As already noted, the Tryon and Lansing facilities are closed to outside scrutiny by virtue of walls and fences and restrictions on residents contact with the outside world, and by virtue of their isolation in rural areas hundreds of miles from childrens families and attorneys. They are also closed institutions unresponsive to the complaints of their wards and shielded from public scrutiny by failures of oversight and barriers to outside monitoring.
International standards relating to incarceration recognize that abuses occur and persist in such closed environments, and that the protection of the rights of incarcerated children in particular depends on meaningful oversight.626 Given the potential for abuse of children when they are placed in isolated, confined settings, the incidence of abuse known to occur at OCFS facilities, and the agencys refusal to curb abuse internally, independent monitoring is urgently needed. Yet in New York, means of potential scrutiny are systematically inadequate or underutilized, and efforts at fact gathering stymied.
At OCFS facilities, a grievance procedure is in place in which girls make written complaints on a form that they place in a grievance box located in their unit. Their grievance is initially reviewed by unit staff members, and in theory, if it cannot be resolved in this first step, the girl can proceed up the administrative chain by filing step 2 and step 3 grievances. Interviewed girls unanimously described the grievance procedure as frustrating and ineffective. Their major complaint was that grievances are simply ignored.628 At times, submitted forms are simply not responded to at all. At other times, girls receive confirmation that their grievance has been received, but no subsequent communication. Girls who attempt to follow up on their grievances are told by staff that a response is forthcoming, but often do not receive any follow up communication.
Girls sometimes attempt to have their grievances heard through alternative channels, by speaking directly with staff, or writing directly to the facility director.629 Some girls reported having attempted to address complaints to the OCFS ombudsman but having received no response.630 (The intended role of the ombudsman is described below.) Other girls were not put in contact with the ombudsman, or were told explicitly that they could not speak to the ombudsman.631
Girls reported that the unresponsiveness of the process drove them to give up on filing grievances after a few attempts, and to give up pursuing filed grievances at the first step. Other factors may also result in underutilization of grievances. A few girls reported being blocked from filing grievances, or feeling retaliated against by the staff about whom they filed complaints.632 Fifteen-year-old Lana S., held at Tryon, told HRW/ACLU that she was never told about the grievance process and did not know how to file a grievance.633 Other girls reported that, because the grievances are handled at the initial step by the very staff against whom grievances are filed, responding staff typically protect their colleagues and make the complainant feel at fault. Devon A.s assessment of the grievance process is representative:
The ineffectiveness of the grievance process is particularly dangerous in light of the physical and sexual abuse that occurs at the facilities. One grievance, for example, reads: Wants someone to listen to them (residents) when they complain about a male doing stuff to them.636 Nevertheless, OCFS does not appear to track its responsiveness to grievances filed by children.637
The ineffectiveness of the grievance process also may be undermining effective internal response to abuses against incarcerated girls. Agency records disclosed to HRW/ACLU do indicate that many incidents of physical or sexual abuse are responded to with calls to the states Child Abuse Hotline, and some facility records note that an allegation is being investigated, either internally or by a county sheriffs department. The outcome of these investigations is unclear, but disclosed records suggest that little criminal or disciplinary action against is taken against implicated staff. In one month in Tryon, for example, allegations of sexual contact were made against two separate staff members.638 Both allegations were reported to the Child Abuse Hotline but neither of these reports were accepted.639 No action appears to have been taken against one staff member, and the other was simply transferred temporarily from one unit to another within the Tryon facility.640 Further reference to these allegations in subsequent reports is missing.
HRW/ACLU requested information from OCFS regarding facilities administrators response to specific allegations of abuse, particularly their investigations of such claims and any disciplinary or corrective action taken.641 The request for information was denied except as to letters containing charges against staff and subsequent letters settling the charges. Of only 9 such charges issued by the Lansing and Tryon facilities combined for the period from November 2002 to November 2005, only 4 concerned the improper physical restraint of girls, and the dispositions were lenient.642 Although OCFSs limited response to our request might not tell the whole story, the evidence it provided suggests that its enforcement of childrens rights against its own facilities administrators and staff is weak.
International law provides detailed guidance about appropriate complaints procedures for incarcerated children.643 Children must be given the right to complain directly to the facility director or her representative,644 and to a central administrative or judicial authority and to receive a prompt response.645 Children also have a right of access to an independent office established to receive complaints,646 and to assistance in accessing all of these channels.647 In particular, where a child has a complaint about an incident such as physical and sexual abuse, the United States has a binding treaty obligation to ensure a prompt and impartial investigation into such allegations.648
New York law provides for some internal facilities oversight. By state regulation, there must exist within OCFS an Office of the Ombudsman staffed by attorneys.650 The ombudsmen are entitled to visit facilities, hear childrens grievances, investigate alleged violations, and otherwise represent the rights of incarcerated children vis-à-vis OCFS.651 According to the regulations, the ombudsman is to report to, among others, an Independent Review Board (IRB) comprised of between nine and fifteen people outside of OCFS, at least one of whom is to be a former resident or the parent of a resident, and another of whom is to be a psychologist or other clinician.652 In addition, the superintendent of each facility is to be advised by a board of visitors composed of a cross-section of lay people in the community.653 Both the IRB and the boards of visitors are entitled to access the facilities and speak to residents and staff.654
The OCFS Ombudsmans Office was created in 1973 as a federally funded project of the Legal Aid Society and what was then called the Division for Youth.655 In its original form, the Ombudsmans Office had five attorneys who regularly made unannounced visits to juvenile facilities, spoke freely with residents in private, represented children in administrative proceedings, investigated alleged abuses, and had direct access to senior agency administrators.656 According to Vincent OBrien, an attorney who served as an OCFS ombudsman for thirty years, the key to the offices effectiveness was the aggressive involvement of the Independent Review Board whose members both visited the facilities whenever possible and mediated between the Ombudsmans Office and the agency administration.657
In 1991, the ombudsman program was eliminated as part of a statewide administrative reduction, and shortly thereafter one attorney was rehired and placed within OCFSs Office of General Counsel.658 Although the state regulations concerning the ombudsmans power were not withdrawn, the general counsel imposed restrictions on the ombudsman, prohibiting unannounced visits, reducing and at times prohibiting access to the agencys administration, and drastically curtailing the operation of the IRB.659 There is no evidence that the boards of visitors contemplated in the regulations were ever established for any facility.660
Since 1991, the Ombudsmans Office, consisting of at most one attorney and one non-attorney, has been so understaffed that it cannot exercise meaningful oversight. At best, the ombudsman has been able to visit each of the over thirty OCFS facilities once every two years and therefore can only rarely meet with confined children in person, and cannot seriously investigate complaints. The ombudsman no longer represents children in hearings. Even to the extent that the Ombudsmans Office is able to function, its location within OCFS and specifically within the General Counsels Office makes independence impossible.661
The Independent Review Board is also moribund, consisting only of four persons, none of whom is a former resident or a psychologist, and has not held a meeting or visited a facility for several years.662 According to former ombudsman Vincent OBrian, What I witnessed was the gradual and deliberate erosion of the independent nature of the operation. I often felt that the remnants of the office were maintained primarily for window dressing.663 In short, OCFS has all but eliminated the Ombudsmans Office and IRB as originally conceived, in violation of its own regulations. In August 2005, the single ombudsman resigned, and no replacement was hired for almost seven months, until March 2006.664 Without any meaningful form of internal oversight, children confined in OCFS facilities have often had no one to advocate on their behalf.
This state of affairs stands in contrast to the requirements of international standards which specifically prescribe regular inspections and other means of control carried out . . . by a duly constituted body authorized to visit the juveniles and not belonging to the detention facility,665 and who specifically ensure facilities comply with international standards.666 To comply with international guidelines, such monitoring should be frequent, regular, unannounced, and unrestricted,667 and every child in the facility should have the right to talk in confidence to any inspecting officer.668 In addition, qualified medical officers must monitor the physical environment, hygiene, accommodation, food, exercise and medical services, as well as any other aspect or conditions of institutional life that affect the physical and mental health of juveniles.669 Investigations should be accompanied by thorough public reporting.670
Other state agencies have had some involvement in juvenile conditions concerns but their effectiveness is uncertain. Since its creation in the 1980s, the states Child Protective Services (CPS) office has investigated some allegations of abuse within state juvenile facilities,671 but girls interviewed by HRW/ACLU were not aware of the existence of CPS and consequently had never attempted to contact CPS.672 Indeed, it appears that the mediation of the Ombudsmans Office (mostly ineffectual, as described above) is required for girls complaints to reach CPS,673 and at any rate the Child Abuse Hotline is operated by New Yorks Child Protective Services offices, a division of OCFS. Likewise, the State Inspector Generals Office is empowered to inquire into allegations of mistreatment at juvenile facilities. In response to reports by facilities staff of physical abuse of boys, the Inspector General recently investigated the Louis Gossett Residential Facility, located across the street from the Lansing facility.674 The Inspector Generals Office cannot, however, be relied upon to exercise meaningful ongoing oversight of OCFS facilities because its mandate is broad, encompassing fraud and abuse by both individuals and agencies as to over 200 state entities as well as private persons and business operating in New York.675 The office conducts no regular monitoring visits to OCFS facilities. In the absence of such visits, allegations of abuse rarely come to light except in extraordinary cases in which staff act as whistleblowers.676 Moreover, incarcerated girls and their families are not routinely informed of the existence of the office nor provided with its contact information.
Effective external oversight of juvenile facilities exists in other states in the United States. For example, facilities in Connecticut, New Jersey, and Rhode Island are monitored by independent state Offices of the Child Advocate. A bill to create such an office in New York is currently pending.677 The absence of an effective, independent complaints mechanism to investigate abuse, particularly serious allegations of physical or sexual abuse, is a violation of the U.S.s international legal obligations.
Civil society organizations that might be expected to act as watchdogs and assist in monitoring conditions in New Yorks juvenile facilities cannot effectively do so. For example, there exists no external agency with legislative authority to inspect juvenile prisons, although the Correctional Association of New York has had such authority as to adult prisons since the nineteenth century.679 There exists no juvenile equivalent of Prisoners Legal Services of New York, a state funded civil legal services office serving adult inmates in New York prisons. The Legal Aid Society (LAS), which represents about half of New York children in delinquency proceedings, is not even informed of the facility in which its clients are ultimately placed, and except in hearings to determine whether a childs placement in an OCFS facility is to be extended, does not continue representing children or maintain contact with children once they are incarcerated.680 Statewide, no defense attorney or independent agency is funded to conduct oversight or advocacy concerning the conditions of confinement of children in OCFS facilities.
International standards specifically preserve the right of juveniles to communicate freely not only with family and friends but also with other persons or representatives of reputable outside organizations.681 Furthermore, children have the right to request assistance from family members, legal counselors, humanitarian groups or others where possible, in order to make a complaint.682 Yet OCFS is often actively hostile to such outsiders.
The institutional culture within OCFS is remarkably closed and self-protective, and OCFS has blocked efforts by outside investigators attempting to research conditions in its facilities. For example, a 2004 study of girls experiences in New York States juvenile justice system identified the stubborn refusal of OCFS to permit any outside scrutiny of its operations as a major issue affecting incarcerated girls. 683 The researchers were denied access to all but one OCFS facility and even there were prohibited from interviewing confined children.684 They concluded: The system is not open to inquiry and it is nearly impossible to investigate issues and create viable solutions.685 Likewise, researchers investigating the unmet needs of gay and lesbian children in foster care for a 2001 report found New York to be the least responsive of 14 states to their requests for information, adding that OCFSs failure to respond to our requests is emblematic of its inattention to the needs of LGBT foster care youth.686 The agencys culture has been described this way:
As already noted at the outset of this report, HRW/ACLU has met with a similar institutional culture of secrecy. OCFS repeatedly denied HRW/ACLU researchers access to the Lansing and Tryon facilities.688 OCFS also delayed for months before responding to HRW/ACLUs request for documents under New Yorks Freedom of Information Law, and disclosed documents containing thousands of complaints by incarcerated girls only after losing an administrative appeal made by HRW/ACLU to the agencys unfounded denial. It later produced approximately 6,000 additional pages of documents partially responsive to HRW/ACLUs requests, but only after a lengthy delay. Compromising information is redacted from these documents. Almost all attempts by HRW/ACLU to interview OCFS administrators and staff were refused, and several attempts to contact knowledgeable OCFS employees were followed by calls from the agencys Office of Public Affairs insisting that all communications be directed to that office only.
OCFS has also acted to prevent girls in its custody from communicating their concerns to HRW/ACLU. Felicia H. received a flyer from HRW/ACLU regarding HRW/ACLUs research while she was being held at Tryon. She shared the flyer with other girls and wrote to HRW/ACLU about aspects of her experiences, including having been subject to the restraint procedure. A sympathetic staff member helped her to compose her letters, but shortly after her release from Tryon, Felicia H. told HRW/ACLU:
Felicia H. was questioned by a staff person about her contact with HRW/ACLU:
Felicia H. feels that she was restrained and treated bad by a staff member for communicating with HRW/ACLU and with a Legal Aid Society attorney about conditions at Tryon.691 In addition to contravening international standards concerning confined childrens contact with the outside world, the staff members attempt to limit Felicia H.s communication with HRW/ACLU violated agency regulations permitting children to correspond with persons or organizations subject only to limitations necessary to maintain facility order and control.692
The pattern that emerges is an almost complete lack of transparency within OCFS as to its facilities. In comparison with other states juvenile justice agencies, and other agencies within New York State, OCFS is a profoundly secretive institution. This culture of heavy paranoia693 runs contrary to the important goals of transparency, accountability, and cooperation as well as international standards and, most importantly, the interests of the girls and boys confined behind the walls of OCFS facilities.
625 HRW/ACLU interview with Felicia H., New York, New York, May 4, 2006.
626 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (U.N. Rules), adopted December 14,1990 by General Assembly Resolution 45/113, rule 14. See also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted December 10, 1984, G.A. Res. 39/46, U.N. Doc. A/39/51, entered into force June 26, 1987, ratified by the United States of America on October 21, 1994, arts. 12 and 13 on the right to lodge allegations of ill-treatment and obligations regarding prompt and impartial investigations into such allegations.
627 Testimony of Vincent OBrien, 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. Vincent OBrien served as the facilities ombudsman for OCFS and its predecessor agency for a thirty year period between 1973 and 2003.
628 See, for example, Lansing Grievance #6077 (1/05)(takes too long, nothin[g] being done about anything). This and subsequent citations refer to grievance logs maintained by the facilities and obtained by HRW/ACLU through a request under the New York Freedom of Information Law. The logs contain abbreviated summaries of grievances filed by incarcerated girls. The citations herein contain the unique number assigned to each grievance and the month and year in which the grievance was submitted.
629 See, for example, Lansing Grievance #7152 (9/05)(staff doing nothing when an issue is brought to them); Lansing Grievance #6100 (1/05)((illegible) Facility Director, not responding to letters).
630 See, for example, Lansing Grievance #6772 (6/05).
631 See, for example, Lansing Grievance #6037 (1/05)(has not spoken to ombudsman since 2004, asked frequently (illegible)); Lansing Grievance #5327 (6/04)(Staff wont let her call the Ombudsman); Lansing Grievance #6966 (8/05).
632 See, for example, Lansing Grievance #4932 (1/04)([staff on the] 3-11 [shift] wont let them get grievances or put them in Box.); Tryon Grievance #8604 (2/04)(grieving [name redacted] would not allow her to fill out a grievance during rec. time and then yelled at her for no reason); Lansing Grievance #4196 (3/03)([name redacted] get angry when she gri[e]ves him); Lansing Grievance #4954 (1/04)([name redacted] confronting her because of grievances); Lansing Grievance #5188 (4/04)([name redacted] rude with her since father called about him).
633 HRW/ACLU interview with Lana S., New York, New York, February 14, 2006.
634 Calling another out of [his or her] name means addressing a person by anything other than his or her true name; this expression is frequently used in reference to disrespectful forms of address.
635 HRW/ACLU interview with Devon A., Albany, New York, February 28, 2006.
636 Tryon Grievance #8556 (1/04).
637 Letter from Sandra A. Brown, Assistant Commissioner, Public Affairs, to HRW/ACLU, January 11, 2006, (As to your request for statistical information [regarding grievances], I certify that OCFS does not maintain this information.) Letter from Kathleen R. DeCataldo, Records Access Appeals Officer, to HRW/ACLU, March 9, 2006, (OCFS does not maintain cumulative statistical data regarding grievances filed by youth.).
638 Tryon Monthly Report, July 7, 2004, p. 1 (One youth alleged that a male staff made a cupping action near her breast and hit her with a book across her backside. There was also a youth who reported that she saw her peer rubbing the lower back of a male staff as well as other inappropriate actions.).
641 In identical letters of November 1, 2005 to the directors of the Lansing and Tryon facilities, HRW/ACLU requested records regarding staff reassigned, otherwise disciplined, or terminated because of misconduct involving inmates.
642 Imposed penalties consisted of: for June 6, 2003 charges of failure to de-escalate an altercation, improper restraint resulting in injury to a resident, and a third, redacted charge - a letter of reprimand and a $100 fine; for February 16, 2005 charges of failing to wait for assistance and inappropriate and excessive physical force in the form of punching a resident in the leg during a restraint - a letter of reprimand, forfeiture of four days of leave, and a $500 fine paid in $50 installments; and for a May 18, 2005 charge of failing to call and wait for assistance and instead restraining a girl alone, resulting in abrasions to her chin and shoulder - a letter of reprimand and forty hours of leave. The proposed penalty for a fourth charge, on November 10, 2004, was suspension without pay for six weeks, but as only the charge letter and no subsequent settlement letter was provided to HRW/ACLU, it is not possible to know what penalty was ultimately imposed.
643 U.N. Rules, rules 75-78.
644 Ibid., rule 75.
645 Ibid., rule 76.
646 Ibid., rule 77.
647 Ibid., rule 78, see also United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), U.N. ECOSOC Res. 663C and 2076, adopted July 31, 1957 and May 13, 1977, para. 36.
648 CAT, arts.12, 13.
649 HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
650 9 NYCRR §177.2 (2006).
651 9 NYCRR §177.4 (2006).
652 9 NYCRR §§177.5(f), 177.17 (2006).
653 9 NYCRR §168.5 (2006).
654 9 NYCRR §§168.5(g), 177.17(e) (2006).
655 Testimony of Vincent OBrien, former OCFS ombudsman, 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.
660 HRW/ACLU telephone interview with Robert Dodig, former OCFS ombudsman, May 11, 2006; HRW/ACLU telephone interview with Robert Kilburn, current OCFS ombudsman, May 11, 2006. Neither had any knowledge of the boards of visitors.
661 Telephone interview with Robert Dodig, former OCFS ombudsman, May 11, 2006 ([I]t was a very, very awkward situation, because you were dealing with kids and advocating for them, but the attorneys in the office right next door were doing things to prosecute them, keep them incarcerated longer, that was the physical location. But thats the nature of that office. Even if youre not in the legal division, youre walking a tightrope between advocating for children, but youre working for the agency thats holding them.).
662 Telephone interview with Robert Dodig, former OCFS Ombudsman, May 11, 2006; 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.
663 Testimony of Vincent OBrien, former OCFS ombudsman, 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.
664 Telephone interview with Robert Dodig, former OCFS ombudsman, May 11, 2006; interview with Robert Kilburn, current OCFS ombudsman, May 11, 2006.
665 U.N. Rules, rule 14. See also U.N. Rules, rules 72-74 which provide detailed guidance as to the independence required by the inspector, as well as the nature of inspections to be conducted.
666 United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), adopted and December 14, 1990 by General Assembly Resolution 45/112, para. 57.
667 Ibid, rule 72; see also Standard Minimum Rules, para. 55.
668 Ibid., rule 73.
669 U.N. Rules, rule 73.
670 Ibid, rule 74.
671 Testimony of Vincent OBrien, former OCFS ombudsman, 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.
672 For example, when asked whether it was possible to make reports to CPS, Alicia K. responded, No. Maybe you could use a grievance. HRW/ACLU interview with Alicia K., Syracuse, New York, February 21, 2006.
673 HRW/ACLU telephone interview with Vincent OBrien, former OCFS ombudsman, January 5, 2006.
674 The Inspector General preliminarily concluded that no evidence of abuse could be found. Jennie Daley, State Looks into Abuse Claims at Juvenile Center, Press and Sun-Bulletin, January 20, 2006. Jennie Dailey, Inspector: Early Probe Fails to Reveal Gossett Abuse, Ithaca Journal, April 14, 2006. This investigation continues, and has broadened into a facility-wide investigation of Gossett Residential.
675 Office of the Inspector General of the State of New York, Annual Report: 2005-2006, http://www.ig.state.ny.us/ANNUAL%20REPORT%202005-06.pdf (retrieved September 2, 2006).
676 HRW/ACLU telephone interview with Vincent OBrien, former OCFS ombudsman, January 5, 2006.
677 2005-6 New York State Assembly Bill A.6334/S.6877.
678 HRW/ACLU telephone interview with Mishi Faruqee, Director of the Juvenile Justice Project, Correctional Association of New York, May 22, 2006.
679 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.
680 HRW/ACLU interview with Legal Aid Society attorney, November 16, 2005.
681 U.N. Rules, rule 59.
682 Ibid., rule 78.
683 Stacey Block et al., Gender Equity: The New York State Juvenile Justice System, New York University Robert F. Wagner Graduate School of Public Service, (2004), p. 4.
686 Colleen Sullivan et al., Youth in the Margins: A Report on the Unmet Needs of Lesbian, Gay, Bisexual, and Transgender Adolescents in Foster Care, Lambda Legal Defense and Education Fund (Summer 2001), p. 125.
687 HRW/ACLU telephone interview (name withheld), June 2006.
688 For details of HRW/ACLUs attempts to gain access to OCFS facilities, see note 2, above. OCFS is unique in its refusal to permit Human Rights Watch to conduct human rights monitoring. Over years of conducting juvenile conditions research, Human Rights Watch researchers have received full access to juvenile correctional facilities in several U.S. states and foreign countries.
689 HRW/ACLU interview with Felicia H., New York, New York, May 4, 2006.
692 9 NYCRR §171-2.2 (2006).
693 Vincent OBrien, who served as ombudsman for a thirty year period between 1973 and 2003, used this phrase to describe the agencys current attitude toward oversight of its facilities. HRW/ACLU telephone interview with Vincent OBrien, former OCFS ombudsman, January 5, 2006.