Court Ends Injunctive Monitoring of Ohio Juvenile System

The federal court overseeing the Stipulation for Injunctive Relief that resolved claims regarding conditions of confinement at facilities housing youth committed to the custody of the Ohio Department of Youth Services (ODYS) has entered an order ending court-monitoring.

When the lawsuit was filed in 2004, ODYS held 2,000 juveniles. The class action suit alleged they were subjected to increased violence and mistreatment. The 2008 settlement agreement consisted of 274 paragraphs. It addressed all areas of operation and included rehabilitation objectives.

The Monitor’s 2012 Annual Report said “commendable reforms” have been seen “in all subject areas.” Reducing the youth population to 600 in four facilities has made Ohio “A model to the nation,” the report states.

ODYS filed a motion to terminate the stipulation on December 7, 2012. It was agreed by both parties that ODYS had achieved substantial compliance in many areas, requiring the court to grant termination. There were other areas, however, that require only quality assurance monitoring and some that require direct monitoring for a limited duration.

It was agreed there were no current and ongoing constitutional violations in the following areas: regionalization, access to phones, training, access to counsel, general education, use of force, vocational education, dental services, grievances, reentry, classification, and intervention hearing and discipline.

That there are not current and ongoing constitutional violations does not mean there are not problems in any area; it simply means the violations are not widespread. The Monitor found that the Chief Inspector’s office sustained use of force violations in ten separate investigations at ODYS’s Indian River facility from January-September 2012. There were also two incidents of youths being transported across the facility in a face-down position while in an Emergency Restraining Belt (ERB), causing impaired breathing problems. Protocols were developed to end that practice.

The Monitor also found “too many instances” of the ERB being used, leading to a question of whether it was being “routinely employed as a cautionary restraint” at the Circleville facility. That facility also had “too many planned use of force incidents” for which “video recording were not available for review.”

At the Scioto facility, there were many incidents that “reflected security lapses that directly precipitated or caused the need to use force.” There too, there were too many cases of force use that were not recorded. Indian River, Circleville, and Scioto were all using seclusion inconsistently and excessively, the Monitor found.

There are also lapses in youth receiving a full day of school at Scioto and Circleville. At Scioto, the problem is related to a seven-teacher shortage. Both facilities failed to provide required hours for youths in seclusion for acts of violence.

There were six areas of the Stipulated Agreement that the court said require monitoring for quality assurance. They are: rehabilitation and structured programming, investigations, safe living conditions, medical, special education, and release authority.

The Monitor found that one of the reasons living conditions are not safe is that staff congregate around the security desk. This was faulted on ODYS’s failure to have a usable definition of direct and continuous supervision and interaction, says the Monitor, which increases safety by facilitating guards’ ability to deescalate situations before an incident occurs, and guards can respond more quickly to incidents that do occur. It also reduces the area of the facility that is de facto youth controlled.

“Youth gangs still exert a powerful negative influence at Indian River, and concerns remain high about the high rates of fights and physical restraints,” wrote the Monitor. At Scioto, “[y]outh consistently reported frustration with certain staff members who were described as antagonizing, provoking, and otherwise speaking and behaving in ways that could increase youths’ propensity for violence toward them.”

The majority of the issues with medical care dealt mainly with paperwork. In fact, the court ordered a paper review on only “peer/competency reviews of all clinical staff and adjunct staff to ensure knowledge and use of [O]DYS policy, to identify problems in service delivery through targeted data collection, and to implement corrective action as appropriate.”

The parties agreed the court will retain direct monitoring of the substantive area of Mental Health and the related subtopics and the special management units/Progress units until ODYS has substantially complied with those terms for six months.

The Monitor was concerned “that there may be a racial bias in the identification of mental health disorders as opposed to behavioral disorders; and that race may affect perceptions of a youth’s dangerousness and/or need for treatment among decision-makers and among staff at all facilities.” There was a consistent pattern noted over the last year of review. Most recently, in September, 2012, the Monitor found African-American youth represented 57% of the population on general population units, but only 26% of the population on the Mental Health Units.

The concern at Cuyahoga Hills extended to the prescription of psychotropic drugs. The facility’s population consisted of 61% African-American youth and 35% Caucasian youth. Yet, 50% of the youth prescribed psychotropic medication were Caucasian.

The need for improvement in Mental Health was seen in nearly every area in that category. The court will continue to oversee the delivery of that care, which includes the Progress Unit. That unit has about 20 youths who are cared for by three psychologists, one psychiatrist, one psychiatric nurse, and three social workers. The parties agreed ODYS would comply with the consent decree in United States v. Ohio, USDC, S.D. Ohio, Case No 2:08-CV-475 in regards to operation of the Progress Unit.

While much work is yet to be done, much change has come to ODYS. “The overriding message is that a lot has gone right, and we’ll finish the work up in a cooperative fashion, and the kids will be well served,” said attorney Aphonse Gerhardstein, who represents the class of youths.

The parties entered into a consent order on January 18, 2013 that ended most monitoring based on substantial compliance by the defendants, but that continued the stipulation on “a very limited basis.” See: S.H. v. Reed, USDC, S.D. Ohio, Case No 2:04-CV-1206.

Additional source: www.correctionalnews.com

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