THE OFFICIAL WHITE HOUSE BOYS ORGANIZATION

FEDERAL INVESTIGATION

 

Investigation of the Arthur G. Dozier School for Boys and the

Jackson Juvenile Offender Center, Marianna, Florida

United States Department of Justice

Civil Rights Division

December 1, 2011


Summary of Findings

Despite Florida’s statewide system of oversight of its juvenile justice

facilities, we found harmful practices at both the Arthur G. Dozier School for

Boys (“Dozier”) and the Jackson Juvenile Offender Center (“JJOC”)1

The youth confined at Dozier and JJOC were subjected to conditions that

placed them at serious risk of avoidable harm in violation of their rights

protected by the Constitution of the United States. During our investigation,

we received credible reports of misconduct by staff members to youth within

their custody. The allegations revealed systemic, egregious, and dangerous

practices exacerbated by a lack of accountability and controls. We found the

following threats to the safety of the youth:

that threatened the safety and wellbeing of youth.

Florida’s oversight system failed

to detect and sufficiently address the problems we found at Dozier and JJOC.

We find that many of the problems we identified at Dozier and JJOC are the

result of a systemic lack of training, supervision, and oversight. These

problems may well persist without detection or correction in other juvenile

facilities operating under the same policies and procedures and subject to the

same oversight process that allowed the failures at Dozier and JJOC to persist

until a budgetary crisis forced their closure. As such, to inform Florida’s

Department of Juvenile Justice’s (“DJJ”) continued care of the juveniles within

its youth facilities, we discuss our findings at Dozier and JJOC in this Report.

Our findings remain relevant to the conditions of confinement for the youth

confined in Florida’s remaining juvenile justice facilities.

Staff used excessive force on youth (including prone restraints)

sometimes in off-camera areas not subject to administrative review;

Youth were often disciplined for minor infractions through

inappropriate uses of isolation and extensions of confinement for

punishment and control;

Staff were not appropriately trained to address the safety of suicidal

youth and were often dismissive of suicidal behaviors; and

The safety of Dozier youth was compromised as a result of their

relocation to JJOC, a more restrictive and punitive environment.

The State failed to provide necessary and appropriate rehabilitative

services to address addiction, mental health or behavioral needs,

which serve as a barrier to the youths’ ability to return to the

community and not reoffend.

1

Both facilities constituted the North Florida Youth Development Center

(“NYFDC”). When discussing both facilities, we will use the term NYFDC.

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These systemic deficiencies exist because State policies and generally

accepted juvenile justice standards were not being followed. We found that

NYFDC staff did not receive minimally adequate training. We also found that

proper supervision and accountability measures were limited and did not

suffice to prevent undue restraints and punishments. Staff members failed to

report allegations of abuse to the State, supervisors, and administrators. Staff

members often failed to accurately describe use of force incidents and properly

record use of mechanical restraints.

These failures violate the Fourteenth Amendment’s mandate that youth

in custody be adequately protected from harm, undermining public safety by

returning youth to the community unprepared to succeed and eroding public

confidence. We appreciate the efforts of NYFDC’s leadership to correct

longstanding deficiencies and its responses to recommendations we made

throughout the investigation. In order to avoid another failed facility such as

Dozier and to ensure that confined youth are being treated in a manner

consistent with the Constitution, the State must conduct an accountability

review of its remaining facilities with the assistance of consultants in the field

of juvenile protection from harm and implement effective oversight measures.

I.

Investigation

On April 7, 2010, we notified then-Governor Charlie Crist and DJJ

officials of our commencement of this investigation pursuant to Section 14141.

On July 6-9, 2010 and May 17-19, 2011, we conducted on-site inspection

tours with consultants in the fields of juvenile protection from harm and

adolescent medical care. We interviewed staff members, youth, medical and

mental care providers, teachers, and administrators. Before, during, and after

our visit, we reviewed documents, including policies and procedures, incident

reports, youth records, medical reports, unit logs, orientation material, staff

training material, and use of force videos and accompanying reports.

Consistent with our commitment to conduct our investigations in a transparent

manner and to provide technical assistance where appropriate, we conducted

exit conferences with NYFDC and DJJ officials, during which our consultants

conveyed their preliminary observations and concerns.

We would like to note that the staff and administrators of NYFDC,

including Superintendent Michael Cantrell, were helpful, courteous, and

professional throughout our investigation. We would also like to express our

appreciation to the DJJ for its cooperation throughout our investigation. We

are hopeful that State and DJJ officials are committed to remedying the

deficiencies identified in this Report on a system-wide basis as the problems

identified at NYFDC continued due to the failure of the oversight system.

We find that several conditions and practices at NYFDC violated the

constitutional rights of the youth confined to its care. Specifically, we find that

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juveniles were subjected to excessive use of force by staff; that youth were

subjected to lengthy and unnecessary isolation; that youth were deprived of

necessary medical and mental health care, including adequate suicide

prevention measures; that youth were subjected to punitive measures in

violation of their due process rights, such as extensions of their confinement at

the facility and, when both facilities were in use, punitive transfers to the more

restrictive facility; that youth were denied rehabilitative services; and that

youth were subjected to unsafe and unsanitary facility conditions. We also

found problems particular to each of the facilities, including, at Dozier, staff

subjecting youth to unwarranted, intrusive, and excessive frisk searches. As

detailed below, the conditions we found resulted in youth suffering grievous

harm. Although Dozier and JJOC are now shuttered, these problems persist

due to the weaknesses in the State’s oversight system and from a

correspondent lack of training and supervision.

II.

Background

Our investigation initially focused on Dozier and subsequently expanded

to JJOC. During our July 2010 tour, the State revealed its plan to merge

administration of Dozier with JJOC while maintaining separate facilities for the

youth.2 As explained further below, Dozier and JJOC were very different

facilities in terms of restrictiveness level, the length of the youths’ commitment

to each facility, and the level of confinement appropriate for the category of

youth in each facility. According to the State’s merger plan, the facilities would

be consolidated and renamed the North Florida Youth Development Center,

with staff referring to Dozier as the “open campus” and JJOC as the “closed

campus.” The facilities shared staff, forms, processes, and procedures.3

By March 2011, however, Dozier started to transition all youths from its

campus to other facilities. The majority of the youth were sent to JJOC and

the youth in the developmental program were transferred to the Ockaloosa

In

Fall 2010, the Dozier campus began to accept a new population of juveniles,

including 15 children classified as “developmentally delayed.”

2

A similar merger had occurred for approximately two years ending in early

2009, when Dozier and JJOC operated a joint admission and orientation program.

Bureau of Quality Assurance Program Review for Dozier Training School at 3

(December 2009) available at

http://www.djj.state.fl.us/QA/programreports/residential/dozier.pdf. Under this

program, both facilities had independent superintendents who reported to a “complex

facility director.” Id. Dozier youth attended admission and orientation programs at

JJOC, stayed there for the period it required to “internalize the rules and exhibit

appropriate behaviors,” and then transferred to the Dozier campus. Id.

3

While our review was focused on Dozier, we received some documents and

videos regarding JJOC youth. We also reviewed material involving Dozier youth who

were transferred to JJOC.

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Youth Development Center. On May 26, 2011, the DJJ announced the

pending closure of both Dozier and JJOC citing budgetary limitations. The

facilities were officially closed on June 30, 2011. The remaining residents were

transferred to DJJ facilities throughout the system.

Prior to the eventual closure of Dozier, Dozier was a state operated “high

risk” residential commitment facility.4

Dozier was located on the same grounds as JJOC, a maximum risk state

operated facility for boys who were sentenced to serve a maximum of 18

months. JJOC was structured like a prison, with locked single-cells for the

boys. JJOC was more secure and harsher than Dozier and was for “chronic

offenders” who committed “offenses consisting of violent and other serious

felony offenses.”

It housed juvenile males between the

ages of 13 and 21 who were committed by the court. Dozier had space for 104

juveniles. Dozier was surrounded by a perimeter fence and had locking doors

for each individual living unit, called “cottages.” Youth resided in several

cottages within unlocked, single rooms. The facility, which opened 110 years

ago, was located in rural Florida on 159 acres of property. The average length

of stay for youth committed to Dozier was 9-12 months.

5

The relocation of Dozier youth to JJOC before the closure announcement

led to immediate threats to the safety of the Dozier youth. In particular, there

was an increase in uses of force by staff during the month of the transition.

Compared to Dozier, youth at JJOC received less counseling and were

The boys were confined to single living areas, referred to as

pods,” which were similar to a prison hall with individual cells with heavy

metal doors along the corridor. The beds were made of concrete with a thin

pad serving as a mattress. The building was surrounded by razor wire. The

outside areas branching off of the main building were also surrounded by razor

wire, including the areas designated for outdoor activities.

4

The DJJ has five restriction levels for placement of juveniles: (1) minimum-

risk nonresidential, (2) low-risk residential, (3) moderate-risk residential, (4) high-risk

residential, and (5) maximum-risk residential. Dozier is a high-risk residential facility,

which includes facilities where juveniles are closely supervised in a “structured

residential setting that provides 24-hour secure custody and care.” Florida

Department of Juvenile Justice website, at

http://www.djj.state.fl.us/Residential/restrictiveness.html. Juveniles in high-risk

facilities have restricted community access, limited to “necessary off-site activities

such as court appearances and health-related events.” Florida Department of

Juvenile Justice website, at

http://www.djj.state.fl.us/Residential/restrictiveness.html. In limited circumstances,

with court approval, the resident may be allowed unsupervised home visits as part of

the transition before being released from the facility. Id.

5

See Department of Juvenile Justice website at

http://www.djj.state.fl.us/Residential/restrictiveness.html.

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subjected to more restrictiveness, given the limited access to vocational

education and recreational activities and less freedom of movement overall.

One youth aptly observed that he felt his punishment was increased as a result

of his transfer to JJOC.

Dozier’s Superintendent, Michael Cantrell, who started on January 4,

2010, was the facility’s seventh superintendent in nine years. Cantrell’s

predecessor resigned on December 17, 2009, after less than two years in the

position. During his tenure, Cantrell made some positive changes at Dozier,

such as terminating some staff who were engaged in abusive behavior and

increasing the positive incentive system for youth. These positive steps were

compromised when Dozier youth were transferred to JJOC.

Years ago, Dozier was the subject of a class action litigation regarding

the conditions of confinement.6 The case was filed in 1983 against several

State officials and agencies concerning conditions at some of the State’s

training schools and juvenile justice programs. With respect to Dozier, the

plaintiffs alleged that youth were hogtied, shackled, and often held in solitary

confinement. The case settled in 1987 with the parties entering into a consent

decree. In 1995, the judge dismissed the consent decree against Dozier with

prejudice -- over the plaintiffs’ objections.7 Dozier has since been the subject of

media reports suggesting that juveniles at the facility were subjected to

significant abuse at the hands of staff.8 On February 25, 2011, the facility

became the subject of another class action lawsuit alleging constitutional

violations, including abusive and unsafe conditions of confinement.9

In part, as a result of the prior lawsuit and resulting legislative reforms,

the DJJ has a very well-developed statewide system of written procedural

protections in the form of written policies and procedures. While these policies

and procedures are available to State juvenile facilities, including Dozier and

JJOC, our findings show that the ethos behind these policies and procedures

has not adequately translated into action. Indeed, at Dozier and JJOC, many

of the policies were disregarded and many of the procedures were inadequately

implemented. Harmful practices threatened the physical and mental well-

6

See Bobby M. v. Chiles, 907 F.Supp. 368, 369 (N.D. Fl. 1995). At the time, the

facility was called the Arthur G. Dozier Training School.

7

See Bobby M., 907 F.Supp. at 369.

8

See Ben Montgomery & Waveney Ann Moore, 100 Years Later and Its Still Hell,

St. Petersburg Times, Oct. 11, 2009 at 1A. See Ben Montgomery, Files Verify Boys’

Abuse, St. Petersburg Times, Sept. 24, 2009 at 1A; see also Jim Schoettler,

Summaries Unveil Recent Abuse Cases at Dozier, The Florida Times-Union, Sept. 25,

2009 at B-3. Allegations of past abuses have also been discussed in non-fiction books

such as The White House Boys: An American Tragedy by Roger Dean Kiser (2008).

9

See J.B. v. Walters, et al., 4:11-cv-00083-RH (N.D. Fl. 2011).

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being of the youth committed to these facilities. These harms were clearly

evident in a number of areas at NYFDC and yet the DJJ’s oversight system

failed to adequately address the safety of the youth. Despite its policies and

procedures, the State hired abusive staff at NYFDC, failed to provide the

requisite training to staff to ensure that they protected the youth in their care,

failed to ensure that the requisite supervision was in place to prevent and

detect abuses, and failed to have an effective accountability process. We

therefore believe that the harm suffered by juveniles confined at Dozier and

JJOC is not limited to those facilities. Accordingly, we are sharing these

findings with the State despite the closure of these facilities.

III.

Findings

We find that the State failed to adequately protect youth confined to

Dozier and JJOC from harm and threat of harm by staff, other youth, and self-

harm. The State’s failure to ensure the adequate implementation of its policies

caused unconstitutional conditions of confinement. It is imperative that the

State ensure implementation of its policies and reform of its practices to bring

its juvenile detention facilities into compliance with constitutional standards.

Detained youth are protected by the Fourteenth Amendment and have a

substantive due process right to reasonably safe conditions of confinement and

freedom from unreasonable bodily restraints. See Youngberg v. Romeo, 457

U.S. 307, 315-16 (1982) (recognizing that a person with developmental

disabilities in state custody has substantive due process rights under the

Fourteenth Amendment); Bell v. Wolfish, 441 U.S. 520 (1979) (applying the

Fourteenth Amendment standard to facility for adult pre-trial detainees); H.C.

v. Jarrard, 786 F.2d 1080, 1085 (11th Cir. 1986)(holding that conditions of

pretrial juvenile detainees “affect liberty interests protected by the Fourteenth

Amendment.”). The Fourteenth Amendment, rather than the Eighth

Amendment, applies to youth confined to juvenile facilities because adjudicated

youth are held for rehabilitation, not punishment.10

10

In Ingraham v. Wright, the Supreme Court refused to apply the Eighth

Amendment deliberative indifference standard in a non-criminal context. 430 U.S.

651, 669 n.37 (1977) (“Eighth Amendment scrutiny is appropriate only after the State

has complied with the constitutional guarantees traditionally associated with criminal

prosecutions.”). Moreover, in Bell, 441 U.S. 520, the Court held that the Due Process

Clause of the Fourteenth Amendment was the appropriate basis to determine the

rights of adults detained by a state, but not yet convicted of any crime. See also H.C.

v. Jarrard, 786 F.2d at 1085. At minimum, youth should be accorded the same

protections.

Conditions of confinement

claims may be based not only upon existing physical harm to youth, but also

on conditions that threaten to cause future harm to confined youth. Helling v.

McKinney, 509 U.S. 25, 33 (1993) (stating "[i]t would be odd to deny [relief to

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detainees] who plainly proved an unsafe, life-threatening condition in their

[facility] on the ground that nothing yet had happened to them.").

To determine whether the Fourteenth Amendment was violated, a

balancing test must be applied: “[I]t is necessary to balance ‘the liberty of the

individual’ and ‘the demands of an organized society.’” Youngberg, 457 U.S. at

320 (citing Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)).

The Youngberg Court went on to hold that “[i]f there is to be any uniformity in

protecting these interests, this balancing cannot be left to the unguided

discretion of a judge or jury.” Id. at 321. Instead, the Court held that there

was a constitutional violation if the detaining official substantially departed

from generally accepted professional standards, and that departure endangers

youth in their care. See id. at 321.

1. Excessive Uses of Force

Juveniles have a constitutional right to be free from physical abuse by

staff and from assaults inflicted by other juveniles. Youngberg, 457 U.S. at

315-16 (“the right to personal security constitutes a ‘historic liberty interest’

protected substantively by the Due Process Clause”); Jarrard, 786 F.2d at 1085

(juvenile’s due process rights violated when detention officer slammed him

against a wall and a metal bunk in an isolation cell); Bozeman v. Orum, 422

F.3d 1265 (11th Cir. 2005)(force used against 17-year-old pre-trial detainee

was excessive where the detention officers continued to use force, shackling

him and sitting on him, after he was subdued). Generally accepted juvenile

justice standards require that juveniles be provided with a safe environment

and that force be used only as a last resort. Absent exigent circumstances,

lesser forms of intervention, including verbal de-escalation methods, should be

used or considered prior to more serious and forceful interventions.

We learned that despite policies requiring that force be a last resort, staff

subjected youth to force as a first resort. This violation occurred even though

DJJ provides training that emphasizes a preference for verbal intervention and

de-escalation of conflict. The DJJ authorizes facilities to train staff on use of

the “Protective Action Response” (“PAR”) measures – which include both verbal

and physical intervention – to address youth behavior. PAR includes three

different response levels: level 1 consists of verbal intervention; level 2

includes touch and countermove techniques as well as takedown methods;11

11

According to the training director, the primary PAR technique is a “straight-

arm” take down to the ground technique. If a child is already on the ground, a PAR

technique would only be required if the youth’s arms are blocked (underneath) by his

body; this technique involves pulling the child’s arms from under his body. Staff are

prohibited from implementing force involving punches, strikes, kicks, or pressure

points.

and level 3 involves the use of mechanical restraints. The DJJ only authorizes

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physical intervention where “a clear and identifiable risk to safety and security”

is present.12 Further, DJJ rules require that “counseling, verbal intervention,

and de-escalation techniques are used prior to physical intervention.”13

Despite these rules and the attempts of facility leadership to implement

even stricter rules, such as a zero tolerance rule implemented by Cantrell at

Dozier, the use of excessive force against youth was a persistent problem. For

example, at Dozier, we learned that staff used force as a first resort against

youth engaged in non-violent and non-threatening behavior. Staff took youth

to the ground using the dangerous face down prone restraint technique. Staff

engaged in impermissible uses of force such as choking. And, finally, staff

used force when a youth was already subdued, including use of mechanical

restraints. These practices occurred even more frequently at JJOC. In fact,

the 2011 JJOC rate of physical restraint events was nearly seven times larger

and more than five times greater than the Performance-based Standards for

Youth Correction and Detention Facilities’ Field Average (“PbS Field Average”).14

We also found that many uses of force were not appropriately

documented and were often conducted outside the view of facility cameras.

Inadequate documentation and recording of use of force incidents leads us to

question whether uses of force at Dozier and JJOC were even higher than the

data suggests.

Even more troubling, the JJOC rate of takedowns alone was over 2.5 times

greater than the rate of all physical restraint events in the PbS Field Average.

a. Unnecessary Uses of Force

The needless imposition of force on a juvenile is a violation of his

constitutional rights. Jarrard, 786 F.2d at 1085. Moreover, continued use of

force is excessive where the juvenile is already subdued. Bozeman, 422 F.3d at

1265. Youth confined at NYFDC were subjected to excessive force. While a

number of staff were terminated or placed on “no contact” status as a result of

excessive uses of force, oftentimes improper uses of force were deemed

12

DJJ Administrative Rules, Protective Action Response Policy, 63H-1.003. This

rule is copied on the facility level as well. For example, Dozier was supposed to follow

a similar rule. See Facility Operating Procedures (“FOP”), FOP 208 (March 4, 2010).

13

Id.

14

The Performance-based Standards for Youth Correction and Detention Facilities

was developed in 1995 by DOJ, Office of Justice Programs, Office of Juvenile Justice

and Delinquency Prevention (“OJJDP”) to assess conditions of juvenile confinement.

PbS establishes goals and standards for facilities. Participating facilities collect

information in an effort to identify problems and improve conditions. See Council of

Juvenile Correctional Administrators, available at

http://cjca.net/initiatives/performance-based-standards-pbs.

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appropriate by reviewers, who generally were Juvenile Justice Residential

Officer (“RO”) supervisor or training coordinators. The following incidents,

which occurred at NYFDC, are illustrative of the pattern or practice of excessive

force staff routinely used against youth.

AA15

On August 20, 2010, BB asserted that a RO injured him during an

unnecessary takedown. A video of the incident shows the RO

pushing BB to the ground without any apparent provocation. The

youth had been seated on a table and was fiddling with what

appeared to be a hand towel. According to the RO’s incident

report, the youth had tried to harm himself with the towel and

refused to release the item. Although this rationale is difficult to

discern from the video, the facility found that force was

appropriately used. While use of force may be appropriate to

prevent imminent bodily harm, that does not appear to be the

basis for use of force in this instance.

complained that he was choked during an altercation with a

RO on June 28, 2010. A video of the encounter shows that after a

brief verbal exchange with the RO, the RO violently pushed AA

onto his back on what appears to be a mattress. AA was pushed

mostly out of the view of the camera, but his feet were still within

view. The video shows that the RO remained on top of AA for

about 10 seconds before both were out of view of the camera. AA

reportedly had scratches on his neck following the incident and is

seen on the video touching his neck once he was within view of the

camera again. The facility found the use of force to be appropriate

even though the youth presented no apparent danger before the

RO used force against him.

On September 10, 2010, a RO provoked CC into an argument and

then slammed CC into furniture and onto the ground. Before the

assault, the RO approached CC as he leaned against a desk in the

common room as other youth milled about the room. CC appeared

to be somewhat withdrawn, but was not engaged in violent or

disruptive behavior. The RO continued to address CC and, after

about a minute, shook CC’s arm. CC did not react to the RO,

keeping his head down. The RO held on to CC’s arm and then

attempted to force the youth’s left arm behind his back. At this

point, CC moved to escape the arm lock. The RO followed CC and

argued with him, moving his chest against the youth’s chest and

shadowing him. Even though CC moved slowly away and seemed

15

We will use pseudonyms throughout this Report to protect the identities of the

youth involved in various incidents.

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to be trying to avoid further confrontation, the RO continued to

shadow CC. CC was clearly being taunted and aggravated. CC

responded by arguing with the RO and they ended up bumping

chests. The RO then pushed CC onto an armchair, sliding both

the youth and the armchair across the room and into a wall,

causing CC to fall to the ground. While CC was still on the

ground, with his back on the floor, the RO hovered over him and

appeared to strike and choke the youth. The incident was

reviewed and found to be an improper use of force.16

In another incident involving CC, the use of force was found to be

appropriate after the RO took the youth down to the ground.

According to the incident report, the RO verbally directed CC to

remain in bounds but the youth kept walking out of bounds. In

the video, CC made no aggressive motions and simply appeared to

be disobedient. The RO then physically forced CC to the ground in

order to get him to comply with the directions. Once he was forced

to the ground, CC started resisting. The RO reacted by forcefully

grabbing the youth’s arm and dangerously placing his body weight

on the youth to keep him still. Eventually, other ROs approached

to assist the initial RO. This incident developed when the RO

unlawfully used force as a response to a youth who was not

violent, did not appear to be hurting himself, and did not appear to

be threatening towards other staff or youth.

At Dozier, several boys reported witnessing a RO choke another

youth, DD, until foam came out of his mouth. Choking is an

unlawful use of force.

These examples demonstrate that despite DJJ’s appropriate directives to

only use force when there is “a clear and identifiable risk to safety and

security,” force was often used a first resort and in circumstances where no

risk to safety and security was present.

b. Dangerous Use of Restraints

The excessive and unnecessary use of prone restraints places youth at

great risk for harm. The practice of face down prone restraint is highly

problematic and even more dangerous when force is applied to the prone

youth. Evidence at NYFDC suggests that staff at Florida’s juvenile facilities are

not properly trained on the use of this technique. First, incident reports,

complaints of youth, and videos indicate that not all ROs are implementing this

procedure in a manner that ensures youth safety. Indeed, we reviewed

16

There is a reference in the review to the RO being recommended for discipline,

but the final outcome is unclear.

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incidents where staff put their body weight on a child in prone restraint for

several minutes – which can cause suffocation.17

GG was tackled to the ground shortly after the incident escalated

to use of force. Two ROs kept him prone on the ground for more

than five minutes. For most of that time, at least one of the ROs

appeared to be pressing his body weight onto the youth.

Next, we found that many

ROs had not completed the required training – including refresher training –

compromising the safety of youth upon whom this restraint method is

performed. For example, over 75% of staff placed on no-contact-with-youth

status during our first on-site tour, due to improper use of force allegations,

had not completed or updated their basic training requirements at the time of

their placement on no-contact status. Finally, in many cases we reviewed, the

use of prone restraints was excessive in light of the non-dangerous conduct

that led to use of prone restraints by staff. For example:

The second incident with CC (described above) also demonstrates

improper use of prone restraints. In that incident, CC was placed

in prone restraints for the non-dangerous conduct of disobeying an

order. Once on the ground, the staff also dangerously put their

body weight onto CC to keep him still.

Staff also unlawfully used mechanical restraints as a first response to

youth who did not respond to verbal commands. While DJJ rules allow for the

use of mechanical restraints in limited situations – such as where youth are

engaged in “aggravated resistance” – the ROs at NYFDC routinely placed metal

handcuffs and leg-cuffs on youth who are merely verbally resistant and did not

pose a risk to themselves or others in the facility. This is unconstitutional.

Jarrard, 786 F.2d at 1086 (needless application of force, including mechanical

restraints, where juvenile detainee was “merely giggling” and protesting the

treatment of another detainee unconstitutional). For example:

JJ was placed in mechanical restraints for failing to obey verbal

orders. While a video recording shows that he was in fact placed in

restraints for failing to obey a RO’s command, the incident report

omits any reference to mechanical restraints. In another incident

involving the same youth, JJ was placed in metal handcuffs and

leg cuffs because he spat on a RO. In another episode, ROs placed

JJ in mechanical restraints after he refused to return to the

17 In a 50-State survey of mental health facilities conducted by the Hartford Courant,

142 deaths occurred between 1988 and 1999 during or shortly after the application of

restraints or seclusion. Of the 142 deaths, “[t]wenty-three people died after being

restrained in face-down floor holds.” Eric M. Weiss, Hundreds of the Nation’s Most

Vulnerable Have Been Killed by the System Intended to Care for Them, Hartford

Courant, October 11, 1998, A1.

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common room. None of these instances rise to the level of

aggravated resistance,” and thus the use of mechanical restraints

in these circumstances constitute excessive force.

Staff placed another youth, RR, in mechanical restraints for tying a

sweater around his neck in a gesture of suicidal ideation. Three

staff members used a PAR technique to take the youth to the floor.

After the youth was held in a PAR restraint, facedown on the floor

for 48 minutes, he was placed in mechanical restraints for an

additional three hours and seventeen minutes, totaling four hours

and five minutes of restricted movement.

Despite the presence of good written policies, the youth were subjected to

a pattern or practice of unconstitutional uses of force as is evidenced in the

above accounts. In many instances, youth were subjected to uses of force in

circumstances that required only verbal intervention, and, in other instances,

subjected to altogether inappropriate force, including prone restraints and

unlawful use of mechanical restraints. Such conduct violates the youths’

constitutional right to adequate protection from harm, reasonable safety, and

freedom from undue restraint. Youngberg, 457 U.S. at 315-16.

c. Dangerous Off-Camera Assaults

Youth at Dozier were often subjected to staff violence in facility regions

outside of the viewing range of surveillance cameras. While the administrative

staff made efforts to address force incidents captured on video, they were not

as vigilant when there was no on-camera episode to corroborate a youth’s

abuse complaint. The facility was replete with off-camera areas, including the

laundry room in each cottage, the area of the hallways leading to the showers,

the immediate area outside of the cottages, and numerous outdoor areas.

Many of the youth complained that ROs often directed them to off-camera

areas. Youth reported that their safety was in the greatest jeopardy – primarily

from staff and occasionally other youth – in these off-camera areas. These

areas were not only dangerous to the youth; they also made adequate internal

and external reviews of abuse complaints next to impossible. In a complaint to

the Department of Child and Family Services, for example, HH reported that

staff allowed other youth to engage in fights off-camera in the laundry room

(referred to by staff and youth as the “sheet locker”). The report could not be

verified because there was no video of the incident and no documentation of an

assault. Other examples include the following:

Several youth reported that ROs often used force against them “off-

camera.” One youth, FF, referred to the ROs as being “dirty” for taking

kids out of the view of the cameras and hurting them. According to FF,

You’ll learn fast. Just don’t go off camera and get PAR’d.” FF was

assaulted off-camera, but refused to identify the responsible RO.

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A complaint to DJJ’s Central Communications Center by II, that he was

slammed against a bathroom wall by staff – could not be substantiated

because the alleged assault took place off-camera and no other youth

witnessed the incident.

Youth also reported being assaulted on their way to the isolation unit.

There was a camera attached to the building housing the isolation unit,

covering several feet immediately in front of the building. Most of the

distance between the cottages and this building, however, was beyond

the camera’s range and hidden by a thicket of trees. Many youth noted

that this area was a major source of danger to their safety.

Dozier youth were also at risk from youth-on-youth assaults due to the

design of some of the cottage rooms. Each cottage had two rooms with a

shared wall that stopped short between two to three feet from the ceiling,

leaving enough space for youth in these rooms to move between the two rooms

and the hallway. During our tour, we observed that youth had stacked chairs

on the desks in these rooms in order to climb over the short walls. This

created a risk of harm in several respects. Youth could climb over these short

walls in order to engage in a fight, engage in sexual relations, or confront a RO

in the hallway.

2. Poor Documentation and Data Collection Efforts

The pattern or practice of excessive force being used on youth at NYFDC

was obfuscated by its poor documentation and data collection efforts, even

though the facilities had the capacity to conduct sophisticated data analysis.

Many incident reports did not provide a complete account of the incidents and

were therefore not useful for determining specifically what happened, in

preventing future misconduct, and protecting youth from harm. For example,

our review of 138 Dozier use of force reports from April 2010 identified

problems such as (1) reports that were so poorly written that it was difficult to

determine what behaviors were being reported, (2) reports lacking in details to

establish the appropriateness of the use of force, and (3) underreporting of

problematic responses to youth behavior. As a result of these reporting

deficiencies, Dozier’s rates for physical restraints, youth-on-youth fights,

confinements, and grievances all appeared to be lower than the national

averages captured in the PbS Field Average. We do not have confidence in

these rates, however, due to the apparent inadequacy of the documentation

process. We also found similar documentation problems at JJOC and are

concerned that staff may have underreported incident there too.

As noted above, the documentation problems were manifested in various

ways, including cursory explanations of the force episodes that omitted key

information that could assist a reviewer in determining whether force was

appropriately used. The reports also failed to describe the injuries sustained

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by youth as a result of physical interventions. The following examples provide

a sampling of the problems.

One youth, KK, reported to the DJJ’s complaint line that a RO

pushed him, called him a derogatory name, and threatened him.

Neither the accused RO nor the other RO on duty completed a

report about the incident. The incident was substantiated by the

DJJ investigator only because it had been captured on video and

other youth verified the account.

In another episode involving DD, the incident report noted that he

was subjected to a takedown maneuver because he was disruptive

and failed to obey a RO’s directives. However, the accompanying

video recording only shows the youth on the ground. Nothing is

shown of the events preceding the takedown, making it difficult to

discern whether the use of force was appropriate.

In one incident, ROs placed a youth in mechanical restraints for

failing to obey verbal orders, but the incident report excluded any

mention of the mechanical restraints. A video recording showed

that the youth was in fact placed in restraints for failing to obey a

RO’s command. In two other incidents where ROs placed the same

youth in mechanical restraints, the reports failed to note the length

of time he remained in the restraints.

The grievance system also suffered from poor documentation of

incidents. Youth at Dozier were able to submit grievances; however, contrary

to the facility’s procedures, they were not informed of the outcomes.18

The documentation problem also extended to the medical care NYFDC

youth received. Oftentimes, the ROs did not call medical or mental health staff

to treat youth who may have been injured as a result of uses of force. For

While

the grievances included reports of staff misbehaviors requiring further

investigation, investigative findings were generally non-existent. This lack of

formal written findings also extended to outside reviews of youth complaints.

Because of the limited investigation and insufficient documentation, youth

complaints of abuse were often not substantiated. This problem existed to an

even greater degree at JJOC, where the rate of grievances was 98% less than

the 2010 Dozier rate and one tenth of the PbS Field Average. The infrequent

use of the grievance system at JJOC is troubling and indicates that youth were

either unaware of the grievance system, unable to access the grievance system,

or as several youths attested, had no confidence in the grievance system.

18

FOP 206 (January 19, 2010). Under FOP 206, youth grievances are to be

investigated and decided within 48 hours. The youth is supposedly provided with an

opportunity to appeal the decision.

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example, a review of the incident reports indicated that 90% of the reports did

not include medical or mental health findings. When the medical staff actually

did treat youth who had been subjected to force, they failed to record the

physical condition of the child. For example, medical staff did not photograph

youth following a takedown or other physical intervention. They also did not

diagram the youth’s injuries nor did medical staff follow-up with youth who

had been physically restrained.

Improved record keeping would enable the State’s juvenile facilities to be

more aware of persistent issues, which in turn would assist the facilities’ efforts

at improving the conditions of confinement.

3. Unlawful Uses Of Isolation

The State may not subject confined juveniles to undue restraint. See

Youngberg, 457 U.S. at 315-16. When the State subjects a juvenile to certain

disciplinary procedures, such as extended isolation, the State must provide the

juvenile with an opportunity to present evidence in his or her defense. Jarrard,

786 F.2d at 1086 (affirming award of compensatory damages for juvenile pre-

trial detainee placed in isolation for seven days after laughing and protesting

when another juvenile was placed in isolation); Gary H. v. Hegstrom, 831 F.2d

1430, 1433 (9th Cir. 1987)(upholding district court’s requirement that a

juvenile facility hold “due process hearings prior to confinement in excess of 24

hours”); Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982)(affirming a

permanent injunction on the use of isolation rooms by private school to which

adjudicated juveniles were confined). The practice of isolation is disfavored for

juveniles as it generally serves a punitive purpose. See e.g. Santana v. Collazo,

714 F.2d 1172, 1181 (1st Cir. 1983) (recognizing expert testimony that

isolation for longer than a few hours serves no legitimate therapeutic or

disciplinary purpose and is unnecessary to prevent harm unless a juvenile is

severely emotionally disturbed.”). Moreover, the use of isolation is highly

disfavored by experts in juvenile protection from harm. For example, the

Performance-based Standards issued by the Council on Juvenile Correctional

Administrators indicate that isolation should be avoided and only used for a

brief period where it is required. PbS Standards (April 2010). Isolation should

not be used as a matter of course and should be used only as a last resort,

should be carefully reviewed, and used only for a limited duration. See

American Bar Association, Juvenile Corrections Standards, ž7.11 (1980). The

State’s use of isolation in non-emergency circumstances and for long periods of

time – i.e. as punishment – is a violation of due process. R.G. v. Koller, 415

F.Supp.2d 1129, 1155 (D. HI. 2006) (finding that juvenile conditions expert

testimony “uniformly indicates that long-term segregation or isolation of youth

is inherently punitive” and that the “use of isolation for juveniles, except in

extreme circumstances, is a violation of Due Process.”).

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The State subjected youth to unconstitutional disciplinary confinement

by (1) failing to provide youth placed in confinement with adequate due

process, (2) confining youth for undue and excessively long periods of time, (3)

confining youth as a form of punishment for minor infractions, and (4)

depriving confined youth of necessary rehabilitative services.

Youth at Dozier were subjected to two forms of confinement. First, a

youth could be placed on “controlled observation” (“CO”) for a two hour “cool

down” period. According to FOP 210, the CO is “intended to help staff quickly

regain control and order in the program to divert serious injuries, security

breaches, or major property destruction.” Second, youth could be taken to the

Behavioral Management Unit (“BMU”) for 72 hours to 21 days, depending on

the recommendation of two members of his “treatment team.”19

The isolation units on both the Dozier side and the JJOC side of NYFDC

were particularly harsh environments. At Dozier, while using different names

to describe the units (CO and BMU), the only real difference in the environment

was the amount of time a youth was required to stay in confinement. The

CO/BMU consisted of six single cells measuring approximately 9.8 feet by 5.5

feet, with locking doors, a concrete slab serving as a bed, bars on the windows,

and a clear hard plastic window over the bars. At bedtime, the youths received

a thin mattress to cover the cement slab. The bathroom was in an area

separate from the cells. The CO/BMU was located in a building that was a

distance from the residential cottages, over 200 yards through a wooded area.

According to

FOP 211, the BMU should be used “only when a youth’s behavior significantly

disrupts the program’s residential community, endangers the safety of staff

and other youth, or threatens major destruction of property, and when used,

youth are protected from self-harm.” The actual practice at Dozier, however,

was to send youth to the BMU or CO for minor infractions. Use of the BMU was

discontinued during the transition period before the official closure of Dozier.

At JJOC, youth were placed on confinement in the Intensive Supervision Unit

(ISU), which was designed as a secure unit with four rooms that were used for

a short-term time-out or longer-term isolation. Despite the change in name

and location, youth continued to be placed in isolation for minor infractions,

and this undue restraint was unconstitutional.

19

A note on nomenclature: Dozier uses some terms in ways that do not actually

reflect what the terms more commonly denote. For example, the term “treatment

team” is used by staff to describe any staff person who interacts with the child,

including direct care staff such as ROs and administrative, medical, education, or

recreation staff. “Treatment teams” may or may not include mental health staff. In

the context of making a disciplinary confinement decision, two members of a youth’s

treatment team” may include any two ROs, or a combination of a RO and another

staff member (administrative, case worker, teaching, medical, or mental health). In

other words, there is no required mental health component to the disciplinary

confinement decision.

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Youth were walked to the CO/BMU from the cottages or they were transported

there in a van. The ISU in JJOC was located in the same building as the

regular residences, but in a separate pod. There were four rooms on the pod

similarly furnished with a concrete slab serving as a bed. The rooms in ISU did

not have windows.

Our review of incident reports indicates that isolation was oftentimes

used as a punitive measure for minor rule violations. For example, Dozier

youth were sent to the CO and BMU for “excessive horseplay,” name calling,

talking to other youth,” “causing a disruption,” and “being uncooperative.”

JJOC youth were sent to the ISU for similarly minor infractions, including

refusing verbal commands, being argumentative, running “off-bounds” around

a fenced-in basketball court, and horseplay. While DJJ’s rules appropriately

refer to disciplinary confinement as “the most restrictive method of behavioral

management,” youth were routinely confined in the CO/BMU/ISU for what can

only be described as nuisance behavior. Additionally, in committing youth to

the disciplinary confinement, staff did not provide youth with an opportunity to

challenge the commitment decision -- in violation of their rights. Gary H., 831

F.2d at 1433. Instead, youth were only advised of the “maladaptive” behavior

leading to their commitment and the goals that they must reach in order to be

released. The length of a youth’s confinement to the isolation units was also

difficult to discern – the rules only provide for a review every 72 hours after 14

days of continuous confinement and approval by the Superintendent (or a

designee), but do not prohibit unlimited extensions of confinement. In one

particularly stark example, SS was repeatedly placed in the ISU for

approximately two weeks. He would be released for several hours after a few

days and then returned to the ISU.

The isolation units did not serve any rehabilitative purpose. This is most

apparent in the limited to non-existent role of the mental health staff in the

determinations to send youth to disciplinary confinement. Specifically, the

mental health staff did not have veto power to prevent a child from being sent

to the CO or to request that a child be released from disciplinary confinement.

As such, suicidal youth were sent to isolation, although the facility rules

prohibit confinement of such youth. This practice is very dangerous as

[i]solation increases the sense of alienation and further removes the individual

from proper staff supervision.” Lindsay M. Hayes, Suicide Prevention in

Juvenile Facilities, 7(1) J. Office of Juvenile Justice and Delinquency

Prevention, 29 (2000). Additionally, youth confined in the isolation units did

not consistently receive required services, such as education materials, regular

mental health evaluations, or daily large muscle exercise. In sum, the

confinement units only served as punishment to uncooperative youth and a

warning to others. Thus, this practice violated the youths’ constitutional

rights.

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4. Deliberate Indifference To Youth At Risk Of Self-Injurious And

Suicidal Behaviors

The State must provide juveniles held in its facilities with adequate

medical treatment. Youngberg, 457 U.S. at 323-24 & n.30; Jarrard, 786 F.2d

at 1086 (denial of medical care to juvenile for three days after injury caused by

the guard found unconstitutional); Bozeman, 422 F.3d 1265 (recognizing

deliberate indifference where prison officials ignore inmate’s known serious

medical condition). This requirement to provide adequate medical care

includes a requirement to provide adequate mental health care. Cook v. Sheriff

of Monroe Cty., Florida, 402 F.3d 1092, 1115 (11th Cir. 2005). The due

process right to receive medical treatment “encompasses a right to psychiatric

and mental health care, and a right to be protected from self-inflicted injuries,

including suicide.” Cook, 402 F.3d at 1115 (quoting Belcher v. City of Foley, 30

F.3d 1390 (11th Cir. 1994)); see also Snow v. City of Citronelle, 420 F.3d 1262

(11th Cir. 2005)(same). As the Eleventh Circuit has recognized, actions that

violate a prisoner’s Eighth Amendment rights, such as those actions that would

be considered deliberately indifferent to a prisoner’s mental health needs, also

violate the greater due process Fourteenth Amendment rights of those

subjected to the state’s custody through a non-criminal process. Dolhite v.

Maughon, 74 F.3d 1027, 1041 (11th Cir. 1996). An official may be found

deliberately indifferent where that official deliberately disregards a “strong

likelihood” that a detainee will engage in self-injurious behavior. Cook, 402

F.3d at 1115; Snow, 420 F.3d at 1268.

The State subjected detained youth at NYFDC who suffered from serious

mental health problems to deliberately indifferent treatment, heightening the

risks of harm for suicidal youth. While no juveniles at NYFDC completed a

suicide to our knowledge, the lack of a death does not minimize the serious

risk for youth or the unlawful state of mental health care at the facilities.

Helling, 509 U.S. at 33. The rate20

20

As with the incident reports and data on violent incidents discussed above, we

do not have confidence in the accuracy of Dozier’s reported accounts of youth suicidal

behaviors. Dozier staff do not adequately document incidents that may include

youth’s self-injurious behaviors or threats. As such, the numbers of such incidents

may be higher than we were able to discern.

of suicidal behaviors by Dozier youth was

disproportionately high when compared with the PbS field average. The Dozier

rate of 0.262 behaviors per 100 bed days was almost five times higher than the

PbS field average of 0.057 behaviors per 100 bed days. These suicidal

behaviors included suicidal ideation, suicidal gestures, and self-injurious

behaviors. NYFDC youth were at risk in several respects: (1) the facility did

not provide adequate mental health screening; (2) staff did not treat suicidal

youth with the appropriate level of seriousness; (3) staff placed suicidal youth

at further risk by putting them in isolation, transferring them to JJOC, or

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placing them in physical restraints without consideration for their mental

state; and (4) the facility had numerous structural elements that presented a

danger to suicidal youth.

The initial screening of Dozier youth for mental health issues did not

adequately identify the youth’s psychological condition or potential

susceptibility to suicidal behaviors. This deficiency was illustrated by the large

number of youth diagnosed with the same, unspecified, disorder. Ninety youth

were “diagnosed” on the facility’s April 2010 Treatment Services Report.

Eighty-nine of those youth were diagnosed as having “conduct disorder”

without any modifiers as to their particular diagnoses.21

Direct care staff’s laissez faire attitude toward suicidal youth also

jeopardized their safety. A number of ROs and supervisors were dismissive of

suicidal threats by youth as “attention seeking” and manipulative attempts to

frustrate staff. Although one youth admitted that he claimed to be suicidal so

that he could get more staff attention, such isolated conduct should not

generate a sense of complacency among staff when a potentially serious

situation could exist. Complacency is particularly troubling because direct

care staff intervention, knowledge of suicidal risk factors, and attention to

suicidal youth are critical components to suicide prevention. Hayes, Suicide

Prevention in Juvenile Facilities, 7(1) J. Office of Juvenile Justice and

Delinquency Prevention, 27-29 (2000). According to another study of youth

suicide in juvenile facilities, approximately half of the suicides occurred during

the evening hours when direct care staff are likely the only staff onsite.

The extraordinarily

high rate of this diagnosis, particularly in a facility addressing delinquent

behaviors, makes the accuracy of the diagnosis and the methodologies of

diagnoses highly questionable. And because the treatment programs

established for Dozier youth are based on these unspecified diagnoses, youth

were not receiving appropriate mental health care.

22

This staff complacency further heightened the dangers to suicidal youth

as evidenced by the staff’s willingness to confine suicidal youth to isolation and

Lindsey Hayes, Juvenile Suicide in Confinement: A National Survey, National

Center on Institutions and Alternatives, 25-26 (February 2004). Direct care

staff investment in suicide prevention is therefore imperative.

21

The American Psychiatric Association’s Diagnostic and Statistical Manual of

Mental Disorders, (DSM IV 2000), defines conduct disorder as a “repetitive and

persistent pattern of behavior in which the basic rights of others or major age-

appropriate societal norms or rules are violated, as manifested by the presence of

three (or more)” criteria including aggression to people and animals, destruction of

property, deceitfulness or theft, and violations of rules (including truancy and

violations of parental curfews).

22

The study of 110 suicides between 1995 and 1999 found that 50.6% of suicides

occurred during the period from 6:01 p.m. to midnight.

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more restrictive environments without regard to their mental well-being. In a

number of instances, we learned that youth who had made suicidal gestures or

threats were placed in the BMU. As described above, the BMU was an

oppressive environment that could aggravate the risk of suicide. Additionally,

each of the cells had anchor points by the doors that could be used by a youth

to attempt hanging.

Finally, many of the rooms and facilities at Dozier were not suicide

resistant. The danger was heightened by the fact that the staff-to-youth ratio

of 1:8 was often compromised, leaving the youth alone for long periods without

supervision. Youth intent on hurting themselves at Dozier had access to

anchoring points on bed frames, air vent grates in their rooms, handrails in the

bathrooms, sprinkler heads in the shower stalls, and even some of the doors in

the housing areas. These protruding points present serious risks to youth.

Notably, many of the doors had small windows, allowing only a partial view of

the rooms; this increased the risk that a staff person would not know when a

child was attempting suicide behind the closed door. At JJOC, the rooms were

less dangerous, but we found chairs in the bathroom areas that could be easily

used to reach anchoring points. In the above mentioned national survey of

youth suicide in detention, 98.7 percent of suicides were by hanging. The

suicide victims used several types of anchoring devices, including door hinges

or knobs (20.5%), air vents (19.2%), bed frames (19.2%), window frames

(14.1%), and shower sprinkler heads (7.6%). Hayes, Juvenile Suicide in

Confinement: A National Survey, National Center on Institutions and

Alternatives, 27. The living quarters in NYFDC, which included most of these

anchoring devices, posed a serious risk of harm to youth.

5. Disciplinary And Punitive Measures In Violation Of Youth’s Due

Process Rights

Confined youth have a due process right against restrictions that

constitute punishment. Bell, 441 U.S. at 535 (recognizing that conditions and

restrictions imposed upon pre-trial detainees that amount to punishment

violate the Due Process clause); Youngberg, 457 U.S. at 315-16 (right to

freedom from undue bodily restraint is a core interest protected by the Due

Process Clause); Jarrard, 786 F.2d at 1085 (“[T]he due process clause forbids

punishment of pretrial detainees.”). Juveniles are entitled to due process when

their liberty interests are at stake. Jarrard, 786 F.2d at 1085; Gary H., 831

F.2d at 1433; Milonas, 691 F.2d at 942; Mary and Crystal v. Ramsden, 635

F.2d 590 (7th Cir. 1980) (juveniles have a right to present evidence on their

own behalf for hearings resulting in disciplinary isolation). Dozier officials

subjected the youth in their care to two practices that served no rehabilitative

purpose and were punitive: first, officials increased the youths’ time in

confinement for a period up to 120 days, and, second, officials transferred

youth to JJOC, a facility designed for “maximum-risk” youth. These practices

functioned as punishment and violated the youths’ constitutional right to

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freedom from undue restraints. Both measures were levied against so-called

problematic youth as a deterrent against acting out. Neither measure had a

rehabilitative function or required the provision of necessary treatment. In

addition, transfers were made recklessly where, for example, a youth who had

been propositioned for oral sex by another youth was transferred to JJOC

within two months of his tormentor’s transfer to JJOC. Both practices were in

contravention of the youths’ due process rights, posing an undue restriction on

their liberty without due process and without regard for their safety. Bell, 441

U.S. at 535; Youngberg, 457 U.S. at 315-16. Moreover, the measures were

contrary to the requisite rehabilitative purpose of the juvenile system.

First, the measures posed an undue restriction on the liberty of Dozier

youth.23

The measures were in contravention of youths’ right to due process and

access to the juvenile court. First, Dozier’s administrators did not institute

sufficient safeguards to ensure the fairness of these measures. The extension

policy was ostensibly applied only to youth deemed aggressors in fights. A

review of the incident reports, however, indicated that non-aggressors received

additional time. One report, involving MM, showed him to be defending

himself; he still received 60 days of additional confinement. On other

occasions, the facility did not determine which youth was the aggressor and

just extended both detentions. For example, a report of an incident between LL

and NN noted that both were fighting, but does not identify which youth

started the fight. Both LL and NN received additional confinement time. A

similarly vague report of an incident between PP and QQ resulted in both boys

The youth who received extensions were subjected to prolonged

confinement beyond their release dates. During a sample one month period,

for example, 15 youth received extended confinement. Most of the youth

received four months of additional time to their detention at Dozier.

Additionally, during our July 2010 tour, we learned that approximately 20

youth were subjected to JJOC transfers. Four additional youth were

transferred in the month following the tour.

23

For youth with disabilities, both practices – prolonged detention and transfers

to a more secure facility – may have run afoul of Title II of the Americans with

Disabilities Act, 42 U.S.C. ž 12132, and its governing regulations which prohibit

unjustified institutional isolation of persons with disabilities.” Olmstead v. L.C., 527

U.S. 581, 600 (1999). Under Title II, “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” Dozier youth with disabilities – such as youth

with mental health challenges – face unjustified prolonged and extended detention due

to their failure to progress through the program, in part, because they have not

received the appropriate treatment. Transfer to a more secure facility may also be

unlawful where the youth’s behavior is connected to a disability for which treatment is

required.

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receiving four months of additional time. Regarding the JJOC transfers, it was

absolutely unclear what behaviors would lead to a transfer or how a youth

could avoid being transferred. Our review of the incident reports for some of

the transferred youth suggests that many were being transferred for minor

repeated nuisance issues or because they required more attention for reasons

ranging from being disruptive to suicidal threats.

The arbitrary application of these punitive measures was compounded by

the fact that the youth were not afforded due process protections. They were

instead required to attend a meeting with the team of staff members who

imposed the added time or transfer. A number of the youth reported that they

had no access to attorneys for the meetings, their parents were not notified

before the meetings, and they could not challenge the decision. These

measures are especially problematic because the State’s juvenile court retains

jurisdiction over juvenile delinquency cases post-adjudication and after

determining the appropriate placement facility for a child. FLA. STAT. ž ž

985.0301, 985.441, 985.455. The juvenile code prohibits a child’s extended

confinement to a program for punitive reasons. FLA. STAT. ž 985.455 (3) (“The

child’s length of stay in the program shall not be extended for purposes of

sanction or punishment.”). Additionally, DJJ must seek court approval and

notify the child’s attorney of its intent to transfer the child between facilities of

higher or lower restrictiveness levels. FLA. STAT. ž 985.441. The transfer may

proceed without court authorization only if the court fails to respond after 10

days within the receipt of notice. FLA. STAT. ž 985.441. Moreover, because the

disposition and transfer decisions are within the traditional purview of the

court, the youth have a constitutional right of access to the juvenile court and

access to counsel. John L. v. Adams, 969 F.2d 228, 233 (6th Cir. 1992). The

administrators at NYFDC circumvented this process by referring to the planned

administrative merging of the facilities and calling the process a “reassignment”

as opposed to a transfer. Regardless of how it was labeled, youth at Dozier – a

high risk facility – were being moved to a maximum-risk facility without court

notice or approval. The later wholesale removal of Dozier youth to JJOC before

the closure announcement was similarly punitive and improper.

Third, the measures did not take into account the safety of the youth

when they are subjected to either lengthened time in confinement or time in

the more restrictive confinement. While the measures were supposedly

implemented to address fighting and improve safety, such considerations were

absent in the actual implementation of the measures. Confined youth retain

their right to personal security and safety. Youngberg, 457 U.S. at 315;

Jarrard, 786 F.2d at 1085; Taylor, 818 F.2d at 795. At Dozier, youth

automatically received extended confinements if they were deemed to have

started a fight. There was no consideration of the harm that can be caused to

a youth forced to remain in custody beyond his release date. There was also no

consideration of the safety risks to youth transferred from Dozier to JJOC. The

most basic concern, classification separation, was overlooked. For example,

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the primary separation appeared to be that youth in different categorization

levels were identified by different colored jumpers. This form of separation

apparently was not enforced, as we observed youth of different category levels

intermingling at JJOC. In one particularly egregious instance, a youth who

had been propositioned for oral sex by another youth was transferred to JJOC

along with his tormentor. According to the incident report, the youth, JJ, told

staff that the other youth made sexual advances toward him. Staff initially

moved the other youth to a different cottage. The other youth was

subsequently transferred to JJOC following several infractions unrelated to his

advances toward JJ. Next, JJ was transferred to JJOC after several rule

violations. We saw no evidence that the youths’ prior history was factored into

the decision to move JJ to the same facility as his tormentor or to ensure that

they were appropriately separated.

Finally, these punitive measures were counterproductive to the

rehabilitation of Dozier youth. The extensions and transfers, while ostensibly

serving as a deterrent to fighting, were so unfair that a number of the youth

resorted to self-destructive behavior. The penalties were an excessive response

to youth who acted out and, instead, contributed to the youths’ aggressive

behaviors. In this respect, the extensions and transfers contributed to feelings

of hopelessness, anger, and aggression. In the incident report involving GG, for

example, GG reported that he was upset and ready for prison after he had

received a 120-day extension. Staff restrained another transferred youth, JJ,

in approximately seven incidents over the course of a few weeks while the

youth was confined at JJOC; some of those incidents involved self-injurious

behavior. The extensions and transfers did not address the rehabilitative

needs of the youth and violated their constitutional rights.

6. Unconstitutional Frisk Searches

Juveniles do not give up their Fourth Amendment right to bodily integrity

when they are confined to a juvenile facility. See Bell, 441 U.S. at 558

(applying Fourth Amendment reasonableness standard to searches of pre-trial

detainees); Justice v. City of Peachtree, 961 F.2d 188 (11th Cir. 1992)(noting

that the Fourth Amendment prohibits unreasonable searches even in custodial

searches). In evaluating the reasonableness of institutional searches, courts

balance the scope of the intrusiveness, the manner of the search, the location

of the search, and the justification for the search. Bell, 441 U.S. at 559. Even

a pat down search is “a serious intrusion upon the sanctity of the person,

which may inflict great indignity and arouse strong resentment, and it is not to

be undertaken lightly.” Terry v. Ohio, 392 U.S. 1, 17 (1968). Facility searches

must be reasonably based on safety and security concerns and limited in scope

to address those concerns. Bell, 441 U.S. at 559. Moreover, the manner of the

search must not be overly intrusive in relation to the justification for the

search. Id.

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Dozier youth were subjected to frisk searches more than 10 times per

day, purportedly for recovery of contraband. During the six month period we

reviewed, the most dangerous contraband recovered were pencils, which

constituted 52 percent of the recovered contraband. Occasionally, staff

uncovered drawings, writing paper, and food during frisk searches. The

searches occurred as a matter of course -- even when the children were under

constant staff supervision. For example, in a typical day, youth were frisked (i)

before breakfast, (ii) after breakfast, (iii) after medication rounds, (iv) during a

school break, (v) before lunch, (vi) after lunch, (vii) during a second school

break, (viii) during sick call, (ix) before dinner, (x) after dinner, and (xi)

whenever they left the cottage for recreational activities. Many of the youths

informed us that some ROs were especially intrusive in conducting the

searches. We heard a number of reports of youth being groped by ROs during

the searches. One youth noted, “Some staff rub on your privates.” Another

stated, staff “touch too much.”

These repeated searches were unduly intrusive and not supported by the

stated justification. The repetitive searches were unwarranted, especially when

the youth had not left the grounds, had not been visiting outsiders, and were

under constant observation by the staff. Moreover, there were simple

alternatives to uncovering contraband without resort to frequent and intrusive

searches. For example, as the court noted in N.G., 382 F.3d at 234 n.13,

where pencils and other writing material can be numbered and the recipient’s

name recorded so that missing items can be traced to a particular youth, a

more targeted pat-down search of that youth would be reasonable. Similarly,

the staff could count the silverware before and after meals to make sure that

none was improperly taken.

7. Inadequate Medical And Mental Health Services

The State must provide juveniles held in its facilities with adequate

medical and mental health treatment. Youngberg, 457 U.S. at 323-24;

Jarrard, 786 F.2d at 1086; Bozeman, 422 F.3d at 1265; Cook, 402 F.3d at

1115. Before closing the facilities, the State had made significant

improvements to the medical care of Dozier and JJOC youth by hiring a

fulltime doctor and additional nurses. However, additional improvements were

required in several areas, specifically (1) access to sick call (Dozier); (2) delivery

of medical care to youth in the BMU; (3) adequate mental health care (Dozier

and JJOC); and (4) adequate CPR training (Dozier).

At Dozier, youth had to request sick call forms from the direct care staff.

This presented a problem when youths sought to complain about inappropriate

physical treatment by a RO. Confined youth should have the ability to

complete a sick call request without the interference of staff. Second, youth in

the BMU did not receive adequate medical care, assessment of their mental

health after their arrival in the BMU, or assistance in determining whether they

should be discharged from the BMU. Youth confined to the BMU were severely

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isolated and required regular medical and mental health care. Third, the

youths’ mental health diagnoses and care were very suspect given the

predominant “conduct disorder” diagnoses. The mental health care staff were

not adequately consulted on decisions that were necessary to the mental health

of the youth. As discussed above with respect to isolation issues, extensions of

confinement, and transfers to JJOC, the insufficient input of the mental health

staff in these decisions was harmful to the mental well-being of Dozier youth.

At JJOC, youth who had been transferred from Dozier were unable to see their

counselors. Indeed, many of the boys had not received their individual

counseling or even their group counseling. Finally, CPR training was not

available for Dozier’s medical staff. This created an easily avoidable and

unnecessary danger to the youth.

8. Failure To Provide Necessary Rehabilitative Services

The State is required to provide youth with necessary rehabilitative

treatment. Youngberg, 457 U.S. at 322 (confined person with intellectual

disabilities is “entitled to minimally adequate training” as may be reasonable to

protect his safety and freedom from unreasonable restraints); Nelson v. Heyne,

491 F.2d 352 (7th Cir. 1974) (holding that detained juveniles have a right to

rehabilitative treatment). The DJJ failed to do so in several respects. First,

Dozier and JJOC’s direct care staff were not appropriately trained in adolescent

development and de-escalation measures. We found that much of the staff had

not been trained in communication skills, de-escalation techniques, mental

health issues, adolescent development, or behavior management. As the

Supreme Court has recognized, adolescents have unique psychological needs

and should not be treated in the same manner as adults. See Graham v.

Florida, 130 S. Ct. 2011, 2026 (2010)(noting neurological studies showing that

parts of the brain continue to mature through late adolescence” and that

juveniles are more capable of change than are adults.”). In order to provide

appropriate rehabilitative care, direct care staff working with juveniles and

their supervisors should understand adolescent development processes and

learn how to interact with youth in a manner that reinforces positive

behavior.24

24

Staff pay may have been a contributing factor to the direct care staff’s poor

attitude toward their training and developing a better understanding of the youth

within their care. We learned that the average pay of direct care staff fell below $12

per hour and that some supplemented their salary with a second job. This is below

the industry average. According to the Bureau of Labor Statistics of the U.S.

Department of Labor, the median hourly wage for correctional and detention officers is

$18.78, an annual salary of $39,050. See

http://www.bls.gov/oes/current/oes333012.htm. The site does not list juvenile

facility salaries. Other reporters indicate that the minimum hourly rate for juvenile

facility staff is more than $12 per hour. See e.g.

http://www.payscale.com/research/US/Job=Juvenile_Detention_Officer/Hourly_Rate

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Next, the basic therapeutic needs of the youth were not being met. As

noted in the above discussion on suicidal youth, many of the youth were not

being properly diagnosed for potential behavioral disorders. At Dozier, for

example, more than 98% were generically diagnosed as having a “conduct

disorder.” The youth need to be properly diagnosed and to receive the proper

corresponding treatment. In addition, many of the youth who qualified for

substance abuse treatment were not receiving such treatment. In April 2010,

only 10.7% of Dozier youth were provided with substance abuse treatment

although 93% of them qualified for treatment.

Finally, the NYFDC youth had insufficient exercise and structured

activities to contribute to their positive behaviors and medical and mental

wellbeing. Exercise and recreational activities are vital components of a

youth’s rehabilitation. See e.g. Mary Ellen O’Connell et al., Preventing Mental,

Emotional, and Behavioral Disorders Among Young People: Progress and

Possibilities, National Research Council and Institute of Medicine of the

National Academies, 17 (2009) (“The prevention of [mental, emotional, and

behavioral] disorders and physical disorders and the promotion of mental

health and physical health are inseparable.”); National Commission on

Correctional Health Care Services in Juvenile Facilities, Standard YF 3,

(2004)(requires that juveniles receive at least one hour of large muscle exercise

per day, including walking, jogging, basketball, and other aerobic activities). At

NYFDC, youth spent a significant amount of time being idle. Oftentimes, ROs

canceled outdoor exercise opportunities, claiming that the heat index was too

high, without replacing such activities by allowing the youth access to the

Dozier gymnasium. Facilities for adequate exercise programs were available on

the Dozier campus. The problem was that the facilities were not consistently

offered to the youth. On the JJOC side, the boys were confined to their pods

and did not receive consistent opportunities for large muscle exercise. On both

campuses, many of the youth were unable to engage in constructive

recreational activities because basic supplies, such as board games and

sporting equipment, were often unavailable.

The failure to address these concerns not only harms the youth, but has

a negative impact on public confidence and public safety. The critical role of

the juvenile justice system to correct and rehabilitate is being abdicated, and

youth may well be leaving the system with additional physical and

psychological barriers to success. FLA. STAT. ž 985.01(b)(Stating that the

purpose of the juvenile code is to “provide for the care, safety, and protection of

children in an environment that fosters healthy social, emotional, intellectual,

and physical development; to ensure secure and safe custody; and to promote

the health and well-being of all children under the state's care”).

(showing an hourly rate between $12.19 to $17.69) and

http://www.simplyhired.com/a/salary/search/q-juvenile+guard (showing an average

annual salary of $45,000).

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9. Unlawfully Unsanitary And Unsafe Conditions At Dozier

Confined youth are entitled to safe and sanitary living conditions.

Youngberg, 457 U.S. at 316; Gary H., 831 F.2d at 1433 (approving consent

decree requirement of minimum sanitary conditions in a facility for juvenile

detainees). We observed sanitation deficiencies in the living areas, dining area,

and educational areas of the Dozier campus. First, there was no program in

place to address the cleanliness of the cottages. As such, youth complained of

insects and rodents as an ongoing problem. Our review also revealed dirty

living quarters, including evidence of insects and dirty toilets. An inspection of

the kitchen revealed rodent droppings on the canned food. Many of the youth

complained that they (and others) found insects and other foreign objects in

their food, a clearly problematic condition. See e.g. Alexander S., 876 F.Supp.

at 787 (finding that “food containing cockroaches and other foreign matter falls

below what may be deemed minimally adequate.”). Finally, the educational

areas were not cleaned regularly, sharp objects such as staples were not

securely stored in the classrooms, and basic provisions for cleanliness, such as

soap and spill kits were not readily available. A number of the first aid kits

had broken seals and were not adequately stocked with supplies. A simple

system could have been implemented to restock the supplies and avoid

unnecessary delays in emergency care.

IV.

CONCLUSION

The constitutional violations outlined above are the result of the State’s

failed system of oversight and accountability. To protect the youth in its

remaining facilities, the State must take immediate measures to assess the full

extent of its failed oversight with the assistance of consultants in juvenile

protection from harm issues. The State must also strengthen its oversight

processes by implementing a more rigorous system of hiring, training, and

accountability.

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