Governor Paterson's Proposal Would Limit Placements in OCFS Detention Facilities

Governor David A. Patterson has proposed legislation that would limit placements in Office of Children and Family Services (OCFS) detention facilities, which have been the subject of a federal report as well as a civil rights law suit by The Legal Aid Society, charging that children confined in OCFS residential centers are subjected to unconstitutional and excessive force by members of the staff and are deprived of legally-required mental health services.

Tamara Steckler, Attorney-in-Charge of the Society's Juvenile Rights Practice, told The New York Law Journal that the governor's bill would leave judges with discretion to make needed placements.

"The most important thing about this bill is the message it sends." she said, adding that "way too many children" are stripped of their liberty for mere "social" offenses.

The New York Law Journal
Bill Would Curb Judges' Discretion to Confine Juveniles in OCFS Sites
By Jeff Storey

Family Court judges would be limited to confining only the most dangerous juvenile delinquents in the state's widely criticized youth prisons under legislation being considered in Albany. Governor David A. Paterson's proposed Program Bill 273 would curb the discretion of judges to place 7-to-15-year-old lawbreakers with the Office of Children and Family Services (OCFS).

Critics argue that many of the youths now in the institutions have committed minor crimes and do not belong in facilities where they are often mistreated and do not receive services they need to prevent them from committing further crimes (NYLJ, Dec. 15, 2009).

If enacted, the proposal could accelerate a decline already under way in the population of the residential centers. But court administrators have expressed some reservations about the bill. Moreover, unions representing OCFS workers oppose what they see as an effort to close the centers and eliminate jobs. And there is not much time left in the current legislative session to resolve contested issues.

Section 352.2 of the Family Court Act requires that youths adjudicated as juvenile delinquents receive "the least restrictive" available disposition consistent with their "needs and best interests" as well as "the need for the protection of the community."

Appellate courts generally have concluded that Family Court judges have "broad" discretion in applying this standard, discretion that allows them, depending on the circumstances, both to confine youths who have committed misdemeanors and to leave felony offenders in the community.

The Legal Aid Society last year appealed 52 Family Court dispositions but prevailed in only two cases, and "that's a lot," said Tamara Steckler, head of the organization's juvenile rights practice.

Mr. Paterson's bill could improve the odds for such challenges by tightening the standards for placing juveniles with OCFS.

The bill would prohibit Family Court judges from placing a juvenile delinquent with OCFS unless the youth has committed a violent felony or a sexual offense or "based upon the totality of the record of the respondent, background of the respondent and nature and circumstances of the offense" he or she poses a "significant risk" to public safety and "no less restrictive alternative to placement with the office is available or appropriate to mitigate such risk."

Judges who did order placement with the state agency would be required to spell out why their action is "warranted."

Mr. Paterson's bill, described in an accompanying memo as a step toward "transforming the juvenile justice system," also would create a "juvenile justice advocate" to monitor the quality of care provided youths in OCFS. The advocate would be independent of OCFS and Ms. Carrion, reporting directly to the governor. He or she would have the authority to issue subpoenas, inspect OCFS facilities, prepare reports and make recommendations to correct abuses.

The governor's proposal is not the only one before the Legislature, although its language is the most specific. Another bill, A10449/S06709, sponsored by Senator Velmanette Montgomery, D-Brooklyn, and Assemblyman Joseph R. Lentol, D-Brooklyn, would bar placement unless a judge found that probation or a conditional discharge would not be an appropriate disposition if the youth "poses a significant risk to public safety." The bill passed the Senate Tuesday.

OCFS Commissioner Gladys Carrion has been pushing for a more community-based "therapeutic" approach to delinquency, and the agency supports the governor's bill. However, a spokesman said the agency is studying the ultimate impact the proposals would have on OCFS.

As of June 2, according to the agency, only 18 percent of the 1,668 juvenile delinquents in its custody at both state and privately operated facilities had committed either a violent felony or a sexual offense. OCFS reported that, as of the end of 2008 at state-run facilities, 509 youths had committed crimes against persons, 288 had committed crimes against property and 156 had committed other crimes, including drug offenses. 'Significant Risk'

The proposal to change placement standards mirrors a recommendation of a task force appointed by Mr. Paterson that the law be changed to permit institutional placement only where there is a "significant risk" to public safety and "even then, only when no community-based alternative could adequately mitigate that risk."

The task force reported that the provisions of current law prescribe only "general considerations" for judges. It said the provisions "do not expressly recognize institutional placement as a significant deprivation of liberty that should be used sparingly. Nor do they help decide when such placement is appropriate."

John Jay College President Jeremy Travis, who chaired the task force, said in an interview that its investigation disclosed that "judicial discretion is often abused in these cases" by judges who think placement "would be good" for the youths who appear before them.

According to the report, "judges faced with young people who have specific treatment needs, such as mental health or substance abuse issues, regularly choose institutional placement because they believe those facilities are the only place where needed services are available."

'Something of an Issue'

Chief Administrative Judge Ann Pfau (See Profile), although welcoming increased oversight of OCFS, said the deletion of the juvenile's "best interests" from the proposed placement standard and its stress on specified crimes was "something of an issue." She said the courts, which were not consulted about the governor's proposal, would prefer "a more holistic approach" that gives judges more flexibility. In particular, she said, "we need to focus on alternatives."

Judge Pfau said that judges who send youths to OCFS are well aware of the conditions inside the agency facilities but frequently cannot find any alternatives. The shortage of "available" options is particularly acute upstate, she added.

Another bill—A10253/S06711 sponsored by Ms. Montgomery and Assemblyman William Scarborough, D-Queens, which also passed the Senate Tuesday—would increase reimbursement to localities for community-based alternatives.

The governor's bill makes no reference to the issue. Instead, the bill memo says the measure "is not expected to have a material impact on State finances."

Mr. Lentol said he hopes the governor will support the needed funds for alternatives although he has no "assurances" of that.

"You can't just close down facilities to save money without spending money to provide the alternatives," he said. "That would be foolhardy."

Mr. Travis said the governor's budget for alternatives "was a disappointment," although he hopes that more money may be made available in ongoing negotiations with the U.S. Justice Department in connection with a report by the federal agency that disclosed civil rights violations at four OCFS facilities.

Meanwhile, OCFS unions have argued that the state would be better advised to beef up services at residential centers, rather than assigning juvenile delinquents to community programs.

The Public Employees Federation, in a memo opposing the governor's bill, insisted that "New York does not have the infrastructure of alternative community based programs that are capable of handling youths with the complex problems that typically result in residential placements."

The union charged that "adding more rigid language" to placement standards "only serves to tie the hands of Family Court judges."

By contrast, Ms. Steckler of Legal Aid said the governor's bill would leave judges with discretion to make needed placements.

"The most important thing about this bill is the message it sends." she said, adding that "way too many children" are stripped of their liberty for mere "social" offenses.

The bill would take away "a little of our discretion, but it is not black and white," said Westchester County Family Court Judge Kathie E. Davidson (See Profile), the supervising judge in the Ninth Judicial District. "We still get a little leeway."

But the Corporation Counsel's Office, which is responsible for prosecuting juvenile delinquents in New York City, the source of 60 percent of OCFS placements, also has expressed qualms about the bill's underlying philosophy. The proposed requirement that youths pose a "significant risk to public safety" before they can be placed "holds the potential for severely undermining the credibility" of alternate programming, Lawrence Busching, then head of the Family Court Division of the Corporation Counsel's Office, wrote in a February response to the report of the governor's task force.

Mr. Busching noted that many youths violate the terms of the probation sentences that allow them to remain in the community. He wrote that the "courts still need to have the ability to provide incentives for compliance and the ability to maintain public order."

Some judges have suggested that passage of the governor's bill might even alter the approach of prosecutors to juvenile delinquency cases.

"Unintended consequences of the statute may include elevated charging decisions by the corporation counsel and less plea bargaining, which will place a greater burden on the court," said Brooklyn Family Court Judge Lee Elkins (See Profile), who supports the measure.

The Corporation Counsel's Office declined to comment on the bill, and the mayor's office did not answer calls for comment.

Whatever the fate of the bill, judges have become increasingly reluctant to consign youths to the custody of OCFS, and the population of its centers likely will continue to dwindle.

Judge Elkins said that most judges already follow "similar standards," although the measure would promote more uniformity.

According to Mr. Busching, New York City has spent "millions" to promote alternatives and reduced its placements by 30 percent from 2004 to 2008. The state-run facilities housed 550 city youths in 2008.

Judge Davidson acknowledged that the bill might "pose challenges" for some courts who would have to "dig a little deeper" to find alternatives to OCFS.

"It's what we are supposed to do anyway," she said.

The proposed new standard would not alter the way the courts operate in Onondaga County, said Martha Walsh Hood (See Profile), supervising judge of the Family Court in the Fifth Judicial District.

Recognizing that the juvenile justice system is "really horrendous," Judge Hood said the courts, the police, the probation department and other local agencies in Onondaga County, have made a concerted effort to keep youths in the community, driving down placements to OCFS from 64 in 1998 to only three last year.

"We're already there," the judge said.