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Methods

This report, a joint effort by Human Rights Watch and the American Civil Liberties Union (“HRW/ACLU”), is the second report issued under the Aryeh Neier Fellowship Program.¹ It is one of a series published by Human Rights Watch on the conditions of confinement of children. In the United States, Human Rights Watch has investigated and reported on juvenile correctional facilities in California, Colorado, Georgia, Louisiana, and Maryland, and has published two reports on detention conditions for unaccompanied immigrant children. Outside the U.S., Human Rights Watch has documented conditions of children’s incarceration in Bulgaria, Guatemala, Egypt, India, Jamaica, Kenya, Pakistan, Papua New Guinea, and Brazil. This is the first Human Rights Watch report to focus specifically on the conditions faced by incarcerated girls. New York was chosen as the focus of this report because its juvenile justice system is a large one, with many girls affected by the problems identified, yet the patterns apparent in New York are replicated elsewhere in the United States.

When conducting research for this report, HRW/ACLU faced significant resistance from OCFS. Officials at OCFS repeatedly denied HRW/ACLU researchers access to the Lansing and Tryon facilities and permission to interview incarcerated girls, employing tactics of delay and misdirection over a period of approximately eight months.² OCFS also acted to frustrate and delay requests to obtain agency documents. In reacting to a request filed under New York’s Freedom of Information Law (FOIL), OCFS delayed responding for months, claiming repeatedly that the request would result in thousands of pages of disclosure, but ultimately produced fewer than 300 pages of responsive documents and denied the remainder of the request. Only upon successfully appealing OCFS’s denial did HRW/ACLU gain access to approximately 600 additional pages of documents containing summaries of thousands of complaints by incarcerated girls. These grievance logs, maintained by each facility, contain one- to two-sentence summaries of grievances filed by confined girls regarding various aspects of facilities conditions. HRW/ACLU analyzed 4924 of these entries, recorded over a three-year period in each facility.³ HRW/ACLU also submitted two subsequent FOIL requests, in response to which OCFS produced approximately 6,000 pages of documents in compliance with its legal duty but only after protracted delay, and subject to a number of apparently unwarranted redactions, inexplicably missing pages, and denials of certain specific requests.

OCFS also refused repeated requests by HRW/ACLU for permission to interview OCFS administrators and staff. In April 2006, after months of negotiation and the intervention of concerned state legislators, HRW/ACLU was granted a single meeting with the Commissioner of OCFS and certain OCFS administrators. That meeting lasted for about one hour and yielded very little concrete information. HRW/ACLU’s repeated attempts to contact several individual OCFS employees to obtain their perspectives on concerns raised in this report were largely rebuffed or ignored. The viewpoints of the few individual OCFS employees who agreed to speak with HRW/ACLU, as well as some opinions expressed by senior staff during the April 2006 meeting, are reflected in this report. Most OCFS staff contacted by HRW/ACLU refused to be interviewed, and several calls by HRW/ACLU were returned instead by staff of the OCFS Office of Public Affairs insisting that HRW/ACLU cease contacting OCFS employees and instead direct its communications to the public relations office alone. Questions directed to the public relations office have gone unanswered.

HRW/ACLU ultimately conducted interviews with thirty girls who had previously been incarcerated in New York State, and corresponded by mail with two girls still in confinement.⁴ In addition, HRW/ACLU obtained transcripts of interviews conducted with two formerly incarcerated girls by the Correctional Association of New York in July 2004, as well as unpublished reports produced by the Legal Aid Society in New York City following visits to several OCFS facilities between 1999 and 2005.

As when working with other vulnerable individuals, HRW/ACLU takes particular care to ensure that interviews of children are confidential, conducted with sensitivity, and free from any actual or apparent outside influence. HRW/ACLU does not print the names or other identifying information of interviewed children. In this report, all children are identified by aliases to protect their privacy. In addition to the interviews with girls, which form the heart of this report, HRW/ACLU interviewed other knowledgeable individuals such as delinquency attorneys, social service providers, and academic experts. Because many child welfare agencies depend on state funding, several of the adults interviewed asked that their names and positions not be published so as to avoid jeopardizing their organizations’ funding.

HRW/ACLU solicited interviews with all formerly incarcerated girls whom it identified and conducted interviews with all who consented to be interviewed. As reflected in this report, the interviewed girls expressed a wide range of opinions about the conditions in OCFS facilities. Yet there was striking consensus among girls, though incarcerated in different facilities at different times and interviewed individually, as to certain concerns, notably the misuse and overuse of the forcible face-down restraint technique, the hopeless state of the grievance process, and the near impossibility for New York City children of maintaining meaningful contact with families from facilities located deep in rural upstate New York. Other concerns, such as discrimination, educational deficiencies, and complications with reentry into communities were raised by some girls but not by others.

¹ The first report, “Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11,” was published in June 2005.

² Specifically, on October 27, 2005, HRW/ACLU contacted Roberta Dael of the OCFS Ombudsman’s Office seeking access to OCFS facilities. On October 31, 2005, HRW/ACLU sent separate written requests for access to the directors of the Tryon and Lansing facilities. No response was received. After a follow-up call to the Lansing facility, HRW/ACLU was telephoned by Brian Marchetti of the OCFS Public Affairs Office insisting that HRW/ACLU no longer contact the facilities directly but contact only him instead. HRW/ACLU made a follow-up call to the Tryon facility, and in response, on November 15, 2005, was referred to Dianne Deacon of the OCFS Legal Department. In a letter dated November 23, 2005, Ms. Deacon denied the request for access based on “confidentiality considerations,” citing two provisions of New York law that, in fact, concern document confidentiality and are therefore inapplicable to a request for facilities access. Six senior OCFS administrators were sent copies of the letter by Ms. Deacon. On November 30, 2005, HRW/ACLU contacted Ms. Deacon to discuss her letter. In subsequent discussions, Ms. Deacon approved arranging a meeting between HRW/ACLU and OCFS facilities administrators to discuss access to the facilities, but indicated that the approval of Brian Marchetti of the Public Affairs Office was also required. HRW/ACLU contacted Brian Marchetti and requested access to the facilities. In a telephone conversation of December 15, 2005, Brian Marchetti stated that HRW/ACLU’s request for access was denied, citing as his reason the desire not to distract OCFS administrators and staff from their daily tasks. HRW/ACLU requested that Mr. Marchetti put his refusal in writing. He refused to do so.

On December 22, 2005, HRW/ACLU sent a written request for facilities access to OCFS Commissioner John Johnson. When a follow-up call was made, Mr. Johnson’s assistant stated that the letter had never been received. On January 3, 2006, HRW/ACLU faxed and resent the letter. When HRW/ACLU made a follow-up call on January 9, 2006, Mr. Johnson’s assistant stated that the request had been delegated to Inez Nievez, the Associate Deputy Commissioner for Programs and Services of OCFS’s Division of Rehabilitative Services, and that Ms. Nievez would contact HRW/ACLU later that day. Ms. Nievez never contacted HRW/ACLU. When, on January 10, 2006, HRW/ACLU called the OCFS Commissioner’s office seeking Ms. Nievez’s contact information, OCFS staff refused to provide this information. On January 11, 2006, HRW/ACLU again telephoned the OCFS Commissioner’s office seeking to speak with Ms. Nievez. HRW/ACLU was informed that Ms. Nievez had referred the request for access to Sandra Brown of the OCFS Public Affairs Office. Later on January 11, 2006, HRW/ACLU was telephoned by Sandra Brown and Brian Marchetti who stated that the request for access to the facilities was denied. In that conversation, Ms. Brown stated that she was initially inclined to treat the request as a proposal to conduct academic research by forwarding it to the OCFS Bureau of Evaluation and Research, “but then I looked at the FOIL [i.e. a request for documents submitted by HRW/ACLU under New York’s Freedom of Information Law] and decided, ‘She’s working on something.’”

On February 28, 2006, HRW/ACLU sent a written request to OCFS Commissioner John Johnson requesting a meeting to discuss the ongoing research and the issue of facilities access. Only after the intervention of two concerned state assemblymembers did a one hour meeting take place on April 18, 2006 between HRW/ACLU and eight senior OCFS administrators including Commissioner Johnson. At that meeting, HRW/ACLU provided information about our research and again requested access to the facilities. Mr. Johnson replied, “We’ll get back to you. There are some strong measures of confidentiality.” On May 2, 2006, HRW/ACLU telephoned Mr. Johnson’s to follow up on the request for access. The following day, HRW/ACLU received a call from Sandra Brown of the OCFS Public Affairs Office. Ms. Brown stated that HRW/ACLU should not contact the OCFS Commissioner’s office and should direct inquiries to the Public Affairs Office. When HRW/ACLU reiterated its request for access, Ms. Brown stated that she would “talk to the Commissioner and two other people” who had attended the April 18, 2006 meeting, and would then, “let you know.” On May 5, 2006, Ms. Brown telephoned HRW/ACLU and stated that the request for access was denied. Ms. Brown then directed HRW/ACLU to submit a research proposal to the OCFS Bureau of Evaluation and Research, the office to which Ms. Brown had originally contemplated directing HRW/ACLU’s request for access before concluding that HRW/ACLU were “working on something.” HRW/ACLU explained that this would not be an appropriate course of action because the Bureau of Evaluation and Research evaluates proposals for social scientific research, but Ms. Brown insisted that this was the only course of action available.

On May 12, 2006, HRW/ACLU sent a written request to OCFS Commissioner Johnson urging him to reconsider his denial of HRW/ACLU’s request for access to the facilities. On May 22, 2006, Mr. Johnson responded by letter directing HRW/ACLU to submit a request for access to OCFS’s Bureau of Evaluation and Research. HRW/ACLU contacted the Bureau and was informed that the Bureau evaluates only proposals for scientific research conducted “through a university,” containing a “research hypothesis,” and approved by a formal Institutional Review Board. Likewise, the “Instructions to Researchers for Submitting a Research Proposal for OCFS Review” provided to HRW/ACLU by the Bureau contemplates social scientific research, requiring “an approval letter from a federally recognized Institutional Review Board,” as well as submissions, such as a “sampling approach” and an “analytic approach,” characteristic of academic research. On June 12, 2006, HRW/ACLU sent a letter to OCFS Commissioner Johnson detailing the history of contacts between HRW/ACLU, explaining again the nature of HRW/ACLU’s research, and urging Mr. Johnson to reconsider his rejection of HRW/ACLU’s request for facilities access. The letter requested in the alternative that Mr. Johnson provide HRW/ACLU with assurance that, given the nature of HRW/ACLU’s research, a request for access would properly be directed to the Bureau of Evaluation and Research and that the qualitative nature of the research would not preclude approval. Mr. Johnson responded in a letter providing no assurances but simply repeating the instruction that HRW/ACLU submit a request to the Bureau of Evaluation and Research.

³ The number of entries per year, per facility, is as follows: Tryon: 435 in 2003, 452 in 2004, 411 in 2005; Lansing: 976 in 2003, 1082 in 2004, 1385 in 2005. The 2005 numbers for each facility are slightly low because the logs provided by OCFS extend only until December 8, 2005 (for Tryon), and December 19, 2005 (for Lansing).

⁴ Two of the thirty interviewees also corresponded with HRW/ACLU by mail prior to their release, and were interviewed upon their release.

September 2006

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