, Inspections and Searches, November 1, 1998, pp. 6-7.
246 The mouth search is described separately: A visual inspecting of a residents mouth. A resident shall be required to open his/her mouth, remove any dentures, move the tongue up and down and from side to side and suing (the residents) fingers pull down the lower lip and then pull the upper lip exposing the gums. Office of Children and Family Services, Policy and Procedures Manual, PPM 3247.18: Contraband, Inspections and Searches, November 1, 1998, p. 6.
247 Office of Children and Family Services, Policy and Procedures Manual, PPM 3247.18: Contraband, Inspections & Searches, November 1, 1998, pp. 6-7.
248 HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
249 Legal Aid Society site visit.
250 Office of Children and Family Services, Policy and Procedures Manual, PPM 3247.18: Contraband, Inspections and Searches, November 1, 1998, p. 7. (A strip search shall be conducted after a visit, community visit (including funeral and death bed visits) medical visit, court trip, and upon arrival of a new resident.) (emphasis in original).
251 HRW/ACLU interview with Lana S., New York, New York, February 14, 2006; HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
252 HRW/ACLU interview with Selena B., New York, New York, February 14, 2006.
253 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
254 HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
255 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States of America on June 8, 1992, art. 7.
256 CRC, art. 37(a).
257 Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (U.N. Rules), adopted December 14,1990 by General Assembly Resolution 45/113, prohibits all disciplinary measures constituting cruel, inhuman or degrading treatment, "including corporal punishment . . . or any other punishment that may compromise the physical or mental health of the juvenile concerned." (emphasis added).
258 The practice of routinely strip searching girls upon their return from a doctors or dentists office may discourage them from seeking medical care. HRW/ACLU interview with Francine Sherman, Director of the Juvenile Rights Advocacy Project, Boston College Law School, December 22, 2005.
259 HRW/ACLU interview with Felicia H., New York, New York, May 4, 2006.
260 Handcuffs may sometimes later be removed, such as during a court appearance. Citing security concerns, OCFS refused HRW/ACLUs request for OCFS security protocols. Letter from Sandra A. Brown, Assistant Commissioner, Public Affairs, to HRW/ACLU, April 27, 2006.
261 9 NYCRR §168.3(a) (2006).
262 9 NYCRR §168.3(a) (2006) provides that [p]ermissible physical restraints consist solely of handcuffs and footcuffs.
263 Jenny P. and Kevin S. v. John Johnson, Index No. 37784//2005, Supreme Court of the State of New York, County of Kings, Part 36. (First Amended Complaint on file with HRW). The name plaintiff is a girl held at a non-secure OCFS residential facility. The suit concerns OCFS policy as to all of its facilities.
264 Fernanda Santos, Challenging State Shackles on Juveniles, New York Times, December 14, 2005, p. B10.
265 U.N. Rules, rule 26; Standard Minimum Rules, para. 45(2).
266 U.N. Rules, rules 63, 64.
267 U.N. Rules, rule 64.
268 9 NYCRR §168.3(a)(Permissible physical restraints, consisting solely of handcuffs and footcuffs, shall be used only in cases where a child is uncontrollable and constitutes a serious and evident danger to himself or others. . . . Use of physical restraints shall be prohibited beyond one-half hour unless a child is being transported by vehicle and physical restraint is necessary for public safety.).
269 Specifically, Brooklyn Residential Center, Brentwood Residential Facility, the Salvation Armys Wayside Residential School and Pleasantville Cottage School, which are overseen by OCFS, and some foster care placements administered by the New York Administration for Childrens Services (ACS). Elissa Gootman, Aide is Held in Sex Abuse at Girls Home, New York Times, April 10, 2003, p. D6.; Bruce Lambert, Security Tightened after Abuse Inquiry at Nassau Girls Center, New York Times, February 22, 2002, p. B9 (noting complaints of physical attacks and sexual harassment by some girls against others, and sexual activity among them, and the indictment of a counselor at Pleasantville Cottage on charges of raping a student); email message from Legal Aid Society attorney, to HRW/ACLU, November 7, 2005. Brentwood Residential Center is a 25-bed girls facility located in Dix Hills, New York. Wayside Home School for Girls is a Salvation Army-run girls placement. Pleasantville Cottage School is a residential treatment center in Westchester County run by the Jewish Child Care Association.
270 Meda Chesney-Lind and Katherine Irwin, Still The Best Place to Conquer Girls, in Women, Law and Social Control, Jocelyn M. Pollock and Alida V. Merlo, eds., (Allyn and Bacon 2005).
271 HRW/ACLU interview with Ebony V., New York, New York, March 16, 2006.
272 HRW/ACLU interview with Janine Y., New York, New York, May 24, 2006.
273 Excerpt from testimony of Terry Kupers, M.D., M.S.P., in Everson v. Michigan Department of Corrections (case no. 00-73133, Feb. 16, 2001, U.S. Dist. Court, E. Dist. of Michigan, Hon. Avern Cohn, Judge) (citations omitted).
274 HRW/ACLU interview with Ebony V., New York, New York, March 16, 2006.
275 Ibid.
276 Youth Division Counselor; the head of a unit within an OCFS facility.
277 HRW/ACLU interview with Ebony V., New York, New York, March 16, 2006.
278 Youth Division Aide; a staff person within an OCFS facility.
279 HRW/ACLU interview with Ebony V., New York, New York, March 16, 2006.
280 Ibid.
281 Silvia N., in Fulton County Sheriffs Dept., Supporting Deposition, Case Number 03-000248.
282 Ibid.
283 The information concerning Sandra Z.s allegations is drawn from court filings obtained by HRW/ACLU subject to a confidentiality agreement.
284 The other charges were Sexual Abuse in the Second Degree, Rape in the Third Degree (two counts), and Endangering the Welfare of a Child.
285 Tryon Monthly Report, July 2005, p. 6. The staff member was placed on leave pending an investigation, but the investigator doesnt think they have a case/sufficient information against Mr. (name redacted) to make an arrest. Tryon Monthly Report, August 2005. This and subsequent citations refer to monthly reports generated by the director of each OCFS facility and submitted to the OCFS central office. The reports were obtained by HRW/ACLU through requests made under the New York Freedom of Information Law.
286 Tryon Monthly Report, November 2005, p. 6. The same month, a girl alleged that she had sexual contact with a staff member at Tryon Reception Center, but an investigations findings were negative. Ibid., p.2.
287 For example, Tryons Monthly Report for December 2005 states as to its secure units: Allegations were made of a sexual nature toward a staff member, and as to its non-secure units: Another youth accused two male staff of being sexually inappropriate and threatening her. pp. 1-2. See also Tryon Monthly Report, April 2003, p. 2 (inappropriate sexual contact with a male [staff member] alleged); Tryon Monthly Report, July 7, 2004, p. 1 (One youth alleged that a male staff made a cupping action near her breast and hit her with a book across her backside. There was also a youth who reported that she saw her peer rubbing the lower back of a male staff as well as other inappropriate actions.); Tryon Monthly Report, December 2004, p. 2 (a girl complains that a male staff member hugged her and touched her buttocks and made a sexual comment to her.). The nature and extent of such abuse in the Lansing facility cannot be discerned because Lansings administrators do not include such information in their reports.
288 This may be the same incident referred to in Tryons December 2005 Monthly Report, p. 2: Another youth kissed a male staff and was restrained by that staff for his safety. The report does not describe how the girls kiss jeopardized the staff persons safety.
289 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
290 HRW/ACLU interview with Felicia H., New York, New York, May 4, 2006.
291 HRW/ACLU interview with Wendy M., New York, New York, November 16, 2005.
292 Tryon Grievance #9524 (10/05). This and subsequent citations refer to grievance logs maintained by the facilities and obtained by HRW/ACLU through a request under the New York Freedom of Information Law. The logs contain abbreviated summaries of grievances filed by incarcerated girls. The citations herein contain the unique number assigned to each grievance and the month and year in which the grievance was submitted.
293 Lansing Grievance #5209 (4/04).
294 Tryon Grievance #8221 (4/03).
295 Tryon Grievance #9189 (5/05).
296 Tryon Grievance #9541 (11/05).
297 See, for example, Lansing Grievance #6714 (5/05)(peers touched her butt, doesnt feel safe), Lansing Grievance #5776 (11/04) (peer is contin[u]ously touch[ing] her, makes nervous and uncomfortable).
298 Lansing Grievance #6688 (5/05).
299 See, for example, Tryon Grievance #8963 (12/04)(Wants to be moved to another unit. Her safety is in jeopardy. [name redacted] back on her unit.); Lansing Grievance #5999 (3/05)([name redacted] is being very inappropriate and making her feel uncomfortable); Lansing Grievance #6166 (1/05)(using it as sexual pleasure/revenge)(this notation is lengthy and mostly illegible).
300 Tryon Grievance #8639 (2/04).
301 See also Tryon Grievance #8760 (7/04).
302 Excerpt from testimony of Terry Kupers, M.D., M.S.P., in Everson v. Michigan Department of Corrections (case no. 00-73133, Feb. 16, 2001, U.S. Dist. Court, E. Dist. of Michigan, Hon. Avern Cohn, Judge) (citations omitted).
303 There are exceptions, See, for example, Lansing Grievance #6943 (7/05) (staff grabbed left [b]reast, feels unsafe to be on unit with her).
304 Office of Children and Family Services, Guidelines for Male Staff in a Female Institution, revised December 29, 2005; Lansing Grievance #5883 (12/04) (staff leav[e] unit single coverage.).
305 Tryon Grievance #8713 (6/04)(she does not want to be left with male staff, she does not feel safe with them); Tryon Grievance #8759 (7/04)(grieving that male staff is going over to supervise [unit] 51 residents: it is not safe); Tryon Grievance #8884 (10/04) (wants a female staff for the 3-11 shift, male staff sometimes make them feel uncomfortable).
306 See Tryon Monthly Report, January 2003, p. 18. A large portion of this page was redacted, but some text remains partly visible and indicates that OCFS administrators held several discussions about what is termed a possible crossing of boundaries. See also Tryon Monthly Report, February 2003, p. 6.
307 United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), U.N. ECOSOC Res. 663C and 2076, adopted July 31, 1957 and May 13, 1977, para. 53(3) (Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.) In cases concerning adult women prisoners, U.S. courts have acknowledged the risks of cross-gender supervision and have also recognized that exact parallels cannot be drawn between circumstances in which males guard female inmates and those in which females guard male inmates. See Jordan v. Gardner, 986 F.2d 1521, 1527 (9th Cir. 1993), Everson v. Mich. Dep't of Corr., 391 F.3d 737 (6th Cir. 2004).
308 On April 21, 2006, HRW/ACLU requested [a]ny and all documents relating to staff sexual abuse of girls at the Tryon or Lansing facilities, including but not limited to policy and procedures of the agency, and documents relating to specific instances of abuse. This request was denied.
309 Conclusions and Recommendations of the Committee against Torture: United States of America, CAT/C/USA/CO/2, July 25, 2006, para. 32.
310 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
311 HRW/ACLU interview with Felicia H., New York, New York, May 4, 2006. Another vehicle of collective punishment is called a shut down. When a shut down occurs, girls in the entire unit are not allowed to have free time or to go outside. Lansing Grievance #5326 (6/04). This and subsequent citations refer to grievance logs maintained by the facilities and obtained by HRW/ACLU through a request under the New York Freedom of Information Law. The logs contain abbreviated summaries of grievances filed by incarcerated girls. The citations herein contain the unique number assigned to each grievance and the month and year in which the grievance was submitted.
312 9 NYCRR §168.8 (2006).
313 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (U.N. Rules), adopted December 14,1990 by General Assembly Resolution 45/113, rule 67.
314 HRW/ACLU interview with Wendy M., New York, New York, November 16, 2005.
315 Tryon Grievance #8451 (10/03).
316 See, for example, Tryon Grievance #8702)(5/04)([S]taff threatening to drop her on the floor.); Tryon Grievance #8267 (6/03)(. . . he said if he had to restrain her one more time she wouldnt do the things she is doing now.); Lansing Grievance #5600(10/04)(Staff put (illegible) in head lock and dropped to floor); Tryon Grievance #9370 (8/05)(every day, staff keeps threatening to restrain her or hit her.); Tryon Grievance #9332 (7/05)(a resident is told: it was a good thing her shift was over or resident would have been dropped to the floor.).
317 Tryon Grievance #9558 (11/05).
318 Facilities Grievance Logs, passim.
319 Lansing Grievance #6157 (1/05).
320 Lansing Grievance #6965 (8/05); Lansing Grievance #5065 (2/04); Lansing Grievance #6522 (4/05).
321 HRW/ACLU interview with Wendy M., New York, New York, November 16, 2005.
322 Tryon Grievance #9174 (5/05).
323 Tryon Grievance #9013 (1/05).
324 Tryon Grievance #8418 (9/03).
325 Redacted letter of June 3, 2004. A tic tac is a breath mint. On another occasion, a staff member received a counseling memo for using inappropriate language toward residents. Tryon Monthly Report, May 2005, p. 6.
326 HRW/ACLU interview with Wendy M., New York, New York, November 16, 2005.
327 Tryon Grievance #9175 (5/05).
328 Lansing Grievance #6352 (2/05).
329 Tryon Grievance #9303 (7/05).
330 Youth Division Aide; a staff person within an OCFS facility.
331 Tryon Grievance #9537 (11/05).
332 Lansing Grievance #6279 (2/05).
333 Lansing Grievance #7058 (9/05).
334 HRW/ACLU interview with Ebony V., New York, New York, March 16, 2006.
335 Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States of America on June 8, 1992, art. 17.
336 U.N. Rules, rule 87(e).
337 See, for example, Lansing Grievance #6643 (5/05); Lansing Grievance #5105 (3/04); Lansing Grievance #6631 (5/05); Lansing Grievance #5119 (3/04).
338 U.N. Rules, rule 12 (Juveniles detained in facilities should be guaranteed the benefit of meaningful activities and programs which would serve to promote and sustain their health and self-respect, to foster their sense of responsibility and encourage those attitudes and skills that will assist them in developing their potential as members of society.), rule 48 (Every juvenile should have the right . . . to decline religious education, counseling or indoctrination.).
339 Randi Feinstein et. al, Justice for All? A Report on Lesbian, Gay, Bisexual, and Transgender Youth in the New York Juvenile Justice System, (2001), p. 1. A group of girls not considered in this report consists of male to female transgendered youth, whom OCFS holds in boys facilities according to their biological sex. These girls experience severe harassment and discrimination by staff and their peers. See Voices for Justice: An Oral History Project Capturing the Experiences of Lesbian, Gay, Bisexual and Transgender Youth in the Juvenile Justice System, Urban Justice Center, Peter Cicchino Youth Project audio CD (2006).
340 Regarding an Arizona commitment facility,seeABC News, Saving Troubled Teens Through Safe Schools: Arizona Gives Juvenile Offenders a Last Chance to Learn and to Change, 8/4/05, (describing a phenomenon termed by one incarcerated girl as gay for the stay.).
341 Tryon Monthly Report, March 2003, p. 2, states: There were some incidents of youth and the gay game, that had to be addressed in group and during problem-solving sessions. An attempt had been made by OCFS to redact this text.
342 HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
343 HRW/ACLU interview with Selena B., New York, New York, February 14, 2006.
344 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006. Devon A.s account of frequently being restrained is corroborated by that of Bless L., who was incarcerated with Devon A.: I didnt like the restraints at Lansing. Like even though you brought it on yourself, the way they do it, they just drop you on your face. You should ask Devon A. about [name of Lansing staff member]. He dropped people for nothing, and I mean nothing. He dropped Devon A. every day. HRW/ACLU interview with Bless L., New York, New York, March 22, 2006.
345 HRW/ACLU interview with Selena B., New York, New York, February 14, 2006.
346 See, for example, Lansing Grievance #4574 (7/03) ([name redacted] gave her Level III for blowing kisses).
347 See, for example, HRW/ACLU interview with Selena B., New York, New York, February 14, 2006.
348 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
349 Randi Feinstein et. al, Justice for All? A Report on Lesbian, Gay, Bisexual, and Transgender Youth in the New York Juvenile Justice System, (2001).
350 Ibid., p. 2; see also Testimony of Mishi Faruqee, Director of the Juvenile Justice Project, Correctional Association of New York, Public Hearing on the Establishment of an Independent Office of a Child Advocate, before the New York State Assembly Committee on Children and Families, May 12, 2005.
351 HRW/ACLU interview with Miranda N., New York, New York, February 14, 2006.
352 Tryon Grievance #9136 (4/05).
353 See, for example, Lansing Grievance #6261 (2/05)(felt this was discrimination), Lansing Grievance #5141 (3/04)(feels threatened and mistreated-racial comments); Lansing Grievance #5411(8/04)(staff-racist-unfair-Be treated equal).
354 Dick Mendel, Small is Beautiful: The Missouri Division of Youth Services. ADVOCASEY, p. 30, http://www.aecf.org/publications/advocasey/spring2003/pdf/small.pdf, retrieved July 10, 2006.
355 Ibid.
356 HRW/ACLU interview with Mark Steward, July 7, 2006.
357 Ibid.
358 Mendel, Small is Beautiful, p. 32.
359 HRW/ACLU interview with Mark Steward, July 7, 2006.
360 Ibid.