In 2009 DOJ CRIPA division commenced an investigation into the conditions at 4 juvenile facilities. In August, 2009 DOJ released its findings regarding its investigation. In response to DOJ’s report the staff at OCFS as well as many NYS legislators voiced concerns that DOJ’s report and findings did not accurately reflect the true conditions at OCFS’ juvenile facilities.
Specifically, OCFS’ staff and NYS legislators claimed that DOJ’s report failed to address the unsafe conditions existing at OCFS’ juvenile facilities that placed staff as well as youth at undue risk. Second, DOJ’s report failed to address reports that youth were not receiving services i.e. counseling and a certain amount of educational hours.
Below are some of the inaccuracies in DOJ’s report into 4 OCFS juvenile facilities that were communicated to DOJ and copied to the Office of the Inspector General and to the Office of Professional Management. To date DOJ’s report has not been amended.
- DOJ Report page 10 footnote 6. DOJ’s Report states “The New York Department of Corrections and New York Office of Mental Health have already banned the use of prone restraints in adult correctional and mental health facilities.”
Correction: New York law does not ban prone restraint. As support of this statement, the DOJ Reports cites an article written by Dan Higgins on November 22, 2006. The newspaper article based this statement on inaccurate information given to the newspaper reporter by advocacy groups. The truth is that there is no statute or regulation in New York that bans the use of prone restraint at OMH, OMR, OCFS, DOE or adult correctional facilities.
2. DOJ Report page 10. DOJ’s Report states that the use of prone restraints is controversial in juvenile facilities. This statement is incorrect as the following States have no statute or regulation prohibiting the use of prone restraint at their juvenile facilities.
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland (the state juvenile justice institutions use prone restraint), Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Washington D.C., West Virginia, Wyoming.
Based on the number of states and state agencies that allow the use of prone restraint, banning prone restraint is the exception, not the rule. Thus the ban on the use of prone restraint would be more controversial and exceptional than its allowance. Further, it is decidedly unconstitutional and illegal to ban the use of an intervention for juvenile officers while simultaneously allowing other segments of the population i.e. parents, other children, law enforcement to continue its use under identical circumstances. Thus the position of the 49 states is entirely consistent with natural rights and the rights granted to every American under the 5th and 14th amendments of the Constitution along with the rights granted by the States as every single state in the Union has a law protecting a persons right to protect oneself and another.
Currently 49 out of 50 state juvenile facilities allow or use prone restraint at their juvenile facilities.
3. DOJ Report page 10. DOJ’s Report states that “the danger of prone restraints is that if the individual’s airway is constricted, he or she is unable to express physical distress.
Why is this finding limited to prone restraint? Isn’t restricting someone’s airway a safety issue in any situation regardless of whether the person is standing, choking, drowning, injured, seated or on the floor?
4. DOJ”s Report also states that “the danger of prone restraints is that . . . the restrained individual’s struggle for air may be misconstrued by staff as resistance, resulting in increased force on the restrained individual.”
We again ask, why is this finding limited to prone restraint? Wouldn’t this be equally relevant regardless of what position the client or youth is restrained?
5. DOJ Report page 10. DOJ’s Report states that OCFS should make sure that the youth can speak during a restraint.
We advise that OCFS has had numerous experts, including ourselves who have held that the mantra “if a youth can speak, s/he can breathe” is a fallacy that should be erased from ones memory as it is insufficient to ensure for the youth’s safety. It is not enough that a child can speak. Staff must ensure that the youth can not only speak, but s/he can breathe. The last words could be “I can’t breathe.” It’s not that breath, but the ones after staff need to ensure the youth can take.
6. DOJ’s Report states that experts in protection from harm and use of force were retained.
DOJ was asked to provide the identities and a curriculum vitae for the use of force experts they retained in their investigation into the 4 OCFS Juvenile Facilities. DOJ responded that they did not retain or consult with any use of force experts regarding their findings against OCFS 4 juvenile facilities. Thus either DOJ is withholding information properly requested in a FOIA request or DOJ never consulted or retained a use of force expert in its investigation into the 4 OCFS juvenile facilities. We believe its the later — that DOJ never consulted or retained a use of force expert in its investigation into the 4 OCFS juvenile facilities.
7. DOJ Report page 6. DOJ’s Report is incorrect inasmuch as it appears to place the use of excessive force on the shoulders of staff “staff use excessive force to control youth’s behavior.” It is unfair to place blame on staff for what is an OCFS central office policy and protocol.
The OCFS Bureau of Training is administered out of OCFS’s central office. (http://www.ocfs.state.ny.us/ohrd/). OCFS’s Bureau of Training is responsible for the restraint and use of force protocol and intervention practices of all the juvenile facilities. OCFS’ central training office has put a policy and training in place where staff must use excessive force. This issue was addressed in more detail in an April, 2009 correspondence to DOJ regarding OCFS’ failure to properly train staff.
8. DOJ Report page 8. DOJ’s Report states that “staff informed us that recent measures to reduce restraints have put staff’s safety at risk. . . .” DOJ expresses some doubt that this was actually occurring.
Based on recent legislative hearing testimony, a juvenile task force and press reports there are thousands of accounts concerning workers getting repeatedly injured by youths. If you look at Tryon’s statistics which were published in Leader Herald in August of last year, assaults on staff and youth on youth were up exponentially.
As a picture speaks a thousand words, here’s the video:
Workers are being placed in an untenable position where if they intervene for their own or another’s safety, they risk getting improperly charged or indicated for abuse.
As the video shows, it is both staff and youth that are being placed at undue risk of injury and harm.
9. DOJ Report page 9. DOJ’s Report states that between April 24 and June 25, 2008 youth diagnosed with mental health issues were restrained in a full prone restraint.
We have no knowledge of the actual incidents or whether they could be better managed behaviorally, but we can state with absolute certainty that from a physical intervention policy standpoint, OCFS does not have a graded use of force protocol. Meaning that OCFS does not have the requisite intermediary steps to deal with behavior that cannot be safely managed standing, but that does not need to go to a full floor prone position. This lack of curriculum is by the design of OCFS’ central bureau of training unit. OCFS had been warned about the deficiency in 1998 again in 2001 again in 2002 again in 2003, again in 2004, again in 2006 and yet again in 2009. OCFS’ administration and OCFS’s Bureau of Training have a history of not providing adequate training.
A copy of DOJ’s report can be viewed at:
Let’s all work at ensuring that reports coming from a Federal oversight agency are accurate and reflect the entirety of the conditions at the institutions being investigated.