Testimony of Ronald S. Sullivan Jr., Esq. Director Public Defender Service for the District of Columbia before the United States Senate Committee on Appropriations Subcommittee on the District of Columbia for the Review of Deficiencies at the District of Columbia’s Youth Services Administration Hearing
March 30, 2004
Good afternoon, Mister Chairman and members of the Subcommittee. My name is Ronald S. Sullivan Jr., and I am the Director of the Public Defender Service for the District of Columbia (PDS). I come before you today to provide testimony on the experience of the Public Defender Service as one of the lead counsels representing the plaintiffs in Jerry M., et al v. District of Columbia. The complaint was filed 19 years ago this month. Too many years have elapsed, too many hearings have been held and too many court orders and findings of contempt have been entered for me to give a full recitation of the history of this case in my allotted time. Suffice it to say, from the perspective of the youths we represent, a full recitation would have very few highlights and too many lowlights in the story of how the District has served them. For context, I will give a cursory chronology, focusing mainly on the events of the past year.
The Jerry M. class action litigation began in March of 1985 with the filing of a complaint challenging the District’s failure to provide the children housed at its Oak Hill facility with adequate care and rehabilitation services and seeking relief on behalf of a class of children then being detained at Oak Hill. In July of 1986, the parties entered into a lengthy Consent Decree. As part of the Consent Decree, a Monitor was appointed to assess the District’s compliance with its commitments. In the almost 18 years since the parties entered into the Consent Decree, the case has been assigned to three different judges. These judges, using the Monitor’s reports as a basis, have separately found the District out of compliance with the Consent Decree on a number of occasions. Each judge has also been forced to enter a series of enforcement and other orders.
One particularly notable order entered by Judge Urbina stemmed from the Consent Decree provision that called for a panel of experts to determine (1) the number of secure beds the District was to plan for, and (2) the types of community-based services the District would be required to create. The goal of this continuum of services plan was to reduce the population in secure confinement and provide viable community-based alternatives for delinquent children. The findings of the original panel were incorporated into the Consent Decree by Memorandum Order B. Based on the recommendations of the expert panel, the Judge ordered that the District draft a plan for a juvenile system in which no more than 42 youth are securely detained and no more than 60 committed youth are securely confined. Memorandum Order B also requires the District to create specific community-based programs such as staff secure shelter houses, therapeutic groups homes, foster care for delinquent youth, and a vocational program with residential beds.
The case is currently before the Honorable Judge Dixon. In September 2002, Judge Dixon held a hearing requiring the District to show cause why it should not be held in contempt for failing to comply with six specific provisions of the Consent Decree. These provisions involved the adequate training of staff, the quality of the assessment and diagnosis of the children, the existence and quality of the pre-release unit, and the sufficiency of exercise provided to the children at Oak Hill. Two months later, in November 2002, plaintiffs filed an emergency motion alleging that the District was failing to comply with two additional provisions involving overcrowding in the girls’ unit and the staffing of a program called Project Hands. In June 2003, Judge Dixon ruled on the September 2002 hearing, finding that the District was in violation of the Consent Decree. He found that there was a lack of proper training of the Oak Hill staff and inadequate supervision of the staff. In addition, he found inadequate coordination between the teams that are responsible for assessing the treatment needs of the youths when they enter the facility and the teams that are responsible for delivering the treatment. Finally, Judge Dixon found the District was failing to comply in the area of providing adequate facilities prior to a youth’s release from confinement. Judge Dixon held the District in contempt and imposed monetary sanctions. However, the judge also allowed a grace period during which the District was to cure the violations. The grace period was different for each violation, but the last grace period expired in mid-September, 2003. At the end of each grace period, the District filed notices claiming to be in compliance with the disputed Consent Decree provisions.
In September 2003, Judge Dixon held an evidentiary hearing on the plaintiffs’ November 2002 emergency motion asking that the District be found in contempt for failing to comply with the Consent Decree by having an overcrowded girls’ unit and improperly staffing Project Hands. In addition, the hearing was to address the question of whether the District had cured violations with respect to the pre-release unit at Oak Hill. Judge Dixon has not yet ruled. In October 2003, Judge Dixon had a hearing to determine whether or not the District had come into compliance with the Consent Decree provisions concerning staff training, staff supervision, and coordination between assessment staff and treatment staff. On October 6, 2003, in anticipation of the coming hearing, the Monitor issued a report finding that the District remained out of compliance with respect to each of these issues. In December 2003, plaintiffs filed a motion requesting the court appoint a transitional receiver. Judge Dixon held a hearing on the receivership motion in February 2004.
I should draw attention to one other aspect of the litigation. The District has liked to point to the school at Oak Hill as one area in which it has managed to come into compliance. While the school is currently a bright spot at Oak Hill, the District is neither in full compliance with the Consent Decree nor does it deserve full credit for what has been achieved. In June 1997 the Court, at the time Judge Levie, found the District in contempt of the education provisions of the Consent Decree and appointed Dr. Peter E. Leone as special master for education. Dr. Leone was the receiver for education at Oak Hill from 1998 to 1999 and was able to help the District significantly in complying with the Consent Decree regarding Oak Hill’s education system. At the receivership hearing, Dr. Leone pointed to five main areas of achievement during his tenure as educational receiver at Oak Hill: (1) academic achievement; (2) school climate; (3) human resources; (4) fiscal resources; and (5) leadership.
Despite the great strides made by Dr. Leone, the educational system at Oak Hill is still not in complete compliance. For example, there remain significant problems with nonattendance by some units and a lack of sufficient YSA programs to reintegrate youth at Oak Hill into the community education system upon their release. Dr. Leone testified at the receivership hearing that residents in the disciplinary unit and in the girls’ unit are not getting standard educational services because of poor coordination among various departments at Oak Hill. Moreover, the Monitor in his latest report found that, while YSA contracts with the University of the District of Columbia for vocational classes for the boys, there are no equivalent programs for girls.
The Public Defender Service believes that the accomplishments of Dr. Leone as the receiver for education at Oak Hill demonstrate what a receiver could accomplish for the whole system. And the whole system is in need of repair. Just prior to the hearing on the receivership motion, the Jerry M. Monitors issued their 51st report on the District’s compliance with the Consent Decree, evaluating the prior six months. The Monitor’s most recent findings exemplify the history of the District’s failure to meet its responsibilities to the youth entrusted to its care. The Monitor found the following:
- The District was out of compliance with 81 of the Consent Decree’s provisions and in compliance with only 95. See Exhibit 1.
- The District decreased its level of compliance in 19 Consent Decree provisions.
-The prior six months were a “microcosm” of the past almost 18 years of the District’s failed efforts to comply with the Consent Decree, as demonstrated by the latest leadership void which exists at YSA and the lack of both a permanent Superintendent and an Assistant Superintendent in charge of treatment at Oak Hill. While the District appointed two lawyers – Marceline Alexander and Mark Back – from the Office of the Corporation Counsel, to assume the mantle at YSA on an interim basis, neither Ms. Alexander, who is currently the Interim Administrator for YSA, nor Mr. Back, who is her special counsel, have any juvenile justice experience.
-Accordingly, there were few efforts to move towards compliance except for last-minute actions that seemed “driven by the fact that a hearing was imminent” rather than a real effort to make positive change in the manner in which District children are being treated and rehabilitated.
Our contention in the receivership motion and at the hearing was this -- the District has been given 18 years to comply with the Consent Decree, and, despite extensive litigation, sixty-five court orders, and multiple findings of contempt, has failed to do so. Accordingly, the Plaintiffs requested that the Court appoint a transitional receiver to assume control of YSA until the Consent Decree’s mandates could be met and maintained. Plaintiffs’ motion noted numerous examples of non-compliance, including YSA’s failure to follow a suicide prevention plan for youth at Oak Hill, its failure to address the recurring violence against securely confined children by both Oak Hill residents and staff, the commingling of detained and committed children, overcrowding, and the ongoing environmental problems at Oak Hill, including lack of proper heating and cooling and lack of pest control.
The Defendants responded that the Court did not need to take the extraordinary step of appointing a receiver because, in essence, the District was making “incremental progress” in complying with the strictures of the Consent Decree and because appropriate leaders were now again in place to ensure that YSA could continue to plan to make reform efforts. Judge Dixon held the hearing on the motion for a transitional receiver February 23 –25. At the hearing, the Plaintiffs presented comprehensive evidence of the failings of YSA to create a safe environment for children at Oak Hill and the specific failings of the District’s efforts to comply with the 1986 Consent Decree, arguing that the District’s claims of incremental progress were dubious since the Defendants had been given ample time to comply and that it was now time for the Court to intervene and secure final compliance. The primary witness for the Plaintiffs was Paul DeMuro, an expert in juvenile justice and child welfare services. He testified that the District had failed to comply with the decree and that the Court should appoint a receiver because the District had (1) failed to protect youth committed to YSA from harm; (2) failed to implement an effective classification and treatment program at Oak Hill, such that residents suffered long periods of lockdown, detained and committed and low and high-risk youth are intermingled, treatment is not tailored to a youth’s particular needs, and substance abuse treatment is inadequate; (3) failed to develop an effective system of management and quality control so that staff and programs throughout YSA can be held accountable; and (4) failed to develop and implement a viable community continuum of care, such that community-based alternatives to secure detention at Oak Hill failed due to weak supervision, substandard housing, and a lack of accountability. In fact, just as in Oak Hill, the shelter houses merely warehouse children rather than provide therapeutic services: 1) there is no clinical supervision of staff; 2) many youth arrive without school placements; 3) few children in shelter houses receive drug treatment; and 4) there is no individual or family counseling for children. Notably, in July 2002, after studying the group home and shelter house problem and in consultation with the Jerry M parties, an expert gave the District specific recommendations regarding the issuing of requests for proposals (“RFPs”) from new shelter and group home providers equipped to offer the services required by the Consent Decree. While the District, faced with a receivership hearing, finally completed RFPs for 3 new programs, it still has not fully implemented the expert’s recommendations some two years later.
The observations of our expert, the court-appointed monitor, and the Inspector General only hint at the breadth of the District’s failure to protect children at Oak Hill from harm. Violent incidents - including knife fights and assaults serious enough to result in broken jaws - occur with alarming frequency at Oak Hill. Life on the residential units at Oak Hill is quite harsh and, accordingly, not at all conducive to treatment. In one particularly disturbing incident that took place just last Fall, nine residents sexually assaulted another resident in the victim’s room.
In addition, the practice of assigning more than one child to a room has lead to the commingling of status offenders and delinquent youth, as well as delinquent and committed youth. For example, these practices led just last Summer to a child detained as a truant and runaway being housed in the same room as a youth detained on charges of negligent homicide. The District also housed in another room both a runaway and a child detained for a number of serious delinquency reasons, including armed robbery and carrying a dangerous weapon.
Not only do these housing practices violate the plain letter of the Consent Decree, but they also compromise the very safety of the children and have resulted in nothing less than the realization of everyone’s greatest fear: harm to children in the District’s custody. For example, just last year, a 12 year-old child, held at Oak Hill as an overnighter and not accused of any crime, was placed in a room with two other children. An overnighter is a child eligible for release after some police contact, but whose parents cannot be reached. The overnighter was sexually assaulted by one of the other youth. There was no indication that any staff members were supervising the youth, as staff only learned of the incident two days later. Several months later a 13 year-old was arrested and held at Oak Hill waiting for shelter house space. The 13 year-old was placed in a room with the same child that committed the prior sexual assault and another sexual incident occurred. Perhaps equally troubling is the fact that there is evidence that these types of incidents may be even more widespread than we know, as incidents at Oak Hill are underreported.
The Defendants, in response, presented District government officials at the hearing, who testified that the current leadership was adequate to begin the process of planning to comply with the 18-year old Consent Decree, quibbling with Plaintiffs’ evidence on issues such as whether the rats observed by Mr. DeMuro were in fact mice, whether Oak Hill residents suffered five or six broken jaws from July through December 2003 and whether the conceded severe drug use by Oak Hill residents actually constituted drug abuse.
The parties filed post-hearing briefs 2 weeks ago and reply briefs just last week. We are currently awaiting Judge Dixon’s ruling. While we believe that the evidence we presented at the hearing supports our request for the appointment of a transitional receiver and we are optimistic that the court will grant our motion, we would take little pleasure in this litigation win. We wish the District had the will and capacity to meet its obligations without the need to conduct protracted litigation. Indeed, our overriding vision and our goal for the past 19 years has been the provision of adequate care and rehabilitation services for the children committed to YSA. The Public Defender Service consists of a group of lawyers; we do our work in the courts. Thus, our primary way of working towards our goal is through this litigation. However, litigation is but one of many means to an end. That is why we support legislation currently before the District of Columbia Council that calls for the closure of Oak Hill and the development of smaller, community-based secure facilities in its place and requires the provision of various services to youth which the District has failed to afford to date. There are many roads to the destination of providing adequate care and rehabilitation to youth in the juvenile justice system. The Public Defender Service will be satisfied to reach that destination by any of those routes. We are not satisfied to continue to take the incremental steps forward, with many steps back that has been the history of YSA’s actions in this case.
Footnotes
1. Juveniles are “detained” when they are held pre-adjudication, before a fact-finding hearing on whether they committed the delinquent act(s) with which they are charged. Juveniles are “committed” when a judge has determined that the juveniles did commit a delinquent act and has also determined that the juveniles are in need in services to be provided by YSA. Juveniles are said to be “committed to YSA.” District Code § 16-2313(b) requires that detained youth and committed youth be confined separately.
2. Project Hands is a division of YSA that investigates allegations of staff misconduct at Oak Hill, including allegations of assaults on youth by staff.
3. In fact, over the past eight months, there have been four different YSA administrators, including Ms. Alexander; three Deputy Administrators for Secure Programs; four Deputy Administrators for Court and Community Services; two Superintendents of Oak Hill; and three Assistant Superintendents in Charge of Treatment.
