September 25, 2006

II. Girls in the New York Juvenile Justice System

Once you get into the system, it's kind of hard to get out. [41]

Girls' Delinquency: Systemic Failures and Pathways to Incarceration

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty permit the incarceration of a child only "as a last resort and for the minimum necessary period." [42] In New York, over 2,000 children are placed in OCFS custody every year. [43] The proportion of girls among these children has grown from about 14 percent in the mid-nineties to over 18 percent in 2003 and 2004. [44] Of the girls in custody, about a third are confined in the high- and medium-level security facilities of Tryon and Lansing. [45] Who are these children, why are they arrested and jailed, and are they truly incarcerated only as "a measure of last resort?"

The Social Welfare System

Like boys, girls typically enter the system with a background of familial poverty, disruption, and disadvantage. Of children taken into OCFS custody in 2004, about 63% came from New York City, especially the poorer Bronx and KingsCounties. [46] Only 23% came from two-parent households. [47] In New YorkState, a high percentage of single-parent families with children, 33 percent, live in poverty. [48] Poverty is a major risk factor for delinquency, and often is accompanied by other risk factors related to family disruption. [49] Incarcerated girls in particular have frequently experienced emotional, physical, and/or sexual abuse at home. [50] This history of abuse may be the most significant underlying cause of behaviors leading to girls' delinquency. [51] In New York, an informal survey of incarcerated girls conducted in the 1980s by OCFS officials found that over 70 percent had experienced physical or sexual abuse prior to their incarceration. [52] This finding is consistent with national estimates. [53] Histories of abuse and trauma help explain why, nationally, the majority of girls entering the juvenile justice system suffer from post-traumatic stress disorder (PTSD), other mental health problems, substance abuse, and physical ailments. [54]

Recognizing the causal link between disadvantage, unmet basic needs, and delinquency, international norms, including those concerned with delinquency prevention, stress governments' duty to provide basic services to children such as "adequate medical and mental health care, nutrition, housing and other relevant services, including drug and alcohol abuse prevention and treatment." [55] International standards also call on governments to provide services and support to families experiencing instability and conflict , [56] and to work to "prevent domestic violence against and affecting young persons and to ensure fair treatment to these victims of domestic violence." [57] Specifically, these standards urge states to provide treatment and adequate follow-up services for children and their families when abuse does occur. [58] The experience of legal and social service providers in New York confirms that "[m]uch of girls' criminal behavior could be prevented with adequate services . . . ." [59]

Yet in New York and elsewhere, the disadvantages of children who, in light of their background are already at high risk for delinquency, are exacerbated by multiple failures in the social systems that should provide care and services to them and their families. [60] According to legal and social service providers, "the services and support that should be in place to prevent criminal behavior are lacking." [61] Crucial but failing government systems include the health, child welfare, and educational systems. As a New York delinquency defense attorney put it:

Detention and commitment institutions are just a repository for the failures of the other parts of the system. They just take whatever everyone else won't take. Like the Office of Mental Health in this state that has failed the teenage population to a great extent, so a lot of kids are locked up because there's no other place to live, and they claim they'll get mental health services, but they don't, or if they do, it's in a lockup which isn't a therapeutic environment. So the Office of Mental Health, and ACS, [62] and school systems need to be looked at. [63]

New York suffers from state-wide healthcare deficiencies including poor access to services for children with mental health needs, especially for those receiving public assistance and Medicaid. This failure can result in girls being confined in juvenile prisons not only because they manifest preventable but untreated behavior problems, but also because overwhelmed parents feel they cannot control their children without state intervention, or because judges recognize that incarceration is the only way to guarantee access to health services. [64] According to a study of child mental health services in New York, lack of access to adequate care sets children up for later encounters with the juvenile justice system by encouraging frustrated families to relinquish mentally ill children to state custody and ignoring health problems until the point of criminal "crisis." [65]

Family instability frequently leads girls as well as boys to involvement with the child welfare system, including the foster care system, either because of parental abuse or neglect or through the filing of a petition, often by a parent, requesting the court's help in supervising a child. [66] Ironically, contact with the child welfare system is frequently not only unhelpful to families in crisis but is itself a risk factor for juvenile justice involvement. In New York, a well-traveled pathway has emerged wherein children who suffer abuse are placed in foster care where they commit a delinquent offense, initiating their involvement with OCFS. [67] Foster children are overrepresented in New York City juvenile detention, and the bias is particularly strong where girls are concerned. [68] Stephanie Q., now 18 years old, describes her path into the system:

My father used to hit me, it was corporal punishment. I was in foster care since I was 12. I was in ACS [69] group homes. They were like any other group homes. . . . It's like an institution, with shifts, they baby-sit us. They don't get personal, they don't tell us anything to do, they just sit in the office just to be there so they can say an adult is there. . . The kids are wild, you find every type in there. . . It was everyday drama. That's why I got locked up, someone would steal something, and I was an angry child, so every time someone did something to me there was a violent reaction, so they'd call the cops and I'd get sent to Spofford [70] or Crossroads [71] or whatever. I had the same judge over and over again, I guess he finally got tired of me and sent me upstate. [72]

Foster care group homes like Stephanie Q.'s former home may place already traumatized children in difficult environments while also failing to provide meaningful adult involvement in their lives. Children in such placements are also more likely to be incarcerated than children not in foster care because an adult rarely is present to advocate for them when they are arrested and because when a foster child is detained, another child typically is immediately assigned to that child's foster placement, making return to the original placement impossible for the detained child. [73] In New York, errors such as miscommunication between police, OCFS, and other relevant organizations cause foster children to go unrepresented in their first encounters with the juvenile justice system. Adults, such as foster parents and caseworkers, who are authorized to act as legal guardians, are often either not notified by the police of a child's arrest, or when called, refuse to intervene, leaving children without an advocate and therefore more likely to be sentenced to detention. [74] In addition, in New York, foster children with serious physical and mental health needs who have not committed any offense are often placed in private "residential treatment centers" alongside children who have already been adjudged delinquent, confined in a secure juvenile facility, and subsequently "stepped down" to the same center. [75] The net effect of the close proximity between the foster care and juvenile justice systems is a "foster care to prison pipeline" in New York.

Schools

I wasn't getting good grades. I got transferred because a girl did graffiti on the wall against white people. They kicked me out. The principal didn't want me in school anymore. [76]

Where families and government agencies struggle to help children, schools can and sometimes do provide the care and positive engagement children need for healthy development. Specifically with respect to girls, success in school has been found to mitigate the negative effects of abuses like sexual assault, leading to less aggressive behavior and vandalism by abused girls, and therefore to a lower likelihood of juvenile justice involvement. [77] Recognizing the importance of educational opportunities in preventing delinquent behavior in children, international standards emphasize that states have a particular responsibility to ensure schools are environments which nurture children at social risk. [78] In New York, however, there are many schools in which children are not engaged academically or their learning disabilities are neither diagnosed nor accommodated, and which implement "push-out" measures, "zero tolerance" disciplinary policies and "high-stakes" testing. [79] Such an environment can do more harm than good for vulnerable children.

Educational advocates in New York have documented the systematic use of "push-out" tactics in city schools, such as illegally expelling students based on spurious claims that they were "too old, did not have enough credits, or were not on track to earn a diploma in four years." [80] In the majority of cases it is students who are already at risk for juvenile offense who bear the brunt of the negative effects of these policies, as they are singled out for removal based on lagging performance, their dependence on relatively expensive special needs programs, and previous involvement in the juvenile justice system. [81]

What is more, that first encounter with the juvenile justice system is often precipitated directly by school policies. "Zero tolerance" policies in schools are those imposing automatic, severe penalties on students, such as suspension or expulsion, often for relatively minor rule violations. [82] Such policies reflect theories of deterrence and segregation from the larger community, and mirror the retributory characteristics of the adult and juvenile justice systems. By mandating harsh responses to relatively minor misconduct these policies trigger contact with the criminal justice system for behavior that could be addressed in a less punitive fashion. [83] In addition, New York has poured record numbers of police into the corridors of so-called "impact schools," institutions which borrow the tactics of recent neighborhood anti-crime campaigns using additional patrols and "zero tolerance" policies ostensibly to decrease school violence. [84] This tactic has been decried by students and educators as providing questionable safety gains while ensuring that troubled students not only face removal from the academic environment but are almost immediately brought before a judge for their offenses and thus are "criminalized." [85]

Harsh disciplinary policies whose intended or foreseeable effect is to remove from schools children viewed as troublesome violate international standards. [86] Even relatively mild academic performance policies like New York City's retention policy, which systematically holds children back in grade levels to boost school performance, can work to the detriment of vulnerable youth. [87] Although such policies do not immediately remove children from schools, they threaten instead to encourage school drop-out by the very students for whom school engagement represents a crucial safeguard against juvenile offense. There is also some evidence suggesting that when schools exclude troubled students, girls in particular suffer. Negative attitudes toward school and truancy, suspension, poor grades, or expulsion, are even more powerful predictors of delinquency in girls than in boys. [88] Once displaced from more nurturing networks in the school and the home, both boys and girls face an increased risk of involvement with the juvenile justice system.

Juvenile Justice Processing and the Incarceration of Girls

In New York and nationally, girls represent an increasing but still relatively small proportion of children who enter the juvenile justice system. [89] Like the larger society, the juvenile justice system in New York regularly disadvantages children from marginalized and institutionalized backgrounds, but girls face specific problems.

Developments in the Policing of Girls

In the early twentieth century, prevailing juvenile justice ideology resulted in attempts to police girls' behavior and especially their sexual morality, leading to a high rate of institutionalization of girls as compared with boys for offenses that would not be crimes if committed by adults. [90] These acts, known as "status offenses," and designated under New York law as "PINS" offenses include habitual disobedience of parents, truancy, and "incorrigibility." [91] Since that time, it has generally been the case that girls are disproportionately charged with and incarcerated for status offenses and technical violations such as the violation of probation, [92] a trend attributed to gender bias in the decision-making of police, prosecutors, judges, and others involved in the process. [93] Status offenses, as well as other nonviolent acts such as drug use and larceny, can, in turn, often be traced to histories of abuse. Girls may run away from abusive homes but be arrested for the act of running away itself, or for engaging in petty theft or prostitution as means of economic survival on the streets. [94] In New York, although a child under 17 years of age is considered legally incapable of consenting to sex, [95] she may still be convicted of prostitution if she engages in commercial sex. [96] This state of affairs has been criticized as penalizing abused and commercially sexually exploited children. [97]

Ebony V. ran away from an abusive home and was prostituted by a man in his thirties. [98] She was arrested on a prostitution charge and held in the Lansing facility, where she was again sexually exploited. Contrasting what she viewed as the justice system's lenient treatment of adult men who buy sex from children with its harsh treatment of commercially sexually exploited girls, Ebony V. said:

The system is made for us to fail. Put it like this: A young person like me can get arrested and get put away for a year and a half, then another year for what adults did to her. A lot of times it's not our fault, it's an adult's fault and they treat us like adults in there. [99]

Alternatively, abused and traumatized girls who are deprived of necessary mental health counseling or treatment may self-medicate with alcohol or other drugs. [100] Bless L., for example, told HRW/ACLU:

I'm from Staten Island. My mother, when I was young, was always abusing me. She was doing drugs and everything, and my grandparents got custody of me. Then my grandmother passed away. I started bugging out, I started using weed, coke, liquor, I'd get it from friends, people selling on the corner, wherever. My grandfather was using and I was using with him, so he knew. [101]

A New York delinquency attorney observes that "There's a fair amount of self-medicating going on among the girls. It's identified as a chronic drug problem, but really it's the underlying problem that never gets addressed." [102] The justice system's response to these patterns, that of arresting and prosecuting the girls concerned, has been dubbed the "criminalization of girls' survival strategies." [103]

Girls benefited from the deinstitutionalization movement of the 1970s, specifically the passage of the federal Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974 and its prohibition of the incarceration of status offenders. Girls were incarcerated less frequently during the years following the JJDPA's passage. [104] During the 1980s, however, national concern over "missing and exploited youth" helped to motivate an amendment to the JJDPA allowing for the incarceration of status offenders violating a valid court order, including orders setting the terms of their probation. From this revision arose a judicial practice that became known as "bootstrapping" or "relabeling," whereby a child is jailed for violating a court order arising from a status offense, resulting in the incarceration of girls whose original charge was a status offense. [105] Bootstrapping allowed judges to circumvent the JJDPA's ban on incarcerating status offenders, and also constituted a violation of international standards insofar as it disproportionately affected girls. In the 1992 reauthorization of the JJDPA, the practice was outlawed. [106] As of 1996, children accused of PINS offenses in New York may no longer be placed in OCFS custody. [107] While these key legal reforms have helped to reduce the incarceration of children, the evidence indicates that, nationally, girls continue to be arrested and incarcerated disproportionately for status offenses. [108]

In New York, girls are increasingly arrested for violent offenses such as assault; [109] indeed, of girls entering Lansing and Tryon in the last three years, 49 percent were adjudicated to have committed a crime against a person, of which 35 percent were classified as "assaults." [110] Although girls as well as boys can and do engage in physical violence, s ome scholars argue that violent behavior among girls has not increased, but that policing and charging practices have. [111] A recent study of national data collected between 1980 and 2003 attributes the apparent increase in girls' violent crime to "net-widening" changes in law and police practices resulting in criminal penalties for less serious forms of violence; violence in private settings, such as the home; the arrest of less-culpable offenders, such as accomplices and those acting in self-defense; and a decrease in the tendency of police, parents, teachers, and social workers to excuse girls' physical or verbal aggression. [112] Official sources also suggest that, nationwide, the increase in girls' arrests for violent offenses, especially assault, arises from changes in enforcement rather than in girls' behavior. [113]

Other recent changes in police procedure, such as the policy of mandatory arrests when responding to domestic violence calls, may account for part of the increase in the number of adolescent girls being charged with assault for relatively minor mutual physical altercations with parents. [114] In our research, we found some examples of this. Marisol U., [115] whose case is profiled below, and other girls interviewed by HRW/ACLU entered the juvenile justice system as a result of family violence. Felicia H., from Queens, New York, was removed from her mother's care when she was eight years old and placed in a foster home she describes as chaotic. She ran away several times back to her mother's home. At home, her step-father occasionally hit her until she was ten or eleven, when she called the police, after which her step-father did not hit her again. Although she was no longer physically abused, Felicia H. felt neglected by her mother and step-father and often ran away for several days at a time. When asked about her arrest, she said:

I got arrested for assault. That's when I was 12 or 13. My mom and I were fighting because I had run away and came home high. We were fighting and she got mad. I was cutting onions, I called my mom a ho, she came to hit me and since I had the knife, she called the police and they arrested me. They came they gave me a choice to stay at home or go to Spofford. I decided to go to Spofford because I was mad. [116]

A New York delinquency attorney states "Some girls have been abused all their lives . . .. Finally, they get to an age where they can hit back. And they get locked up." [117]

Case Study: Marisol U.

Marisol U., from the Bronx, New York City, is 15 years old. In these excerpts from an interview with HRW/ACLU, Marisol U. describes how she became caught up in the juvenile system. [118]

It's tough growing up around there. There are drug dealers everywhere you go and girls that want to fight you for no reason. It was fighting and drugs, everywhere you go. But I just stayed out of it by not hanging out with those kinds of people. I always had my older sister. She'd been through a lot of things, she's a grown woman now. She guidances [sic] me, she gives me advice.

My father is schizophrenic, so is my mother a little bit. She hasn't been diagnosed but sometimes she takes his meds to calm her nerves. My mom sees a psychiatrist, but she goes whenever she wants to, and she usually cancels her appointments. She has health problems, too. Usually we're on public assistance.

My father embarrasses my friends, especially when he's off his meds. He yells at them, and he send them home when they come to see me. Especially if it's a boy, once my friends came over and my dad went crazy in the hallway. He opened the door and started screaming at them. I got upset and spoke up. I said, "They're not disturbing no one, there's no reason to act like that." He slapped me across the face hard, it left a mark for a while. I don't know what got into me but I went and got a knife, I didn't stab him or anything but my mom didn't know how to react to it so she called the police and they came and arrested me. And because the situation happened at home, they don't want to send you home so they sent me to an NSD [non-secure detention facility] instead.

I feel like I didn't even fit in there. I'm not the type of girl who's out on the street smoking or whatever. I was just there because of my father's schizophrenia. Once my sister came to the facility to see me. She saw me with my hands behind my back, with a jumper on, and she started crying.

Janine Y.'s experience is typical of children whose identification as a person in need of supervision facilitates their entry into the delinquency system:

My father's incarcerated and I don't know where my mom's at. My grandma raised me. I was at East Middle, I think it's called. It was in Binghamton. It's a junior high. I was bad in school and the school kicked me out and they told my grandmother she had to put a PINS on me or else I couldn't go back to school. She didn't want to, she didn't think I needed it. I was 12 or 13. . . .So I had a PINS petition and I violated curfew, and they sent me to a group home. I didn't like it there so I kicked one of their screen windows out, so I ended up at OCFS. [119]

For girls previously remanded to OCFS custody and released, even minor misbehavior can have severe consequences. Many girls are conditionally released from OCFS subject to respecting terms such as curfews and orders to attend school. If they violate these orders, they are incarcerated again. Janine Y. was held at TryonReceptionCenter, then a non-secure facility, and later at Brooklyn Residential Facility, or "BRC," an OCFS facility in which "revocators," or girls who violate the conditions of release, are held. She described her path to BRC:

I've been at BRC three times already. I've got a curfew problem. The reason I'm here now is because I didn't go to school. . . . A lot of girls here are like that.If you did another crime you'd most likely get charged all over again so you'd go to [Tryon] Reception [Center] and then upstate. So most of the people here are for curfew and stuff. [120]

Several other girls incarcerated in New York and interviewed by HRW/ACLU described similar experiences. When asked why they were confined, girls answered: "I revocated because of curfew. I'm not a curfew person, I break curfew all the time [121] "; "My original charge was assault but then I violated probation" [122] ; "Originally, I got caught for criminal trespassing, breaking and entering. Me and my friend broke into a house. It was empty though, there was no one living in it. I got put in a group home and I AWOLed" [123] ; and "I was having problems at a RTC [residential treatment center]. Then after Lansing I was in aftercare, in independent living. I went to an OCFS group home after Lansing, for eight months, then still OCFS, then went AWOL, then got sent to Tryon." [124]

The Incarceration of Girls

Both international standards and some provisions of New YorkState law are premised on the principle that the institutionalization of children should be avoided whenever possible. [125] Yet through the 1990s, the number of children held in New York's pre-adjudication detention facilities increased steadily, [126] with girls entering detention at relatively high rates compared with boys. [127] The length of time children spend in detention has also increased. [128] As to post-adjudication commitment, as the number of boys taken into OCFS custody has decreased slightly between 1995 and 2004, the number of girls has remained more or less steady, resulting in a slight increase in the proportion of girls to close to 19 percent of the total population. [129]

International standards emphatically require that a range of alternatives to incarceration be made available to children accused of or found guilty of crimes, [130] and the principle of nondiscrimination mandates that such alternatives be equally available to boys and girls. [131] Even when they are provided with alternative programs, however, girls tend to perform worse than boys, indicating a need for programs that are specifically designed for girls. [132]

New York suffers from a shortage of alternatives to both pre-adjudication detention and post-adjudication confinement. As to pre-adjudication detention, between 1988 and 1992, New York saw among the highest increases of any state in the rate of detention of girls as compared to boys. [133] The four New York City schools operated by the Probation Department as alternatives to detention were "perennially full or overcrowded, failed to provide education in accordance with New York and federal law," and were recently closed down. [134] Although both secure and non-secure detention facilities exist for children awaiting adjudication of their cases, the inadequate capacity of New York City's non-secure detention facilities has harmed girls in particular. "There has been a consistent lack of adequate non-secure detention space for girls, causing girls who need a group home setting to be illegally jailed." [135] This conflicts with international standards, which specifically require that "whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home." [136]

As to post-adjudication placement, there are over 3,000 children confined in various OCFS facilities in New YorkState. [137] New York is "severely lacking" in non-incarceration placements for children, especially for girls, [138] and some children have been incarcerated because of a lack of available alternative residential placements. [139] According to Nancy Rosenbloom, director of the Special Litigation unit of the Legal Aid Society's Juvenile Rights Division, "many of the most desirable non-secure residential placements only accept boys." [140] According to a facilities service provider, the privatization of group homes in New York is another factor resulting in greater rates of incarceration for girls:

Now homes can say, "we don't want HIV positive girls" or "we don't want girls with a drug history." So some of the girls in there [OCFS facilities] have done nothing wrong, there's just nowhere to go. . . . You get sweet, timid, shy young ladies, mixed in with girls who are rougher and tougher. The other girls were thrust into this environment that they shouldn't have been in but there was nowhere else to put them. [141]

To its credit, OCFS has taken preliminary steps toward reducing the incarceration of children by initiating its "Evidence-based Community Initiative" (EbCI) in 2003. The initiative aims to provide intensive family therapy and other services to children within their communities. [142] Although apparently intended at its inception to serve as an alternative to institutionalization of children and as a means of shortening the length of children's incarceration, there is some indication that EbCI is now primarily being offered to children after their incarceration rather than as an alternative to confinement. OCFS's recently released 2004 Annual Report states, however, that " [i]n 2004 there were also some Evidence-based Community Initiative (EbCI) Day Programs that admitted youth meeting certain criteria to front end programs in lieu of residential care." Only 3 of 40, or 7.5 percent of children entering EbCI day programs in 2004 were girls, [143] and at the end of 2004, only nine children were in such day programs, and all were boys. [144] There is also conflicting information as to the extent to which facilities' capacity has been reduced through the use of EbCI. [145] What is clear is that the effort toward deinstitutionalization is extremely important and should be greatly expanded.

The Disproportionate Impact on Girls of Color

Equal protection of the law is guaranteed by the U.S. Constitution as well as international law. [146] Yet the marginalization permeating the life experiences of girls of color continues through their time in the juvenile justice system. The increasingly common practice among school administrators of calling the police in response to student misbehavior has a disproportionate impact on African-American students. [147] Across the U.S., 70 percent of delinquency cases involving white girls are dismissed, while only 30 percent of cases involving African-American girls are dismissed. [148] Nationally, 34% of 12 to 17 year olds in the U.S. are girls of color, yet they account for 52% of those detained for juvenile offenses. [149]

In New YorkState, 54 percent of children in the general population are Caucasian, 20 percent are Latino, 18 percent are African-American, and 6 percent are Asian. [150] In contrast, of the girls admitted to the Lansing and Tryon facilities over the last three years, 54 percent are non-Hispanic African-American, 19 percent are classified as Hispanic, [151] 23 percent are non-Hispanic White, and none is Asian. 10 girls, or 3 percent of the total, are Native American. One is classified as non-Hispanic-Other. [152] The disproportionately high number of African-American girls incarcerated in the highest security juvenile prisons in New YorkState echoes the overall overrepresentation of black children in OCFS: Since 1995, African-American boys and girls have consistently accounted for close to 60 percent of children taken into OCFS custody. [153]

[41] HRW/ACLU interview with Janine Y., New York, New York, May 24, 2006.

[42] United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("Beijing Rules"), adopted November 29, 1985 by General Assembly Resolution 40/33, rule 13;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, rules 1, 2.

[43] In 2004, 2,104 children were taken into OCFS custody; 392 of these were girls. New York State Office of Children and Family Services, Division of Rehabilitative Services, "Youth in Care: 2004 Annual Report," ii, 2 (Table 2) ("OCFS Annual Report (2004)"). This figure includes children remanded for residential services as well as a relatively small number remanded for non-residential services.

[44] Percentages calculated from OCFS Annual Report (2004), p. 2 (Table 1). OCFS did not release its 2004 Annual Report until 2006, and no further reports have been released to date.

[45] Percentages calculated from OCFS Annual Report (2004), p. 2 (Table 1) and "Table 1: Characteristics of Admissions to Selected OCFS Facilities, 2003-2005," obtained through the New York Freedom of Information Law and on file with HRW/ACLU.

[46] Percentage calculated from OCFS Annual Report (2004), p. 6 (Table 2).

[47] Ibid.

[48] Annie E. Casey Foundation, "Kids Count: State-Level Data Online," http://www.aecf.org/kidscount/sld/profile_results.jsp?r=34&d=1&c=a&p=5&x=153&y=16 (retrieved May 6, 2006)("Kids Count Database"). In 2004, 21 percent of children in New YorkState lived in poverty and 35 percent lived in families where no parent had full-time, year-round employment, compared with a 33 percent national average for children whose parents lack full-time, year-round employment. New York rates over the past five years are similar.

[49] See, for example, United States Office of Juvenile Justice and Delinquency Prevention, "Juvenile Offenders and Victims: 2006 National Report," 7 (describing the association between juvenile poverty, family disruption, and juvenile crime). An overview of girls' pathways to delinquency is provided in Marty Beyer, "Delinquent Girls:A Developmental Perspective," Kentucky Children's Rights Journal, pp. 9, 17-25 (2001).

[50] For example, one study found that girls and women with histories of childhood abuse or neglect were 73 percent more likely than those without such histories to be arrested for property, alcohol, drug, and misdemeanor offenses and that, unlike boys, girls with abuse and neglect histories are also more likely to be arrested as a juvenile or adult for a violent offense than those without.Cathy S. Wisdom and Michael G. Maxfield, "An Update on the 'Cycle of Violence,'" in Research in Brief, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice (2001). Girls in the general population are more likely to experience childhood sexual abuse than boys, and in addition are abused from a younger age and over a longer period of time. Meda Chesney-Lind, The Female Offender: Girls, Women and Crime (Thousand Oaks, California: SAGE Publications, 1997), pp. 25-26. It is important to note, however, that this difference may arise in whole or in part from gender differences in willingness to admit past abuse. Email message from Terry Kupers, M.D., M.S.P., to HRW/ACLU, June 22, 2005.

[51] Laura Prescott, "Adolescent Girls with Co-Occurring Disorders in the Juvenile Justice System," The NationalGAINSCenter for People with Co-Occurring Disorders in the Juvenile Justice System, (December 1997), p. 3. Sexual assault, along with early puberty, has been found to increase the likelihood that girls will engage in violence, theft, truancy, and vandalism. Margaret A. Zahn, RTI International, "New Findings from the Girls Study Group," presentation at National Institute of Justice Annual Conference (July 2005).

[52] Inez Nievez, Associate Deputy Commissioner for Programs and Services for the Division of Rehabilitative Services, in HRW/ACLU meeting with OCFS senior administrators, Albany, New York, April 18, 2006. According to the information made available to HRW/ACLU, OCFS has not collected information on this feature of the girls in its care since the 1980s. In response to an April 21, 2006 Freedom of Information Law request for "[a]ny and all documents relating to or arising from data collection conducted by any government agency on the rate of past abuse (physical, sexual, or otherwise) experienced by girls, boys, and/or girls and boys in OCFS custody," OCFS responded that it "does not maintain records in the manner you request." Letter from Sandra A. Brown, Assistant Commissioner, Public Affairs, to HRW/ACLU, June 28, 2006.

[53] See National Mental Health Association, "Mental Health and Adolescent Girls in the Justice System," (1999) (estimating that over 70 percent of girls incarcerated in the U.S. have experienced sexual and physical abuse).

[54] National Mental Health Association, "Mental Health and Adolescent Girls in the Justice System," (1999); Nancy Rosenbloom, Legal Aid Society, testimony before the Council of the City of New York, Committee on Women's Issues and Youth Services and Subcommittee on Juvenile Justice, April 18, 2000 ("Legal Aid Society Testimony (2000)"); HRW/ACLU telephone interview with Legal Aid Society attorney, September 28, 2005. Leslie Acoca, "Investing in Girls: A 21st Century Strategy," p. 5.(describing "serious physical health problems" and need for "psychological services" in 88 percent and 53 percent respectively of a sample of "girls in the California juvenile justice system").

[55] United Nations Guidelines for the Prevention of Juvenile Delinquency ("Riyadh Guidelines"), adopted and December 14, 1990 by General Assembly Resolution 45/112, para. 45.

[56] Riyadh Guidelines, paras. 11-13, 32-39. See also 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. 23, para. 1; International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, 993 U.N.T.S. 3 (entered into force January 3, 1976, signed by the United States of America October 5, 1977), art. 10, para. 1.

[57] Riyadh Guidelines, para. 51.

[58] 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. 19, paras. 1, 2.

[59] Legal Aid Society Testimony (2000).

[60] Legal Aid Society Testimony (2000). In a discussion of girls' entry to the New York juvenile justice system, Ms. Rosenbloom describes a "shocking picture of failure of the responsible government agencies to help and treat these vulnerable young people," and points out that "the many public agencies that touch children's lives in New York City fail to work together and prevent young girls from becoming involved in criminal behavior." See also M.L. Armstrong, "Adolescent Pathways: Exploring the Intersections Between Child Welfare and Juvenile Justice, PINS, and Mental Health," Vera Institute of Justice (May 1998) (citing failures in the special education, mental health, and child welfare systems). For an in-depth study of the distinct pathways to juvenile justice involvement traveled by girls in Florida, see Vanessa Patino et al., "A Rallying Cry for Change: Charting a New Direction in the State of Florida's Response to Girls in the Juvenile Justice System," National Council on Crime and Delinquency (July 2006).

[61] Legal Aid Society Testimony (2000).

[62] Administration for Children's Services, the primary child welfare agency in New York City.

[63] HRW/ACLU telephone interview with Legal Aid Society attorney, September 28, 2005.

[64] About one in ten children in New YorkState lack any form of health insurance, as do 14% of those living below the poverty line. Kids Count Database.

[65] Chris Koyangi and Rafael Semansky, "Assessing Child Mental Health Services in New York," Bazelon Center for Mental Health Law (Winter 2003), pp. 11-14 (tracing the pathway between lack of access to mental health services and juvenile offenses, and arguing that children offend as a result of the emphasis on crisis-oriented care).

[66] Chesney-Lind, Female Offender, 5. See also Anne Marie Ambrose and Sandra Simpkins, "Improving Conditions for Girls in the Justice System: The Female Detention Project," American Bar Association, http://www.abanet.org/scripts/printview.jsp?Ref=http://www.abanet.org/crimjust/juvjus/gji.httml (retrieved October 7, 2005). Theresa E.'s description of her entry into the child welfare system is typical: "I was taken from home because at twelve I ran away from home, was disrespecting my family, drinking, smoking, fighting. All that stuff." HRW/ACLU interview with Theresa E., New York, New York, February 3, 2006.

[67] See, for example, Jonann Brady, "Legal Aid: "Everything is Blown out of Proportion," in On the Downlow: The Lowdown, http://www.jrn.columbia.edu/studentwork/children/downlow/legalaid.shtml (retrieved May 15, 2006).

[68] Francine Sherman, Annie E. Casey Foundation, "Detention Reform and Girls: Challenges and Solutions," in series Pathways to Juvenile Detention Reform, 2005, pp. 36-37. Recognizing the link between foster care and incarceration, international standards require states to establish foster care and other alternative placements that "replicate, to the extent possible, a stable and settled family environment, while, at the same time, establishing a sense of permanency for children, thus avoiding problems associated with 'foster drift.'" Riyadh Guidelines, para. 14.

[69] Administration for Children's Services, the primary child welfare agency in New York City. Stephanie Q. refers to ACS foster care group homes.

[70] A New York City detention facility, now known as "Bridges."

[71] A New York City detention facility.

[72] HRW/ACLU telephone interview with Stephanie Q., May 15, 2006. By "upstate," Stephanie Q. means a long-term juvenile commitment facility located in upstate New York.

[73] M.L. Armstrong, "Adolescent Pathways: Exploring the Intersections Between Child Welfare and Juvenile Justice, PINS, and Mental Health," Vera Institute of Justice, May 1998, pp. 18-19.

[74] Dylan Conger and Timothy Ross, "Reducing the Foster Care Bias in Juvenile Detention Decisions,"Vera Institute of Justice, June 2001, pp. 9-10.

[75] Ellen Lyons Miller, "Information Packet: Adolescents in Residential Treatment and Foster Care," National Resource Center for Foster Care and Permanency Planning at the Hunter College School of Social Work, May 2002, p. 3. A glance at news headlines shows that a heightened risk of juvenile incarceration due to poor intra-agency coordination is only one symptom of broader failings in New York's foster care system. Administrative disorganization and cripplingly large caseloads throughout all levels of OCFS in New York have been cited by both government officials and outside observers as contributors to tragedies in recent years. One example is the well-publicized case of Nixmary Brown, a seven-year old who was beaten to death by her stepfather only weeks after contact with city workers. According to TheNew York Times, preliminary internal evaluations of OCFS's response to initial indications of abuse lacked "urgency." Alan Feuer and Thomas J. Lueck, "Long Chain of Alarms Preceded Death of Girl, 7," The New York Times, January 13, 2006, p. A1. See also Rachel Swarns, "3 Years After a Girl's Murder, 5 Siblings Lack Stable Homes," The New York Times, August 4, 1998, p. A1; Graham Rayman and Melanie Lefkowitz, "Children Go Unprotected: Reports Detail Caseworker Errors Before and After City Kids Die," Newsday, February 26, 2006, p. A06 (listing a number of cases involving caseworker error and raising systemic concerns); Lauren Terrazzano, "Awash in Abuse: Child Welfare Caseworkers Unable to Keep Up with Surge in Reports," Newsday, February 28, 2006, p. A05.

[76] HRW/ACLU interview with Selena B., New York, New York, February 14, 2006.

[77] Margaret A. Zahn, RTI International, "New Findings from the Girls Study Group," presentation at National Institute of Justice Annual Conference (July 2005).

[78] Riyadh Guidelines, paras. 5(a), 24-27, 30. Based on the importance of education and community involvement in preventing delinquency,standards require states to "develop conditions that will ensure for the juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behavior, will foster a process of personal development and education that is as free from crime and delinquency as possible." Beijing Rules, para. 1.2. See also Riyadh Guidelines, paras. 20-21.

[79] "High-stakes testing" is not precisely defined, but refers generally to statewide or national testing on the basis of which promotion in grade, eligibility to graduate, and other decisions profoundly affecting students' lives, are made.

[80] Elysa Hyman, "School Push-Outs: An Urban Case Study," Clearinghouse REVIEW Journal of Poverty Law and Policy, Jan-Feb 2005, pp. 684-689.

[81] David M. Herszenhorn, "BrooklynHigh School Is Accused Anew of Forcing Students Out," The New York Times, October 12, 2005, p. B1. Elissa Gootman, "Students' Suit on Special Ed Becomes Class Action," The New York Times, July 30, 2004, p. B4. Susan Saulny, "StudentsSueSchool System, Claiming Denial of Education," The New York Times, December 21, 2004, p. B3.

[82] For a critique of zero tolerance policies see Ralph C. Martin, II, "Report: Zero Tolerance Policy, American Bar Association, Juvenile Justice Committee, February 2001, http://www.abanet.org/crimjust/juvjus/zerotolreport.html (retrieved June 29, 2006).

[83] See, for example, Mercer Sullivan and Nancy Vorsanger, "Understanding Adolescent Violence: An Ethnographic Approach," Vera Institute for Justice (January 2000).

[84] Susan Saulny, "Metro Briefing New York: Manhattan: Students Protest The Police," The New York Times, August 2, 2005, p. B6.

[85] Susan Saulny, "Metro Briefing New York: Manhattan: Students Protest The Police," The New York Times, August 2, 2005, p. B6; Natasha Bannan, et al., "The Impact School Initiative: A Critical Assessment and Recommendation for Future Implementation," A Report for the Prison Moratorium Project by the PMP Capstone Team, Wagner School of Public Service, New York University, April 2006, p. 2.

[86] Riyadh Guidelines, paras. 31, 54.

[87] Monica Davey, "A Child Held Behind," The New York Times, January 16, 2005, p. A1.

[88] Philip Harris, "The Female Delinquent," Crime and Justice Research Institute (1998); Sherman, "Detention Reform," p. 24.

[89] In New York City, the number and percentage of the population represented by girls held in city detention facilities and OCFS commitment facilities has increased steadily since the 1980s. Legal Aid Society Testimony (2000). This is consistent with national figures. Christy Sharp and Jessica Simon, "Girls in the Juvenile Justice System: The Need for More Gender-Responsive Services,"Child Welfare League of America(2004), p. 4 (citing arrest figures between 1980 and 2000, and stating that in 2000 28% of juvenile arrests nationwide were of girls.). See also Eileen Poe-Yamagata, and Jeffrey A. Butts, "Female Offenders in the Juvenile Justice System: Statistics Summary," Office of Juvenile Justice and Delinquency Prevention (1996), p. 1.

[90] Meda Chesney-Lind and Randall G. Shelden, Girls, Delinquency, and Juvenile Justice, (Belmont, California: Wadsorth, 2004), pp. 161-162. The historical development of the juvenile justice system in relation to girls is surveyed at pp. 158-182. For a critique of the ungovernability statute in New York, including its disproportionate effect on girls, see R. Hale Andrews and Andrew H. Cohn, "Ungovernability: The Unjustifiable Jurisdiction," 83 Yale Law Journal, pp. 1383-1409 (1974). See also Steven Schlossman and Stephanie Wallach, "The Crime of Precocious Sexuality: Female Juvenile Delinquency in the Progressive Era," Harvard Educational Review, 48(1) (February 1978) pp. 65-94 (describing the relatively harsh treatment of girls in juvenile courts and reformatories).

[91] Under New York law, children who commit status offenses are designated as "persons in need of supervision" or "PINS." FCA 712(a). A PINS is: "[a] person less than eighteen years of age who does not attend school in accordance with the provisions of part one of article sixty-five of the education law or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child's care, or other lawful authority, or who violates the provisions of section 221.05 of the penal law." Ibid. Section 221.05 of the penal code prohibits the possession of marijuana.

[92] United States Office of Juvenile Justice and Delinquency Prevention, Census of Juveniles in Residential Placement Databook, 2004, www.ojjdp.ncjrs.org/ojstatbb/cjrp/ (retrieved May 15, 2006).

[93] See, for example, American Bar Association and National Bar Association, "Justice by Gender: The Lack of Appropriate Prevention, Diversion and Treatment Alternatives for Girls in the Justice System," p. 17.

[94] Chesney-Lind, Female Offender, pp. 25-26.

[95]New York Penal Code 130.25-130.35.

[96]New York Penal Code 230.

[97] See Aina Hunter, "The Children's Hour: The Fight for Legislation to Help Young Prostitutes," The Village Voice, May 2, 2006.

[98] HRW/ACLU interview with Ebony V., New York, New York, March 16, 2006.

[99] HRW/ACLU interview with Ebony V., New York, New York, March 16, 2006.

[100] See Girls Incorporated, "Prevention and Parity: Girls in Juvenile Justice," Office of Juvenile Justice and Delinquency Prevention and Girls Incorporated (1996), p. 30. Indeed, a 2005 Florida study found that incarcerated girls used more types of illegal drugs than their male counterparts, including illegally obtained prescription medication. Vanessa Patino and Barry Krisberg, "Reforming Juvenile Detention in Florida," National Council on Crime and Delinquency (August 2005), pp. 15-16.

[101] HRW/ACLU interview with Bless L., New York, New York, March 22, 2006.

[102] HRW/ACLU telephone interview with Legal Aid Society attorney, September 28, 2005.

[103] Chesney-Lind, Female Offender, pp. 15-21, 23-28.

[104] 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). International standards also specifically prohibit the criminal punishment of status offenses: "In order to prevent further stigmatization, victimization and criminalization of young persons, legislation should be enacted to ensure that any conduct not considered an offence or not penalized if committed by an adult is not considered an offence and not penalized if committed by a young person." Riyadh Guidelines, para. 56.

[105] Chesney-Lind and Irwin, "Best Place"; Sherman, "Detention Reform," pp. 30-5;; United States Department of Justice, Office of Justice Policy, "Women in Criminal Justice: A Twenty Year Update," Chapter 2: Female Juvenile Offenders, http://www.ojp.usdoj.gov/reports/98Guides/wcjs98/chap2.htm, (retrieved June 30, 2006).

[106] Sharp and Simon, "Gender-Responsive Services," p. 6. International standards permit incarceration only when a child "is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offenses and unless there is no other appropriate response." Beijing Rules, para. 17.1(c). See also Riyadh Guidelines, para. 5. ("Delinquency prevention policies . . . should avoid criminalizing and penalizing a child for behavior that does not cause serious damage to the development of the child or harm to others.").

[107] See In the Matter of Naquan J., 284 A.D.2d 1 (N.Y. App. Div. 2001), in which an appeals court acknowledges that family court judges faced with PINS who disobey court orders are "caught between a rock and a hard place" because they are (rightly) forbidden by the Family Act from engaging in "illegal bootstrapping," i.e., using the court's inherent contempt power to order PINS into secure facilities.

[108] Sharp and Simon, "Gender-Responsive Services," 5; Chesney-Lind, "Best Place." Status offenses and larceny theft (shoplifting) combined account for 28% of girls' arrests nationally, and girls continue to be arrested in significant numbers for curfew and loitering law violations. Chesney-Lind, Female Offender, p. 12.

[109] Gilberto Valdes, "Briefing Paper of the Human Services Division," City Council Committees on Women's Issues, Youth Services, and the Subcommittee on Juvenile Justice, Council of the City of New York (2000), pp. 2-3.

[110] "Table 1: Characteristics of Admissions to Selected OCFS Facilities, 2003-2005," obtained through the New York Freedom of Information Law and on file with HRW/ACLU. Under the organizational scheme employed by OCFS, crimes against persons comprise assault, homicide, kidnapping, robbery, and sex offenses. Thirty-two percent were incarcerated for property crimes, mainly larceny and criminal mischief. (Under the organizational scheme employed by OCFS, crimes against property consist of arson, burglary, criminal mischief, and larceny.) Two percent had committed drug offenses, and one girl is a status offender. A large number of girls, 43 of 326 total admittees, are categorized as having committed unspecified "other crimes."

[111] SeeMeda Chesney-Lind, "Girls and Violence: Is the Gender Gap Closing?", National Electronic Network on Violence Against Women (August 2004), http://www.vawnet.org/DomesticViolence/Research/VAWnetDocs/AR_GirlsViolence.pdf (retrieved September 3, 2006).

[112]Darrell Steffensmeier, et al., "An Assessment of Recent Trends in Girls' Violence Using Diverse Longitudinal Sources: Is The Gender Gap Closing?", Criminology, 43(2), 355, pp. 387-390 (May 2005).

[113]Howard Snyder and Melissa Sickmund "Juvenile Offenders and Victims: 2006 National Report," Washington, DC: Office ofJuvenile Justice and Delinquency Prevention, 128-129.

[114] Chesney-Lind, "Best Place," (describing arrests trends in California). The Family Protection and Domestic Violence Intervention Act of 1994, as amended, requires police officers to arrest a person whom they believe to be the "primary physical aggressor" in cases of felony domestic violence and violations of protective orders. For misdemeanor family offenses, an arrest must be made unless the victim, of her own accord, requests otherwise. New York Criminal Procedure Law 140.10(4).

[115] Seeboxed text: "Case Study: Marisol U."

[116] HRW/ACLU interview with Felicia H., New York, New York, May 4, 2006.

[117] Chesney-Lind, "Best Place."

[118] HRW/ACLU interview with Marisol U., New York, New York, May 25, 2006.

[119] HRW/ACLU interview with Janine Y., New York, New York, May 24, 2006.

[120] Ibid.

[121] HRW/ACLU interview with Amy F., New York, New York, March 22, 2006.

[122] HRW/ACLU interview with Naomi R., New York, New York, March 10, 2006.

[123] HRW/ACLU interview with Melissa D., New York, New York, March 22, 2006.

[124] HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.

[125] See Beijing Rules, 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"). New York courts must impose a restrictive placement only as a last resort after other options have been explored. In the Matter of Cecil L., 71 A.D.2d 917, 917-18, (N.Y. App. Div. 1979) (subsequent history omitted).

[126] Somini Sengupta, "Despite Falling Arrest Rate, More New York Juveniles Go to Jail to Await Trial," New York Times, April 16, 2000, p. 37.

[127] Stacey Block et al., "Gender Equity: The New YorkState Juvenile Justice System," New YorkUniversityRobertF.WagnerGraduateSchool of Public Service, (2004), p. 20.

[128] Juvenile offenders, accused of the most serious crimes, had an average stay of 65 days in 1998, and juvenile delinquents stayed an average of 16 days. Somini Sengupta, "Despite Falling Arrest Rate, More New York Juveniles Go to Jail to Await Trial," New York Times, April 16, 2000, p. 37.

[129]New YorkState Office of Children and Family Services, Division of Rehabilitative Services, "Youth in Care: 2004 Annual Report," p. 2 (Table 1). Girls made up 392 of 2,104 total "admissions."

[130] CRC, art. 40, paras. (3)(b), (4); U.N. Rules, rule 17. See also Beijing Rules, para. 11.4. (To facilitate informal disposition of children's cases, efforts must be made to make available, "community programs, such as temporary supervision and guidance, restitution, and compensation of victims."). Incarceration merely because alternative avenues are lacking also violates the international standard requirement of proportionality in responding to juvenile crime, and the requirement that decision makers in the system, such as judges, enjoy discretion in making determinations as to individual children. Beijing Rules, paras. 5.1, 6.1.

[131] ICCPR, art. 2, para. 1.

[132] Testimony of Marsha Weissman, Executive DirectorCenter for Community Alternatives, April 18, 2000, before City Council Committees on Women's Issues, Youth Services, and the Subcommittee on Juvenile Justice, Council of the City of New York,("Young women tend to fall out of the program at twice the rate than the young men. Many of the options are co-ed and are thus not designed specifically around the needs of young women. This is particularly problematic for large numbers of young women whose history of sexual abuse or other traumas can render their participation and success in co-ed programs very challenging.").

[133] Poe-Yamagata and Butts, "Statistics Summary," p. 18.

[134] Email message from Legal Aid Society attorney to HRW/ACLU, July 14, 2006; Somini Sengupta, "Despite Falling Arrest Rate, More New York Juveniles Go to Jail to Await Trial," New York Times, April 16, 2000, p. 37; C. Feldman, "Youth Lockup Soars," City Limits Weekly (June 12, 2006); Open Letter from New York Juvenile Justice Coalition to Mayor Michael Bloomberg protesting the closure of the New York City Department of Probation Alternative to Detention program (January 9, 2006).

[135] Legal Aid Society Testimony (2000); email message from Nancy Rosenbloom, Director of Special Litigation andLaw Reform, Legal Aid Society, Juvenile Rights Practice to HRW/ACLU, July 14 2006.

[136] Beijing Rules, para. 13.2. The Legal Aid Society brought suit against the New York City detention agency and obtained a consent decree intended to ensure that the agency maintains sufficient group home space and prohibiting the City from jailing any child who is eligible for a group home placement.Jamie B. et al. v. Hernandez, Sup. Ct. N.Y. County, Index No. 401872/98.

[137] 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.

[138] Legal Aid Society Testimony (2000). This conforms to the national trend in which many fewer community-based programs exist for girls than for boys. Chesney-Lind, Female Offender, 88.

[139] Legal Aid Society Testimony (2000); email message from Nancy Rosenbloom, Director of Special Litigation andLaw Reform, Legal Aid Society, Juvenile Rights Practice to HRW/ACLU, July 14 2006.

[140] Ibid.

[141] HRW/ACLU telephone interview with social service provider in the Staten Island Residential Facility, November 21, 2005.

[142] See for example, "2006 Presentation of Commissioner John A. Johnson Office of Children and Family Services to the Joint Legislative Fiscal Committee," January 24, 2006, http://www.ocfs.state.ny.us/main/news/2006/2006_01_24_CommissionerTestimony.asp (retrieved July 7, 2006).

[143]OCFS 2004 Annual Report, p. 32 (Table 8).

[144]Ibid., p. 34 (Table 9). The Annual report contains the caveat: "Not all EbCI are Day Programs. Other EbCI are included in Residential Services and Aftercare categories." Yet enrollment numbers for other EbCI programs do not appear in the report.

[145] According to OCFS literature the program, "[c]ombined with a declining facility population . . . has allowed OCFS to reduce its facility capacity by approximately 290 beds." Office of Children and Family Services. According to a union representing facilities' staff, which opposes EbCI, "only 50 youth have been diverted from OCFS residential placement" since EbCI's inception. New YorkState Public Employees Federation, AFL-CIO, "PEF Opposes the Elimination of 115 Youth Facilities Beds and 98 Positions in the Office of Children and Family Services."

[146]U.S. Const., Amend. XIV; ICCPR, art. 26.

[147] Chesney-Lind, "Best Place."

[148]ABA/NBA, "Justice by Gender," pp. 20-21.

[149] Girls Incorporated, "Girls and Juvenile Justice," (August 2002), http://www.girlsinc.org/ic/content/GirlsandJuvenileJustice.pdf (retrieved July 6, 2006) (internal citations omitted).

[150] Kids Count Database.

[151] This figure includes girls categorized as Hispanic African-American, Hispanic-White, and Hispanic-Other.

[152] These figures are calculated from "Table 1: Characteristics of Admissions to Selected OCFS Facilities, 2003-2005," obtained through the New York Freedom of Information Law and on file with HRW/ACLU.

[153] OCFS, " 2004 Annual Report," p. 4.