11.9 Litigation Concerning Conditions of Confinement

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

11.9 LITIGATION CONCERNING CONDITIONS OF CONFINEMENT

11.901 Introduction. Litigation attacking the conditions of confinement for juveniles in secure institutions has been more frequent and more successful in recent years. Courts are understandably sensitive to claims that children are being mistreated in institutions intended for their rehabilitation and treatment, and class action litigation premised on mistreatment or dangerous conditions is far more successful than the somewhat more theoretical "right to treatment" cases. ⁴⁸ Most juvenile institutional litigation can be grouped into categories that fit into a mnemonic device developed by the Youth Law Center and the National Center for Youth Law. The initials C.H.A.P.T.E.R.S. stand for issues categorized as: classification and separation issues; health care; access; programming; training and supervision of employees; environmental issues; restraint, punishment, and due process; and safety issues. Most cases fit neatly into one of these eight groupings of concerns. ⁴⁹

11.902 Classification and Separation. Questions regarding classification and separation of juveniles in institutions generally focus on issues of age, gender, race, category of offense, or propensity for violence. The federal Juvenile Justice and Delinquency Prevention Act focuses on age and category by prohibiting the mixing of juveniles and adults in the same institutions in most instances and preventing the joint incarceration of delinquents

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and status offenders. ⁵⁰ Other cases have examined the segregation of institutionalized juveniles based on gender or race, with the latter being the greater concern. ⁵¹ A more traditional concern is the mixing of violent and nonviolent juveniles in the same facilities or cottages of an institution. ⁵²

11.903 Health Care. Courts have been concerned with a variety of health care issues. First is the presence or absence of admission screening for health and psychological problems and risks, a concern that has grown with the increase in HIV-positive youths. ⁵³ Courts are also troubled by the lack of medical and psychological services for young people in the institutional setting. ⁵⁴ A further problem involves the dispensing of medications, including psychotropic drugs, that are used more for institutional control than for treatment of a medical condition. ⁵⁵

11.904 Access to Counsel. Juvenile institutional litigation that focuses on access to counsel has been more successful than similar cases involving adults because of the expectation that the child will be successfully reintegrated into the family upon release and, generally, after a shorter period of incarceration. ⁵⁶ The courts are also concerned about access to counsel and the courts because it is rare to find a "jailhouse lawyer" in a juvenile correctional facility. ⁵⁷

11.905 Programs. Access to programs in correctional and detention facilities is a prominent issue in juvenile litigation because of the rehabilitation

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and treatment focus of the juvenile justice system, and because incarcerated youths, unlike many adults, are still entitled to educational services. Much of the litigation focuses on the right of educationally handicapped and emotionally disturbed young people to obtain needed services. ⁵⁸ Other cases have addressed issues such as (i) access to exercise and recreation, noting that children have a special need for these activities; ⁵⁹ (ii) the use of juveniles for forced labor; ⁶⁰ and (iii) compelled participation in religious activities. ⁶¹ The Americans with Disabilities Act of 1990 ⁶² applies to inmates in state correctional facilities who are denied admission to a program because of a disability. ⁶³ In addition, juveniles with educational disabilities may be eligible for services and accommodations under the Individuals with Disabilities Education Improvement Act (IDEA) ⁶⁴ or section 504 of the Rehabilitation Act of 1973.

11.906 Training and Supervision of Employees. The special vulnerability of juveniles and their greater need for specialized treatment programs make it very important that staff at juvenile institutions be carefully screened, trained, and supervised. The risk that child molesters will be attracted...