Use of Ombudsman Programs in
Establishing ombudsman programs to oversee juvenile correctional institutions can help protect the rights of youth in custody. An "ombudsman," a Swedish word meaning "representative," is a person or body that protects citizens against governmental abuses.33 Originating in Sweden, ombudsman programs are designed to help resolve citizen complaints against public officials sympathetically and informally. An ombudsman cuts through red tape to investigate allegations and find remedies when citizens' rights have been violated. Nations such as Sweden and Australia appoint an ombudsman to receive and investigate complaints made by individuals against abuses or corrupt acts of public officials.
Although a nationwide ombudsman has not been established in the United States, narrowly tailored ombudsman programs have been created to monitor specific areas of government service such as child welfare, corrections, long-term care, and workers' compensation. Within the juvenile corrections context, ombudsmen can provide a voice for children who are detained in public facilities. Ombudsmen can monitor conditions and service delivery systems, investigate complaints, report findings, propose changes, advocate for improvements, access appropriate care, and help to expose and reduce unlawful deficiencies in juvenile detention and correctional facilities. In addition to addressing unlawful conditions or practices, a juvenile corrections ombudsman could serve as an important link between the court, the community, and the correctional facility.
A growing number of States have established ombudsman offices to address problems confronting children in out-of-home care. Many of these children have limited access to attorneys and advocates who might help them resolve disputes, conduct investigations regarding unlawful practices, or help obtain services to which children are statutorily entitled. Ombudsman programs can educate the public about unlawful conditions, leading to fewer abuses.
The effectiveness of ombudsman programs depends on their method of enactment, degree of autonomy, staffing, funding, statutory authority, and functions. Ombudsman programs can be enacted through legislative, executive, or judicial authorization. Each method has its pros and cons and provides a different level of autonomy. Legislative enactment usually provides the ombudsman with independence from executive and agency control and can facilitate a working relationship with the legislature, but may also invoke less agency cooperation. An executive authorization that establishes the program within the agency invites greater agency cooperation and access to information, but may also subject the ombudsman to undesirable executive and agency control. A judicial authorization can quickly establish an ombudsman program that retains independence from agency and legislative agendas; however, this method may fail to retain the vital support (fiscal and otherwise) of the legislature or the agency.
The method of enactment determines the ombudsman program's dependence on or independence from the legislature, the agency, and the judiciary. The independence of the ombudsman from the agency is especially important in the juvenile corrections context where the interests of the juvenile corrections agency often conflict with the interests of the detained or confined youth. To ensure a relatively autonomous ombudsman program, the decision of which method of enactment to use should be made in light of the existing relationships between correctional facilities, service providers, defense attorneys, legislatures, advocates, and the judiciary. One way to facilitate the independence of an ombudsman program is to authorize the appointment of the ombudsman by the Governor with confirmation by the legislature. This structure provides both executive and legislative branch involvement in the appointment and governance of the office, while diminishing the ability of one branch to control all aspects of the program.
Other factors to consider when developing an ombudsman program include staff qualifications and fiscal resources. An ombudsman program should be structured around a staff qualified to address the diverse range of issues that arise in the context of juvenile corrections. Staff with legal expertise can address allegations of rights violations, assess whether allegations are substantiated, and decide whether formal legal action is necessary to remedy violations. Similarly, staff with social work and educational expertise are needed to monitor and make recommendations about the adequacy of treatment and education programs.
With a qualified staff, an appropriately funded program can establish a central office that coordinates all major assessments and investigations and delegates day-to-day monitoring to satellite offices at each juvenile facility. The satellite office can maintain a presence at the institution, handle minor complaints, investigate allegations, and serve as a funnel to refer complaints to the central office. This structure enables the ombudsman program to handle daily concerns of the residents while allowing for the more thorough assessment and planning needed to initiate long-term procedural and substantive reforms in facilities.
Once an ombudsman program has been enacted with sufficient autonomy, staffing, and funding, the ability of the ombudsman to effectively monitor agency activities depends upon the ombudsman's statutory authority and functions. To provide a voice for detained and confined juveniles, an ombudsman program must have sufficient authority to carry out investigations and enforce, by some means, proposed improvements. Carrying out investigations requires that the ombudsman have access to youth, documents, records, and witnesses and subpoena power in case necessary information is not forthcoming. After completing an investigation, the ombudsman must deliver recommendations and formal complaints to juvenile justice administrators and, in some cases, the legislature. To enforce solutions, the ombudsman must have the power to initiate formal proceedings when other less formal measures do not adequately address substantiated complaints. With the authority to investigate and enforce, the ombudsman can initiate changes through informal agreements with agency administrators or can enter into more formal challenges through litigation.
Ombudsman programs can serve a variety of functions, including investigating allegations, monitoring facilities, conducting research, educating the community, providing recommendations for improvements, and, if necessary, bringing litigation. Investigating complaints includes talking to residents and witnesses, reviewing records and files, and visiting sites mentioned in complaints. The complaints can range from allegations of physical abuse and inadequate conditions to a simple lack of communication between residents and staff. The ombudsman should first try to resolve substantiated allegations informally through negotiations. Sometimes litigation can be avoided by providing an opportunity for the facility administrators and staff to collaborate with advocates, attorneys, mental health professionals, parents, and others interested in creating a lawful and safe environment for detained and committed youth. However, if informal proceedings do not lead to satisfactory results, then formal measures must be taken to remedy the violations. An ombudsman with the authority to bring litigation has a much better chance of negotiating an informal agreement with the facility.
Playing an active role in the legislative and public education processes is also an important function of ombudsman programs. Reviewing legislation, testifying on legislative proposals affecting children, publishing reports, convening public hearings, and participating on community boards and commissions enable the ombudsman to affect and oversee government and community actions that impact youth in custody.
Finally, since budget constraints impact the quality of an ombudsman program, it is important to maximize all available resources. Existing programs and persons interested in setting up new ombudsman programs should stay abreast of funding opportunities that may be available through Federal and State appropriations or foundation grants. For example, in fiscal year 1995, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) offered States "Challenge Grant" money that was earmarked for 10 specific activities, 1 of which included:
Tennessee and Maryland were awarded this funding in the spring of 1996 and established ombudsman programs in their States that oversee juvenile detention and correctional facilities.
Using interns and law clerks from local law schools and universities can also be an effective way of enhancing an ombudsman program. With proper training and supervision, students can be placed at facilities, conduct investigations, address minor complaints, provide information, and refer appropriate complaints to the central office.
Different models of ombudsman programs, with varying autonomy, staffing, authority, functions, and funding, currently exist in the United States. Some of these ombudsman programs are tailored to distinct areas of service and may only act within their specific authorizations. Their methods of operation, however, are illustrative of the type and scope of programs that can be made available to address infractions within detention and correctional facilities for youth.
More than 25 child welfare ombudsman programs exist in the United States today. These ombudsman programs oversee child welfare agencies to ensure responsive, effective delivery of care and to monitor improvements in deficient areas. "Ombudswork," as it is sometimes called in the child welfare system, includes educating the public about various child welfare activities and the rights and needs of children.
As described above, these programs have been enacted either through the legislative process, executive order, or judicial decree. Despite the pros and cons that exist for each method of enactment, most programs report that they have had a tremendously positive impact on the way services are provided to youth in State care. The Office of the Child Advocate (OCA) in Rhode Island, for example, is an independent State agency and one of the few ombudsman programs that has the authority to oversee child welfare and juvenile justice out-of-home placements.35 The Rhode Island statute has been interpreted to mean that OCA has the power to do whatever is necessary to protect the rights of children. The office was originally established in 1980 to oversee the care of children who became involved with the State's Department of Children, Youth, and Families (DCYF). Because of unmet needs in securing quality care for all youth in Rhode Island, the powers and work of the office expanded.
Appointed by the Governor with consent of the State legislature, OCA's primary duty is to ensure that children in protective custody or care are afforded their legal rights. OCA reviews both the procedures used by the agencies and the implementation of these procedures in individual cases. Other functions of the office include receiving and processing complaints regarding the delivery of DCYF services; investigating and inspecting agency records and facilities; and subpoenaing testimony, evidence, and witnesses. The office also conducts reviews in response to allegations of institutional abuse or neglect.
Investigations have occurred at the Rhode Island juvenile correctional facility in response to the public defender bringing allegations of abuse to OCA's attention. The most powerful tool of OCA is the ability to bring legal action to safeguard the rights of children. OCA brought a successful suit against the juvenile correctional facility in 1989 for the practice of putting children on waiting lists for special education services. As of 1995, both monitoring of and compliance with the court orders continued.36
Ombudsman programs have also been successful at improving conditions in adult correctional institutions by monitoring the relationship between inmates and prison officials. Programs are designed to protect the rights of inmates and staff and to ensure safe and humane conditions. Correctional ombudsman's duties include addressing complaints from staff and inmates, seeking corrective measures, providing recommendations, and submitting reports to the Governor and legislature when requested.
The success of adult correctional ombudsman programs depends upon the ombudsman's authority to pursue remedies and ability to manage the competing interests of prisoners and officials. If inmates do not feel that the ombudsman has the ability to address their complaints adequately, they will be reluctant to be cooperative. Additionally, if prison officials feel that the ombudsman is unreasonable, they will be unwilling to implement recommendations and may provide further obstacles to safeguarding prisoners' rights. Statutory authority must be exercised carefully in order to maintain balanced relationships among correctional administrators, staff, and inmates. This "balancing act" between service providers and receivers is evident throughout all ombudsman programs.
An adult correctional ombudsman program in Minnesota is an example of the positive achievement that can result from creating a program in correctional facilities. The ombudsman offers inmates an outlet for complaints about prison conditions and treatment and clarifies procedures and regulations, thereby reducing the tension within the prison facility. Standard functions of the ombudsman include conducting investigations, making recommendations, submitting an annual report to the Governor, and providing information to the legislature as requested. The ombudsman is appointed by the commissioner of corrections, but the office of the ombudsman remains independent of the Department of Corrections (DOC). The success of the program stems from its ability to respond quickly and effectively to complaints or requests. Most issues are handled informally, because of the effective working relationship that exists between the ombudsman and DOC. Recommendations made by the ombudsman about various prison policies have resulted in several positive policy changes. As a result of its ability to work effectively with inmates and with DOC, the Minnesota correctional ombudsman program has produced a more secure and humane prison environment while reducing costly lawsuits.37
Well-documented deficiencies in conditions of detention and confinement for youth can be exposed and addressed through juvenile justice ombudsman programs. The Director of the New York Division of Youth appointed an ombudsman to serve residents of juvenile facilities. Visiting facilities and hearing complaints and grievances from residents has enabled the ombudsman to determine when an investigation is warranted and then act as an investigator, youth advocate, and reporter. Although the ombudsman does not have the authority to initiate disciplinary proceedings against the facilities, the ombudsman can issue a report with recommendations about how to improve conditions.
Other duties of the juvenile justice ombudsman include monitoring the implementation of policies and regulations and providing information to youth on their rights. The ombudsman has access to all Division of Youth records and information and must be apprised of any and all critical incidents occurring at the facilities. The ombudsman also takes steps to ensure that youth are provided with adequate legal counsel when appropriate. Although the ombudsman acts within the Division of Youth and lacks the authority to bring formal complaints, the ombudsman has fostered communication and initiated systemic accountability.
Another juvenile justice ombudsman program, called the Juvenile Services Program (JSP), is operated by the Public Defender Service of the District of Columbia. JSP assigns an attorney to monitor the conditions and treatment of residents in juvenile detention and correctional institutions. JSP's functions include referring complaints to appropriate sources, representing residents in institutional disciplinary hearings, advocating for the rights of residents, providing information to residents, assisting residents and their attorneys during the placement and aftercare process, and ensuring that residents have contact with their attorneys. Investigation is a limited function of the program because JSP does not have the authority to compel cooperation with its efforts.
Widespread use of juvenile justice ombudsman programs would allow monitoring of institutions to ensure that conditions are safe, lawful, and humane; that rehabilitative services are being delivered; and that the rights and needs of juveniles are protected. Additionally, a juvenile justice ombudsman could provide an ongoing independent assessment of facility deficiencies and an avenue of public accountability.
Ombudsman programs in juvenile detention and corrections can:
Apart from these formal functions, an ombudsman program would also provide compassion and sensitivity to the issues faced by youth in custody. Many problems in institutions are not serious violations, but are extremely important to incarcerated youth. Issues that may seem simple, such as obtaining an extra blanket, arranging a unit transfer, remaining in a specific institution or treatment program, receiving assistance in a disciplinary hearing, or obtaining contact with an attorney or family member, can have far-reaching ramifications for youth in custody. Having a mechanism to address these less blatant problems provides an avenue for responding to problems and issues before they escalate and become more widespread or serious.
When creating juvenile ombudsman programs, it remains important that they have sufficient autonomy and appropriate staffing, funding, authority, and functions. A well-established program can have a tremendously positive impact on the services received by detained and incarcerated youth.