Civil Rights of Institutionalized Persons Act in Juvenile Correctional Facilities
The Civil Rights of Institutionalized Persons Act (CRIPA) can help eliminate unlawful conditions of confinement for detained and incarcerated youth.1 Through express authority granted to the Attorney General, CRIPA gives the Civil Rights Division of the U.S. Department of Justice (DOJ) the power to bring actions against State or local governments for violating the civil rights of persons institutionalized in publicly operated facilities.2 Congress enacted CRIPA in 1980 to provide DOJ with the statutory authority to bring cases to protect institutionalized persons.3 CRIPA does not authorize DOJ to represent individuals; it only allows DOJ to take action to remedy systemic problems. In addition, CRIPA does not create any new substantive rights; it simply confers power on the Attorney General to bring litigation grounded in previously established constitutional or statutory rights of institutionalized persons.
A substantial body of law establishes the rights of detained and incarcerated youth and protects them from dangerous conditions and practices of confinement.4 CRIPA is an underutilized method of ensuring that these laws are not violated in juvenile facilities. CRIPA's statutory language explicitly includes State or local facilities in which youth are detained or confined (for any purpose other than education) and enables DOJ to file a complaint against the State or local government when there are systemic violations of the rights of youth.5
The Civil Rights Division of DOJ is the agency responsible for enforcing CRIPA. As of November 1997, the Civil Rights Division had investigated 300 institutions under CRIPA. Seventy-three of these institutions -- or approximately 25 percent -- were juvenile detention and correctional facilities.6 Although the Division investigated very few juvenile facilities during the 1980's, it dramatically increased its investigations of juvenile detention and correctional facilities during the 1990's.
Under CRIPA, the Civil Rights Division must protect the rights of individuals not only in juvenile facilities, but in many other institutions, including prisons, jails, nursing homes, psychiatric hospitals, and mental retardation facilities. The Civil Rights Division, therefore, allocates its limited resources to a wide variety of publicly operated facilities throughout the United States and its territories. In light of a number of glaring cases of institutional abuses, however, the Civil Rights Division has an increased interest in pursuing violations in juvenile facilities.
In order to initiate investigations of particular institutions, the Division relies on information it receives from within DOJ and other government agencies (such as the Department of Education, the Department of Health and Human Services, and the Civil Rights Commission) and from external sources.7 Advocates and parents should be aware of the important role that they can play in bringing information about harmful or unlawful conditions of detention or incarceration to the attention of the Civil Rights Division. Requesting the Division to take action, by writing and calling, can be the impetus needed to improve conditions for youth in custody.
In addition to the authority to bring original suits, CRIPA expressly grants the Attorney General the right to intervene in ongoing civil rights litigation.8 The intervention authority, however, is limited in several respects.9 The Attorney General may not file a motion to intervene before 90 days after commencement of the action.10 The Attorney General must also certify that written notice was given to the Governor, State attorney general, and the director of the institution at least 15 days prior to the motion and that intervention is in the national public interest.11 Intervention power is seldom used, but may be a useful resource to strengthen a case in which the constitutional or statutory rights of juveniles are being violated in a facility.
A CRIPA action begins with DOJ's discovery of possible civil rights violations at an institution. DOJ receives information and allegations through informal means such as news reports, letters from prisoners or families, and information from former and current employees of institutions. At times, DOJ may also encounter an allegedly offending facility in the course of another investigation. Only occasionally does DOJ receive complaints from juvenile advocacy groups. This type of information exchange does not happen as often as it should. Advocacy groups and others may have hesitated to file complaints under CRIPA in the past because of a perceived failure of DOJ to truly represent the rights and interests of the institutionalized.12 CRIPA, however, can be a powerful tool to redress unlawful conditions of confinement, and advocates must realize how critical it is to bring evidence of systemic institutional violations to the attention of DOJ.
After receiving information about unlawful conditions, the Civil Rights Division must determine that it has the authority to conduct the investigation and that the investigation is warranted. Because CRIPA authorizes the Attorney General to initiate action where the State or local government is violating the rights of persons residing in public institutions, the first question is whether the facility is in fact a public institution.
In order to qualify as a public institution, a facility must satisfy two requirements. First, it must be one "which is owned, operated, or managed by, or provides services on behalf of any State or political subdivision of a State."13 For example, if a private facility enters into a contract with a State, city, or county to house juveniles adjudicated delinquent, the facility likely would be an institution covered by the statute, even where the contractor maintains full control of the facility. Second, in addition to having adequate governmental involvement, a facility must be one of the five types of facilities described in the statute.14 Most juvenile detention and correctional facilities are plainly encompassed by the statute, including facilities where juveniles are:
After it has been determined that a facility meets the requirements of a public institution, the Civil Rights Division then reviews all of the complaints to ascertain whether the allegations are serious enough to warrant further investigation. The Attorney General has delegated to the Assistant Attorney General for Civil Rights the final decision about whether an investigation is warranted. In general, allegations against publicly operated facilities result in an investigation when the Division has received sufficient evidence of potential systemic violations of Federal rights, such as physical abuse, neglect, or lack of adequate medical or mental health care or education.
Once DOJ has decided to investigate an institution, the Attorney General must give the State or municipality at least 1 week's notice of the impending investigation. Following the notice letter, DOJ contacts the State or local government parties and arranges for a tour of the facility or facilities under investigation and may also request that the parties produce certain facility documents. If an investigation does not uncover a pattern or practice of civil rights violations, DOJ notifies the jurisdiction and closes the investigation.
If DOJ does uncover a pattern or practice of civil rights violations, the Assistant Attorney General for Civil Rights sends the jurisdiction a formal "findings letter." This letter sets forth the alleged violations, the evidence supporting the alleged violations, and the minimum steps necessary to correct the violations. Civil Rights Division attorneys then meet with the relevant State or local officials to discuss how best to resolve the violations.15
When enacting CRIPA, Congress recognized that while it is not an ideal solution, litigation is "the single most effective method for redressing systematic deprivations of institutionalized persons' constitutional and Federal statutory rights."16 Aware of the tensions of federalism, however, Congress built in a window of negotiations to give States the opportunity to avoid undue involvement of the Federal judicial system. Congress believed that States should have the opportunity to remedy conditions through a voluntary and informal process.17 Consequently, CRIPA requires that before filing suit, DOJ wait 49 days after issuing a findings letter. In the interim, DOJ must make a good faith effort to consult and negotiate with the facility and ensure it has had reasonable time to take corrective action. CRIPA's notification and waiting period ensures that every effort is made to resolve the problem before filing the complaint.18 While Congress did not intend for the Attorney General to wait months or years to file suit,19 it placed no ceiling on the amount of time DOJ could negotiate before filing suit. Consequently, investigations and negotiations sometimes continue for years.20
Given CRIPA's emphasis on negotiation, the vast majority of all CRIPA actions result in settlement of one form or another without ever going to trial. Sometimes the parties reach an informal resolution during the investigatory period. Informal resolution generally occurs when States are cooperative, take the initiative to correct problems voluntarily, and demonstrate that conditions have improved to a constitutionally acceptable level.
Many of the investigations, however, culminate in court-endorsed agreements between the parties that have the effect of a court order, called consent decrees. As of November 1997, DOJ had entered 61 CRIPA consent decrees requiring State and local jurisdictions to take corrective actions in 108 facilities.21 These consent decrees are frequently filed with the court simultaneously with a CRIPA complaint. In other situations, they are entered into after a CRIPA complaint has been filed and the case has proceeded to various stages of litigation.
Before DOJ can file a CRIPA complaint, CRIPA requires that there be:
In addition, the Attorney General must certify that she has met CRIPA's procedural requirements of notification and conciliation and that a CRIPA action is in the public interest.23
The only remedy permitted under CRIPA is equitable relief. The Attorney General may seek the minimum corrective measures necessary to guarantee the civil rights of the institutionalized.24 Congress recognized that traditional equitable remedies, such as injunctions against certain practices, affirmative orders to upgrade facilities, and orders to increase staff size, were adequate remedies to achieve the minimum corrective measures in CRIPA settlements.25
In summary, when DOJ first hears about violations from external sources, it must determine if the facility has adequate governmental involvement and falls within the facility types described in the statute. If the facility qualifies as a publicly operated facility, DOJ must then decide if the allegations warrant an investigation. Choosing to pursue an investigation, DOJ then observes whether there is an established pattern or practice that causes grievous harm and then decides whether a complaint is warranted. DOJ must comply with the notification and waiting period requirements prior to investigating or filing a complaint. Finally, DOJ can seek only the minimum corrective measures needed to protect the civil rights of the institutionalized. Residents and advocates may wish to pursue reaching further relief by means other than CRIPA.
Residents and advocacy groups have rarely attempted to intervene in CRIPA actions on behalf of residents. Yet, one Ninth Circuit case held that residents could intervene if their interests were not adequately protected by the government.26 Even if intervention is not ultimately permitted, seeking it may be beneficial because DOJ may need to demonstrate to the court that it is adequately protecting the rights of the residents.
Once a consent decree is ordered by the court, DOJ monitors the facility's compliance with the requirements of the decree through onsite inspections by expert consultants and reviews of periodic status reports. Throughout the past decade, DOJ has requested the appointment of special monitors or panels to assist with implementing and evaluating compliance with CRIPA consent decrees. All of the CRIPA consent decrees involving juvenile facilities currently have this type of independent oversight.
If the facility does not comply with the consent decree requirements or other court orders, DOJ will return to court, when appropriate, to seek enforcement of the decree or further relief. For instance, when a juvenile detention facility in New Jersey failed repeatedly to comply with significant requirements in a CRIPA consent decree, DOJ filed a contempt action. The contempt motion alleged staff brutality (juveniles being hit with metal keys and being punched in the stomach and head), filthy conditions (cockroaches crawling over juveniles forced to sleep on ratty mattresses on the floor), and lack of basic necessities, such as underwear and towels. The county failed to contest the contempt motion and the court appointed a Special Master to oversee needed remedial measures at the facility. Since then, DOJ has also entered into five additional stipulations with the county that outline further steps that the county has agreed to take to correct serious problems in staffing, medical care, food, clothing, and sanitation at the facility.
In the 17 years since Congress enacted CRIPA, there have been investigations into 73 juvenile correctional institutions. Seventeen of the investigations were closed before any litigation ensued, because DOJ concluded that a pattern or practice of unlawful conditions did not exist or because the facility closed its doors.27 There are presently 22 ongoing juvenile detention and treatment center investigations under CRIPA.28 The Division is also monitoring conditions in 34 juvenile correctional facilities through consent decrees in Kentucky, New Jersey, and Puerto Rico. The consent decree filed in Kentucky includes all 13 juvenile treatment facilities in the State.29 The consent decree in New Jersey is with one facility and in Puerto Rico with 20 facilities.30
Recent CRIPA consent decrees covering juvenile detention, correctional, and treatment facilities are comprehensive and address a broad range of conditions. For example, in November 1995, a Federal court in Kentucky ordered a CRIPA consent decree that was negotiated between DOJ and State officials to remedy serious deficiencies in Kentucky's 13 juvenile treatment facilities. The decree required the State to take a number of steps to protect juveniles from abuse, mistreatment, and injury; to ensure adequate medical and mental health care; and to provide adequate educational, vocational, and aftercare services. Another CRIPA consent decree, ordered by a Federal court in Puerto Rico in October 1994, addressed life-threatening conditions at eight juvenile detention and correctional facilities. These dire conditions included juveniles committing and attempting suicide without staff intervention or treatment, widespread infection control problems caused by rats and other vermin, and defective plumbing that forced juveniles to drink from their toilet bowls.
CRIPA is an underutilized tool for improving conditions in juvenile correctional institutions. Although the statute was designed to address unconstitutional and illegal conditions in publicly operated institutions, and specifically mentions juvenile facilities, until recently little activity has occurred in this area. The Division should devote even more resources to CRIPA investigations of juvenile institutions and should continue to use CRIPA to address the mental health and disability needs of young people in State custody as well. Almost half of the juveniles who are incarcerated have identifiable mental health disabilities, including mental retardation, learning disabilities, and emotional and behavioral disorders.31 The civil rights of disabled youth in custody can be upheld by using CRIPA.
The Division does not receive many complaints from detained or incarcerated juveniles or families of juveniles in State custody. This is not because problems do not exist in juvenile institutions, but because there is a lack of awareness about CRIPA. Advocates and practitioners need to take the lead in understanding and utilizing CRIPA and alerting DOJ to possible patterns of unconstitutional conditions in juvenile facilities. Informing advocacy groups and families about the effectiveness of CRIPA can be the first step to safer conditions for youth in custody.
Advocates and parents alike should bring evidence of unlawful systemic conditions and abuses at juvenile detention and correctional facilities to the attention of the Special Litigation Section, Civil Rights Division, DOJ. Simply bringing this information to the Division can have a tremendous impact. In one instance, a single advocate acting on behalf of his young client set in motion a process that led to statewide, broad-based reforms in the juvenile detention and correctional facilities.
On January 4, 1994, a 17-year-old boy was picked up on a burglary warrant and abruptly removed from a hospital where he was being treated. The next day the attorney appointed to represent the boy discovered that his client could not be guilty because he was in the State's care at a secure residential center at the time of the crime. The charge was dismissed and the social worker indicated that the boy would be returned to the treating hospital. Instead, after waiting 2 hours, the boy was inadvertently loaded into a van in shackles and handcuffs and taken to a maximum security facility.
The boy's attorney wrote a letter to the State agency responsible for his care protesting his client's treatment and demanding a more appropriate placement. The local newspaper also ran an article about the boy's story. These pieces of information sparked an internal agency investigation and immediate action by the commissioner of social services to find a more suitable placement for the boy. The boy was then removed from maximum security.
A few months later, in April 1994, a report of the internal agency investigation revealed that there was reason to believe some residents at the maximum security facility had been abused by staff, that complaints of mistreatment were intentionally suppressed, and that some staff members behaved in a racially biased manner. The team of investigators recommended corrective actions such as having an independent group make unannounced visits to all residential centers, doubling efforts to make sure residents understand their rights and the proper way to file complaints, training all staff members in cultural diversity, and constructing a new juvenile center for serious offenders to replace the antiquated maximum security facility.
Despite State efforts to overhaul the system, the newspaper continued to reveal allegations of abuse and outbreaks of violence at juvenile facilities in the State. In February 1995, after receiving complaints from advocacy groups and seeing news reports of abuse at five juvenile facilities, DOJ launched its own investigation under the authority of CRIPA and the Violent Crime Control and Law Enforcement Act of 1994 to determine the veracity of alleged civil rights violations at the facilities.32 Many State officials and child advocates welcomed the Federal investigation. The agency administrators, who had ordered the initial independent investigation of the facility, wrote to the Assistant Attorney General of the Civil Rights Division pledging the agency's full cooperation and sent a memo to the facility directing staff to cooperate.
On November 13, 1995, under the authority granted by CRIPA, U.S. Attorney General Janet Reno and the Governor of the State signed an agreement to improve conditions at the State's juvenile treatment facilities. The agreement is anticipated to cost the State $17 million over 2 years.
According to the agreement, allegations of abuse will now be investigated by the Special Investigations Division in the State Office of the Inspector General. The State will provide more treatment and aftercare services, and each child will have an up-to-date treatment plan. Juveniles who are taking medication for mental illness will be seen by psychiatrists, and psychiatric services will be provided onsite each week. The State will offer special educational and vocational treatment. Juveniles will not be placed in isolation for punishment or staff convenience, juveniles in isolation will be monitored, and all isolation decisions will be reviewed to determine their appropriateness.
The State has submitted status reports, and a monitor has been appointed to oversee compliance with the agreement. All of these improvements in this State's facilities for juveniles were sparked by the advocacy and information sharing efforts of a single advocate. This is just one example of the work that can be done with CRIPA.
Youth detained in detention and correctional facilities have specific rights that protect them from dangerous conditions and practices of confinement. CRIPA can be a useful tool in eliminating these unlawful conditions of confinement, as it was enacted by Congress to provide the Civil Rights Division of DOJ with the authority to protect the rights of institutionalized youth in publicly operated facilities. Although CRIPA ensures that laws establishing the rights of confined youth are not violated by juvenile facilities, it is underutilized. CRIPA can be used to uphold civil rights and address the mental health and disability needs of youth in State custody; almost half of the juveniles who are incarcerated have identifiable mental health disabilities, such as mental retardation, learning disabilities, and emotional and behavioral disorders.
Informing advocacy groups and families about the effectiveness of CRIPA is the first step to achieving safer conditions. Parents, advocates, and juvenile justice practitioners need to play a key role in bringing information about harmful or unlawful conditions to the attention of DOJ by calling or writing to urge the Civil Rights Division to take action. By bringing this information forward, DOJ's review and investigative processes may be set in motion to determine if Federal rights are being violated. Community awareness of unlawful conditions can be raised by contacting local media, civic organizations, and child advocacy agencies.
Readers are invited to contact the American Bar Association Juvenile Justice Center to get more ideas about advocacy strategies under CRIPA. Immediate concerns regarding hazardous conditions and practices of detention and confinement should be directed, preferably in writing, to:
Special Litigation Section, Civil Rights Division