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Cripa Kailua Hi Youth Corr Facility Investigation Findings 8-4-05

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August 4, 2005

The Honorable Linda Lingle
Governor, State of Hawaii
Executive Chambers
State Capitol
Honolulu, HI 96813
Re: 	 Investigation of the Hawaii Youth Correctional
Facility, Kailua, Hawaii
Dear Governor Lingle:
I am writing to report the findings of the Civil Rights
Division’s investigation of the conditions at the Hawaii Youth
Correctional Facility (“HYCF”) in Kailua, Hawaii. On August 16,
2004, we notified you of our intent to conduct an investigation
of HYCF pursuant to the Civil Rights of Institutionalized Persons
Act (“CRIPA”), 42 U.S.C. § 1997, and the pattern or practice
provision of the Violent Crime Control and Law Enforcement Act of
1994, 42 U.S.C. § 14141 (“Section 14141”). CRIPA and
Section 14141 give the Department of Justice authority to seek
remedies for any pattern or practice of conduct that violates the
constitutional or federal statutory rights of children in
juvenile justice institutions.
From October 5, 2004 to October 8, 2004, we conducted an
on-site inspection of HYCF aided by our expert consultant in the
field of juvenile justice. We interviewed administrators, the
acting correctional supervisor, youth corrections supervisors,
youth correctional officers (“YCOs”), medical staff, mental
health staff, educators, social workers and youth at HYCF. On
October 26, 2004, we conducted individual interviews with each of
the girls from HYCF temporarily placed at the Salt Lake Valley
Detention Center (“SLVDC”) in West Salt Lake City, Utah,
regarding the conditions at HYCF. Before, during, and after our
tour, we reviewed an extensive number of documents including, but
not limited to, incident reports, juvenile correctional records,

youth grievances, discipline records, medical files, mental
health progress notes, shift logs, staff training materials, and
school records. Consistent with our commitment to provide
technical assistance and conduct a transparent investigation, we
provided two extensive de-briefings following our tour: one with
Sharon Agnew, the Executive Director of the Office of Youth
Services (“OYS”), and Kaleve Tofono-Iosefa, the Administrator of
HYCF; and another with Attorney General Mark Bennett, then-First
Deputy Attorney General Richard T. Bissen, Jr., and Ms. Agnew.
During the de-briefings our consultant expressed his initial
impressions and concerns, and attorneys for the Civil Rights
Division also presented their discoveries regarding dangerous
suicide risks at the facility. Shanetta Y. Cutlar, Chief of the
Special Litigation Section, sent an October 15, 2004 letter to
Mr. Bissen documenting suicide hazards at HYCF and requesting
that the State of Hawaii (“State”) take immediate remedial
We commend the Administrator and her staff at HYCF, as well
as Ms. Agnew and administrators at OYS, for their helpful and
professional conduct throughout the course of our investigation.
The State granted immediate and unfettered access to HYCF,
permitted us to interview the staff and residents, and provided
all documents we requested regarding the facility and the youth
confined there. We also appreciate the State’s receptiveness to
our consultant’s on-site recommendations. Indeed, we note that
Hawaii has stated that it has implemented a number of the
Consistent with the statutory requirements of CRIPA, we now
write to inform you of the findings of our investigation, the
facts supporting them, and the minimum remedial steps that are
necessary to address the deficiencies we have identified. As
more fully described below, we conclude that certain deficiencies
violate the constitutional and federal statutory rights of the
youth confined at HYCF. In particular, we find that youth
confined at HYCF suffer harm or risk of harm from constitutional
deficiencies in the facility’s confinement practices, suicide
prevention procedures, and provision of access to mental health

Mr. Bissen responded to Ms. Cutlar’s letter on November 23,
2004. In his letter, Mr. Bissen identified remedial measures the
State had taken to address our concerns.

and medical care services. We also find that the State fails to
provide access to required education services pursuant
to the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1401, and Section 504 of the Rehabilitation Act of
1974 (“Section 504”), 29 U.S.C. § 794.


HYCF is the state’s sole juvenile justice facility. HYCF, a
71-bed facility, is comprised of two separate facilities with
three housing units: two boys’ housing units and a girls’
housing unit. With certain exceptions, HYCF houses boys confined
for long terms at the main secure custody facility (“SCF”) and
places boys adjudicated for short terms at the Ho’okipa Makai
(“Ho’okipa”), a cottage unit located approximately one-quarter
mile from the main facility.2 The SCF is comprised of a central
courtyard surrounded by three housing modules, with ten cells and
a common area in each module, a school, a gymnasium, kitchen
facilities, offices for administrative and medical staff, and two
isolation cells. Ho’okipa has two dormitories, with bunk-bed
space for 12 boys in one room and six boys in the other, and
three single isolation units.
The Observation and Assessment Cottage (“O&A”), a
freestanding living unit located a few hundred feet from SCF, has
ten cells that provide space for up to 20 female youth. O&A also
has an attached school and a fenced-in area for outdoor
recreation. The girls’ facility was vacant at the time of our
visit, as the State had transferred the girls to SLVDC for
temporary placement.3


It is no exaggeration to describe HYCF as existing in a
state of chaos. The most fundamental problem that plagues HYCF
is the absence of policies or procedures to govern the facility.4


HYCF housed aggressive youth sentenced to short terms at SCF
at the time of our visit.

The girls returned to HYCF on or about November 18, 2004.


Prior to our visit, the State provided us with a set of
policies and procedures that purportedly governed operations at


The absence of rules or regulations has permitted a culture to
develop where abuse of youth often goes unreported and
Security staff have stepped into the vacuum of order and
taken control of every aspect of the operation of the facility.
Security staff, who have received no training in over five years
and have no rules to guide their decisions, routinely use
excessive force against youth, confine youth to their cells for
days on end, discipline youth without justification or oversight,
deny youth access to medical and mental health services, and
prevent youth from receiving education. It appears that this
situation is not of recent advent. Indeed, it is our impression
that the situation has existed for years.
In the past few years the State has taken a number of
measures to remedy the absence of accountability at HYCF. At the
ground level, administrators have attempted to bring order to
HYCF by issuing rules and policies in the form of memoranda.
Their efforts have been countered at every juncture by security
staff who routinely ignore administrative directives and suffer
few, if any, repercussions. Indeed, as detailed below, YCOs
continue to run the facility as they choose, regardless of the
negative impact on the health and welfare of the youth confined
At a higher level, the State has expended considerable
resources to reform HYCF. The State has taken the initiative to
seek technical assistance from consultants and organizations.
The work of these individuals and groups has been facilitated by


HYCF. The Department of Public Safety, the department that
governed the operations of HYCF until 1991, issued the policies
in 1984. The Hawaiian legislature repealed them in 2002.
Regardless of the legislative action, the policies were outdated
and intended for an adult institution. Further, in the course of
our interviews, we found that staff and administrators were
either unaware of the existence of any policies or procedures or
were cognizant of their existence yet ignorant of their content.
To its credit, the State recently drafted new policies based on
model guidelines issued by the American Correctional Association,
but has yet to implement them at the facility. The State has
stated that it has provided training to its staff on a few of the
new policies, but not all.

the State’s remarkable candor in recognizing its deficiencies.
We applaud the State for accepting the advice and recommendations
of these professionals and pursuing long term, holistic solutions
rather than stop-gap measures. Nevertheless, the State’s reform
movement at HYCF is in its nascent stage and will take some time
to produce results. In the interim, youth continue to suffer
unduly harsh and punitive conditions on a daily basis.


As a general matter, the State must provide confined
juveniles with reasonably safe conditions of confinement. See
Youngberg v. Romeo, 457 U.S. 307, 315-24 (1982); Bell v. Wolfish,
441 U.S. 520, 535-36 & n.16 (1979); Gary H. v. Hegstrom, 831 F.2d
1430, 1432-33 (9th Cir. 1987). As part of this constitutional
mandate, confined juveniles must be protected from physical
assault and the use of excessive force by staff. Youngberg, 457
U.S. at 315-16. See also Redman v. County of San Diego,
942 F.2d 1435, 1441 n.7 (9th Cir. 1991) (en banc) (finding that
the State has an affirmative duty to protect juveniles confined
in an adult detention center from harm at the hands of other
detainees). Neither the Supreme Court nor the Ninth Circuit has
ever determined definitively whether the Eighth Amendment or the
Fourteenth Amendment provides the governing constitutional
standard for conditions at facilities, like HYCF, where juveniles
are incarcerated for both penal and rehabilitative purposes. See
Stevens v. Harper, 213 F.R.D. 358, 373-374 (E.D. Cal. 2002); see
also Haw. Rev. Stat. § 352-2.1 (noting that purposes of youth
correctional facilities in Hawaii are to incarcerate, punish, and
provide institutional care to juveniles so as to facilitate their
eventual reintegration back into the community).5 Because the
conditions at HYCF are so egregious as to violate even the more
stringent Eighth Amendment standard, it is not necessary to reach
that issue for purposes of this letter.
Our investigation revealed major constitutional deficiencies
in the harm protection measures in place at the facility. In
particular, the State fails to protect youth from: (1) self
harm; (2) staff violence; (3) youth–on–youth violence; (4)

Where the purpose of the juvenile facility is exclusively
rehabilitation, the Ninth Circuit has held that the Fourteenth
Amendment’s more relaxed standard controls. See Gary H. v.
Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987).

excessive use of disciplinary isolation; (5) lack of supervision;
and (6) an inadequate grievance system.


There appear to serious problems in the way the State
attempts to protect youth at HYCF from self-harm. In particular,
we observed that: (a) staff fail to assess suicidal youth
adequately; (b) staff fail to supervise adequately youth on
suicide precautions and in disciplinary isolation; (c) staff lack
training to respond appropriately to suicide attempts; and (d)
the State houses youth at risk of self-harm in unsafe
circumstances. The overarching problem is a lack of policies and
procedures to instruct staff. Without policies governing suicide
prevention, supervision, and reporting -- and training in such
policies -- the risk that a youth at HYCF will commit self-harm
is quite high.
The risk of self-harm is not hypothetical. During our visit
to HYCF we learned that two female youth made serious attempts to
commit suicide on September 10, 2004, one month after we notified
you of our investigation:

A youth used her bra to hang herself from the bunkbed in her
cell. Another youth found her hanging and yelled for the
YCO on duty. The YCO arrived at the cell, became
frightened, and dropped his keys. A second youth then
grabbed the keys, unlocked the door, and lifted up the
unconscious young woman. Another resident removed the bra
strap from the young woman’s neck and laid her on the floor.


At the same time, in a different cell in the same unit, a
second youth attempted suicide by hanging. She tied one end
of a bed sheet around her neck and the other end to a pole.
A YCO and another youth responded and removed the sheet from
the suicidal youth’s neck. The youth had attempted suicide
earlier that day by cutting herself 21 times with a bra
wire, and had further attempted suicide two days earlier by
cutting her wrist with a razor.

Equally disturbing, we found that youth use staples,
toothpicks, plastic cups, and pieces of broken tiles to cut into
their flesh. During our interviews we observed carvings on their
faces, arms, and legs. This behavior apparently occurs with the
full awareness of the staff charged with keeping youth safe.


Insufficient Assessment of Suicidal Youth

It is both customary practice and legally essential for
incarcerated juveniles who are identified as potentially suicidal
to be been placed on suicide precaution and monitored by mental
health professionals. Unfortunately, a review of corrections and
medical files at HYCF revealed that few measures are taken to
ensure that staff properly learn of, or supervise, youth who
self-identify as suicidal at intake. The failure to transmit
this information creates an unnecessary risk that the individuals
may harm themselves and, at the same time, prevents correctional
officials from undertaking precautionary protective measures.
We set forth below several examples where staff failed to
alert others that youth have a history and/or tendency to engage
in self-harming behavior:

When he arrived at HYCF on June 8, 2004, a youth stated to a
social worker that he had attempted to commit suicide ten
days prior while in detention. However, a review of the
youth’s intake evaluation and of his medical and
correctional files revealed that the information was not
communicated to either mental health professionals or
security staff.


In a youth’s file, a suicide screening form dated
September 20, 2004, and an intake evaluation dated
September 24, 2004, both indicated that the youth was
contemplating suicide. However, there is no evidence of
suicide precautions in his medical record.


A suicide screening form in one youth’s file dated
September 22, 2004, included notations that the youth
previously attempted suicide by hanging, that there was a
family history of suicide, and that the youth had received
psychiatric interventions. Despite this clear evidence of a
past history of self harm, the youth’s intake evaluation,
which was dated five days later, did not contain a history
of suicide attempts or past psychiatric problems. No
special precautions were either recommended or taken.
b. 	 Inadequate Supervision of Youth on Suicide

In addition to appropriate monitoring by mental health
professionals, potentially suicidal youth require appropriate

supervision by direct care staff, who are the only staff in the
facilities on duty 24 hours a day. We found that supervision of
suicidal youth by direct care staff throughout the facilities was
It is essential that staff document their observations and
denote the actual times of their checks on suicidal youth.
Policies and procedures should dictate that these functions occur
with regularity. Supervisory personnel, meanwhile, should be
verifying that line staff are performing assigned duties. Yet
neither of these things seem to be occurring at HYCF.
At the time of our tour, HYCF had no policies or procedures
governing suicide observation.6 We found that security staff
unilaterally remove youth from suicide observation status without
the approval of mental health professionals. For example,
following a September 8, 2004 suicide attempt in which a youth
slit her wrist with a razor, mental health professionals ordered
that security staff place the youth in a secure cell with
“one-on-one line of sight supervision” for at least four days.
Instead, the youth was only monitored by camera during the night.
The next morning, a YCO permitted the youth to spend extensive
time — completely unobserved — performing chores in a cleaning
closet containing hazardous chemicals. When a nurse questioned
the YCO regarding this lapse in judgment, the YCO reportedly
responded that she did not know the youth was on suicide watch
and dismissed the nurse’s concerns with the comment: “Okay. Go
away.” Amazingly, the youth continued to perform housekeeping
tasks outside the sight of the YCO.7 Shortly thereafter, the
youth approached the nurse and produced several paper clips she
found while cleaning, confessing that she had contemplated using
the paper clips to harm herself. Two days later, the youth
attempted suicide again by cutting her wrist and hanging.

The State issued a draft policy governing suicide prevention
entitled “Suicide Prevention and Precaution.” The draft policy
addresses some, but not all, of our concerns. We have not
formally commented on the policy because it is still under review
by the State. Nonetheless, the drafting of a policy is an
encouraging first step towards protecting youth from self–harm.


The YCO assigned to observe the youth recorded in the shift
log that the youth was “cleaning while being counseled.” There
was neither evidence nor reason to believe that the YCO provided
any counseling.

We also found that security staff routinely fail to conduct
observations of youth on suicide watch. For example, a May 15,
2004 report on one suicidal youth contains a notation that the
corrections supervisor had instructed the YCOs on duty to monitor
the youth every 15 minutes and record the time and observations
of each check. Our review of the log, however, indicated that
the YCOs performed the checks (or at least recorded their
observations) only sporadically over the following 24-hour
period. Occasionally, there were observations memorialized on
15-minute intervals, while at other times, checks appear to have
occurred only on the half-hour or hour.

Lack of Preparedness for Suicide Attempts and
Other Self-Harm

Staff training at HYCF in suicide prevention measures is
likewise highly inadequate. There is universal agreement among
experts that staff who interact with potentially suicidal youth
must be trained to detect, assess, and if necessary, intervene to
prevent a suicide. HYCF does not meet that standard.

Lack of Training

The State has failed to provide YCOs with training regarding
suicide attempts nor has it instructed YCOs on strategies for
de-escalating youth who are engaged in self-harming behaviors.
As a result, security staff monitoring youth on suicide
precautions have no guidance on how to respond to threats (or
reported ruminations) of self-harm, how to deal with actual
suicide attempts, or what measures to take to ensure that a youth
who engages in self-harm receives prompt treatment from mental
health professionals. A good example of the danger that
inadequate staff training presents is an incident that occurred
on December 23, 2003. Around midnight that evening, security
staff found a youth hanging from a bed sheet tied to the vent in
his cell. Yet the staff on duty failed to notify the medical or
mental health units immediately. Instead, they waited
two-and-a-half hours before transporting the youth to the
emergency room. To make matters worse, when the juvenile
returned from the hospital, staff made no effort to contact the
facility’s on-call nurse or any other mental health professional.
Staff simply placed the youth in a restraint chair for
four-and-a-half hours until the facility nurse arrived at work
the next morning. This kind of delay is difficult to understand
or excuse.


Lack of Equipment

Having emergency equipment readily available to staff, and
ensuring that staff are trained in the use of that equipment can
make the difference between life and death in the context of
suicide prevention. To take one basic example, security staff
should have access to a cutting tool at all times in order to
respond to attempts to commit suicide by hanging. Such a state
of preparedness, however, does not exist in our judgment at HYCF.
When our experts questioned HYCF personnel about proper
suicide prevention procedures, the myriad of answers we received
illustrated the inadequacy of the state of training. Consider
the following:

One YCO did not know if there was a written suicide policy,
but stated that, were she to encounter a youth hanging
himself/herself, she would cut the youth down. But she
acknowledged that there are no cut-down tools at the
facility nor we should even know where she might find a
knife or scissors.8 She then changed her mind and said she
would call a “Code Red” and hold up the youth until others


Another YCO indicated that, in such a scenario, he would
attempt to cut down the youth, but that he did not know
where he would find scissors, a knife, or other cut-down


Yet another YCO said he would call “Code Red” and wait for
other staff to arrive. The YCO added that he would proceed
with caution in case the suicide attempt was a “set up” by
the youth.


The nurses reported that they have ordered and received
cut-down tools, which are stored in the infirmary. These tools
are not accessible by security staff.


A “Code Red” is called when emergent conditions exist.
Staff leave their assigned posts and rush to the location of the
crisis. This practice places youth in danger as HYCF suffers
from chronic staff shortages and youth who are supposed to be in
the care of Code Red responders are left unsupervised for great
lengths of time.


Unsafe Housing of Youth at Risk of Self-Harm

It is also imperative that potentially suicidal youth be
housed in living quarters that are suicide resistant. HYCF lacks
such an infrastructure. At the time of our tour, the cells and
housing modules presented structural hazards that posed
substantial risks to suicidal youth. Set forth below is a list
of the hazards identified during our visit:

Each cell had two metal grilles that covered air vents.
These grilles had perforations through which a youth could
thread a piece of plastic or cloth to hang himself.10


The sinks within the cells had bases that projected from the
wall. A youth could fashion a noose to hang himself from
that type of sink.


Many of the cells had broken floor tiles. A youth could
break off a portion of the tile and use the shard as a
cutting tool to harm himself.


The shower stall in the isolation area by the central
control center had a shower head large enough for a youth to
use it to affix a noose and hang himself.

Fortunately, our consultant advised that the State could fix
many of the hazards quickly and at minimal cost. To its credit,
the State has promptly responded to our consultant’s remarks. In
a November 23, 2004 letter, the State indicated that it had
removed the metal grilles and installed new vents, started to
retrofit sink bases with arc-welded stainless steel skirting,
replaced shower heads, removed and replaced floor tiles, and
installed 20 fiberglass beds in the girls’ unit.11

	Staff Abuse


On December 23, 2003, security staff found a youth hanging
from a rope braided from his mattress and threaded through the
grille vent in his cell.


At the time of our tour, the girls’ unit was outfitted with
bunk beds, from which one of the youth had attempted suicide by

Another concern revealed by our investigation was occasional
physical abuse of youth by HYCF staff. Such abuse often occurs
during “takedowns,” when YCOs use physical management to control
a youth. While force may be justified in certain circumstances,
it appears that YCOs use the takedown as the first level of
force. To be sure, there is no constitutional requirement that
correctional facilities use the absolute minimal amount of force
necessary to control a disruptive youth. But the practices at
HYCF tend to exacerbate the already difficult task of
rehabilitation. Moreover, the absence of any policies or
procedures governing use of force, not to mention the lack of
training in proper procedures and techniques, incubates an
environment that is receptive to abuse.

Lack of Training and Proper Technique

During our tour of HYCF we asked YCOs about the proper
methods for employing physical force. Few, if any, of the
answers comported with methods condoned in either adult
corrections or juvenile justice. Indeed, the answers provided by
YCOs indicated that security staff may be employing tactics that
pose a grave risk of injury or death. For example:

One YCO reported that he lays on top of a youth and uses his
considerable weight to smother and restrict the movement of
the youth. The YCO stated that he would get up off the
youth only when the youth stopped struggling. The use of
such a method presents the real possibility of positional


Another YCO reported that she uses the “chicken wing” to
restrain youth. The YCO explained that she comes up to the
youth from behind and wraps her arms around the youth’s arms
at the elbows, then pulls the youth’s arms together toward
the center of his back.


Yet another YCO stated, with respect to the use of force,
“For juveniles, anything goes.”

In the absence of policies governing uses of force and
training, it appears that YCOs feel justified in using whatever
force they deem appropriate, regardless of the threat posed.
This trend has not gone unnoticed by other staff or
administrators. In October 2003, a nurse sent a memorandum to
the then-Acting Administrator and stated that takedowns at HYCF
had become “more frequent,” “appear to be escalating,” and that

the amount of force “appears to be on the verge of excess.”
Meanwhile, the nurse continued, “injuries are becoming more
severe . . . resulting in more Emergency Room visits.” The
physician providing services at the facility noted that he had
informed facility and OYS administration via memorandum that the
“[r]isk of being killed in a takedown is a real possibility” due
to lack of training on the part of YCOs. Despite the concerns
expressed by the medical staff, the State did not provide YCOs
with any training in the use of force.

Examples of Abuse

Our investigation uncovered numerous disturbing uses of
excessive and unnecessary force by YCOs. The following examples
are illustrative:

In September 2004, a YCO tackled a youth for refusing to
enter his room. The YCO placed the youth in a choke hold
with the youth’s face pressed against the officer’s stomach
and the officer’s feet wrapped around the youth. Another
YCO gouged the youth’s eyes with his fingers. The YCOs then
placed the youth in handcuffs and hogtied him.


In July 2004, a YCO choked a youth for ten seconds, applying
enough pressure to leave red hand prints on the youth’s


On June 11, 2004, a YCO physically assaulted a youth during
an argument over whether the youth could have cereal for an
evening snack. The YCO shoved the youth and punched him,
first in the back of the head and then to the face and body.
The YCO slapped the youth, choked him, and threw him against
the wall. The youth did not fight back. When questioned
during an internal investigation, the YCO conceded that he
“just lost it.”12


An internal investigation found substantial evidence that a
supervisor attempted to stifle any investigation of the incident.
The supervisor hid documents regarding the incident and attempted
to bargain with the assaulted youth in order to obtain his
silence. The investigation began only after a youth who had
witnessed the assault encountered the Administrator at lunch and
informed her of the incident.


On February 1, 2004, a youth reported that during a
takedown, a YCO held him from behind in a choke hold,
punched him in the face, slammed him against the wall, and
then punched him in the nose. The youth suffered numerous
injuries including a nose bleed, an abrasion to the side of
his head, and a reddened area around the side of his neck
and throat.


On January 21, 2004, a YCO grabbed, squeezed, and twisted
the testicles of a youth for at least 15 seconds as the
youth lined up to return to school. When the youth sought
medical attention, the YCO encountered the youth outside the
medical unit, laughed at him, and mockingly asked: “What,
you want me to grab your balls again?” An internal
investigation of the incident indicated that the YCO had
grabbed the genitals of other youth on at least two separate
occasions as well.13


YCOs abused a youth on four separate occasions over an
eight-week period in the Fall of 2003. On August 25, 2003,
the youth complained to the HYCF nurse of headaches after a
YCO punched him in the face during a takedown. Less than
three weeks later, on September 12, seven to eight YCOs
threw the youth to the floor multiple times and rubbed his
face in the ground when he refused to go into his cell; the
youth suffered bruises and abrasions on his face, back,
chest, shoulder and knee. The following month, on
October 8, the youth was the subject of an unprovoked attack
by a YCO, who elbowed him in the head, arm, and chest.
Finally, on October 22, the youth suffered head trauma after
four or five YCOs restrained him; a facility nurse noted
multiple facial, head, and neck abrasions, including the
imprint of a watchband on his trachea and abrasions possibly
resulting from a shirt twisted tightly around his neck.


On June 31, 2003, a YCO separated two youth who were engaged
in a fist fight. In the process, the YCO slapped and
punched one of the youth. The YCO later entered the youth’s
cell and punched him in the face.

Failure to Investigate Abuse


The State indicted the YCO for Sexual Assault in the Third
Degree on September 15, 2004.

Equally disturbing, the State fails to properly investigate
staff abuse of youth at HYCF. In 2004, the State completed only
four internal investigations of reported abuse. As of December
31, 2004, at least 17 allegations of abuse from 2003, and two
from 2004, are pending investigations. Our review also found
many allegations of abuse that were not under investigation at
We reviewed medical reports, youth grievances, and incident
reports from July 1, 2003 through August 31, 2004 for evidence of
staff-on-youth violence.14 We identified 37 incidents where
facility documents identified physical contact between a staff
member and youth that led to an injury suffered by the youth.
Not a single one of the incidents had been investigated. For
example, in February 2004, a youth filed a grievance stating that
two YCOs slammed him against a metal door and punched him in the
nose. Contemporaneous medical reports substantiated the youth’s
injuries and reiterated his claims of abuse. Yet there is no
mention of the February 2004 incident in the list of pending
investigations. Interestingly, as of July 2004, the list of
pending investigations showed four other allegations of abuse
against this particular juvenile, including allegations that YCOs
“clotheslined” him, punched him, kicked him, and twisted his arm
in 2003.
Those investigations that the State does complete are often
deficient in any event. Of the two investigations we reviewed
from 2004, for example, we found that youth made serious
allegations of staff abuse that the facility apparently opted not
to pursue.15 In one, a youth informed an investigator that he
had seen a YCO, who was not then under investigation, arrange for
another youth to organize a “hit,” or physical assault, on a
fellow juvenile resident. Although the youth stated that the YCO

The haphazard practice of documenting incidents further
hampers attempts to eliminate staff abuse. We found that staff
routinely fail to document uses of force either in the logs kept
on each unit or in specific forms completed when staff apply


The State provided a list of HYCF’s internal investigations.
The State completed four investigations in 2004 -- two from 2003
incidents and two from 2004 incidents. In this section, we limit
our discussion to the investigations of the two most recent

no longer worked at HYCF, it was impossible to verify this fact
because the investigator never asked for the YCO’s identity. Nor
did the investigator refer the allegation to administrators for
internal or criminal follow-up. Such a serious accusation
warranted much more scrutiny than what was given.

Youth Assaults

The law requires that juvenile justice institutions
adequately protect youth from assault by other youth. Redman,
942 F.2d at 1441 n.7. The State often fails to live up to that
Part of the problem can be attributed to the absence of a
classification criteria for housing youth. At present, security
staff place youth committed for short periods of time at Ho’okipa
and youth committed for longer terms at SCF. Within SCF and
Ho’okipa, staff place aggressive youth with vulnerable youth
regardless of the risk of harm.
The lack of supervision of youth is another contributing
factor. The State has employed an insufficient number of staff
at HYCF to monitor youth, and the staff that are employed there
have no training in adequate monitoring procedures. As a result,
youth are frequently able to exploit the gaps in supervision and
harm other juveniles.
The following examples are emblematic of the widespread
problem of youth-on-youth violence at HYCF:

On October 6, 2004, a youth sexually assaulted another youth
who was sleeping at the time. The victim and the
perpetrator lived in a communal dormitory at the Ho’okipa
Cottage. According to the statements of witnesses, the YCOs
assigned to the cottage were in the kitchen and were not
observing the youth in the dormitories.16 As the youth
slept, the perpetrator placed his penis on the mouth of the
victim. The victim and another youth present in the
dormitory at the time of the assault both indicated that
this was not the first time the alleged perpetrator had
acted out against the victim.


It was reported that three YCOs were on duty at the time.


On or around August 24, 2004, several youth “mobbed,” or
jointly assaulted, another youth. There is no documentation
indicating that the youth received medical attention.
Further, security staff did not write injury or incident
reports describing the attack. However, approximately two
weeks later, the facility doctor noted that the youth had
coughed up blood and complained that his right side hurt.
Four weeks after the incident, the doctor noted that the
youth still suffered from “iliac chest pain secondary to
being kicked” four or five weeks prior.


On July 14, 2004, a fight broke out between two youth in the
day room of a housing unit. One youth struck another youth
in the mouth with a pool stick. The victim grabbed the pool
stick and struck the offender’s hands.


On May 24, 2004, a youth came up behind another youth
sitting in a chair and struck him in the head with a dust
pan. The victim bled profusely from a laceration starting
at the top of his head and extending down to the forehead.
It took ten stitches to close the wound.


On April 20, 2004, a youth hit another youth in the face,
giving him two black eyes. The victim’s right eye was
swollen almost completely shut. The YCO on duty waited two
days to inform the medical unit of the youth’s injury.


On February 17, 2004, a youth repeatedly punched another
youth in the head and face, giving him two black eyes. The
YCOs on duty did not report the injury at the time of the


On November 3, 2003, three separate youth-on-youth assaults
occurred in rapid succession. First, a youth hit another
youth with a closed fist. While two YCOs took down the
initial aggressor, a second youth assaulted another youth
with a closed fist. A YCO tackled the second aggressor at
the same time another YCO placed the juvenile in a
restraining hold. AS YCOs attempted to put all the youth
back in their modules, a third youth punched another
juvenile in the jaw.

Disciplinary Isolation

Staff at HYCF isolate youth in their cells as part of “lock
down” procedures for significant periods of time. We do not

suggest that these lock downs are facially unconstitutional or
even unwarranted in all circumstances. See Sandin v. Conner, 515
U.S. 472, 485-86 (1995). But HYCF appears to ignore completely
the adverse psychological side effects of prolonged isolation
and, more importantly, seems to have adopted no standards
governing when such confinement procedures may be validly
Staff often confine juveniles to their cells simply because
an insufficient number of YCOs have reported to work or because
it is considered convenient for staff. A review of shift logs
indicated that youth at HYCF routinely endure lock down for days
on end. This practice has fomented tension amongst the juveniles
and led to an increase in violence. It also has precipitated
greater amounts of self-injurious behavior. HYCF residents
consistently told us that they grow so frustrated or bored from
the excessive use of lock down, that they choose to strike walls
or doors with their fists rather than hit other youth or a YCO.
On a related note, during the course of our tour, we noted
that many youth had carved and cut into their skin. Indeed, we
noted that youth had visible cuts on their arms, legs, and faces.
In explaining this physical desecration, the juveniles stated
that, out of sheer boredom while confined to disciplinary
isolation, they use plastic shards, paper clips, and the like to
carve their flesh. We were particularly disturbed by the level
and prevalence of cutting by female youth. All but one girl
readily admitted that she cut herself. It appears that staff at
HYCF have done little, if anything, to prevent youth from
disfiguring themselves in this manner.
We also have serious misgivings about, and are concerned
over the possible unconstitutionality of, the lack procedural
protections afforded to youth who are placed in disciplinary
isolation. Assuming a liberty interest can be established
against HYCF’s often long-term and baseless placement of
juveniles into isolation, procedural due process interests would
be implicated. See Wilkinson v. Austin, 125 S. Ct. 2384, 2395
(2005). Hawaii, however, offers not even minimal procedural
protections to youth who are placed in disciplinary isolation.
Indeed, YCOs unilaterally mete out discipline, frequently without
any knowledge or oversight from supervisors or administrators.
As far as we can tell, there are no controlling policies or
procedures as to when lock downs may be validly employed.

Lack of Supervision


Staff Shortages

HYCF suffers from chronic staff shortages. Administrators
informed us that the exigencies of staff shortages have created a
situation where YCOs unilaterally choose when to report for work.
Few, if any, scheduled staff report for duty on weekends. The
former Acting Administrator informed us that, on Saturdays, it
was a regular occurrence that only two YCOs were on duty to
monitor three modules at SCF.17 Staffing shortages became so
severe at one point that administrators were forced to use
non-YCOs, such as social workers, food service workers, and
maintenance employees, to supervise housing units. The lack of
staff poses a severe threat to the safety of youth.
Administrators stated that they often “hold over” staff,
requiring YCOs to remain at their posts, if possible, beyond
their tour of duty. YCOs informed us that they frequently are
called on to work two consecutive shifts (despite not being
scheduled to do so), and that it was not uncommon to work three
or four shifts in a row. As a consequence, YCOs are exhausted,
tend to sleep while on duty, and consequently fail to supervise
youth adequately.

Exploitation of Youth

We received multiple credible complaints that YCOs exploited
youth. For example, in June 2004, the Youth Facility
Administrator issued a memorandum stating that she had received
“numerous complaints from (youth) and their families concerning
(youth) being coerced to give food and personal items to staff”
in exchange for “special favors” and “preferential treatment.”
Staff, she continued, also had been granting “extra privileges to
youth by providing them with cigarettes for smoking in cells” and
permitting them to stay up later than other youth. Incredibly,
she added that some families complained of getting requests from
juvenile residents to bring extra food and treats for YCOs during
visits. The Youth Facility Administrator ordered staff to cease
the practices immediately.


In response to our initial document request, HYCF provided
us with a staff roster listing 51 youth corrections staff
including 40 YCOs and 11 youth corrections supervisors.


Inadequate Grievance System

Although prisoners do not have a “claim of entitlement to a
grievance procedure,” Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
1988), “[t]he right of meaningful access to the courts extends to
established prison grievance procedures,” Bradley v. Hall, 64
F.3d 1276, 1279 (9th Cir. 1995) (holding that a prisoner’s First
Amendment right to petition the government for redress of
grievances encompasses the filing of inmate administrative
appeals). HYCF’s grievance system is dysfunctional.
The most significant legal deficiencies with the grievance
system at HYCF are the difficulty in filing claims and the common
presence of intimidation and retaliation against those youth who
are able and dare to do so. The difficulty in submitting
grievances is a problem whose source is easy to identify. Prior
to August 2004, youth could only obtain grievances from YCOs or
medical staff.18 And in effect, YCOs were the sole source of
grievance forms given that youth were frequently under lock down
and needed the supervising YCO’s consent for travel to the
medical unit.19
But even if forms were readily available, many youth would
be reluctant to use the grievance process because, based on the
documents we read and interviews we conducted, the subjects of
the complaints – typically, the supervising YCOs – often
retaliate against the complainants. See Bradley, 64 F.3d at 1279
(right of access to facility’s grievance procedure is violated
when staff retaliate against inmate for having filed grievance).
More disturbingly, administrators repeatedly told us that
staff at HYCF actively work to hinder investigations. The former
Acting Administrator informed us that attempts to investigate
alleged acts of abuse by staff were met with intransigence and
deliberate interference from staff. When conducting an
investigation, the former Acting Administrator stated that he

Per memorandum dated August 4, 2004, the Administrator
instituted a new grievance policy mandating that all staff,
including education and mental health staff, provide youth with
grievance forms. Unfortunately, during our October 2004 tour, we
found that staff did not consistently follow this directive.

Medical staff stated that they advise youth to schedule a
medical appointment in order to file a grievance.

would only talk to youth and YCOs “with [a] conscience.” When
asked to clarify, he observed that “if you talked to the wrong
[YCO], you paid the price in staff shortages.” YCO “sick-outs”
reportedly paralyzed the institution and occurred on a routine
basis when investigations were pursued. Incredibly, the former
Acting Administrator stated that the target of, and witnesses to,
an investigation often fail to report for duty for weeks on end
in order to stifle the investigation. Nor are unscheduled
absences to hinder investigations limited to the target or
his/her associates; a supervisor tasked with conducting one
particular investigation ceased appearing for work altogether and
the investigation ultimately ground to a halt. The former
administrator with whom we spoke conceded that he simply could
not complete investigations because the institution was unable to
endure the inevitably corresponding absences by YCOS.20


Like any individual incarcerated in a state correctional
facility, juveniles are entitled to have access to adequate
medical and mental health care. Our investigation strongly
suggested that youth at HYCF have inadequate access to such care.
HYCF contracts with outside providers for medical and mental
health services. But a lack of communication between HYCF staff
and the outside providers, as well as communication breakdowns
between the different outside providers themselves, impedes the
delivery of proper care. In addition, security staff frequently
use the control they have over the movement of juveniles at the
facility to restrict or deny altogether the provision of adequate
medical and mental health care.
Poor communication between professional staff, including the
mental health staff, medical staff, and social workers, is a
barrier to proper care at HYCF. Virtually none of the
professionals communicate in a systemically effective manner with
their colleagues. For example, the providers of psychiatric care
prepare weekly mental health reports for each youth and give
those reports to the administrators. But the reports are not
shared with either the social workers or the counselors.
The disappearance of evidence also hampered internal
investigations. The former Acting Administrator reported that he
attempted to locate a video tape from surveillance cameras that
recorded a use of force by a YCO. Te tape on which that incident
was recorded was missing and never found.


Similarly, reports prepared by the social workers and counselors
are not transmitted to the psychiatric care providers. As a
result, mental health workers make decisions about medication and
counseling without full knowledge of the needs of youth.
The complete control of YCOs over communication between the
facility’s youth residents and its professional staff is another,
even greater, impediment to the delivery of adequate care. We
acknowledge, of course, that security needs dictate a certain
degree of restrictions on communications. The problem is that
security staff have received no training whatsoever in the
detection of mental health or medical problems, nor are there any
policies guiding YCOs in dealing with youth with such issues. In
essence, staff operates in a vacuum. Perhaps not surprisingly in
such an environment, we found that YCOs routinely fail to alert
mental health staff or on-site medical professionals when youth
are in emergent need of care.
We were also concerned by the YCOs’ apparent failure to
ensure that youth who either commit acts of self-harm or are
involved in physical altercations receive timely medical care.
We compared incident reports with medical records and found that
there were many instances where security staff stated that youth
received care, yet there were no medical reports to substantiate
the claim. The following examples are illustrative:

On July 1, 2004, two youth engaged in a fist fight. A
contemporaneous memorandum written by a YCO indicated that
one of the youth requested and received a visit from the
nurse. The documents provided by the State did not include
a medical report from this incident.


On April 20, 2004, one youth struck another youth in the
face. The YCO waited approximately two days to notify the
medical unit, at which time the YCO stated that a youth had
a black eye but that he did not know how it happened.
Medical staff made three requests to see the youth but were
told that there were no YCOs to escort the youth to the
medical unit. Medical staff finally conducted an exam in
the youth’s cell.


On April 14, 2004, one youth slapped and punched another
youth repeatedly. The assailant claimed that she had
assaulted her victim at the victim’s request. An internal
memorandum from a supervisor documenting the incident does
not indicate whether any medical attention was sought for

the youth. Nor do any of the other medical or mental health
reports provided by the State indicate whether the victim
received treatment.

On January 15, 2004, a youth struck another youth with a
closed fist to the youth’s head, and two YCOs restrained the
aggressor. A contemporaneous memorandum written by a YCO
indicated that one of the juveniles received medical
attention. The documents provided by the State did not
include a medical report from this incident.


On January 13, 2004, two juveniles were engaged in a fist
fight. A contemporaneous memorandum written by a YCO
indicated that one of the youth received medical attention.
The documents provided by the State did not include a
medical report from this incident.


On December 19, 2003, two youth fought during breakfast. A
YCO used physical force to place a youth in his cell. The
youth reportedly had a bloody mouth after the incident. No
medical reports document either incident. Documents
provided by the State did not include medical or mental
health reports indicating that the victim received


On October 10, 2003, two youth punched each other, causing
one to be taken to the medical center. The documents
provided by the State, however, did not include a medical
report from the incident.


On September 8, 2003, a youth assaulted another youth in the
day room of one of the modules. The victim curled up on the
floor and received several blows to the head. A YCO shoved
the perpetrator and held him against the wall. Although a
contemporaneous memorandum written by the YCO indicated that
a “nurse looked at” one youth and “everything seemed okay,”
the documents provided by the State did not include a
medical report from the incident.


On August 25, 2003, a YCO allegedly slammed the cell door on
a youth’s hand, breaking one of the fingers. The youth
spoke with a social worker and requested that the social
worker contact his mother so she could file a formal
complaint. The youth declined to file a grievance stating
that he feared retaliation by the YCO. The documents

provided by the State did not include a medical report from
this incident.21

On August 25, 2003, two juveniles were injured in a fight.
There are no medical records of the injuries sustained by
either youth. Additionally, one of the juveniles claimed
that, in breaking up the fight, a YCO purposely punched him
in the face and that the blow was not part of the take down.
The youth stated that there was a small area of swelling on
his forehead and that he experienced headaches following the
incident. The documents provided by the State did not
include a medical report from this incident.


On August 20, 2003, at 6:00 p.m. a youth was hit in the eye
while playing basketball. The nurse was not notified until
the next morning at 11:00 a.m. and reported that the youth’s
right eye was swollen and discolored.

The Olomana School at HYCF provides instruction to all youth
at HYCF, with the exception of those youth who have received a
high school diploma.22 HYCF has adequate educational resources.
We found the educators to be dedicated and enthusiastic about
their mission to educate some of Hawaii’s most challenging youth.
Unfortunately, despite the richness of educational
resources, and the desire of educators to teach juveniles
confined at the facility, we found that the HYCF violates the
statutory rights of youth with disabilities by failing to provide
them with access to special education instruction and resources.
The fault lies not with the educators. The problem, instead, is
that security staff routinely cancel school and prevent youth
with disabilities from receiving the services to which they are


The social worker’s failure to take the initiative to notify
her supervisors of the youth’s allegation is another example
where staff have been aware of abuse yet not reported it for
further investigation.

Educators at the Olomana School are employees of the Hawaii
Department of Education.


Educational Requirements

In states that accept federal funds for the education of
children with disabilities, as does Hawaii, the requirements of
the IDEA apply to juvenile facilities. See 20 U.S.C.
§ 1412(a)(1)(A); 34 C.F.R. § 300.2(b)(1)(iv). Further, the
requirements of Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794, also apply to HYCF.23 Bonner v. Lewis, 857 F.2d
559, 562 (9th Cir. 1988) (Section 504 applies to the provision of
qualified sign language interpreters for deaf inmates in state
correctional programs which receive federal financial
assistance). The law forbids states from denying youth with a
disability access to educational programs funded in part by the
federal government.
Pursuant to the IDEA and Section 504, the State must ensure
that youth who are entitled to receive special education services
have access to such services. As of November 7, 2004, educators
had identified approximately 63% of HYCF youth as having a
learning disability and entitled to services under the IDEA.24
Educators also had identified an additional 14% of youth at HYCF
as having a disability and entitled to services under Section
504.25 Added together, over 77% of the youth at HYCF were
entitled to services under either the IDEA or Section 504. We
found that these youth did not consistently receive those
services in violation of federal law.


Section 504 of the Rehabilitation Act of 1973 prohibits
States from excluding persons with a disability from
participating in or benefitting from any State program or
activity receiving federal financial assistance. The protections
of this law, which apply to State prisons are extended to any
person who: (i) has a physical or mental impairment that
substantially limits one or more of such person’s major life
activities, (ii) has a record of such impairment, or (iii) is
regarded as having such an impairment.

Behavioral counselors at HYCF estimated that the number of
youth at HYCF entitled to receive special educational services
has ranged from 50% to 90% over the past two years.

The youth identified as entitled to services under Section
504 did not qualify for services under the IDEA.


Lack of Access to Educational Services

Special education laws under Title I of the IDEA require the
State to provide each youth with a free and appropriate public
education. 20 U.S.C. § 1412(a)(1)(A). In order to fulfill this
obligation, the State must provide youth with an education that
meets the standards of the State’s educational agency. See 20
U.S.C. § 1401(a)(A)(11)(A)(ii)(II); 34 C.F.R. § 300.300; Haw.
Rev. Stat. § 302A-436; Haw. Code. Reg. § 8-56-3. The education
provided to juveniles at HYCF often does not meet these standards
because of the constant denial of access to education instruction
by security staff.
In discussions with educational staff, we learned that as of
October 5, 2004, none of the youth had attended a full day of
school since June 2004. During that time period, youth did not
attend school for days on end. Security staff made the choice
whether or not youth would attend school. The Olomana School
educational staff stated that each day when they show up for
work, security staff inform them if classes will be held that
day. While it is difficult (and generally not our role) to
second-guess security decisions, the frequency of school
cancellations at HYCF is quite troubling.


In order to rectify the identified deficiencies and protect
the constitutional and statutory rights of youth confined at
HYCF, the State should implement, at a minimum, the following
remedial measures:


Train existing staff so that they perform their
duties adequately and ensure that all staff
demonstrate an understanding of and demonstrate
the application of applicable skills. Ensure that
there are sufficient, adequately trained staff to
safely supervise youth.


Develop and implement adequate policies and
procedures to ensure that youth who are at risk of
suicide and youth who are at risk of engaging in
self-injurious behavior are properly identified,
supervised, and treated.


Provide staff with adequate training and equipment
to identify and supervise youth at risk for
suicide, and to intervene effectively in the event
of a suicide attempt. Provide staff with training
on the facility’s suicide prevention policy,
including the different levels of observation and
the types of precautions that should be taken.


Remedy all suicide hazards in areas where youth
with suicidal ideations may be potentially housed.


Develop and implement adequate policies and
procedures to ensure that youth are adequately
protected from physical violence committed by
staff and other youth.


Develop and implement adequate policies and
procedures regarding the proper use of force by
YCOs and staff.


Develop and implement adequate policies and
procedures to ensure that staff are adequately
trained in safe restraint practices, that only
safe methods of restraint are used, and that
restraints are used only in appropriate


Develop and implement adequate policies and
procedures to ensure that staff adequately and
promptly document and report all uses of force,
incidents of violence, injuries and misconduct.


Develop and implement adequate policies and
procedures to ensure that all incidents of
violence, use of force, or serious injury are
adequately investigated and that appropriate
personnel actions and appropriate systemic
remedies are taken in response to substantiated

10.	 Develop and implement adequate policies and
procedures to ensure an adequate classification
system to house youth appropriately and safely.


11.	 Develop and implement adequate policies and
procedures to ensure that staff do not exploit
12.	 Develop and implement adequate policies and
procedures to ensure that youth have access to a
functional and responsive grievance process.
13.	 Develop and implement policies and procedures to
ensure that staff do not intimidate or retaliate
against youth who file grievances.



Provide youth with adequate access to mental
health care and ensure that appropriate
interdisciplinary communication to facilitate
mental health treatment occurs.


Provide youth with adequate access to medical


Provide youth with learning disabilities adequate
special education instruction.


Develop and implement adequate individualized
education programs, including vocational
education, for youth with learning disabilities.


Develop and implement appropriate Section 504
plans for all eligible youth.






During the exit interview at our on-site tour, we provided
State officials with preliminary observations made by our expert
consultant. State officials and facility staff reacted
positively and constructively to the observations and
recommendations for improvements. The collaborative approach the
parties have taken thus far has been productive. We hope to be
able to continue working with the State in an amicable and
cooperative fashion to resolve deficiencies previously noted
Provided that our cooperative relationship continues, we will

forward our expert consultant’s report under separate cover.
Although the report is his work - and does not necessarily
reflect the official conclusions of the Department of Justice the observations, analyses, and recommendations provide further
elaboration of the issues discussed in this letter and offer
practical assistance in addressing them.
We are obligated to advise you that, in the unexpected event
we are unable to reach a resolution regarding our concerns within
49 days after your receipt of this letter, the Attorney General
is authorized to institute a lawsuit pursuant to CRIPA to correct
the noted deficiencies. See 42 U.S.C. § 1997b(a)(1). We would
very much prefer, however, to resolve this matter by working
cooperatively with you. And we have every confidence that we
will be able to do so. The lawyers assigned to this matter will
be contacting your attorneys to discuss this matter in further
detail. If you have any questions regarding this letter, please
call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s
Special Litigation Section, at (202) 514-0195.
/s/ Bradley J. Schlozman

Bradley J. Schlozman
Acting Assistant Attorney General

cc:	 The Honorable Mark J. Bennett
Attorney General
Sharon Agnew

Executive Director

Office of Youth Services

Kaleve Tufono-Iosefa

Youth Facility Administrator

Hawaii Youth Correctional Facility

Patricia Hamamoto


Hawaii Department of Education


The Honorable Edward H. Kubo, Jr.

United States Attorney 

District of Hawaii

The Honorable Margaret Spellings


United States Department of Education 

The Honorable John H. Hager

Assistant Secretary

Office of Special Education and Rehabilitative Services

United States Department of Education

Patty Guard

Acting Director

Office of Special Education Programs

United States Department of Education